BHUPENDRA NATH MUKHERJEE Vs. MONOHAR MUKHERJEE

JUDGEMENT

(1.) This is an appeal under Order XLIII, Rule 1 Clause (s) from an order rejecting an application for the appointment of a Receiver under Order XL, Rule 1, Civil Procedure Code in a suit for construction of a Will for establishment of title to shebaitship of a debutter estate and for incidental reliefs.

(2.) The history of this endowment is set out in the judgment of this Court in Manohar Mookerjee V/s. Raja Peary Mohan Mookerjee 54 Ind. Cas. 6 : 24 C.W.N. 478 : 30 C.L.J. which was confirmed on appeal by the Judicial Committee Peary Mohan Mukerji V/s. Monohar Mukerji 60 Ind. Cas. 76 : 48 I.A. 258 : 26 C.W.N. 133 : 34 C.L.J. 86 : 41 M.L.J. 68 : 14 L.W. 104 : 23 Bom. L.R. 913 : (1921) M.W.N. 554 : 19 A.L.J. 773 : 2 P.L.T. 725 : 300 M.L.T. 24 : 48 C. 1019 : (1922) A.I.R. (P.C.) 235 (P.C.), it is sufficient to state that the endowment was created by Jagomohan Mukherjee, the common ancestor of the parties to this suit, who made a testamentary disposition of his properties on the 11 September 1840. A suit was instituted by the first defendant Mononar Mukherjee for construction of the Will, for the administration of the trust created thereby, for the removal of Raja Peary Mohon Mukherjee from the shebaitship, for the appointment of a new shebait or a Receiver, and other incidental declarations. The suit was dismissed by the Trial Court on the 23 December 1915; That judgment was reversed by this Court on appeal on the 24 July 1919. The effect of this judgment was to remove Raja Peary Mohon Mukherjee from the shebaitship and to place the debuttar estate in the hands of a Receiver appointed by this Court. Since then, the Receiver has continued in occupation and has discharged his duties under the direction of this Court. Raja Peary Mohon Mukherjee died on the 16 January 1923 and the succession to the shebaitship opened out on his death. In the normal course of events, the Receiver would have been discharged on the death of Raja Peary Mohon Mukherjee. Disputes, however, broke out between Monolfar Mukherjee and the representatives-in-interest of Raja Peary Mohon Mukherjee, and at the desire, of all parties, this Court directed the Receiver to continue to hold the estate until further orders. On the 9 February 1923, an application was made to this Court on behalf of Monohar Mukherjee to the effect that the Receiver might be directed to make over possession of the debuttar estate, and all the papers in relation thereto, to him as the next person entitled to hold the shebaitship under the terms of the Will of the founder. The application was opposed by a representative of Raja Peary Mohon Mukherjee who was a party to the original suit also in his own right. On that occasion, the Court made the following order: Before possession can be taken by the sheabit, or, in the event of a dispute, before a Receiver can be appointed by a competent Court to take charge of the debuttar estate, it is necessary that the Receiver appointed by this Court should continue. We accordingly authorise the Receiver to continue in occupation till the first day of the new Bengali year. If, in the meanwhile, the parties can agree upon a person to take possession of the estate as the new shebait and the matter is reported to us, the Receiver will be authorised to withdraw forthwith. If, on the other hand, the dispute is not ended and the Receiver is appointed by a competent Court where the suit has been instituted, the Receiver will be directed to make over possession to the new Receiver.

(3.) We directed the Receiver to continue in occupation till the first day of the new Bengali year, because it was pointed to us by both sides that f the Receiver were to withdraw from the management at, an earlier date, considerable difficulties might arise in the way of institution of rent suits, as the period of limitation would expire in ordinary course on the last day of the then current Bengali year. Thereafter, both parties awaited further developments, each anxiously expectant as to what action might be taken by his opponent. At length, on the 14th April 1923, that is, just after the expiry of the date fixed by this Court. Bhupendra Nath Mukherjee, the son of Raja Peary Mohon Mukherjee, instituted a suit in the Court of the Subordinate Judge of Hoogly for construction of the Will of the founder and for determination of a variety of questions in relation to the debuttar estate. Thirty eight persons--all of them, except one, members of the Mukherjee family of Uttarparah--were brought on the record as defendants. The list included the Receiver appointed by this Court. Four other persons were subsequently brought on the record as additional defendants seventeen of these forty-two defendants entered appearance. The plaint contained a prayer for the appointment of a Receiver, and five days later, an application was made by the plaintiff in that behalf. The only defendant who contested the application for the appointment of a Receiver was the first defendant Monohar Mukherjee. On the 15 August 192 3, the Sub ordinate Judge dismissed the application for the appointment of a Receiver. Five days later the present appeal was lodged in this Court by the plaintiff. The only person brought on the record as respondent in the appeal is the first defendant, Monohar Mukherjee. We have now to consider whether the order of the Subordinate Judge can be supported on the merits.