SM PANNA SUNDARI DEBY Vs. BENARES BANK LTD

JUDGEMENT

(1.) These three appeals arise out of three suits for declaration that a house at Dharmatolla Lane in Bally on an area of about 6 bighas and a garden in the same locality on an area of about 17 bighas are the debutter properties of the idols Sree Sree Gopal Jra Thakur and others and are not liable to be attached and sold in execution of money decree obtained by the principal defendants against one Rajendra Nath Sanyah The idols have brought the suits represented by their alleged shebait, Panna Sundari Debi, who is no other person than the wife of the said Rajendra Sanyal. The suits have been instituted as the executing Courts have rejected the claims of the idols preferred by Panna Sundari to the properties in suit. A short genealogical table is necessary for following the events which have a material bearing on the controversies between the parties:

(2.) Deb Nath was a very wealthy man of Kulgachi in the District of Burdwan. His wife Kanak Moni was the only daughter of a very rich man, Rash Behary Brojo-bashi. Deb Nath was the executor of the estate of Rash Behary and Kanak Moni was,, the surviving executrix to her husband's estate after Sita Nath's death. The surviving sons of Deb Nath were the beneficiaries under his will. In 1845 litigations among the members of the family began. Sita Nath left a will by which he appointed Jadhu his executor. His widow Braja Kumari disputed the will. At Sita Nath's death Brojo Kumari was with child. A posthumous son was born, named Gobinda Nath. In 1845 Brojo Kumari brought a suit valued at 13 lacs odd on behalf of her son Gobinda Nath against Jadu by which she claimed possession of the properties left by Sita Nath (Suit No. 26 of 1845). During the pendency of the suit Gobinda Nath died and Brojo Kumari purported to adopt a person, Uday (whose name is very important in the appeals before us) under an alleged verbal authority from her husband. In 1847, Jadu on his own behalf and as executor to the estate of Sita Nath, brought a suit against Kanak Moni in which he claimed 11 lacs odd on the ground that the said money which belonged to Deb Nath had been taken by Kanak Moni, his father's executrix (Suit No. 47 of 1847). The family had their ancestral residence at Kulgachi.

(3.) On 20 June 1846 Kanak Moni purchased for Rs. 1,400 a piece of bastu with pucca buildings, garden and tank at Bally from Ram Prosad Kongar [Ex, 7 (a).II. l]. The area is stated to be about 4 bighas in the conveyance. She began to reside there. From its description, I have no doubt that this dwelling house was her stridban and is the house mentioned in item 2 of the plaint, although its present measurement is stated to be about 6 bighas odd. In the said house, she established two deities Sree Sree Gopal and Sree Radha Gobinda Jius. The exact time when she consecrated the deities cannot be ascertained, but it was certainly before the year 1852; while the appeals against the decrees passed in Suit No. 26 of 1845 and No. 47 of 1847 were pending in the Suddar Dewany Adalat (Appeals Nos. 110 and 111 of 1852), the parties thereto composed their differences and filed petitions of compromise on the basis of which the said suits were disposed of. Brojo Kumari admitted her husband's will to be genuine and also admitted that the adoption of Uday was invalid, she having in fact no verbal authority to adopt from her husband. Jadu made over 6 annas share of the properties described in the compromise petitions to Brojo Kumari as being her husband's properties and Brojo Kumari absolved Jadu from her claim for mesne profits. She was to take also six annas share of the debts due from debtors amounting to Rs. 1,93,000 odd and bear six annas share of the liability of a loan of Rs 1,13,000 odd due to Protap Singh Dugar and others. The claim for money against Kanak Moni was given up by Jadu, he admitting all moneys which came to her hands as executrix had been spent by her for the benefit of the estate. Kanak Moni gave up all claims to "move-able, immovable or to any other properties left by her husband" (II.25-1, 44-47) (the translation in the paper-book is inaccurate, the words "left by my husband" should be after the words "or to any other properties"). These petitions of compromise were filed on 24 June 1852.