BANSIDHAR Vs. UPENDRA MOHAN

JUDGEMENT

(1.) This appeal raises an interesting question of law which has been argued at great length by learned Counsel for the parties.

(2.) The dispute relates to certain properties specified in Schedules 1 & 2 of the plaint which are admittedly endowed properties being dedicated to deities Radha Krishnajee and Sri Ganeshji. The plaintiff, who has preferred this appeal, sued for a declaration that he was the shebait of the deities and also claimed recovery of possession of these properties.

(3.) The facts are that the Said deities had been installed in a temple in village Lao by one Kunjbihari Missir. On 18-2-1911, the properties in Schedule 1 of the plaint were dedicated to the deities in question by Baldeo Missir, the son of Kunjbihari, under a registered deed. On the very same day Baldeo also executed a deed of gift in respect of Schedule 2 properties of the plaint in favour of one Mt. Parkala Kuer alleged to be a concubine of the donor. There was a direction in the deed that on the demise of the donee, the gifted properties would go to the deities as endowed properties. The plaintiff is the nephew of Baldeo, being the grandson of his father's brother. The deed of 1911 refers to certain other properties having been endowed by one Meghu Koeri in favour of the deities, and it further recites that the plaintiff was to be the mutawalli and the shebait of the deities. There is some dispute about the interpretation of this document. The contention of the appellant is that on the terms of the recital, he was to become a mutwalli on the death of Baldeo Missir who was to act as mutawalli and look after the worship of the deities during his lifetime. The defendant-respondent, on the other hand, contends that the plaintiff had been appointed mutawalli straightway under the document, and Baldeo Missir was not the mutawalli at all. I shall deal with this question at a later stage of this judgment. At any rate, the allegations in the plaint show that the plaintiff had been managing the endowed properties even during the lifetime of Baldeo Missir and under his directions. Baldeo Missir, however, executed another deed on 10-1-1917, in favour of one Narain Missir, the father of defendant 1. Under this deed he purported to make Narain Missir shebait of the deities with effect from the date of execution of the document. The plaintiff's case is that this document had not been acted upon, and that he continued to manage the affairs and perform the worship of the deities under the directions of his uncle Baldeo, the first mutawalli under the deed of endowment of 1911. Baldeo Missir died in Bhadeo 1349 Fs. corresponding to August, 1942, and thereafter on 21-1-1943, the defendant 1 executed a deed of settlement in favour of defendant 6 in respect of the properties described in Schedule 1 of the plaint. The plaintiff contends that defendant 1 had no right to make any such settlement of the endowed properties, but defendant 6 taking advantage of this settlement interfered With plaintiff's possession over the properties resulting in criminal proceedings and subsequent dispossession. In regard to Schedule 2 properties, the plaintiff states that on the death of Mt. Parkala Kuer, Baldeo executed a deed of gift in favour of defendants 4 and 5 who were her daughters. The plaintiff challenges this deed as illegal and invalid since Baldeo had no right to make gift of these properties which, on the death of Mt. Parkala Kuer, had passed on to the deities as endowed properties under the terms of the original deed of gift executed on the same day as the deed of endowment.