NARAYAN CHANDRA DUTT Vs. SMBHUBAN MOHINI BASU MALLIK

JUDGEMENT

(1.) For the sake of convenience the volumes of printed paper books in this appeal will be referred to as follows:

(2.) The parties to this litigation derive their interest from one Narendra Kumar Dutt, now deceased. According to the genealogical table in the written statement at Order 81 which is not now in dispute the original defendant Narayan Chandra Dutt was the son of a cousin of Narendra s. The original plaintiff Bhubanmohini Basu Mallik was the daughter and only child left by Narendra. The latter who was a very wealthy man, executed an arpannama on 18th April 1893 by which he dedicated the Ka schedule properties to the worship of twelve siba idols and provided for a line of shebaits of which he himself was to be the first and his wife and then his heirs were to come in the order of succession. Accordingly Narendra himself became the shebait and continued to be so until his death on 20 May 1922. His wife had died in 1903. After her death Narendra executed a second arpannama on 28 December 1903 by which he cancelled the previous arrangement about the shebaitship and appointed the defendant Narayan and his sons, etc., according to the rule of primogeniture to be the succeeding shebaits. According to the evidence which is not now in dispute Narayan in Narendra's lifetime took over the duties of the sheba and the management of the debuttar properties and after Narendra's death he continued to be in possession. On 17 July 1922, Bhuban Mohini brought the present suit alleging that, as the sole heiress of the deceased Narendra, she was the lawful shebait and that the second arpannama was nob valid or genuine. She accordingly prayed for declaration to that effect, for declaration of title to and recovery of possession of the plaint properties as debuttar properties, and for other reliefs. Narayan Chandra Dutt filed written statement claiming that the second arpannama was genuine and valid and that he was the rightful shebait, and resisting the plaintiff's claim to the properties some of which he alleged were his own. During the litigation the original plaintiff and the original defendant died and their heirs have been substituted: see A. 628.

(3.) The learned Subordinate Judge has decided in favour of the first arpannama and held that plaintiff is the lawful shebait. He has also decided that the properties of schedule ha and property No. 3 of schedule kha to the plaint are the debuttar properties. He has accordingly given to the plaintiff a partial decree. The defendant appeals and the plaintiff has also filed cross-objections. The first point raised on behalf of the appellant arises out of issues 4 to 8 of the trial. The position taken up by the appellant is that Narendra had the right to change the terms of the arpannama of 1300 B. Section regarding the appointment of shebait after his death, and that therefore the Arpannama Bahalipatra of 1310 B. S. is a valid and operative document. It will be necessary therefore to consider the terms of the two documents.