BROJENDRA NATH SEAL Vs. LALIT MOHAN SEAL

JUDGEMENT

(1.) This is an appeal against a judgment of my learned brother, Mr. Justice Page delivered on the 18tb August 1925.

(2.) The facts giving rise to this litigation may be shortly stated as follows: One Gopal Chandra Seal who was a Hindu inhabitant of Calcutta, died some time in September 1911, leaving him surviving his widow, Srimati Badam Moni Dassi, and three sons, namely, the plaintiff, Lalit Mohan Seal and the defendant Dulal Chandra Seal and one Akhoy Kumar Seal, and after having executed his last Will and testament on the 20 day of August 1910. Akhoy Kumar Seal died some time thereafter, leaving him surviving his two sons, the defendants Brojendra Nath Seal and Banamali Seal. Probate of the said Will was granted, on the 16 June 1916, to the defendants Brojendra Nath Seal and Banamali Seal, and subsequently on the 10 June 1922 grant of probate was also made to the defendant Kartick Chandra Seal, who is a son of the defendant Dulal Chandra Seal. Gopal Chandra Seal possessed various immovable properties, and in respect of some of his properties he had executed, among others, on the 22 February, 1897, a deed of declaration of trust, and on the 9 August 1906, an indenture of gift. The deed of declaration of trust bearing date the 22 February, 1897, related1 to Premises No. 6, Damzen 's Lane, and the settler declared that the said premises should be held by him upon trust to collect the rents, issues, profits thereof and to apply the same in paying the rates, taxes and charges payable in respect thereof, and in maintaining the same in proper repairs and thereafter in applying and expending 1/3 of such rents, issues and profits in and towards the performance of the daily worship of the settler's family idols during the months of Pous to Chaitra in every Bengali year, and 1/3 of the residue for the periodical worship of the said idols during the said period, and to set apart the remaining 1/3 as a reserve fund for the daily or periodical worship of the said idols or for the improvement of the endowed property as the shebait for the time being should consider fit and proper. The settler went on to add as follows: I do further declare that I shall during my lifetime be the Shebait and managing trustee for the performance of the Sheva and the daily and periodical worship of the said idols and on my death my appointee or appointees, and in case of non- appointment, my wife Sreemutty Badam Money Dassi shall be the Shebait and managing trustee, and after her death my sons Lalit Mohun Seal, Akshoy Chunder Seal, Nilmoney Seal, and Dulal Chunder Seal jointly and severally shall be Shebaits and managing trustees, and after them their appointees and in default of appointment their heirs shall be the Shebaits and managing trustees jointly and severally for the time being and the said hereditaments and premises shall remain vested in the Shebait or Shebaits for the time being.

(3.) By the said indenture of gift, dated the 9 August 1906, the said Gopal Chandra Seal made a gift of Premises No. 13, Tiretta Bazar Street, to his son Akhoy Kumar Seal.