LAWS(PVC)-1926-11-81

SRI SRI KALIMATA DEBI Vs. NAGENDRA NATH CHUCKERBUTTY

Decided On November 12, 1926
SRI SRI KALIMATA DEBI Appellant
V/S
NAGENDRA NATH CHUCKERBUTTY Respondents

JUDGEMENT

(1.) This is a suit instituted fey Sri Sri Kalimata Devi established at No. 28, Sovabazar Street, by her next friend Srimati Basanta Kumari Debi and by the said Srimati Basanta Kumari Debi as one of the worshippers of the said deity, for a declaration that the deed of revocation and mortgage executed by one Suresh Chunder Chuckerbutty are not binding upon the idol. The facts of the case are a follows: Nemai Chunder Chuckerbutty, who died in 1894, left four sons : Sashi, Suresh, Nagendra and Debendra. Sashi and Debendra died before the 1st, May 1922, on which date Suresh executed a deed of trust in favour of himself and his brother Nagendra in regard to two properties, being No. 12 Beniatolla Street, and 18 Sovabazar Street. The deed of trust provided that Suresh and Nagendra should be the Shebaits to carry on the worship of the idol and that Chandi, Nagendra's son, and Gourmohau, Debendra's son, should also be added to the category of Shebaits upon attainment of their majority.

(2.) On 6 June 1928 Suresh and Nagendra, acting for himself and as guardian for Chandi, and Bejoy, son of Suresh, as well as Charubala, Debendra's wife, as :guardian for Gourmohan, executed a deed of revocation the effect of which was to set aside the deed of trust executed on the 1 May 1922. Thereafter, on 20 June 1923, Suresh executed a mortgage in favour of the 8 defendant, the firm of Kodarmull Luchminarain, which has since filed a suit on the mortgage and recovered a decree.

(3.) The defence to the suit is that the deed of trust in May 1922 is merely a colourable transaction executed in fraud of creditors and has therefore no legal or binding effect, and was never acted upon. It is further said that Suresh never actually divested himself of the property or of his beneficial interest therein and after the deed of settlement appropriated the rents and profits thereof to his own use and not to the worship of the idol. The defendants further plead that there was no dedication of the properties and no trust was effectually created thereby and that neither of the properties became debutter property or the absolute property of the idol. It was in any event a fraudulent or colourable debutter created with the ulterior object mentioned and thus constituted no valid endowment or dedication. The defendants further plead that the liability of the mortgagor was just and bona fide and that there was valid consideration for the said mortgage. They further plead that Sreemati Basanta Kumari Debi was not the Shebait of the idol and has no locus standi to maintain this suit, and further, that the idol never had any title in the properties so that no cloud could be cast over it in any way. The infant defendants submit their interest to the protection and judgment of the Court.