Judgement

JAGANNADHADAS J: This is an appeal by special leave against the judgment and decree of the High Court of Calcutta and arises out of an application filed by the appellant under S. 47 of the Code of Civil Procedure in the course of execution proceedings in the Second Court of the Subordinate Judge at Alipore, District 24 Parganas. The facts leading thereto are as follows.

2. One Ramani Kanta Roy was possessed of considerable properties. He had three sons, Rajes Kanta Roy, Rabindra Kanta Roy and Ramendra Kanta Roy. Rabindra.died childless in the year 1938 leaving widow, Santi Debi. In 1934 Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed, his three sons as shebaits. After the death of Rabindra his widow Santi Debi, instituted a suit against the other members of the family in 1941 for a declaration that she, as the heir of her deceased husband, was entitled to function as a shebait in the place of her husband. The suit terminated in a compromise recognising the right of Shanti Debi as a co-shebait. Shortly thereafter, however, i.e. in the year 1944, Ramani and his two sons Rajes and Ramendra, filed a suit against Shan