DOORGA CHURN CHATTERJEE Vs. ASHUTOSH DUTT

JUDGEMENT

(1.) THE principal question to be determined in this appeal is, whether or not the Respondent, Doorga Churn Chatterjee had any right, title, or interest in a certain talook called Lot Panchgatchia, in Zillah Hooghly, liable to be attached and sold in execution of a money decree against him. The question arose in this manner. The Appellant sued him in the High Court, Original Jurisdiction, and on the 16th of November, 1864, obtained a decree against him for Rs. 3500, with interest and costs. In execution of that decree an attachment was issued. The attachment is not on the record, but it appears from the plaint that under it a one-third share of the talook was attached, and thereupon Doorga Churn (the debtor) and his brother Shama Churn, who are the Respondents in this appeal, intervened and put in a claim to the property, alleging that it was not liable to attachment, inasmuch as they held it in trust for an idol, Raj Rajeswar, by virtue of a will executed by their mother Saraswati. The Judge of Hooghly having investigated the claim, distrusted the genuineness and bona fides of the will, he stated that he did not believe that the property was held in trust for the idol, and, under the provisions of Section 246 of Act VIII. of 1859, disallowed the claim of the Respondents, and ordered the execution to proceed. The present suit was consequently brought by the Respondents against the Appellant under the same section to set aside the order of the Judge, and prayed that the will executed by their late mother should be confirmed, that the share of the talook which had been attached and ordered to be sold should be declared dewuttur property, or property dedicated to religious uses, and not liable to be attached or sold for a private debt of Doorga Churn.

(2.) A written statement was put in on behalf of the Defendant, and several issues were raised, and amongst them the third, fourth, and fifth, which were the material ones on the merits. The third was, whether the will set up by the Plaintiffs was a genuine document, and whether the mother, Saraswati, endowed the property in suit for the sole benefit of the idol, and whether the profits of the disputed estate had been appropriated to the idol alone. Fourth, whether the Plaintiffs were entitled to a declaration that the estate was not liable to be attached and sold in execution of the decree obtained against one of them personally. Fifth, whether the Plaintiffs were the beneficial owners of the property. The Subordinate Judge found in substance that the will was genuine, that it was not colourable or fraudulent, and that it was intended to be acted upon, and thereupon he held that the property was dewuttur, and not liable to be attached or sold for a private debt, and ordered it to be released from attachment. Each party was ordered to bear his own costs.

(3.) FURTHER , it was contended that under any view of the nature and effect of the will the debtor, Doorga Churn, had a considerable beneficial interest in the property.