CHARU CHANDRA PRAMANIK Vs. NAHUSH CHANDRA KUNDU

JUDGEMENT

(1.) The subject matter of the litigation which has led up to this appeal is property comprised in a religious endowment created for the benefit of a family idol by the Will of one Kali Prasanna Pramanik. The Will was executed on the 10 March 1889, and was registered on the 7 June 1889. Pramanik died on the 29 April 1894 leaving behind him three, widows, Brajamati, Gayatri and Dwarika ,Sundari and an adopted son, Hiranmoy. The relationship of the members of the family will be gathered from the following pedigree: Sic

(2.) The Will recited that the ancestral deity of the testator, Salgram named Iswar Lakshmi Narayan, had been daily worshipped in his house for a long time, and then proceeded to make the following provisions for its perpetual sheba: My ancestral and self-acquired immoveable properties marked (ka) and (kha) mentioned in the schedule below, shall, after my death, be debuttar property of my above-mentioned deity Sri Iswar Lakshmi Narayan Salgram. My heirs or representatives shall not have any claim, demand; or right to or on all those properties; neither shall all those properties be sold for the debt of any one (of them) and no one shall be entitled to give away or sell the same and mortgage the same and none shall have any objection. Only from the income of the said properties, the sheba and other ceremonies on the festival occasions of the said idol shall be performed for ever, according to the rules introduced by me. If for any reason the said idol disappears, not being found out, then any; one of the shebaits named below fin the Will: in whose time the said Uri to ward event shall take place, shall, on consecrating another Narayan Idol, perform such sheba, festivities and other acts, And for the performance of all those acts, I appoint Srimati Brajamati Dasi, my eldest wife, and Srimati Dwarika Sundari Dasi, my youngest wife, and Sriman Hiranmoy Pramanik, my Damusyayan adopted son, these three persons, as sheba its executrixes and, executor. Of these three persons, first my eldest wife Srimati Brajamati Dasi, and on her death my youngest wife Srimati Dwarika Sundari Dasi for her life time, and on their demise, Sriman Hiranmoy Pramanik with sons and grandsons, and father heirs in succession, being managers in this manner one after another, shall carry on for ever, the sheba, etc., of the said idol, with the income of the said properties. The shebaits shall not be entitled to take loans on account of Thakur sheba or for any other reasons; even, if they do so, the said debuttar properties left by me shall not be liable for such debt. Purther, among the shebaits, if any of them, not dying in the order they have been named dies otherwise, in that case, whoever among those shebaits shall be living shall carry on the sheba and festival ceremonies of the said Thakur. And after the death of Sriman Hiranmoy Pramanik, his sons, grandsons, and others in succession, being shebaits of the said idol, shall perform sheba and all other acts. God forbid, if during the life time of my eldest wife or youngest wife or in the lifetime of any one of my wives, Hiranmoy: dies without leaving sons or grandson or a daughter likely to have a son or daughter's sons, or without taking a son in adoption or without giving permission to his (Hiranmoy s) wife to adopt a son, in that case my eldest wife, and on her demise my youngest wife appointing a shebait of the said idol according to her wish, shall be entitled to make him, with sons, grandsons, and other heirs in succession, shebaits of the said idol; thereto no sort of objection of any of my heirs and representatives shall be tenable and admissible. God forbid, if the shebait of the said Thakur be altogether extinct, contrary to the above- mentioned provisions; in that case, whoever among my neighbours shall be of good lineage, experienced and of good character and shall be living at that time, shall after appropriating Rs. 50 per annum for his personal allowance etc., carry on the sheba (service) and festivals of the said idol, with the whole of the remaining amount of the income of the debut tar properties mentioned in this Will; and if the shebaits or executor or executrixes mentioned in the Will commit any kind of negligence in carrying on the sheba, etc., of the said Thakur, any one bringing this matter to the notice of the Courts established by the Sovereign shall be entitled to have all those acts to be performed in their entirety.

(3.) No application for Probate of this Will was made till the 27 Jane 1905 when Indumati, the wife of Hiranmoy, applied for Probate on behalf of her infant sons, Narendra and Dhirendra. On the 14 March 1906 the District Judge held on the evidence that the Will had been executed as alleged, but he refused Probate on the ground that the original Will was not produced before the Court and the application was not made by the persons named therein as executor and executrixes. On appeal to this Court, this order was confirmed on the 27th February. 1908 by Sir Brands Maclean, C.J., and Doss, J. Of the 26 June 1916 an application was made for Letters of Administration with copy of the Will annexed by one Nahus Chandra Kundu and the two sons, of Hiranmoy, mmely, Narendra and Dhirandra. The application recited that the persons named as executor and executrixes had wasted the estate, contrary to the provisions of, the Wilt, and were consequently not likely to apply for Probate. The applicants accordingly sought, to establish the Will so that the religious trust might be, carried; out, and they prayed; that fetters of Administration with copy of the Will annexed might be issued to them, limited under Section 41 of the Probate and Administration Act, to the debuttar properties. On the 30 July 1917 the District Judge granted letters of Administration with copy of the Will annexed to the first petitioner, Nahus, Chandra Kundu, alone, in respect pf the debuttar properties. On appeal to this Court, the order was confirmed on the 14 December 1917 by Fletcher and, Huda, J.J. Meanwhile, on the 6 March 1917, Nanus Chandra. Kundu, Narendra Kumar Pramanik and Dhirandra Kumar Pramanik had instituted the present suit as shebaits and administrators to the debuttar estate of the deity Lakshmi Narayan Thakur against persons in unlawful possession thereof. It is necessary at this stage tot outline the history of the title of these defendants.