ANNADA CHARAN DUTTA Vs. KAMALA SUNDARI RAI

JUDGEMENT

(1.) The properties in suit belonged to one Umacharan Roy. He died leaving a will the material portion of which is as follows: I dedicate all my ancestral and self-acquired immoveable and moveable properties to my family deity Sree Sree Iswar Dayamayi Thakurani. For the present my wife, Srimati Kamala Sundari Thakurani and my son, Sriman Durga Prosad Roy shall go on managing the said properties. Out of the profits of the said properties the managers (Sarbarakars) shall maintain the deities, Sri Sri Iswar Dayamoyi, Sri Sri Iswar Dasabbhuja and all my usual annual festivities and the surplus profits shall be enjoyed in equal shares by my wife, the said Kamala Sundari Thakurani, and my sons Sriman Durga Prosad Roy and Kalika Prosad Roy and Sriman Karuna Kumar Roy, the minor son of my eldest son, the late Kishory Mohan Roy, and the manager (Sarbarakar) shall be bound in every way to bring up the minors Sriman Kalika Prosad Roy and Sriman Karuna Kumar Roy during their minority. Be it known that the said, Durga Prosad Roy or Kalika Prosad Roy or Karuna Kumar Roy, shall not be competent to gift away, sell or alienate any portion of the said properties, nor shall they be able to put up to auction or sell any of these properties for their debts.

(2.) Probate of this will was taken by Kamala Sundari and Durga Prosad. They got their names registered as Shebaits of the deity in respect of all the revenue paying estates. Defendant 1 obtained a decree for money against Durga Prosad and Kalika Prosad defendants 2 and 3, and in the execution of the decree attached these properties. The idol Dayamoyi Thakurani through the Shebait Kamala Sundari preferred a claim under Order 21, Rule 58, Civil P. C. This claim was disallowed. She therefore raised the present suit under Order 21, Rule 63, Civil P. C., for a declaration that the properties in suit are debuttar properties and are not liable to attachment and sale. She obtained an injunction from the Court restraining defendant 1 from selling the property pending the hearing of the suit but before the order of injunction was communicated to the executing Court the properties were sold and purchased by defendant 4. The defence of defendant 4 is that the disputed properties are not debuttar, that they are the secular properties of defendants 2 and 3 which they had inherited from their father and that they are liable to be sold in execution of the decree obtained against them. He also pleaded that he had obtained possession of the lands purchased by him at the auction sale and consequently Section 42, Specific Relief Act, was a bar to the present suit.

(3.) The trial Judge decreed the suit. He declared the properties to be absolute debuttar and not liable to be sold in execution of the decree obtained by defendant 1 against defendants 2 and 3. He also held that plaintiff was in possession of the disputed properties and was not dispossessed by defendant 4 after the latter obtained symbolical possession through Court. Defendant 4 took an appeal to the lower appellate Court. The learned Additional District Judge has come to the conclusion that the plaintiff has not been dispossessed by defendant 4, that by the will the disputed properties were made absolute debuttar of the idol and were not liable to be sold in execution of the decree against defendants 2 and 3. He accordingly dismissed the appeal. Hence this second appeal by defendant 4. The point for determination in this appeal is whether the disputed properties are liable to be sold in execution of the decree obtained by defendant 1 against defendants 2 and 3.