NITYA GOPAL BANERJEE Vs. PROVAS CHANDRA MUKHERJI

JUDGEMENT

(1.) One Nilmony Chakravarti was entitled to a turn of worship of a deity known as Malai Chandi which ex-tended to ?9 days in the year. Nilmony died on the 14th November 1913. The plaintiff claimed that turn of worship as his heir. Nilmony, however, a few days before his death executed a kobala in favour of defendant No. 1 in respect of 33 days out of his turn. The kobala purports to have been for consideration for a sum of Rs. 300, said to have been spent during the illness of Nilmony. The learned Subordinate Judge held that there was no consideration for the kobala and that undue influence had been exercised over Nilmony who was ill and that misrepresentations had also been made to him. He held that the transfer was only of the turn of worship irrespective of the debutter property and as according to him no custom for such transfer had been made out, there was not an effective transfer. On both the above grounds be decreed the plaintiff s suit. He, however, found that the defendant No. 1 was on the line of succession, being the sister s son of the she-bait Gobinda Chakravarti, and that he could become a shebait if Gobinda died without any sons.

(2.) On appeal the learned District Judge agreed with the trial Court that it had not been established that there was money consideration for the document. He, however, found that the defendant and his wife resided for some time on a portion of Nilmony s homestead, and that as Nilmony s health did not permit him to perform the pooja, defendant No. 1 had for some time performed the pooja; that during his last illness defendant No. 1 and his wife attended on him and that the kobala was executed openly, and after consultation with other shebaits: that the document had been presented by Nilmony himself for registration and he was satisfied-upon the evidence that Nilmony quite understood what he was doing, and although the word "sale" had been used in the kobala, he found that Nilmony desired to convey the pala to the extent of 33 days to defendant No. 1; that he had by a subsequent document made a gift of the remaining six days to his Purohit Dharmadass. He also found that it was a perfectly natural thing for Nilmony to desire to transfer the right of worship to defendant No. 1. On the death of Kalachand, who was the original defendant, his son Nonilal has been brought upon the record. The learned Judge did not find that Nilmony was induced to make the transfer by undue influence, and he held that although the document purported to be a kobala it should be looked upon as a gift, although the consideration mentioned was fictitious and imaginary. He also held that transfers of palas bed been proved to have been made for a great number of years beginning from at least 1259 B.S. (1852 A. D.). He held upon the oral evidence and the documents produced before him, principally Exhibits C, D, E, F, G, J, K, that the palas of this Thakurani were transferable by custom. He found nothing in the cross-examination of the shebait witnesses to indicate that "the custom of transfering palas was restricted to transferences of palas along with the debutter land." Ha held "immemorial origin, continuity and certainty of the custom of transfers of palas of the goddess in question established" and disagreeing with the learned Subordinate Judge, he dismissed the plaintiff s suit.

(3.) It was urged before us on behalf of the appellants (1) that no custom had been established and the immemorial origin referred to by the District Judge was an overstatement, as there was no evidence of any transfer before 1852; (2) that the transfer was bad, not being to one in the line of succession or to a shebait, but to a person who, although connected with one of the shebaits and his possible heir, was not competent to take; (3) that the transfer of a pala apart from the debutter property was void; (4) that the document, being one of sale stated to be for consideration; ought not to be treated as a gift; (5) that as the man was suffering from death illness, the document having been executed on the 10th November 1913 and registered on the 13th November and the man dying on the 14th, the transfer could not be treated as being inter vivos; (6) that the division of the pala into two portions, 33 days to defendant No. 1 and six days to another, rendered both illegal.