BENODE BEHARY SAHA Vs. RAI SUNDARI DASSYA

JUDGEMENT

(1.) This Rule was obtained on an application for revision of an order passed by the District Judge of Rungpur under Section 115 of the Civil Procedure Code. The order was passed by the Judge under the provisions of the Succession of Property Protection Act No. XIX of 1841 directing that the curator appointed under that Act should make over certain properties to one Rai Sundari Dassya.

(2.) The facts are these: One Purna Chandra Saha died in 1899. He left a Will under the provisions of which amongst other things it was directed that his widow should remain in possession of the properties for her life. Certain annuities were given to his mother, the opposite party before us, and his grandmother. The widow Sarada Sundari was given authority to adopt a son and it was provided that if she died without making any adoption all the properties left by the testator should vest in two idols and that by the income of the properties the debsheba of the idols should be performed and if there was any surplus left that would be spent for certain charitable and educational purposes. The lady Sarada Sundari died on the 23 November 1924, and after her death the present petitioner, Benode Behary Saha took possession of the properties, moveable and immovable, left by Sarada Sundari on the allegation that Sarada Sundari had adopted his son Sudhir according to the authority given in the Will of Purna Chandra Saha. Thereupon, the opposite party, the mother of Purna Chandra Saha, Rai Sundari, made an application under Act XIX of 1841 on which the order complained of was made by the District Judge.

(3.) The contentions on behalf of the petitioner may be shortly summarized in this way. The opposite party and Purna Chandra belonged to the same family and were agnatic relations. There are two other persons, Bhabani and Banku, who are also descendants from the common ancestor. The idols to whom the property has been left by the testator were established by an ancestor of all these persons. Therefore all the persons, Purna, the opposite party and the others mentioned above were shebaits of the two idols. Purna used to perform the sheba for nineteen days in the month and the other three persons performed the sheba for the remaining eleven days. On this fact, the contention raised is that the mother Rai Sundari who presented the petition describing herself as shebait of the two idols and as such entitled to possession of the properties was not the sole shebait and as the question involved relates to the conflicting claims of shebaits to the custody of the property belonging to the idols the matter does not come within the purview of the Curators Act.