TMI Blog1879 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment was issued. The attachment is not on the record, but it appears from the plaint, that under it a one-third share of the taluk was attached, and thereupon Doorga Churn (the debtor) and his brother Shama Churn, who are the respondents in this appeal, intervened, and put in a claim to the property, alleging that it was not liable to attachment, inasmuch as they held it in trust for an idol, Raj Rajeswar, by virtue of will executed by their mother Saraswati. The Judge of Hooghly, having investigated the claim, distrusted the genuineness and bond fides of the will; he stated that he did not believe that the property was held in trust for the idol, and, under the provisions of Section 246 of Act VIII of 1859, disallowed the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om attachment. Each party was ordered to bear his own costs. 3. Upon appeal to the High Court, it was contended, that the lower Court was wrong in finding that the will was a bona fide instrument, and that the Court ought to have found upon the evidence on the record, and the probabilities of the case, that the will did not create a bona fide endowment, but was a mere device to secure the property from sale in execution of a decree; that the endowment to the household idol was a mere colourable device to give a show of legality to a transaction, which was in reality a perpetuity, and to preserve the property in the hands of the family, and that, as such, it was void and illegal. 4. Further, it was contended that, under any view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the words following: This will is executed by Srimati Saraswati Debi. I am always sick; hence I execute this will to the following effect: I dedicate the auction-purchased property, No. 3496, Lot Panchgatchia, Pargana Baligori, Zilla Hooghly, standing in my name, to the Thakur Ishwar Raj Rajeswar that is in my house. And the Sarodia Pooja and other ceremonies that are being performed in the house will be performed as hitherto. After all these acts have been observed from the proceeds of the said property, if there be a surplus in the profits, then the family will be supported therefrom. This property of mine will not be liable for the debts of any person. None will be able to transfer it. None will have the rights of gift and sale. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve no power of gift or sale over it. And it will not be attached or sold on account of their debts. To this effect, of my own accord, and in full possession of my senses, I execute this will. The 2nd of Cheyt 1274. Saraswati Debi. 8. According to the construction which their Lordships put upon the will, it cannot be said that the property was wholly debuttur. They consider that it created a charge upon the property for the expenses of the daily worship of the idol, as it was performed at the time of the death of the testatrix, and of the poojas, shradhs, and religious ceremonies for which provision is made by the will. For the purpose of this decision the charge may be termed generally a charge for such religious acts and ceremonie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be considerable, and which, in their Lordships' opinion, was subject to be taken in execution by his creditor. Inasmuch as their Lordships are not precisely informed of the state of the family on the death of the testatrix, they are unable to specify what that share was, and there being no constant as to what is required for the performance of the religious trust, the interest acquired by a purchaser at any such execution-sale would have to be ascertained, and realised in some other further proceeding. In these circumstances, their Lordships are of opinion that the attachment should be allowed to stand; but that the summary order of the Judge of Hooghly, which would apparently authorise the sale of one-third of the taluk, as if unaffe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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