GIRIS CHANDRA SAW Vs. UPENDRA NATH GIRIDAS

JUDGEMENT

(1.) This is an appeal by defendants 1 and 2 against a decision of the Additional District Judge of Midnapur confirming a decision of the Subordinate Judge of that place, allowing the plaintiffs suit in part. The facts are that one Jaga Mohan Giri Das disposed of certain properties by. a will executed in 1286 A. S. whereby he dedicated some of his properties mentioned in schedule Ka of the plaint for worship of the family deity installed by him and appointed his wife Taramani as the she-bait of the deity. After her death her adopted son Madhusudan was to carry on the shebaitship of the deity with the income of the properties and after him shebaitship would continue in his line. Madhusudan mortgaged some personal properties to the appellants who obtained a decree upon the mortgage and had them sold. The entire debt under the mortgage not having bean satisfied by the sale they obtained a decree under Order 34, Rule 6, Civil P.C., and in execution of that decree, purchased the properties mentioned in schedule Ka, which were dedicated by the will of Jaga Mohan to the deity.

(2.) This suit is instituted by the present plaintiffs mainly for a declaration that those properties are inalienable. Plaintiff 1 is the son of Madhusudan and plaint-tiffs 2 to 4 are the sons of Akshoy, the deceased son of Madhusudan. They brought the suit as shebaits of the deity and prayed that the properties in suit be declared to belong to the idol and their sale in execution be declared invalid in law and for delivery of possession of the properties to the idol and for other consequential reliefs. The trial Court found that the properties were debuttar properties, that they were not personal properties of Madhusudan and that therefore the purchase in execution of the decree by the appellants, did not transfer any title to them. In this view the trial Court; decreed the plaintiffs suit declaring that the deity was entitled to the properties mentioned in the plaint except some plots and also declaring that the auction sale of those properties in execution of the appellants decree was void and inoperative against the idol and allowing possession to the idol of the properties. The appellants appealed to the District Judge who confirmed the decree of the trial Court. They have appealed further to this Court and several points have been taken on their behalf.

(3.) The main contention of Mr. Bose appearing for the appellants is that the suit is not maintainable at the instance of the present plaintiffs. His submission is that; the only remedy open to the plaintiffs is to bring a suit for removal from shebaitship of Madhusudan who was defendant 3 in the suit and was alive at the time of the institution of the suit and to get another shebait appointed in his place who may raise a suit of this character. The point has been very elaborately argued but in my judgment there is no substance in the appellants contention.