SURENDRA NARAIN SARBADHIKARI Vs. BHOLANATH ROY CHOWDHURY

JUDGEMENT

(1.) Bhabesh Chandra Roy Chowdhury, the proprietor of the Barla estate Chota Taraf, died on 9 April 1926. He died childless, survived by his widow, Hembarani. On 20 February 1926, shortly before his death, he executed a will (Ex. AB). He appointed eight persons, Surendra Narayan Sarbadhikari, Tarak Nath Singha, Bhabesh Chandra Sinha, Sushil Chandra Mondal, Harish Chandra Sen, Gopeswara Chakrabarty, Nobin Chandra Chattapadhyay and his wife as executors. In the will he expressed the desire of installing a deity, Sree Sree Iswar Baneswara Shib Thakur, and of dedieating to it specified properties yielding an annual income of about Rs. 6000. He provided that in case he died before installing the deity and dedicating those properties, his wife was to install the deity and to dedicate those properties to the idol by executing an Arpannama. She was to be the first shebait, to be succeeded by his natural son, if he had one or by his adopted son. He also expressed a desire to take a son in adoption, but in case he died without making an adoption, his wife was to adopt. The power that was conferred on his wife was to adopt five sons in succession. His widow, Hembarani alone took out probate and on her death, which occurred on 4 January 1933, three of the other executors, Surendra Narayan Sarbadhikari, Tarak Nath Singha and Sushil Chandra Mondal alias Sushil Chandra Sarkar took out probate. The last mentioned person, to be hereafter called Sushil, is a brother of Hembarani. After Bhabesh Chandra Eoy Chowdhury's death Sushil with his wife lived with his sister Hembarani at the Barla house of the Chota Taraf.

(2.) After her husband's death Hembarani became a sickly lady. Her principal malady was diabetes. In the first part of April 1929, (end of Chaitra 1336) she went to Calcutta for treatment. She returned to Barla about 20 April. A few days before her return to Barla she had injured her heel at Calcutta. A sore was formed at the injured part. An operation was performed by a local doctor, Dr. Dwarka Nath Mazumdar, on 27 April (14 Bysack) but it was not successful as it was a case of diabetic gangrene. Her leg became swollen and she could not move. After consulting other local doctors the Civil Surgeon of Beerbhoom was ultimately called in. He saw the lady on the morning of 6 May 1930 (23 Bysack 1337) and expressed the opinion that an immediate amputation of her leg was the only chance of saving her life. On the night of the same day, Sushil and an officer left for Suri with a large amount of money for having the drafts of the deed of adoption and of the arpannama prepared by the pleaders. The evidence is that the drafts were completed late at night and settled next day when stamps far in excess of what were payable were purchased.

(3.) The adoption took place on 26 Bysack 1337-(9 May 1930), the child adopted being Uma Sankar who was then aged about eight months. He was then the only issue of Hembarani's brother Sushil. On adoption his name was changed to Shiva Sankar Roy Chowdhury. On tha same date she executed the arpannama dedicating the properties selected by her husband, and a tank, called Hemsagar, to the deity, Bhabeswar Shib Thakur. The lady left for Calcutta for treatment on the same night according to one version, or the next day according to another version, where her leg was amputated. She lived for about two and half years. Her death occurred on 4 January 1933. On the date of her death the plaintiff, Bholanath Roy Chowdhury, who is an agnate of Bhabesb took steps to prevent removal of valuable things from the Barla house by posting guards. He gave out that the adoption was invalid and that he was the person entitled to the properties as reversioner. There were proceedings before the Magistrate between him and Suahil. Ultimately on 12 January 1934 he filed the suit. The first three defendants are the three executors who had taken out probate of Bhabesh's will after Hembarani's death, namely Surendra Narayan Sarbadhikary, Tarak Nath Sinha and Sushil Chandra Sarkar. Defendant 4 was Uma Sankar, the adopted child in his personal capacity and as alleged shebait of the deity. His natural mother Lakshimony was ultimately appointed his guardian ad litem. In the plaint it was alleged that though a deed of adoption had been executed there was in fact no adoption, and even if there was in fact the adoption of Uma Sankar by Hembarani, that adoption was invalid in law inasmuch as Uma Sankar was born deaf and dumb and was an idiot. The plaintiff stated that Bhabesh was governed by the Mitakshara School of Hindu law, and according to that law the plaintiff as the nearest male agnate of Bhabesh had succeeded to his estate on Hembarani's death and had become the shebait of the idol. He made an alternative case that if it be held that Bhabesh was governed by the Bengal School of Hindu law then Bhabesh's maternal uncle's son, Gopinath alias Gopeswara Roy Mondal, became the owner of the secular properties left by Bhabesh and the shebait of the idol. He further alleged that the said Gopinath had conveyed to him his rights in the secular properties by a kobala dated 14 Falgoon 1339 B.S. (26 February 1933) and had executed in his favour an irrevocable deed of agreement on 15 Falgoon 1339 B.S. (27th February 1933) for the benefit of the idol by which he, the plaintiff, was made "the malik of the deity together with all the endowed properties." On the hypothesis that the Mitakshara School was applicable he has sued for possession in his own right and on the view that the Dayabhaga School of Hindu law was applicable, he has sued for possession on the strength of those deeds. Gopinath alias Gopeswara Roy Mondal and his son are pro forma defendants 5 and 6. The other pro forma defendants are the other executors named in Bhabesh's will who had not taken out probate.