RADHIKA MOHAN NANDY Vs. AMRITA LAL NANDY

JUDGEMENT

(1.) The facts giving rise to these two connected appeals which arise out of one and the same suit may be shortly stated as follows : One Peari Mohan Nandi, a resident of Kantal in the district of Dacca, installed two Idols in his house, and by a deed of arpannama, dated 21-4- 1920, dedicated a number of properties in favour of these Deities. Under the terms of the arpannama, Peari was to be the shebait during his life time, and after his death the shebaitship would devolve upon his sons, grand, sons, great grandsons and other male descendants. There is a clause in the arpannama which clearly indicates that no female heir could become a shebait till the line of male descendants was extinguished. Peari had two sons by his first wife who predeceased him, namely, Radhika and Brindaban. Radhika is defendant 1 in the suit, while Brindaban is dead, and his three sons and heirs who are all minors figure as defendants 2 to 4 in the suit. After the death of his first wife, Peari married again, and by his second wife he had two sons, namely, Amrita and Nidanta who are the plaintiffs in the suit.

(2.) It appears that after the death of his first wife, the feelings between Peari and his eldest son Radhika became very much estranged, and on 5-7-1936, Peari executed a second deed of arpannama by Which he altered the line of shebaits appointed by the first document. This new deed provided that after the death of Peari, not all his sons, but his sons by the second wife only would be entitled to succeed as shebaits. Peari died soon after the execution of the second deed, and the present suit has been filed by his two sons by the second wife for a declaration that the plaintiffs are the sole shebaits of the Deities under the second arpannama of the founder, and neither Radhika nor the other defendants who are the sons of Brindaban have any claim to succeed as shebaits. There was a further prayer that in case the defendants were found to be shebaits in law, they might be removed on account of their misconduct under the terms of the first arpannama itself.

(3.) The suit was contested by defendant 1 alone. The other defendants who were represented by a Pleader guardian did not put any separate contest, but merely adopted the written statement of defendant 1. The contentions of defendant 1 were substantially of a two-fold character. In the first place, it was averred that the line of succession laid down in the second arpannama was invalid in law and that Peari had no legal right to alter the appointment of shebaits as made in the original deed of dedication. The second defence was that there was no improper act committed by him which would justify his removal from shebaitship. It is admitted that there were quarrels between him and his father, but the root cause of all these quarrels, it was alleged, was not any improper conduct on the part of defendant 1, but the extreme partiality, of his father to his step-mother, whom his father married at the age of 62 and the children born of her. The learned Subordinate Judge who heard the suit decided all the points in favour of the plaintiffs and gave them a decree. It was held by the Subordinate Judge that the second arpannama was a valid document, and Peari was quite within his rights to alter the line of shebaits provided for in the first document inasmuch as the disposition of shebaitship as made by him therein was not valid in law. The Subordinate Judge further held that defendant 1 behaved very badly towards his father and step-mother, and was guilty of several acts of misappropriation and waste with regard to the debuttar estate itself, but as he was not a legal shebait under the second arpannama, no question of removing him from his office did at all arise.