RAGHUBAR DAYAL, J.

( 1 ) THIS is a special appeal against the order of a learned Single Judge dismissing a second appeal.

( 2 ) THE facts leading to this appeal are as follows. Dalthamnmn Pandey and Dalganjan. Pandey were brothers. Dalganjan Pandey died in 1898. leaving his widow Srimati Uttama and his daughter Srimati Gaura. Dalthamman pandey died in 1935. On 11-2-1931 he dedicated certain properties of his to some deities. He executed a will on 23-7-1921 and another will on 2-11-1923. By his first will he appointed Srimati Uttama, Srimati Gaura and Srimati Gauras father-in-law sital Pandey as his executors. By his second will he - appointed Srimati Uttama, Srimati Gaura and Jagmohan Pandey, one of the three sons then alive of Sital Pandey, as his executors. Both sital Pandey and Jagmohan, Pandey died within the lifetime of Dalthamman Pandey, the former dying in 1934 and the latter in 1924.

( 3 ) IT was provided in the first will of 1921 that after the death of Srimati Uttama and Srimati gaura, the heirs and representatives of Sital Pandey, executor No. 3, would as shebaits be worshipping executors and would look after the management of the dedicated properties according to conditions laid down in the will. In the later will of 1923 it was provided that after the death of Srimati Uttama and Srimati Gaura the third executor,. e. Jagmohan Pandey, would remain in possession and occupation of the property in respect of which the will had been made "generation after generation. "

( 4 ) SRIMATI Uttama and Srimati Gaura, who outlive Dalthamman Pandey, executed a surrender deed in favour of Sankatha Pandey in 1938. Srimati Uttama died in 1939 and Srimati Gaura died in 1940. In view of this admittedly invalid surrender deed, Sankatha Pande got in possession of the entire endowed property,

( 5 ) BRIJ Mohan Pandey instituted the suit giving rise to this appeal in 1941. He alleged in paragraph 1 of the plaint that Dalthamman Pandey, who exclusively owned the properties mentioned in schedules A and B, dedicated the said properties to various deities by means of a will registered on 23-7-1921. This paragraph was admitted subject to pleas in the written statement by Sankatha Pandey. The additional pleas, however, did not say anything to challenge the correctness of the allegation with respect to the subject-matter of the dedicated properties. We can, therefore, proceed on the assumption that all the properties in suit are endowed properties.

( 6 ) IT was further alleged in the plaint that on the basis of the deed of relinquishment executed by srimati Uttama and Srimati Gaura the defendant claimed to be the sole shebait and denied the right of co-shebaitship of the plaintiff. In paragraph 7 of the plaint the plaintiff alleged that he had requested the defendant to join him (the plaintiff) also along with him in the office of shebaitship to manage the immoveable endowed property jointly with him and to place the moveable endowed property in the custody and supervision of the plaintiff also so that the endowed property be managed jointly with mutual consultation, but the defendant had refused to do so.

( 7 ) THE plaintiff, inter alia, prayed for the following reliefs:

(a) A decree may be passed in favour of the plaintiff and it may be declared that he as a co-shebait with the defendant has a right to exercise all the powers relating to the office of shebaitship like the defendant. A declaratory court-fee of Rs. 15 was paid in respect of this relief. For the purpose of jurisdiction, this relief was valued at Rs. 100/ -.

(b) By means of a decree, a perpetual injunction may be issued directing the defendant to join the plaintiff as a co-shebait along with him in the use and management and possession and occupation of the endowed property specified below, mentioned in schedules A and B of this plaint, like himself, that he may be perpetually restrained from doing wrongful interference. The relief was valued at Rs. 2353/5/4. A court-fee of Rs. 15/- w

Click Here to Read the rest of this document