RADHAMOHAN DEV Vs. NABAKISHORE NAIK

JUDGEMENT

(1.) Plaintiffs, whose suit has been decreed in part by the Subordinate Judge, Puri in O. S. No. 4/61 of 1969/66 (I), have preferred this appeal against that part of the decree which has gone against them.

(2.) Plaintiff No. 2 Parbati Dei claiming herself as a marfatdar of the family deity Sri Radhamohan Dev (Plaintiff No. 1) filed the suit for giving her 4 annas share in the sebayati right of plaintiff No. 1; for partition of the sebayati interest of herself and of defendants Nos. 1 to 6 or, in the alternative, for joint possession of all the deity's properties described in Schedules 'A' and 'B' of the plaint; for framing of a scheme for the proper management of the affairs of plaintiff No. 1 by allowing each of the sebayats to have his term in proportion to his right over the endowed properties; for setting aside the alienations of the devottar properties effected by defendants Nos. 2 and 3 in favour of defendants Nos. 7 to 9 which are described in schedule 'C' of the plaint; for recovery of possession of the properties described in Schedule 'C' of the plaint; for a direction to defendant No. 3 to furnish accounts of the deity's properties from the date of his management i.e. 30-8-63 till the date of filing of the suit; for awarding costs of the suit; and for an injunction against defendant No. 3 not to alienate any of the deity's properties.

(3.) The case as disclosed from the plaint is as follows: Plaintiff No. 1 is the family deity of plaintiff No. 2 and defendants Nos. 1 to 6. Plaintiff No. 2 is the daughter of late Bharat Naik, who was one of the founders of the deity. Bharat Naik's son is Nabakishore (defendant No. 1). Bharat Naik's brother was Babajee. Babajee's two sons are Biswanath (defendant No. 3) and Kasinath (defendant No. 2) and two daughters are Nilamani (defendant No. 5) and Ujyolmani (defendant No. 6). Defendant No. 4 Radhamani is the widow of Babajee. Bharat and Babajee continued to live jointly after the death of their father Brundaban Naik. They by their industry and perseverance acquired huge landed properties which were their secular properties. As they were men of religious temperament, they installed plaintiff No. 1 as the family deity and purchased large extent of immovable properties in the name of plaintiff No. 1. They also acquired huge moveable properties for the use of the deity and dedicated both moveable and immovable properties to plaintiff No. 1 which are fully described in Schedules 'A' and 'B' of the plaint and Schedule 'A' properties stood recorded in the revenue papers and municipal records in the name of plaintiff No. 1. After the death of Bharat Naik in 1960, defendant No. 1 and Babajee and his sons, effected partition of their secular properties by a deed dated 30-8-63. But at the time of partition, plaintiff No, 2 was not given any share nor she was consulted. On her demand for a share, defendant No. 1 agreed and executed a deed of partition in her favour on 28-3-66. Hence she (plaintiff No. 2) got her due share from the family properties which were secular in character. Bharat and Babaji, who were the founders of plaintiff No. 1, continued to exercise the right of sebayats of the deity till their death. During the lifetime of Bharat and Babaji, as they became old and unable to manage the affairs of the deity and the endowed properties, they on 26-12-57/16-1-58 executed a registered deed (Ext. 1) in favour of defendants 1 and 3 for the management of the endowed properties and the affairs of the deity. The said document was only a power of attorney and by that the founders did not cease to have any interest as sebayats over the deity's affairs. As both the founders continued to be the sebayats of the deity till their death, the plaintiff No. 2 is entitled to succeed to the sebayati right of her father and as such she had 4 annas interest in the sebayati right of the family deity. After the death of Bharat, on 30-8-1963 Babajee and defendants 1 and 2 executed another registered deed styled as "Seba Samarpana Patra" (Ext. 4) in favour of defendant No. 3. It is mentioned in the said deed that the three executants had no time to look after the management of the endowment and as such they transferred their sebayati rights in favour of defendant No. 3, who was considered to have more time to look after the sebapuja of the deity. Though styled as "Seba Samarpana Patra". The document was only a power of attorney and as the plaintiff No. 2 is not a party to the deed, her sebayati interest is not affected by the execution of such a deed by other defendants. The deity has vast landed properties to the extent of 73 acres which are fully described in Schedule 'A' of the plaintiff. The income of the landed properties was quite sufficient for the maintenance of the deity's affairs and since the installation, the deity was never in want, rather there was surplus from the income of the properties. Defendant No. 3 after taking over management is not incurring the prescribed expenditure for the daily and periodical Nities of the deity, but he is spending the income of deity for his own personal purposes and is asserting his personal right over the deity's properties. Defendant No. 3 and his brother defendant No. 2 have alienated the properties of the deity in favour of defendant Nos. 7 and 9 which are fully described in Schedule 'C' of the plaint. As the properties are devottar properties and as the deity has no want, the said alienations are invalid and are to be set aside. As the defendant No. 3 is mismanaging the affairs of the deity, and he is out to sell the other properties of the deity, the plaintiff No. 2 was obliged to file the suit for the aforesaid reliefs.