GURUPADA HALDAR Vs. MANMOHAN MUKHERJEE

JUDGEMENT

(1.) This second appeal arises out of a suit for declaration of title to and recovery of possession of about 5 cottas of land together with a house and a Siva temple standing thereon. The property originally belonged to one Pran Krishna Haldar who died in 1868 leaving him surviving his widow Nitambini Debi and his mother Biswamoyi Debi. Nitambini died in 1919 and Biswamoyi died in 1899. On 26 March 1868, Nitambini mortgaged the disputed property reciting in the mortgage deed that she had to pay the decretal debt of Pran Krishna Haldar amounting to Rs. 200 and to raise Rs. 250 for her own maintenance. Subsequently the mortgagee brought a suit and obtained a decree and on 30 December 1870, Biswamoyi auction-purchased the property in execution and obtained possession on 2 March, 1872. In September 1889 she executed a deed of gift or endowment in respect of the disputed property in favour of the Siva idol established by her and appointed one Jadu Nath Mukherjee as the first shebait. In 1901, Jadu Nath executed another deed by which he appointed his two sons Lal Gopal Mukherjee and Kalipada Mukherjee shebaits and also laid down the line of succession in his family. It may be noted here that Biswamoyi had already died. Gurupada Haldar who is defendant 1 in the present suit became the reversioner to the estate of Pran Krishna Haldar on the death of Nitambini and in 1923 he instituted Title Suit No. 203 to recover possession of the disputed property alleging that Nitambini had only a widow's interest and Biswamoyi had purchased only that interest.

(2.) The suit was brought against Lal Gopal and Kalipada who were in charge as shebaits of the idol. The suit ended in a compromise on 21 January 1927 and the result was that the property was divided about half and half, Gurupada taking one half and Lal Gopal and Kalipada taking the rest in the name of the idol. The present plaintiffs, who are the sons of Lal Gopal and Kalipada, allege that their fathers were unduly influenced by the relatives of defendant 1, Gurupada Haldar and the neighbours, and that they had acted improperly as shebaits in entering into the compromise. The plaintiffs further allege that they took their fathers to task, whereupon the latter ceased to act as shebaits and permitted the plaintiffs to act as shebaits. By the said compromise decree the title of the Siva Thakur to the suit land has been clouded and so the plaintiffs have brought the present suit. Lal Gopal and Kalipada have been made pro forma defendants 2 and 3; they have filed a short joint written statement supporting the plaintiffs case. The suit is contested by Gurupada Haldar, defendant 1. His defence is that the plaintiffs have no locus standi to sue, that Nitambini had only a widow's interest which was purchased by Biswamoyi and the latter's right ended when Nitambini died in 1919, and further that the compromise in the suit of 1923 is binding on the plaintiffs.

(3.) The trial Court found that Nitambini had mortgaged for legal necessity and that she intended to bind the entire estate, but that there was nothing to show that the mortgagee intended to enforce the liability against the entire estate. On the contrary, only the right, title and interest of the judgment-debtor Nitambini were sold and not the entire estate of Pran Krishna Haldar. Therefore Biswamoyi did not acquire absolute title to the property. Gurupada inherited it after the death of Nitambini and the endowment was no longer valid. At the same time the Subordinate Judge held that the plaintiffs were validly appointed shebaits and that the solenama was not binding on them. In the view that he took of the auction-purchase, the Subordinate Judge dismissed the suit. On appeal the District Judge agreed with the Subordinate Judge on all the points except with regard to the auction-purchase. He held that the entire estate passed to the auction-purchaser. In that view he decreed the suit. The present second appeal is preferred by defendant 1.