NARAYANA MISRA Vs. SURENDRANATH DAS

JUDGEMENT

(1.) DEFENDANT No.2 in as. No. 51 of 1964 -1 of the Court of the Subordinate Judge, Puri, is the Appellant against the Judgment and decree passed in the said suit. The following genealogical table will be useful in appreciating the pleading of the parties: Bhagaban Das Dinabandhu Daitari Narayan (Adopted) Narayan Gopabandhu (given in adoption) Sadananda (D.3) (adopted) = Chanchala (P.9) Saragini Kirtimayee =Ratnakar Pati =Narayana Mishra (D.1) (D.2) Surendra, Birendra, Direndra, Rabindra, Debendra, Mahendra, Prabati, Gyanendra (P.1) (P.2) (P.3) (P.4) (P.5) (P6) (P.7) (P.8) According to the said geneaology, Bhagaban Das had two sons, namely. Dinabandhu & Daitari. Narayan & Gopabandhu were sons of Daitari. Dinabandhu had one issue who died issueless & thereafter he adopted Narayana, one of the sone of Daitari. Narayana had no issue except a daughter named Radhamani. It is alleged by the Plaintiffs that Sadananda (Defendant No.3), the son of Radhamani (daughter of Narayana), was adopted by Narayan as Narayana had no male issue. Plaintiffs 1 to 8 are the sons & daughters of Sadananda & his wife is Plaintiff No.9. Gopabandhu had two daughters, namely, Sarangini & Kirtimayee. Defendant No.1, since dead & expunged from the record, was the husband of Sarangini & Defendant No.2 -Appellant is the husband of Kirtimayee. Defendant No.4 is a deity in respect of which so reliefs have been prayed for in this suit.

(2.) IN this suit the Plaintiffs have prayed for a declaration that the suit properties are the ancestral joint family properties of the Plaintiffs and Defendant No.3 which are partible. It is stated that the said properties are not debottar properties or connected with any trust. The Plaintiffs have also prayed for partition of the suit properties by metes and bounds and for making different allotments in favour of the Plaintiffs and Defendant No.3. It is stated in the plaint that the minor Plaintiffs are entitled to be maintained by Defendant No.3 and maintenance to be decreed be made a charge on the properties to be allotted in favour of Defendant No.3. The Plaintiffs have also prayed for a direction to Defendant Nos. 1 to 3 to render accounts of the income of the suit properties which they have received as trustees/marfatdars of the deity (Defendant No.4) which, according to them, have not been spent for the deity.

(3.) DEFENDANT No.2 is the husband of Kirtimayee, the daughter of late Gopabandhu who attempted to intermeddle with the suit properties. Taking advantage of his close relationship with late Gopabandhu Das, the Defendant No.2 filed a suit, i.e. O.S. No. 29 of 1946, in the Court of the Subordinate Judge, Puri, for declaring that Defendant No.3 was a mere beneficiary and has no right to interfere in the management of the suit properties. The suit was later on compromised and under the compromise the properties were agreed to be divided amongst Defendants 1 to 3 which they agreed to hold the property as marfatdars of Defendant No.4, in equal portions. The Plaintiffs allege that Defendant No.3 acted adverse to their interests by compromising that suit, as Defendant No.2 being a stranger to the family, was not entitled to any portion of the suit properties. It is stated that the said decree was, however, not executed & the possession of the entire property remained with Defendant No.3 as before. Then a proceeding under Section 145, Cr.P.C. was initiated at the instance of Defendant No.2 in respect of the suit properties & that proceeding terminated in favour of Defendant No.3, as a consequence of which his possession was confirmed. Defendant No.2 thereafter filed a suit being O.S. No. 369 of 1956 (1) in the Court of the Munsif, Puri, against Defendant No.3 for his removal from marfatdarship & in the alternative for settling a scheme of management of the property & sebapuja of the family idol (Defendant No.4). The suit was decreed in part against which two appeals were filed - one by Defendant No.3 & the other by Defendant No.2. Both the appeals were heard together & the first Appellate Court reversed the decree & dismissed the suit. Defendant No.2 thereafter preferred two appeals in the High Court, registered as S.A. Nos.219 & 262 of 1962 against the decrees of the Appellate Court. The appeals were, however, compromised in the High Court & under the compromise a small extent of property was allotted to Defendant No.4 & the balance was agreed to be divided between Defendants 2 & 3 in two equal shares. The said compromise decree has been put under execution in Execution Case No. 369 of 1961 in the Court of the Munsif, Puri The Plaintiffs contended that by entering into the aforesaid compromise, Defendant No.3 acted against the interest of the Plaintiffs. It is further alleged that the conduct of Defendant No.3 has been prejudicial to their interest & they have lost their confidence on Defendant No.3 for which he has no further right to continue as karta of the family. The Plaintiffs allege that the compromise entered into in the aforesaid second appeals was not valid & cannot affect their interest in the suit properties. They also contend that there was no valid dedication of the properties in favour of Defendant No. & assuming that there was any dedication it was nominal for which the Plaintiffs' right & interest in the suit properties remained unaffected. On these averments, the Plaintiffs have filed the present suit for the reliefs mentioned above.