RAI SUNDARI DASYA Vs. BENODE BEHARI SAHA

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge of Rangpur, daled February 23, 1930, by which he decreed a suit brought by the plaintiffs (now respondents) in which J hey ask for a declaration of their rights as joint shebaits of two family idols Sri Sri Rajrajeswar and Sri Sri Radha Krishna as also for recovery of joint possession along with the defendant now appellant. The relationship of the parties to the suit is shown in a family pedigree which is found at page 46 of the 1 part of the paper book and which is reproduced below.

(2.) It appears from the said pedigree that one Sitaram Saha was the ancestor of the parties to the present litigation, that is, the present plaintiffs. The appellant Srimati Rai Sundari Dassi is the widow of one Padmolochan, who is one of the descendants of Sitaram Saha. The plaintiffs Nos. 1, 2, 3 and 4 are descendants from a branch of Jagannath Saha, one of the descendants of Sitaram Saha. It appears that Purna Chandra Saha, one of the descendants of the said Sitaram Saha died in 1899. He left a will by which he directed that his widow Srimati Sarada Sundari Dasya should remain in possession of the properties for her lifetime. There are certain provisions with regard to the maintenance of the mother and the grandmother. His widow Sarada Sundari Dasya was given authority to adopt a son, and it was provided that if she died without making any adoption, all the properties would be devoted for the debseba of the idols Sri Sri Iswar Rajrajeswar and Sri Sri Iswar Radha Krishna, if there was any surplus after meeting the revenue charges, and if there was a further surplus, the money should be devoted for the purpose of certain charitable institutions and a hospital. This lady Srimati Sarada Sundari Dasya died on November 23, 1921, and after her death one of the respondents before us, Benode Behari Saha, took possession of (he properties both movable and immovable left by Sarada Sundari Dasya alleging that Sarada Sundari Dasya had adopted his son Sudhir Kumar Saha according to the authority given in the will of Purna Chandra Saha. On this the present appellant Srimati Rai Sundari Dassi who is the mother of Purna Chandra Saha made an application under Act XIX of 1841 on which the District Judge passed an order maintaining her possession as shebaiti of the two idols Sri Sri Rajraieswar and Sri Sri Radha Krishna. There was an application for revision of the said order by Benode Behari Saha before this Court. The application which was purported to be made under Section 115 of the Code was ultimately dismissed, a Rule having been issued which was discharged. The order of the High Court is dated January 29, 1926. In that order the High Court did not express any opinion on the question whether Benode Behari Saha would be entitled to the possession of the properties and the shebaitship of the idols,, or did not determine the rights of the parties under the will of Purna Chandra Saha. Having been defeated in the High Court the present suit was instituted by Benoda Behari Saha and his brother Banka Behari Saha, one Bhabani Chandra Saha and Sidheswari Das, whose positions are shown in the geneological table as plaintiffs Nos. 3 and 4, respectively. In the plaint they make the following statement in Paragraph 4 to which it is necessary to refer in particular. That on Agrahyan 6, 1331, corresponding to November 21, 1921, the late Sarada Sundari Dasya adopted plaintiff No. l's son Sriman Sudhir Kumar Saha as the son in adoption of her husband under the power given in the said will; and Sarada Sundari Dassya, deceased, died on Agrahyan carresponding to November 23, 1921. In Paragraph 9 of the plaint it is stated "that in law plaintiffs are at present the shebaits of the aforesaid three idols by right of inheritence; and until and unless the summery order of August 26, 1925, of the Court of the District Judge of Rangpur is set aside by a competent Court upon declaration of the adoption of Sriman Sudhir Kumar Saha, the defendant Rai Sundari Dasya is a joint shebait of the aforesaid three idols with the plaintiffs, as a shebait, in fact, of the branch of Purna Chandra Saha....

(3.) The cause of action is staled to have arisen from the date of the summary order of August 26, 1925, and subsequently from the time when the shebaitship of the plaintiffs was denied. It is stated in Paragraph 10 of the plaint that the defendant denied the plaintiffs right of joint, shebaitship of the said three idols and also in acounter affidavit sworn in the High Court in connection with the application for revision against the order under Act XIX of 1841. Upon this they asked for several declarations which are mentioned in the prayers at pages 41 and 45 in the 1 part of the paper book. The substantial declaration asked for is that the plaintiffs are joint shebaits of the three idols Sri Sri Iswar Rajrajeswar and Sri Sri Iswur Radha Krishna. Although there has been no prayer for recovery of possession the plaintiffs have paid ad valorem court-fees, treating the suit as one for recovery of joint possession, with the defendant. The Subordinate Judge granted a decree with regard to the properties mentioned in schedules ka and kha and dismissed plaintiffs suit with reference to the properties mentioned in schedule ga. The ordering part of the Subordinate Judge's judgment is in this form: That the suit be decreed and the plaintiff's right as joint shebaits of the idols and their right to joint possession of the disputed lands except those in schedule ga be declared as. stated in the plaint. That a suitable person be nominated by both the parties to represent the idols, and in the presence of the contending parties, and the idols so represented, a scheme be framed for the due performance of the sheba of the idols and the special ceremonial worships according to the directions of the will of Purna Chandra Saha. The costs of the parties will be ultimately borne by the debuttar estate after the scheme is prepared and approved by the Court. If the parties cannot agree about a person to represent the idols, the Court will appoint one to do the same. The suit so far as it relates to schedule go, properties be dismissed and the other prayers in the plaint be also disallowed.