KALI DAS MULLICK Vs. KANHYA LAL PUNDIT

JUDGEMENT

(1.) ON the 13th of June, 1841, Roma Sundari Dasi, widow of Srinath Bromko, executed an ikrarnama, which was in the following terms: To the most respectable Srimoti Ruttonmoni Dasi, widow of the late Ram Cumar Brohmo, mother of the late Srinath Bromho, inhabitant of Kona, purgana Havelisuhur. This ikrarnama, executed in 1248 (1841-42) by Roma Swiduri Dasi, widow of the deceased Srinath Bromho, inhabitant of Kona, purgana Havelisuhur, at present residing in Chitpur, in the district of 24-Purgunas, sheweth: That the taluqs comprised in the mouzahs mentioned in the annexed schedule, which were purchased in my husband's name, and which are recorded in my name in the collectorate sheristas of the districts of Cuttack and Puri, are under your control, with all rights appertaining thereto; and you have been performing the deb-seba, and have been entertaining religious mendicants, and have been celebrating the dole and durgotshub festivals (which were originally instituted by my deceased husband and father-in-law), by residing in the house at Kono. In order that you may perform those religious ceremonies, celebrate the festivals satisfactorily, and may provide for your own support, by having the property under your authority and control, I put a stop to my interest (in those taluqs) and withdraw my enjoyment thereof, and I make them over to you, with this promise, that you may remove my name from the Collector's sherista in respect of the taluqs named in the schedule, and you may have your name substituted for it; that you should have undisputed possession in the mofussil; that you should take the lowajima papers and the arrears of rent from the amlas and officers appointed by me; that you should appoint men who are under your control to the offices of amlas, and through them you should collect rents from the tenants in the mofussil; that you should perform the above-mentioned sebas, and should provide for your support. I have no right or claim to the taluqs. If I advance any claim at any future time, such claim should be rejected. I have nothing to do with the profits and loss of the taluqs. You cannot claim anything from me. I have no claim against you. Wherefore, in health of body, in the enjoyment of my senses, and in calmness of judgment, I execute this ikrar. I shall never act in contravention of the terms of this ikrar. The 2nd Assar of the above-mentioned year (13th of June, 1841). Schedule of the Taluqs. Mouzahs. Taluq Santrapwi, &c..... . . . 19 Purchased Bhiti mehal . . . 1 Mehal Lakhraj resumed . . . 1 Taluq Berhampur . . . 1 --- 22 Taluq Jhareswrnpur . . . 1 Taluq mouzah Bangalpur, zilla Puri . . . 1 Mouzah Durgadaspur . . . 1 -- 25 --

(2.) SRINATH Brohmo was the son of Ram Cumar Brohmo and Ruttonmoni Dasi, and the talooks mentioned in the schedules had been dedicated by Ram Gumar and Srinath to the service of two idols. Srinath died in 1838, having survived his father, the date of whose death did not appear. On the 24th of December, 1864, one Banchhanidhi Moharana, having obtained a decree against Ruttonmoni on the 25th of February, 1862, and having applied for a sale of a ten-annas share of the zemindary of the talook Santrapur, which was the share of Ruttonmoni Dasi by virtue of the ikrarnama, the same was publicly sold, and the Responds Kanhya Lal Pundit became the purchaser for Rs. 17,800 of the rights and interests of Ruttonmoni therein, as appears by the sale certificate dated the 27th of January, 1865. Ruttonmoni died on the 16th of February, 1867. On the 1st of February, 1876, Roma Sundari and Tarini Churn, Brohmo, who was then the presumptive heir on the death of Roma Sundari, executed a deed of gift to Krishna Mohini Dasi, the wife of the Appellant, which is in the following terms: This deed of gift, executed by Roma Sunduri Dasi, widow of the late Srimoti Bromho, inhabitant of Kona, purgana Habilisuhur in the district of 24-Purganas, at present residing in Dandmal Sahi, in Puri, and by Tarini Churn Brohmo, son of late Bhoyrub Chunder Bromho, inhabitant of Kastodanga, purgana Rajnuggur, sub-district Ranaghat, in the district of Nuddea, sheweth: That, on the death of my husband, I, Roma Sundri Dasi, got possession by right of inheritance of his ancestral zemindaries, and the zemindaries which were recorded in his own name, and of the houses, &c. In order to pay off the debts incurred by my husband and father-in-law, I sold taluq Juggurnath Prosad, &c, of purgana Burjang, and taluq Rambhila of purgana Randia Orgura, and taluq Mowajib appertaining to purgana Senawut, pertaining to Balasur district, to Monmohini Dasi and Khettermoni Dasi and Doyamoni Dasi, and other taluqs to other persons. By this means I paid off the debts. As I am residing in this holy city, I made over to my mother-in-law, the late Ruttonmoni Dasi, under the ikrarnama, dated 2nd Assar, 1248 (14th of June, 1841), taluq Sautrapur and the purchased mehal Dihi, and resumed mehal Lakhraj pertaining to it, and taluq Berliampur, and taluq Jharswurpur, and taluq Durgadaspur, &c., situate in the district of Guitack, in order to provide thereby for the seba of my husband's ancestral idols, viz., Lukhi Narain and Sridhur, and for the maintenance and religious ceremonies of my mother-in-law, the late Ruttonmoni. Accordingly my mother-in-law performed the seba of the idols and other duties till her death, which occurred in Falgun, 1273 (February and March, 1867). On her death those properties reverted to us. But as those zemindaries, &c, were in disorder during my mother-in-law's lifetime, after her death Bungomoni Basi, the wife of the late Hurihur Bromlio, paid from her own funds for the seba of the above-mentioned idols. But she too is now unable to discharge those duties. And I am residing in this holy city of Puri. And I, Tarini Chum Bromho, am also unable to keep up the seba of the idols; hence the seba of the idols has been interrupted. You are a near relation of ours. You are willing to undertake the seba of the idols. We too are pleased with you. We give the idols to you. We give, of our own accord, taluq Santrapur and taluq Berhampur, zemindaries, and the brick-built dwelling-house, and garden and lands and jamas, &c., in Kona, as described in the annexed schedule, to you, and execute this deed of gift. From this moment you should keep the idols under your control, take possession of the zemindaries, &c, collect the rents, recover the zemindaries and other properties, with mesne profits, from persons from whom they may be due since the death of the late Ruttonmoni Dasi, who was the mother-in-law of Roma Sunduri Basi, and the grandmother (by relation) of Tarini Churn Bromho, pay the revenue in the Collectorate, and the rents to the zemindars, and spend Rs. 1200 a year, or Rs. 100 a month, for the sheba of the idols. From this day we appoint you as the sebait of those idols. You, your sons, grandsons, and your heirs may keep up the seba of the idols, and enjoy and possess the properties named hereinafter. But you and your sons, grandsons, and other heirs will not have the right to alienate those properties by sale or gift. If at any time we or our heirs claim these properties, such claim should be rejected.

(3.) THE Subordinate Judge of Cuttack held that the possession of Kanhya Lal was adverse to Ruttonmoni, and through her also to Roma Sundari, and that Article 144 of Act XV. of 1877 was applicable, and as the possession commenced more than twelve years before the suit was brought, it was beyond time. On this ground he dismissed the suit, but in case the Appellate Court might take a different view of the question of limitation, he gave his opinion that Ruttonmoni, under the deed, only acquired a life-interest, and that on her death the property would revert to the creator of the trust.