SRI SRI SRIDHAR JEW Vs. MANINDRA KMITTER

JUDGEMENT

(1.) I shall consider my judgment: at any rate on one point, but I begin now, note with standing that my own notes are in a fragmentary state. The matter should have been made easier for me by the fact that was argued with much ability on the part of the plaintiff, who was able to have the services of Mr. Roy supported by counsel if less eminent no less efficient whom the remorseful relations, notwithstanding that they are supposed to be indigent, were able to brief. I was especially indebted to Mr. Hazra and Mr. Das for arguments on their behalf. But there is such a thing as embarrassment of abundance. This suit was filed on 6th March 1937. The significance of the date will hereafter appear. The suit is by a deity, who by his symbol Sridhar Jew, figures very largely in my list. The next friend of the deity in this case, whose name will be found at the bottom left-hand corner of the genealogical table included in the admitted brief, is Nirmal Krishna Mitter, whom I have seen once during the course of these lengthy proceedings at the back of the Court, and whose qualifications are confined to an amiable disposition, an athletic frame, and I believe the rank of Corporal in the Territorial Defence Force. Nevertheless, it is a suit by the deity. The relief sought may be classified as follows: 1. In respect of what will hereafter be called the blue portion of the dwelling house, that is, 75 and 76, Phear Lane, the northeast corner of the first and second storeys. To this, the claim by the deity is for possession as owner.

(2.) The claim to a declaration of charge and enforcement of charge for maintenance in respect of the pink portion of the family dwelling house.

(3.) Similar relief in respect of the income bearing premises, 11 Harinbari first Lane and 81 Phear Lane, together with its sub-numbers 2. As regards the charge, by prayer (e), this is limited to such sum as, together with Rs. 13,000, would bring in a sufficient income for the maintenance of the plaintiff. The defendants are first of all, the family other than the next friend, all now remorseful and regretting the acts of the late shebaits, and the transferees, by this I mean the purchasers of the two income bearing properties which were sold under an order dated 30 August 1912, and with regard to the dwelling house which was mortgaged in 1921 and sold by the Court in 1928, the purchaser at the sale, as the result of the mortgage decree, or his transferee. The sale by the Registrar took place on 6 March 1925. This explains the date of the filing of the plaint, and shows that the deity, although in an ideal sense was keeping a careful record of the last moment for filing the plaint. 3. I go back to the essential facts. On 29 April 1853 Hari Mohan Sircar made a disposition of the properties I have already mentioned, together with another property, which is not in suit, for the benefit of the plaintiff deity and also for the benefit of his family. I do not quote the deed, because it has been construed in the ruling to which I am about to refer and because its significance is to be gathered as much from what it omits as now what it includes. The whole therefore has to be read. The questions which arise in connexion with this disposition I will formulate hereafter, but it should be noted that the disposition is in the form of an English trust, that is to say, it purports to vest the properties in two trustees, who are to apply the income, firstly, in the maintenance of the Thakur, and, secondly, for the benefit of his sons and their families. It also provides for a right of residence for the sons and their families in the houses at the discretion of the trustees. It uses certain language, which is relied upon by the plaintiff, and those supporting the plaintiff, to show that it amounts to nothing less than a dedication or endowment in the Hindu sense of the term. The estate was administered by the trustees named and by other trustees appointed in the manner of trustees.