1. This is a plaintiff's appeal arising out of a suit for possession over certain properties including immoveables, and for a declaration that the plaintiffs have a right to administer a trust as the duly appointed shebaits, and also for costs and future mesne profits. The prayer in the plaint is in the following terms:
That the Court may be pleased to declare that the plaintiffs are the shebaits of gods Kaliji and Shivaji installed in premises No. B 6/6 and of Sri Radha Krishnaji installed in premises No. B 7/89 & 89-A and as such are entitled to manage the entire Debutter properties specified in Schedule A to D hereunder, and to receive rents and profits out of the same, and the defendant has no right, title, or interest in the same claim valued at Rs. 11,750 over which Court-fee of Rs. 10 has been paid.
(b) That the defendant be ordered to deliver possession to the plaintiff over the property specified in Schedule B, and, if he fails to do so, the plaintiff may be put in possession of the said property as shebait of the said gods by dispossessing the defendant's claim valued at Rupees 2,750, being the value of the property (included in the valuation given in relief A).
(c) Mesne profits to the extent of Rs. 100 realised by the defendant from tenants of premises Nos. B 7/158, B 7/89, 89-A, B 6/6, and Rs. 75 for his wrongful occupation of premises No. B 7/158-A, total Rs. 175 be awarded to the plaintiff from the defendant, valued at Rs. 175.
(d) That pending and future mesne profits for use and occupation of the premises by the defendant at Rs. 15 per month be awarded to the plaintiff from the defendant for which Court-fees will be paid after ascertainment of account in the Execution Department.
(e) That the defendant be ordered to return the ornaments specified in Schedule E, belonging to the gods, to the plaintiffs within time to be fixed by the Court, failing which a decree for Rs. 200, being the value of the ornaments, be passed in favour of the plaintiffs as shebaits of the said gods against the defendants valued at Rs. 200.
2. The trust property in dispute was endowed by one Swami Purnananda Sarswati Adhyaita Acharya who, before he turned an ascetic, was a Bengali Brahmin and a Mukerji. The deed of waqf was executed on 21st April 1885. The deed includes the following provisions for the management of the properties:
From the date of execution of this document, I or the Mts. (Nritya Kali and Jai Kali) aforesaid neither have nor shall have any right to sell, make a gift of, transfer mortgage or dedicate to another temple, the property appertaining to the muth. So long as I live, I myself shall look after the management of the muth, and after my death the Mts. aforesaid shall carry on the management in my place. Of the two daughters Mt. Jai Kali shall be in charge of cash and meet the expenses of 'rag' and 'bhog.' After her death Nritya Kali shall be in charge of the cash. Be it also known that both the daughters shall also have power to appoint any one they like as manager for the future in consultation with Rakhal Chandra and Hari Prasad so that the work of the muth may be carried on in the terms noted above.
3. Purna Nand is alleged to have executed another deed of endownment on 5th December 1887. This deed is printed at p 61 of the paper book, and is Ex. 11. The genuineness of this deed was challenged by the defendants and the plaintiffs adduced no evidence to prove it. By the second deed Purna Nand purported to exclude Jai Kali from any share of the management of the muth on the ground that she had become disobedient. Since the deed has not been proved however we must take it that the deed of 21st April 1885 stands unrevoked in regard to all its provisions. The plaintiffs alleged that the daughter Nritya Kali married one Purna Chandra Banerji, who died when Nritya Kali was still a young girl, and that she subsequently married one Har Prasad Mukerji The plaintiff-appellants are the sons of Nritya Kali by her marriage with Har Prasad Mukerji They are the legal representatives therefore of the founder of the muth, Purna Nand. By a will executed on 31st December 1912, which is printed at p. 87 of the paper book, Nritya Kali appointed the plaintiffs as shebaits of the muth. On 26th March 1930 Jai Kali executed a will which is printed at p. 91 of the paper book in favour of Keshab Chandra Mukerji, a stranger to the family. Defendants 1 and 2 are the son of Keshab Chandra Mukerji and defendant 3 claims to be a beneficiary tinder the will executed by Keshab Chandra Mukerji.
4. We are satisfied from a consideration of the terms of the deed of wakf of 21st April 1885 that the power to appoint shebaits to the muth was a power to be exercised jointly by the two sisters Nritya Kali and Jai Kali. It is clear in our view that neither sister had the power independently of the other to appoint shebaits to manage the property after her death. We hold therefore that so far as the appointment of the plaintiffs as 'shebaits' is concerned the will of 31st December 1912 by Nritya Kali is invalid. Similarly any appointment made by Jai Kali of a 'shebait' to manage the muth upon her decease independently of her sister Nritya Kali is invalid.
5. No provision is made in the will in regard to the appointment of a 'shebait upon failure of the two sisters validly to execute their power to appoint 'shebaits' as their successors. In these circumstances the right to appoint 'shebaits' to the muth devolves upon the legal representatives of the founder of the wakf: see the case in Mohan Lalji v. Madhsudan Lala (1910) 32 All 461. In other words, the persons entitled to assume possession of the property as 'shebaits' are the plaintiffs, the sons of Nritya Kali. The defendants however contend that Nritya Kali's marriage with Har Prasad Mukerji was invalid, that her sons are not legitimate and therefore not the legal representatives of Purna Nand, the founder of the endowment. This contention is based upon the theory that Nritya Kali married a Mukerji, that is, she married with her father's 'gotra.' Such a marriage is by Hindu law invalid and is not legalised by the provisions of the Hindu Widows Remarriage Act of 1856. The learned Subordinate Judge accepted the defendants' contention on the point and dismissed the suit. Now, as already observed, it has been alleged that Nritya Kali prior to her marriage to a Mukerji was married to one Purna Chandra Banerji That she was married prior to her marriage with Har Prasad Mukerji is not in doubt. In a will executed by Purna Nand, her father, on 26th November 1879, Nritya Kali is described as 'aged 14 who has become a widow and lives with me.' The father of Nritya Kali would never have described her as a widow if in fact she had not been married. The evidence as to whom, in fact, Nritya Kali was first married, is somewhat meagre. The allegation that she was married to a Banerji rests upon the somewhat vague admission of defendant 1; in our view however it is not important to ascertain who was Nritya Kali's first husband. Quite clearly she could not have been married to a Mukerji, as marriage within her father's 'gotra' would have been invalid. What is important however is that whoever her first husband was, she left her father's 'gotra' and entered the 'gotra' of her husband. On this question we were referred to the decision in Lallubhai Bapubhai v. Cassibai (1880) 5 Bom 110 at p. 118 and also to Banerjee's Tagore Law Lectures on Hindu Law of Marriage and Stridhana, Edn. 3, p. 57.
6. Learned Counsel for the respondents however contended that on the death of her first husband Nritya Kali returned to the 'gotra' of her father. In support of this proposition he referred to Bannerjee's Law on Marriage, Edn. 5, p. 309. The particular passage upon which learned Counsel for the respondents relied is as follows:
Vidya Sagar maintains that her father's 'gotra' is to be deemed the 'gotra' of a widow for the purpose of her re-marriage; and considering that her father or some other paternal relation is still her guardian in marriage, I think that view is in accordance with the intention of the Act.
7. The learned author bases his view that for the purpose of re-marriage the widow's 'gotra' must be taken to be that of her father upon the expression of opinion of an eminent seriologist who lived about the middle of last century. 'We do not regard this passage in the volume referred to as sufficient authority for the proposition which, if given effect to in the present case, would have the result of making the marriage, which was solemnized so far back as 1886, invalid, and of bastardising the entire issue of that marriage. There is the definite authority of the Judicial Committee of the Privy Council for the proposition that upon marriage the wife passes into her husband's 'gotra,' viz., the decision in Lallubhai Bapubhai v. Cassibai (1880) 5 Bom 110 referred to above. There is no definite authority for the other proposition that upon the death of her husband the widow passes again into her father's 'gotra.' In the absence of any clear authority we are not prepared to accept the contention of learned Counsel for the respondents and we hold that Nritya Kali passed out of her father's 'gotra' upon her first marriage and therefore the marriage between herself and a Mukerji, which marriage was celebrated somewhat about the year 1886, was a valid marriage; and that her sons are legitimate issue and the legal representatives of Purna Nand, the founder of the endowed property.
8. As we have already observed the legal representatives of the founder are entitled to succeed as 'shebaits' where no appointment has been validly made under the provisions of the deed of endowment. It follows that the plaintiffs are entitled to (possession of the endowed property. (Their Lordships then discussed the evidence and proceeded.) In the result we allow the appeal and set aside the decree of the learned Subordinate Judge. We grant a declaration that the plaintiffs are the shebaits' of the property endowed by Purna Nand by the deed of 21st April 1885 and as such are entitled to possession thereof. The house B 7/158 does not form part of the endowed property and the plaintiffs' claim in respect of this item is dismissed. The plaintiffs will be entitled to mesne profits. We direct that in the circumstances the costs of the plaintiff and the defendants here and in the Court below be borne by the endowed estate. The respondents have already realised their costs in the trial Court from the plaintiffs. The amount of these costs will be repaid to the plaintiffs by the defendants.