RADHA NATH MUKERJI Vs. SHAKTIPADO MUKERJI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession over certain properties including immoveables, and for a declaration that the plaintiffs have a right to administer a trust as the duly appointed shebaits, and also for costs and future mesne profits. The prayer in the plaint is in the following terms: That the Court may be pleased to declare that the plaintiffs are the shebaits of gods Kaliji and Shivaji installed in premises No. B 6/6 and of Sri Radha Krishnaji installed in premises No. B 7/89 & 89-A and as such are entitled to manage the entire Debutter properties specified in Schedule A to D hereunder, and to receive rents and profits out of the same, and the defendant has no right, title, or interest in the same claim valued at Rs. 11,750 over which Court-fee of Rs. 10 has been paid. (b) That the defendant be ordered to deliver possession to the plaintiff over the property specified in Schedule B, and, if he fails to do so, the plaintiff may be put in possession of the said property as shebait of the said gods by dispossessing the defendant's claim valued at Rupees 2,750, being the value of the property (included in the valuation given in relief A). (c) Mesne profits to the extent of Rs. 100 realised by the defendant from tenants of premises Nos. B 7/158, B 7/89, 89-A, B 6/6, and Rs. 75 for his wrongful occupation of premises No. B 7/158-A, total Rs. 175 be awarded to the plaintiff from the defendant, valued at Rs. 175. (d) That pending and future mesne profits for use and occupation of the premises by the defendant at Rs. 15 per month be awarded to the plaintiff from the defendant for which Court-fees will be paid after ascertainment of account in the Execution Department. (e) That the defendant be ordered to return the ornaments specified in Schedule E, belonging to the gods, to the plaintiffs within time to be fixed by the Court, failing which a decree for Rs. 200, being the value of the ornaments, be passed in favour of the plaintiffs as shebaits of the said gods against the defendants valued at Rs. 200.

(2.) The trust property in dispute was endowed by one Swami Purnananda Sarswati Adhyaita Acharya who, before he turned an ascetic, was a Bengali Brahmin and a Mukerji. The deed of waqf was executed on 21 April 1885. The deed includes the following provisions for the management of the properties: From the date of execution of this document, I or the Mts. (Nritya Kali and Jai Kali) aforesaid neither have nor shall have any right to sell, make a gift of, transfer mortgage or dedicate to another temple, the property appertaining to the muth. So long as I live, I myself shall look after the management of the muth, and after my death the Mts. aforesaid shall carry on the management in my place. Of the two daughters Mt. Jai Kali shall be in charge of cash and meet the expenses of rag and bhog. After her death Nritya Kali shall be in charge of the cash. Be it also known that both the daughters shall also have power to appoint any one they like as manager for the future in consultation with Rakhal Chandra and Hari Prasad so that the work of the muth may be carried on in the terms noted above.

(3.) Purna Nand is alleged to have executed another deed of endownment on 5th December 1887. This deed is printed at p 61 of the paper book, and is Ex. 11. The genuineness of this deed was challenged by the defendants and the plaintiffs adduced no evidence to prove it. By the second deed Purna Nand purported to exclude Jai Kali from any share of the management of the muth on the ground that she had become disobedient. Since the deed has not been proved however we must take it that the deed of 21 April 1885 stands unrevoked in regard to all its provisions. The plaintiffs alleged that the daughter Nritya Kali married one Purna Chandra Banerji, who died when Nritya Kali was still a young girl, and that she subsequently married one Har Prasad Mukerji The plaintiff-appellants are the sons of Nritya Kali by her marriage with Har Prasad Mukerji They are the legal representatives therefore of the founder of the muth, Purna Nand. By a will executed on 31 December 1912, which is printed at p. 87 of the paper book, Nritya Kali appointed the plaintiffs as shebaits of the muth. On 26 March 1930 Jai Kali executed a will which is printed at p. 91 of the paper book in favour of Keshab Chandra Mukerji, a stranger to the family. Defendants 1 and 2 are the son of Keshab Chandra Mukerji and defendant 3 claims to be a beneficiary tinder the will executed by Keshab Chandra Mukerji.