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On the 10th June, 1891, he made and published his last will and testament whereby he dedicated to this family idol FAC |
Shree Shree Iswar Sridhar Jew his two immoveable properties, to wit FAC |
premises FAC |
No. 41 and No. 40/1 FAC |
Grey Street in the city of Calcutta FAC |
He appointed his two sons Rajendra and Jogendra executors of Ms will and provided that his second wife Golap Sundari and the two sons Rajendra and jogendra should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva FAC |
Dwarka Nath died on the 16th March, 1892, leaving him surviving his widow Golap Sundari and his two sons Rajendra and Jogendra FAC |
On the 19th July, 1899, Rajendra made and published his last will and, testament whereby he confirmed the dedication made by Dwarka Nath with regard to premises Nos FAC |
41 and 40/1 Grey Street and appointed his brother Jogendra the sole executor thereof FAC |
He died on the 31st January,1900, and Jogendra obtained on the 24th April, 1900 FAC |
probate of his said will FAC |
Probate of the will of Dwarka Nath was also obtained by jogendra on the 31st August, 1909 FAC |
On the 4th September 1909, Bhupendra, Jnanendra. and Nagendra, then a minor, the three sons of Rajendra filed a suit, being Suit No FAC |
969 of 1909,on FAC |
the original side of the High Court at Calcutta against Jogendra, Golap Sundari and Padma Dassi, the widow of Sidheswar, another son of Rajendra, for the construction of the wills of Dwarka Nath and Rajendra, for partition and other reliefs FAC |
The idol was not made a party to this suit FAC |
The said suit was compromised and on the 24th November, 1910, a consent decree was passed, whereby jogendra and Golap Sundari gave up their rights to the sevayatship and Bhupendra, Jnanendra and Nagendra became the sevaits of the idol, a portion of the premises FAC |
No RPC |
41 Grey Street was ;allotted to the branch of Rajendra and the remaining portion was allotted to jogendra absolutely and in consideration of a sum of Rs FAC |
6,500 to be paid to the plaintiffs, jogendra was declared entitled absolutely to the premises FAC |
No. 40/1 FAC |
Grey Street Ratio |
The portions allotted to Jogendra were subsequently numbered 40/2-A Grey Street and the portion of the premises FAC |
41 Grey Street allotted to the branch of Rajendra was subsequently numbered 41-A Grey Street FAC |
Jogendra died on the 5th August, 1911, leaving a will whereby he appointed his widow Sushilabala the executrix thereof FAC |
She obtained probate of the will on the 6th August, 1912 FAC |
Disputes arose between Bhupendra, jnanendra and Nagendra, the sons of Rajendra, and one Kedar Nath Ghosh was appointed arbitrator to settle those disputes FAC |
The arbitrator made his award dated the 12th October, 1920, whereby he allotted premises No. 41-A Grey Street, exclusively to Nagendra as his share of the family properties FAC |
Nagendra thereafter executed several mortgages of the said premises FAC |
The first mortgage was created by him in favour of Snehalata Dutt on the 19th May, 1926 FAC |
The second mortgage was executed on the 4th June, 1926, and the third mortgage on the 22nd February, 1927 FAC |
On the 23rd February, 1927, Nagendra executed a deed of settlement of the said premises by which he appointed his wife Labanyalata and his wife's brother Samarendra Nath Mitter trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in... |
Snehalata Dutt filed in the year 1929 a suit, being Suit No. 1042 of 1929, against Nagendra, the trustees under the said deed of settlement and the puisne mortgagees, for realisation of the mortgage security FAC |
A consent decree was passed in the said suit on the 9th September, 1929 FAC |
Nagendra died in June, 1931, and the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th December, 1936, by Hari Charan Dutt FAC |
Hari Pada FAC |
Dutt and Durga Charan Dutt for a sum of Rs FAC |
19,000 FAC |
A petition made by the purchasers on the 12th January, 1937, for setting aside the sale was rejected by the court on the 15th March, 1937 FAC |
Haripada Dutt died on the 3rd June, 1941, leaving him surviving his three sons, Pashupati Nath Dutt, Shambhunath Dutt and Kashinath Dutt, the appellants before us FAC |
Haricharan Dutt conveyed Ms one third share in the premises to them on the 4th March,1944, and Durga Charan Dutt conveyed his one-third share to them on the 3rd May, 1946 FAC |
They thus became entitled to the whole of the premises which had been purchased at the auction sale held on the 9th December, 1936 FAC |
On the 19th July, 1948, the family idol of Dwarka Nath, Sree Sree Iswar Sridhar Jew, by its next friend Debabrata Ghosh, the son of Nagendra, filed the suit, out of which the present appeal arises, against the appellants as, also against Susilabala and the two sons of Jogendra by her, amongst others, for a declaration ... |
41-A and 40/2-A FAC |
Grey Street, were its absolute properties and for possession thereof, for a declaration that the consent decree dated the 24th November, 1910, in Suit No FAC |
969 of 1909 and the award dated the 12th October, 1920, and the dealings made by the heirs of jogendra FAC |
and/or Rajendra relating to the said premises or any of them purporting to affect its rights in the said premises were invalid and inoperative in law and not binding on it, for an account of the dealings with the said premises, for a scheme of management of the debutter properties and for its worship, for discovery, re... |
Written statements were filed by the appellants and by Susilabala and the two sons of Jogendra denying the claims of the idol and contending inter alia that there was no valid or absolute dedication of the suit properties I to the idol and that the said premises had been respectively acquired by them by adverse possess... |
The said suit was heard by Mr. Justice Bose who declared the premises RLC |
No. 41-A RPC |
Grey Street to be the absolute property of the idol and made the other declarations in favour of the idol as prayed for RLC |
The idol was declared entitled to possession of the said premises with mesne profits for three years prior to the institution of the suit till delivery of possession, but was ordered to pay as a condition for recovery of possession of the said premises a sum of Rs RLC |
19,000 to the appellants with interest thereon at the rate of 6 per cent RLC |
per annum from the 19th July, 1945, till payment or till the said sum was deposited in court to the credit of the suit RLC |
The learned judge however dismissed the suit of the idol in regard to the premises RLC |
No. 40/2-A RLC |
Grey Street as, in his opinion, Sushilabala as executrix to her husband's estate and her two sons had acquired title to the said premises by adverse possession and the title of the idol thereto had been extinguished RLC |
The appellants filed on the 18th August, 1950, an appeal against this judgment being Appeal No. 118 of 1950 FAC |
The idol filed on the 20th November, 1950, cross-objections against the decree for Rs FAC |
19,000 and interest thereon as also the dismissal of the suit in regard to the premises FAC |
The appeal, and the cross-objections came on for hearing before Harries C. J. and S. N. Banerjee J., who delivered judgment on the 5th March, 1951, dismissing the said appeal and allowing the cross-objection in regard to Rs RLC |
19,000 filed by the idol against the appellants RLC |
In regard however to the cross-objection relating to premises RLC |
Grey Street which was directed against Sushilabala and the two sons of jogendra the learned judges held that the cross-objection against the co-respondents was not maintainable and dismissed the same with costs RLC |
The appellants filed on the 31st May, 1951, an application for leave to prefer an appeal to this court against the said judgment and decree of the High Court at Calcutta FAC |
A certificate u/art FAC |
133(1) of theConstitution was granted on the 4th June, 1951, and the High Court admitted the appeal finally on the 6th August, 1951 FAC |
On the 22nd November, 1951, the idol applied to the High Court for leave to file cross-objections against that part of the judgment and decree of the High Court,which dismissed its claims with regard to the premises No.40/2-A Grey Street FAC |
The High Court rejected the said application stating that there was no rule allowing cross-objections in the Supreme Court RLC |
The said cross-objections were however printed as additional record RLC |
By an order made by this court on the 24th May, 1953, the petition of the idol for filing cross-objections in this court was allowed to be treated as a petition for special leave to appeal against that part of the decree which was against it, subject to any question as to limitation FAC |
The appeal as also the petition for special leave to appeal mentioned above came on for hearing and final disposal before us FAC |
The appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties FAC |
The petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idol's claim to the premises, No. 40/2-A FAC |
The appeal is concerned only with the premises Ratio |
It was contended on behalf of the appellants that the, dedication of the premises ARG |
NO ARG |
41 Grey Street made by Dwarka Nath under the terms of his will was a. partial dedication, and that his sons Rajendra and jogendra and his widow Golap Sundari, who were appointed sevayats of the idol were competent to deal with premises ARG |
No. 41 Ratio |
Grey Street after making the due provision for the idol as they purported to do by the terms of settlement, dated the 24th November, 1910 ARG |
It was further contended that Nagendra, by virtue of the award dated the 12th October, 1920, claimed to be absolutely entitled to the premises ARG |
Grey Street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguishing the right of the idol to the said premises ARG |
The first contention of the appellants is clearly untenable on the very language of the will of Dwarka Nath Ratio |
Cl Ratio |
3 of the said will provided "With a view to provide a permanent habitation for the said deity, I do by means of this will, dedicate the aforesaid immovable property the said house Ratio |
No. 41 Grey Street together with land thereunder to the said Sri Sri Issur Sridhar Jew Ratio |
With a view to provide for the expenses of his daily (and) periodical Sheba and festivals, etc Ratio |
The 3 1/2 Cattahs (three and half Cattahs) of rent free land more or less that I have on that very Ratio |
Grey Street No. 40/1 Ratio |
his also I dedicate to the Sheba of the said Sri Sri Sridhar Jew Salagram Sila Thakur Ratio |
On my demise none of my heirs and representatives shall ever be competent to take the income of the said land No. 40/1 and spend (the same)for household expenses Ratio |
If there be any surplus left after defraying the Debsheba expenses the same shall be credited to the said Sridhar Jew Thakur's fund and with the amount so deposited repairs, etc; from time to time will be effected to the said house Ratio |
No. 41 with a view to preserve it and the taxes etc Ratio |
in respect of the said two properties will be paid. Ratio |
For the purpose of the carrying on the daily (and) periodical sheba and the festivals, etc Ratio |
of the said Sri Issur Sridhar Jew Salagram Sila Thakur my said ,second wife Srimati Golap Moni Dasi, and 1st Sriman Rajendara Nath and 2nd, Sriman Jogendra Nath Ghose born of the womb of my first wife on living in the said house Ratio |
No. 41 Grey Street dedicated by me shall properly and agreeably to each other perform the sheba Ratio |
etc Ratio |
of the said Sri Sri Issur Sridhar Jew Salagram Sila Thakur and on the death of my said two sons their representatives, successors and heirs shall successively perform the sheba in the aforesaid manner and the executors appointed by this will of mine having got the said two properties registered in the Calcutta Municipa... |
and shall take the municipal bills in his name Ratio |
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