NIRMAL CHANDRA BANERJEE Vs. JYOTI PROSAD BANDOPADHYA

JUDGEMENT

(1.) These two connected appeals are on behalf of defendants 1 and 2, and both of them arise out of one suit commenced by the plaintiff for a declaration that he was a validly appointed shebait of an idol named Sri Dhar Jew under a niyoga patra executed by a previous shebait. The plaintiff further prayed for the removal of defendants 1 and 2 who were the two existing shebaits of the idol from their office on grounds of misappropriation and neglect of duties, and claimed accounts against them. The facts are rather long, and so far as they are necessary for purposes of the present appeals, may be stated as follows : There is an idol named Sri Dhar Jew which was the ancestral family deity of one Harish Chandra Banerjee, a Hindu inhabitant of Bhadrakali in the district of Hooghly. Harish Chandra died, leaving behind him his three sons, to wit, Bidhu Bhusan, Priyanath and Karunamoy, and a grandson by a predeceased son named Kumud. In the year 1890 there was a deed of partition amongst these sons and grandson of Harish Chandra and by that document a property yielding an annual income of Rs. 26 was set apart for the seva and worship of the deity, and it was further provided that these four persons would carry on the worship by turns Bidhu Bhusan held the post of a Subordinate Judge and was childless. He erected a pucca ghat and a pucca thakurbari at his own expense for the location of the deity, and he himself performed the pujas so long as he was alive. Bidhu Bhusan died in 1909, leaving behind him a will by which he gave a sum of Rs. 10,000 for the worship of the idol and appointed three persons as its shebaits, namely Harimohan (a son of Priyanath and a pro forma defendant in this suit), Nirmal, (defendant 1, who was a son of Karunamoy) and Nihar Ranjan (a son of Kumud, the nephew of the testator, who was the father of Tushar Ranjan, defendant 2 in this suit). The relationship between these persons and the testator would be clear from the pedigree that is set out in the judgment of the trial Court and which is to be found at page 2 of the paper-book.

(2.) The will of Bidhu Bhusan further provided that each shebait would have the power to nominate a successor in his absence, and if any shebait died without exercising the powers of nomination, the eldest among his heirs would be the shebait. Bidhu Bhusan left the bulk of his properties to Harimohan who took out letters of administration with a copy of the will annexed in November 1909. After taking possession of the assets, Harimohan advanced the sum of Rs. 10,000, which was bequeathed to the deity, as a loan to one Suresh Chandra Mukherjee, a zemindar of Uttarpara, on a promissory note which was taken in the name of Hari Mohan personally, but was later on endorsed by him in favour of all the shebaits. In 1913 a deed of agreement was executed by the three shebaits by which it was agreed by and between them that the worship of the deity would be carried on by rotation and each shebait would have his turn of worship every three years. Hari Mohan has been described in the plaint as a man of immoral habits, who was heavily involved in debts and was living a life of shameless profligacy. He sold the house which he got under Bidhu Bhusan's will to the plaintiff's wife, and on 11 August 1925, he executed a niyoga patra or a deed of appointment by which he purported to relinquish his rights as a shebait and appointed the present plaintiff Jyoti Prosad Banerjee as a shebait in his place. The plaintiff, it may be stated here, is not a member of the family of Harish, though his mother happened to be a cousin sister of Nihar's mother. Hari Mohan severed his connexion with the debuttar estate after executing the deed of appointment, and the plaintiff says that he immediately took over possession of the deity and began to perform the pujas and the ceremonies.

(3.) In 1927 Nihar Ranjan died and defendant 2, Tushar, succeeded to his rights as a shebait under the terms of Bidhu Bhusan's will. It appears that defendants 1 and 2 wore not willing to admit the plaintiff as a shebait of the family deity, and they ignored him altogether in their dealings in connexion with the deity's property. On 2 April, 1928, defendants 1 and 2 instituted a suit in the name of the idol in the Court of the Subordinate Judge at Hooghly against Jaharlal and Pannalal, the sons and heirs of Suresh, for recovery of a sum of Rs. 11,000 odd alleged to be due on the hand note executed by Suresh in favour of Harimohan in 1909. The plaintiff Jyoti Prosad was not made a party to the suit, nor did he make any attempt to be added as a co-plaintiff. The trial Court dismissed the suit, holding that the money did not belong to the deity, and consequently, the suit as framed was not maintainable. There was an appeal taken against this decision by defendants 1 and 2 to this Court. That appeal was allowed, and the case was sent back to the trial Judge to be tried on its merits. Defendants 1 and 2 however did not proceed with the suit any further, and it was dismissed for non- prosecution on 12 August 19 It appears further that on 23 July 1935 there were two bonds executed by Jaharlal and Pannalal, the two heirs and sons of Suresh, each for a sum of Rs. 6000 in favour of one Nirod Chandra Chatterjee, who is a son-in-law of Nirmal, defendant l. The plaintiff's case is that the two defendants in clear violation of their duties as shebaits entered into a fraudulent arrangement with the debtors and misappropriated the whole amount, that the latter owed to the deity, by taking these bonds in the name of a benamidar of theirs, and subsequently allowed the suit to be dismissed for default. It was further alleged that defendants 1 and 2 neglected their duties as shebaits and did not pay the expenses of the worship of the idol or repairs of the temple which were being borne by the plaintiff entirely out of his own pockets. Defendant 2 was further alleged to have turned insane and hence incapable of discharging his duties as shebait. On these allegations the plaintiff prayed that defendants 1 and 2 might be removed from their office as shebaits and he might be declared to be the sole shebait of the deity on the strength of the deed of appointment executed by Harimohan. He also claimed accounts against defendants 1 and 2 for their respective periods of shebaitship.