Laik, J. - (1.) This is defendant's appeal arising out of a suit for recovery of a sum of Rs.33,240/7/6 as the balance of price of goods sold and delivered, total claim being laid at Rs.34,450/4/7 with interest. The plaintiff is a Company incorporated under the Indian Companies Act and the defendant was described in the suit as follows:- "Sm. Brojorani Dassi for self and as executrix under the Will of and/or Trustee to the estate of Soshi Bhusan Saha (deceased) and also as Shebait of Sri Sri Ishwar Radhagobinda Jieu located at 12, Kalidas Lane, Calcutta."
(2.) The plaintiff's case was that on April 4, 1917 the said Soshi Bhusan died leaving a Will dated January 13, 1917 possessed of properties moveable, immoveable and businesses. One of such businesses carried on by Soshi, prior to his death, was a wine shop under the name and style of Kensington Stores (hereinafter referred to as K. Stores) at 11 (now 10) Lindsay Street, Calcutta. By the said Will, Soshi (the testator) dedicated all the properties including the wine shop to the said deity Sri Sri Iswar Radhagobinda Jiew and appointed Brojarani, his second wife, as the sole Shebait of the said deity for the term of her natural life. Brojorani and Nandalal (Soshi's brother) were appointed as a executrix and executor respectively. The plaintiff's further case was that on diverse dates between March 12, 1956 and June 14, 1956 the plaintiffs sold and delivered various quantities of wines and spirits to the defendant and the plaintiff's claim is for the balance of the price of the goods delivered as stated above.
(3.) The defence in short was that in pursuance of an order of this Court on or about March 22, 1938, the defendant Brojorani in her personal capacity purchased the said wine shop business with its appurtenances, stocks, assets and goodwill and since that time Brojorani has been carrying on the said business of K. Stores as the absolute owner thereof. The further defence was that since March 22, 1938 the said business ceased to form part of the estate of the said Soshi Bhusan or of the said deity. It was also pleaded that neither the estate of Soshi Bhusan nor the said deity has any right, claim or interest in respect of the said business of the wine shop since the said date. It was also the defence that the suit was bad for misjoinder of parties, on the ground that Brojorani had not only been wrongly sued as executrix under the will but also as a trustee to the estate of Soshi Bhusan and also as a Shebait of the said deity. The defendant denied the liability in its entirety.;