SREE SREE SREEDHAR JEW Vs. KANTA MOHAN MULLICK

JUDGEMENT

(1.) A wealthy man named Motilal Seal was the member of a family governed by the Dayabhaga School of Hindu Law. He died in 1854 leaving 5 sons of whom Kanailal was the youngest and who inherited 1/5 of his father's estate. This portion was more than considerable and has increased in value since Motilal's death. Kanailal died in 1884 leaving one son, Gopal Lall, and two married daughters, Sukumari and Hemkumari. Gopal died in 1902, intestate and childless, leaving two widows Kumudini and Noyan Manjuri, the latter being a lunatic; they died in 1917 and 1937 respectively. Defendant 2 is the only son of Hemkumari and a cousin of the remaining four defendants who are the sons of Sukumari; thus, all the defendants are grandsons of Kanailal. Hemkumari and Sukumari died some years ago. The defendants succeeded to Kanailal's estate, which includes a large family house, No. 60 Colootollah Street, Calcutta. It is common ground that the defendants are the shebaits of the plaintiff deities and the suit is concerned with rights, if any of the deities with respect to the house.

(2.) The plaintiffs are the deities of the family and, it is common ground, they have been located in the house since the year 1848. In the plaint it is alleged that portions of the house have been set apart for their use, being, (a) a room or a "thakur ghar" (on the first floor) for their ordinary location and daily worship; (b) certain other portions; (c) two portions (on the ground floor) for the performance of annual festivals and ceremonies of "Dolejatra" and "Durgotsab," which are called the dolebari and durgabari respectively, and to which portions the thakurs are removed on those occasions; the whole of the above portions are referred to as the "thakurbari." The date and by whom the deities were installed in the house has not transpired; it was stated that Motilal founded them, but it is not in dispute that they were worshipped, and the various religious ceremonies were carried out, in the house, by Motilal, Kanailal, and Gopal, and by Kumudini (the senior widow of Gopal) until the dates of their deaths. Since Noyan Manjuri was a lunatic and did not reside in the house, it may be, she did not actually participate in the worship and ceremonies. Since the death of Kumudini in 1917, the defendants and their families have been the sole occupants of the house where they have carried out the worship and festivals. Since they are Sudras by caste, they have performed the ceremonies by a Brahmin priest.

(3.) Upon the death of Noyan Manjuri in 1937, defendant 2 instituted, against defendants 1, 3, 4 and 5 Suit No. 366 of 1937 for partition of the family properties, including the house. On 22- 11-1938, a preliminary decree was passed by which, inter alia, a Commissioner of Partition was appointed to divide the properties and to set apart a suitable portion of the house for the location and residence of the thakurs and for their festivals. In his return the commissioner has divided the house into six portions, one portion being allotted to each of the five defendants and the remaining portion to the thakurs.