Judgment

BHAGWATI J.: This is an appeal on a certificate under Article 133 (1) of the Constitution from a judgment and decree passed by the Appellate Bench of the High Court of Calcutta, modifying on appeal the judgment and decree passed by Mr. Justice Bose on the original side of that Court.

2. One Dwarka Nath Ghosh was the owner of considerable moveable and immovable properties. On the 19th June 1891, he made and published his last will and testament whereby he dedicated to his family idol Shree Shree Iswar Sridhar Jew his two immoveable properties, to wit, premises No. 41 and No. 40/1, Grey Street in the city of Calcutta. He appointed his two sons Rajendra and Jogendra executors of his 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 .

3. Dwarka Nath died on 16th March 1892 leaving him surviving his widow Golap Sundari and his two sons Rajendra and Jogendra. On 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. 41 and 40/1, Grey Street and appointed his brother Jogendra the sole executor thereof. He died on the 31st January 1900 and Jogendra obtained on the 24th April 1900 probate of his said will. Probate of the will of Dwarka Nath was also obtained by Jogendra on the 31st August 1909.

4. On the 4th September 1909 Bhupendra, Jnanendra and Nagendra, then a minor, the three sons of Rajendra filed a suit, being suit No. 969 of1909, on the original side of the High Court at Calcutta against Jogendra, Golap Sundari and Padma Dassi, the widow of Sidhesawar, another son of Rajendra, for the construction of the wills of Dwarka Nath and Rajendra, for partition and other reliefs. The idol was not made a party to this suit. The said suit was compromised and on the 24th November 1910 a consent decree was passed, whereby Jogendra and Gopal Sundari gave up their rights to the sevayatship and Bhupendra, Jnanendra and Nagendra became the the sevaits of the idol, a portion of the premises No. 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. 6,500 to be paid to the plaintiffs, Jogendra was declared entitled absolutely to the premises No. 40/1, Grey Street. The portions allotted to Jogendra were subsequently numbered 40/2-A, Grey Street and the portion of the premises No. 41, Grey Street allotted to the branch of Rajendra was subsequently numbered 41-A Grey Street.

5. Jogendra died on the 5th August 1911 leaving a will whereby he appointed his widow Sushilabala the exectrix thereof. She obtained probate of the will on the 6th August 1912.

6. Disputes arose between Bhupendra, Jnanendra and Nagendra, the sons of Rajendra and one Kedar Nath Ghosh was appointed arbitrator to settle those disputes. The arbitrator made his award dated the 12th October1920 whereby he allotted premises No. 41/A Grey Street, exclusively to Nagendra as his share of the family properties. Nagendra thereafter executed several mortgages of the said premises. The first mortgage was created by him in favour of Snehalata Dutt on 19th May 1926. The second mortgage was executed on the 4th June 1926 and the third mortgage on the 22nd February 1927. 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 favour of the trustees.

7. 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. A consent decree was