MANICKCHAND AGARWALLA Vs. PARESHNATHJI

JUDGEMENT

(1.) This is an appeal by the defendants against a judgment of Ameer Ali J. The plaintiffs were Pareshnathji, a Digambari Jain deity located at the Mandirji at No. 1, Bysack Lane, in the town of Calcutta, by its next friend Baldeodas Serowjee, and certain trustees. The claim was for a declaration that premises No. 35-B, Brojo Dulal Street, belonged to the plaintiff deity and for the other plain, tiffs as trustees for the plaintiff deity. The defendants were the heirs of the original founder of the alleged trust. The material facts are as follows : One Hulashilal, a wealthy Digambari Jain resident of Calcutta, by his will dated 20 December 1826 dedicated inter alia the premises No. 35, Brojo Dulal Street now known as Nos. 35-A and 35-B, Brojo Dulal Street, in favour of the plaintiff deity. In that will there are many references to religion or religious purposes and inter alia the following statements: To the Manderji at Sri Calcutta of the Tairopuntee Amnyo I have given and cause to be given thus: The Puccoka house for my own dwelling, situate in a Sootaluttee...which said house I give in the Mundirji. As long as Babu Hurshahay shall live in this, so long he will pay rent at 16 (sixteen) rupees per month, expenses for repairs are at the charge of Babu Hushahay, if he does not pay rent then the value of Rs. 6000, (in letters) six thousand, as the consideration for this house, he will pay in the Mundirji; if he pays neither the price nor rent, then he will vacate the place. Whatever repairs are necessary to be made of breaches in the premises, the expenses thereof shall be defrayed out of the profits of the two annas share that Mundirji has in the shop.... The rent or interest that is obtained from the aforesaid House and lane, shall be expended for the Mundirji's Poojairy, Tailooba, Repairs, Poojapats and articles for the Poojahas et cetera, Mooktears for making these disbursements, are the Tairopuntee Jainee Brethren of Calcutta . After this manner I have put the Mundirji at Sri Calcutta under the charge of the Tairopuntee Amnio Jainee Brothers.

(2.) There were two executors, one of whom was Harsahay who had married Hulasi lal's daughter Mannoo Bibi. He died in 1858 and was succeeded by his son Inder Chandra. He died in 1871 and the evidence seems to show that in his lifetime a division was made between two portions of the premises, one being made into a Thakurbari and in it was installed an image or representation of Pareshnathji. Inder Chandra left two sons, Nanoo and Chanoo, and a daughter Shyam Bibi. Nanoo did not long survive Inder Chandra, but Chanoo lived until 1912. During his lifetime, there was a partition suit between Chanoo and Nanoo's son Dhanoo for the partition of the estate of Inder Chandra. This suit is of importance because the proceedings show that the family property on partition was assumed to exclude the estate of the Thakur, i.e. Pareshnathji, and that the property in the present suit was omitted from the list of properties to be partitioned. It was thus acknowledged by the parties that the property in question was dedicated and belonged to the Thakur Pareshnathji.

(3.) In 1877 a suit was filed in which the plaintiffs were the members of the Panch who looked after the property of the Jain temple at Calcutta including the property in suit, their intention being to obtain a declaration from the Court regarding the Thakur's rights. The suit was dismissed in the lower Court. There was an appeal, followed by a remand, but apparently nothing further was done. The suit is of importance, because in the written statement of Chanoo there was an acknowledgment that there existed a religious estate of the Thakur Pareshnathji. In that suit, there was no suggestion that there was no estate belonging to Pareshnathji or that Pareshnathji was incapable of holding any estate or that the immovable property was not the property of the Thakur. The suit really turned upon a question about the share of profits and the matter of the dedication of the house does not seem to have-been discussed.