A.K. Bhattacharya, J. - (1.) The appeal is directed against a decree dated 31.5.91 by a Single Judge of this Court. The aforesaid suit was initiated on the basis of an originating summons taken out by the respondent -plaintiff Prem Chandra Sen on the 7th November, 1990 for determination of certain questions relating to a claim of shebaitship on the basis of a trust deed executed by one Kshetra Mohan Sen. By the said deed he created certain debuttar properties for the worship of his family deity Shir Shri Gopi Chand Ralla and for making provisions for this family Kalipuja. In the said deed he also fixed the line of devolution of the debutter properties to two classes of shabaits of his choice. The relevant portion of the Trust deed properties the Line of succession in the office of the sebaitship is as follows : - I the said Kshetra Mohan Sen appoint myself during my life time as the sole trustee and shebait of the said deities for and during my pala or turn of worship to look after and manage the sheba of the said deities during my pala or turn of worship also to perform the Kali Puja year by year and every year and also to look after (and) manage the estate hereby dedicated to the said deities and I further direct that after my death my wife Sreemati Saumini Dasi jointly with Bonomally Sen and Brojo Kishore Sen or survivor or survivors of them to act as joint trustees and sebait of the said deities for and during their life time during my pala or turn of worship last aforesaid and also to perform the Kail Puja every year as I have been doing now and do all such things as might be deemed necessary by them for the better management of said estate and after the death of any of the said trustees the survivor or survivors of them shall be and act as such shebalut and trustee for and during their respective life time and after their death my grandsons with their respective mothers who will survive my said sons and their heirs male in succession act jointly as such shabeit trustee as last foresaid. The following is the genealogical table of the family of late Kshetra Mohan Sen as given in the affidavit affirmed by Prem Chand Sen in support of the originating summons.
(2.) According to the respondent in terms of the trust deed the last trustee and shebait was Dulal Chand Sen who died on the 18th January, 1990. The plaintiff, therefore, claims that in terms of the dead he became the sole shebait and trustee of the trust estate. He further states that he has been performing the sheva puja of the deity according to the terms of the trust deed and that the appellant Padmabati although initially cooperated with him handing over the ornaments and utensils of the deity has subsequently refused to deliver the documents of the trust estate. He has also alleged that Padmabati Sen and Sreemati Saraswati. Sen have created inconvenience in the matter of realising rents from the tenant. He has accordingly prayed that he should be held to be the sole trustee and shebait of the estate being the only surviving male their and descendant of the propounder Kshetra Mohan Sen and that as such he is entitled to have the custody of the documents, namely, the original trust deed, rent bills etc. of the trust estate.
(3.) The suit was contested by Padmabati and Saraswati by filing a counter affidavit in which they had denied the allegations of Prem Chand Sen so far as his claim of shebaitship is concerned. They have, however, not set up any positive claim of shebaitship themselves.;