HARI PADA MUKHERJEE Vs. ELOKESHI DEVI FOR SELF AND SHEBAIT SRI ISWAR SRIDHAR JIU THAKUR, W/O PARADA KINKAR CHAKRAVARTY

JUDGEMENT

(1.) This appeal is on behalf of defendants 1 to 4 and 6 and arises out of a suit commenced by the plaintiff for establishment of her title to a one-third share of the properties described in the schedules to the plaint and for recovery of possession of the same jointly with the defendants. The plaintiff's case was that the properties in suit originally belonged to three brothers, namely Bhabataran, Nimai and Rakhal, in equal shares. Of these three brothers Rakhal died first leaving as his heiress, a childless widow named Kiran Bala, who was defendant 5 in the suit. After that Bhabataran died; he had no wife or son living at the time of his death and was survived by a widowed daughter who is defendant 6 in the suit and who could not inherit his property according to the rules of the Hindu law. Nimai, the surviving brother, inherited the one-third share of Bhabataran and this together with his own one-third gave him a two-thirds shares in all the scheduled properties.

(2.) Nimai died in 1918 leaving behind him his widow Khudumoni and five daughters of whom the plaintiff is one. Khudumoni died within a few months after her husband's death and, according to the plaintiff, the two-thirds share of Nimai in all the properties devolved, after the death of Khudumoni, upon his maiden daughter, Abhoya. Abhoya was married to Hari Pada, defendant 1, and had two daughters and one son who are defendants 2 to 4 in the present suit. Abhoya died in April 1935 and the plaintiff's case is that the property which she inherited from Nimai devolved, after her death, on the two surviving married sisters, namely the plaintiff and pro forma defendant 7, the other two sisters having died in the meantime. The plaintiff it is said went to possess the properties some time in Chait 1342 B.S. but was obstructed by the defendants which obliged her to institute the present suit.

(3.) In para. 6 of the plaint it was specifically stated that the Ka schedule properties were incorrectly recorded in the C.S. records as debutter property of the family deity Sridhar Jiu. In case these properties were found to be debutter, the plaintiff claimed to recover joint possession of the same to the extent of her share on establishment of her title as shebait by right of inheritance from her father Nimai. A number of defences were raised by the contesting defendants and they may be classified under three heads : In the first place, objections were taken to the frame of the suit and it was contended that the Ka schedule properties being debutter properties it was incumbent upon the plaintiff to make the deity itself as also the other shebaits parties to the suit.