DAYAMAYI Vs. SANKAR NATH MUKHOPADHYAYA

JUDGEMENT

(1.) This appeal arises out of an action in ejectment brought by the plaintiff on the allegation that the; Defendant No. 1 is in possession of certain properties as trespasser. In order to understand the facts, it is necessary to refer to the genealogical table: (See page 418.)

(2.) Bamandas Mukhopadhyaya died possessed of considerable property. He made a Will, dated the 7 January 1875, making certain dispositions of his property. A portion of the property disposed of by the Will was given to his daughter-in-law Bhoyaharini, first wife of his son Taranath and this is the property now in dispute. Bhoyaharini died on the 18 November 1881 after having executed a Will dated the 16 November 1881. By Clause (1) of her will, she dedicated certain properties as debutter to the ancestral Thakur of her father-in-law Sri Sri Sridhar Salgram Thakur, and certain other properties for the performance of the ancestral Durga puja, Syama puja and Jagadhatri puja. After her death, her husband Taranath obtained probate of her Will and he died on the 15 of August 1908 after having executed a Will on the 21 February 1908. Before Taranath obtained probate of his wife's Will, some of the descendants of Arundas, the eldest son of Bamandas, had taken out probate of that Will. But that grant was revoked on the application of Taranath and Taranath himself obtained probate as already stated. Taranath, it is said, was in possession of the disputed properties and ground that he is the sole shebait appointed under the Will of Bhoyaharini and is, therefore, entitled to possession of the debutter properties as against the Defendant No. 1 who has no right to possession. The plaintiff has impleaded in the suit all the descendants of Arundas and the daughter and daughter's grandson of Bhoyaharini as defendant. He appears to have brought the suit in his personal capacity. In the body of the plaint, however, he describes himself as shebait and the principal prayers in the plaint are (1) that a decree be given declaring that the properties mentioned in schedules Ka and Kha are debutter properties according to the will of Bhoyaharini Debi; and (2) that it may be declared that the performed the sheba of the idol and the pujahs. Taranath had a son named Barada Bhusan by another wife, Nagendrabala. This Barada Bhusan died on the 10 March, 1909. Defendant No. 1 is the widow of Barada Bhusan and she is in possession of the properties. After Barada's death it appears that the present plaintiff, Sankarnath, who is one of the sons of Srinath, the youngest son of Bamandas Mukerji, applied unsuccessfully for probate of the Will of Bhoyaharini on the allegation that he had been appointed executor. The Court found that there was nothing to administer and, on that ground, Sankarnath's application for probate was refused. The present suit has been brought by Sankarnath on the plaintiff has a right to the said properties as manager or shebait, and that a decree be given to him for khas possession of those properties by evicting the Defendant No. 1. The other prayers are subsidiary to these two principal prayers.

(3.) The Defendant No. 1 resisted the plaintiff's claim on various grounds which it is unnecessary to mention in detail.