KUNJAMANI DASI Vs. NIKUNJA BEHARY DAS

JUDGEMENT

(1.) This is an appeal by the first defendant, in a suit for declaration that the plaintiff has a four annas share in the shebaitship of a deity, Syamsundar, established by his paternal grandfather and for confirmation or recovery of possession of the corresponding share of the properties of the endowment. The claim was contested by the widow of the step-brother of the father of the plaintiff. The Subordinate Judge held that the title of the plaintiff to the shebaitship was established and made a decree accordingly. On the present appeal, that decision has been assailed as founded on an erroneous construction of the Will of the founder. The relationship between the parties may be elucidated by the annexed genealogical table:

(2.) Jasmant Das died on the 25th September 1882, and the question in controversy turns upon the true construction of the Will he executed on the 22nd July 1882. The testator provided that all his properties would devolve on his family deity Syamsundar and his widow Bhagirathi would be executor in respect of the same. He further laid down that on the death of his widow, his youngest son Jagadanand and on the death of the latter, his son Brojendra would be successively installed in the office of executor, and all acts would be done under their management. The Will concluded that his sons by his first wife were disobedient and accordingly would not be appointed executors.

(3.) On the death of the testator, Bhagirathi proved his Will, but died before she could take out Probate. Meanwhile, Jagadananda also died. Probate was accordingly granted to Brojendra, who himself died not many years later on the 30th August 1887. Jogendra then took out Letters of Administration with copy of the Will annexed, but he died on the 12th January 1897, leaving a widow Kunjamani, the first defendant in the present suit, as also two daughters by her. Sarada died on the 10th February 1898, unmarried, like his brothers Jagadananda and Brojendra. Pyarimohan died in June 1890 leaving an infant son Nikunjabehari, who is plaintiff in this suit. Sarada had applied for Letters of Administration after the death of Jogendra, but he died before orders were passed. After this, applications were made for the same purpose by Raimohan, Kunjamani and others, but on the 3rd September 1902, this Court held that no Letters of Administration could be issued as the estate had been completely administered, and the only object of the rival applicants was to secure indirectly a decision upon the question of title to the shebaitship. In 1906, a suit was instituted by Kunjamani against Raimohan and some of the kinsmen of his father for declaration that she was the shebait of the deity Syamsundar. The Court held that she was shebait to the extent of an eight annas share and made a decree accordingly. Nikunjabehari had not been made a party in that suit and he consequently instituted the present litigation on the 26th September 1910 for declaration that he himself was interested to the extent of a four annas share in the shebaitship. This claim was unsuccessfully contested by Kunjamani in the Court below and the substantial question in controversy now is, whether the plaintiff has the title claimed.