(SREE SREE BANKU BEHARY THAKUR AND SHALGRAM SHILA THAKUR BY THEIR PARICHARAK AND SHEBAIT) PANCHKARI ROY Vs. AMODE LAL BARMAN

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and arises out of a suit commenced by him as paricharak and shebait of certain deities for declaration of title to the property in suit and for a permanent injunction restraining the defendants from interfering with the possession of the deities. The original plaintiff whose name was Bhaktaram Roy having died after the institution of the suit, his nephews Panchkari Boy was substituted in his place and is the appellant before me.

(2.) The facts which are for the most part undisputed may be briefly stated as follows: One Ramdas Mohunt who was admittedly the owner of the property in suit died in February 1915 leaving behind him a will by which he dedicated this property to certain idols named Bankubehari Jew, Salgram Sila and others. His youngest daughter Arunbala was made the shebait and the direction was that Golap Sundari, his widow, would manage the property so long as Arunbala remained an infant. There was no provision in the will as to who would succeed Arunbala as she bait and the only provision was that in case there was misappropriation of the idol's property, five gentlemen would be entitled to remove the shebait and take steps for the protection of the debuttar estate. In July 1926 Golap Sundari, who is found to have become unchaste even during the lifetime of Ramdas, took out probate of the will on behalf of her infant daughter Arunbala, and in November 1916 she herself sold the property in suit to one Satish, who is defendant 4 in this suit, treating it as secular property and one which had devolved upon her by inheritance. In March 1928, Arunbala who had in the meantime attained majority sold this property to defendant 1 on the footing that it was secular property which she had got under her father's will. There was a litigation then between these purchasers, which ultimately ended in this Court which held on 7 July 1933 that defendant 1 had the preferential title and was entitled to get the property in preference to defendant 4.

(3.) Shortly after that, the present suit was instituted by the plaintiff Bhaktaram and his case was that the property in suit was a debuttar property of the deities to whom it was validly dedicated by Ramdas and that he was the shebait of the idols as being the spiritual preceptor of Ramdas. He further alleged that Golap Sundari had made over to him the idols after the death of Ramdas and he removed these idols to his own place and was worshipping them there since then. The property according to the plaintiff was in possession of Satish, defendant 4 as a tenant of the debuttar estate, and as the decree obtained by defendant 1 against defendant 4 had thrown a cloud on the title of the deities the present suit was instituted. Defendant 4 did not contest the suit which was contested by the other three defendants who contended inter alia that the property was not debuttar, that the suit was a mala fide one being instituted at the instance of defendant 4 who being defeated in his suit against defendant 1 had now set up the plaintiff; and that the plaintiff was not the spiritual guide of Ramdas nor was he a shebait or worshipper of the deities, if any such existed. As I have said before, Bhaktaram Roy died pending the hearing of the suit, and Panchkari, his nephew and alleged heir, was substituted in his place. The trial Court dismissed the plaintiff's suit. It held inter alia that the property was debuttar, but the plaintiff Bhaktaram was neither the spiritual guide of Ramdas nor was he a shebait or even a worshipper of the deities and had no right to institute the suit. It further held that Panchkari was not the heir of Bhaktaram and the suit was not maintainable at his instance. The lower appellate Court affirmed the decision of the trial Court though it did cot accept all its findings. It held that the property was debuttar and that the idols were actually in possession of Bhaktaram who removed them to his house at Galigram and worshipped them. It held however that both Bhaktaram and Panchkari were pujaris and not shebaits, either de jure or de facto, and consequently had no right to sue. It is against this decision that this second appeal has been preferred, and the whole controversy centres round the point as to whether Bhaktaram or Panchkari has any right to represent the deities and institute a suit on their behalf.