P.C. Mallick, J.
1. This is a proceeding in which BankuBehari Das seeks to propound the Will of his fatherManmatha Nath Das. The Will is dated August 20,1960. The Will is being contested by Kasliinath andHem Chandra. They have filed caveats and affidavits in support thereof. In the affidavits the only point of substance raised is that the instrument sought to be propounded is not a testamentary instrument and as such no probate can be granted to such an instrument. Mr. B.N. Dutta Ray learned counsel appearing for the caveators did not raise any other dispute. It is not disputed that the instrument was executed and attested according to law, as if it is a testamentary instrument.
2. The provisions of the Will are simple. The instrument has been described as a testamentary instrument by Manmatha Nath Das and has been executed and attested by two attesting witnesses as such. The only son of the executant has been appointed executor. The disposition in the Will is in the following terms :
'I am at present of the trustees to the debutter estate of Sm. Tripura Sundari Dasi deceased, for the deities Sri Sri Iswar Radha Ballau Jew at Brindaban, District Mathura, Uttar Pradesh, and I hereby appoint my said eldest son Banku Behari Das as the trustee and sebait in my place and stead, of the said debutter estate and after my death he will act as such trustee and sebait along with the other trustees and shall hold the debutter trust estate and shall do all acts and things in carrying out the objects of the trust as such trustee.'
It is contended that it is nothing more than a deed of appointment of a sebait and trustee of the deity Sri Sri Radha Ballav Jew at Brindaban and does not purport to dispose of any property of Manmatha Nath Das. Manmatha, therefore, must be held to have died intestate and the instrument propounded is merely a deed of appointment and no probate can be granted to such an instrument.
3. Before I consider the interesting point of law canvassed in this proceeding, I should note that in the petition it is stated that the total assets likely to come into the hands of the executor would not exceed Rs. 2075/-. In the affidavit of assets the sum or Rs. 2059-62 nP. is stated to be the 'Provident Fund' money and salary due to the deceased. Another asset is the claim of Rs. 110/- due and payable to the estate of Manmatha by the estate of one Sanat Chandra Das. The third asset is the sum of Rs. 5/- in cash.
4. A preliminary point has been raised by Mr. S.C. Deb, learned counsel appearing for the propounder, challenging the locus standi of the caveators. It is contended that the caveators are no heirs of the testator en intestacy and they have no interest in the estate. They were only co-trustees or shebaits of the debutter trust along with Manmatha. The interest of a co-trustee or shebait is not such interest as would entitle him to intervene in a testamentary proceeding of a will executed by another sebaiti. It is, howevor, to be noted that what is purported to be disposed of is the sebaili and trusteeship and it may be that in such a case a co-trustee or co-sebait may have some interest to be present when the Will is sought to be proved. I am not, however, called upon to censor the last question, because, in my judgment, Mr. Deb is not entitled to challenge the locus standi of tha caveators at this stage. Chapter xxxv Rule 24 of our Rules provides that an affidavit in support of the caveat shall be filed within a certain period and
'such affidavit shall state the right and interest of the caveator, and the grounds of the objections to the application'.
Rule 28 provides that
'Upon the affidavit in support of the caveat being filed, the proceedings shall, by order of the Judge uponapplication by summons be numbered as a suit . . - '
Rule 30 provides that
'The Court may on the application of the petitioner by summons to the caveator before making an ordar unoer Rule 28, direct the trial of an issue as to caveator's interest. Where, upon the trial of such issue, it appears that the caveator has no interest the Court shall order the the caveat to be discharged and may order the issue of probate or Letters of Administration, as the case may be.'
5. In the instant case, the petitioner, instead ot making an application under Rule 30 for discharge ot caveat on the ground that the caveatars had no interest, preferred to make an application for marking the proceed-ing as a contentious cause under Rule 28, on the tooting that the caveators are entitled to oppose the application for grant. In my judgment, having exercised the cption given by the Rules either to contest the caveator's right to oppose or concede such right, the petitioner choice to accept the caveator's right to challenge the Will and himself asked the Court to mark it as a contentious cause. Having exercised that option and allowed the proceedings to be marked as a suit and taking further steps in the suit, it is no longer open to the petitioner to contend that the caveators have no locus standi. 1 should have said that the petitioner during the trial took out summons for discharge of caveat under Rule 28, which I dismissed. The preliminary point taken by Mr. Deb is overruled on the grounds stated above.
6. Coming now to the substantial controversy in this case. The terms of the Will as indicated above unmistakably show that Manmatha was making no testamentary dispesition of property of his own. So far as his own personal estate is concerned he died intestate and his personal estate will devolve according to the ordinary law of inheritance. Attempt has been made in the affidavit of assets to include certain sums in which the testator is alleged to have beneficial interest, namely, Provident Fund money of Manmatha, amsunt due to Manmatha by the estate of Sanat Chandra Das and Rs. 5/- in cash. 1 am rot called upon to decide whether these assets are real or fictitious. Assuming them to be real, I have ne hesitation in holding, on a perusal of the Will, that there has been no testamentary disposition of the suit assets. The Will purports to nominate a trustee and sebait ot the debutter trust and nothing more. That is Ihe anly disposition made in the Will. 1 need hardly say that the title of Manmatha to appoint a trustee or sebait cannot be gone into in this proceeding. The only question to te considered is that assuming Manmatha had the power to nominate a trustee or sebait of the debutter trust, exercise of that power in the instant instrument makes it a testamentary instrument.
7. Mr. Dutt Ray has cited three decisions of this Court in support of his contention that such an instrument is not a testamentary instrument. The first case cited is the case of Chaitanya Gobinda Pujari v. Dayal Gobinda Adhicari decided by a Division Bench of this Court and reported in 9 Cal WN 1021. In the cited case the question for decision was whether an instrument purporting to be a testamentary instrument executed by a sebait ot an endswed property, appointing a sebait is in law a testamentary instrument. The endowment had valuable immovable properties. It was held that, the instrument was not a testamentary instrument. At. pp. 1024 and 1025 of the report the Bench made the following observation :
'It has been contended by the learned Vakil for the appellant (petitioner in the Court below) that the view adopted by the Subordinate Judge is erroneous, inasmuch as the right of a shebait is a very substantial right, which can be disposed of by a Will and that therefore probate may be applied for, and obtained of such a document as the one before us. We are not, however, inclined to agree with the learned Vakil in this contention. The word 'Will' has been defined in the Probate and Administration Act. It means 'the legal declaration of the intentions of the testator with respect to his property which, he desires to be carried into effect after his death. Now upon the statement of the declarant himself, the alleged testator, in the document in question, it is not his property, but the property of the Thakurs, But however that may be, it is quite clear that all that he does or purports to do by the document in question is to appoint the petitioner as a shebait or manager for the purpose of carrying out the sheba and other rites and ceremonies appertaining to the Akhra of which he was the head. There was no testamentary disposition of the properties belonging to the Akhra and indeed he could not make any such disposition. If it was simply an appointment of a manager made by the late Mohant, it is obvious that there was no disposition of any property. We think that the Court below is right in the view that it has expressed, and that probate of a document like this cannot be applied for under the Probate and Administration Act'.
The above ruling was followed and applied by another Division Bench of this Court in the case of Jagadindra Nath Roy v. Madhusudan Das reported in 20 Csl LJ 307 r (A!R 1915 Cal 289). (See also the case of Uma Charan Bose V. Rakhal Das Ray, reported in : AIR1927Cal756 ), in which another Division Bench of this Court cited with approval the case of Chaitanya Gobinda Pujari reported in 9 Cal WN 1021 and noted before.
8. The decisions in Chaitanya 'Gobinda Pujari's case9 Cal WN 1021 and the two other cases are decisions of the Division Bench and are decisions of very high autho-rity and binding decisions. It has been contended, however, that all those decisions are decisions when it was not authoritatively decided that sebaitl is property. It is now decided by a Full Bench of this Court in Monohar Mukherjee v. Bhupendra Nath reported in ILR 60 Cal 452 : (AIR 1932 Cal 791) (FB) affirmed by the Judicial Committee in Ganesh Chunder v. Lal Behary reported In and in Bhabaterini v. Bhupendra Nath reported in that sebaiti is 'property'. It is not a mere office. It is argued that if so, such a oroperty can be disposed of by a Will. Having regard to the decisions in Monohar Mukherjee's case ILR 60 Cal 452 : (AIR 1932 Cal 791) (FB), Ganesh Chunder's case and Bhabatarini's case it is submitted that the decisions in Chaitanya Gobinda's case 9 Cal WN 1021 and the other cases can no longer be accepted as binding decisions. This argument has force. Having regard to the view now judicially accepted by the highest Court to the effect that sebaitship is a 'property' and a sebait is not a mere manager of a debutter estate, the reasoning on which Chaitanya . Biragi's case and the other cases following Chaitanya Bairagi's case, were decided no longer applies and the decisions can no longer be accepted as binding decisions. I am assured by the learned counsel of the parties that there is no reported decision -after Monohar Mukherjee'scase ILR 60 Cal 452 : (AIR 1932 Cal 791) (FB) in which Chaitanya Qobinda's case 9 Cal WN 1021 and the Iwo other cases have been considered by' this or any other court in India. Not even in Dr. Mukherjee's Religious Endowment and Charitable Trust the effect of Monohar Mukher-jee's case ILR 60 Cal 452 : (AIR 1932 Cal 791) (FB) on Chaitanya Pujari's case, 9 Cal WN 1021, and other cases has been considered.
9. It is argued by Mr. Deb that power of appointing a sebaiti is itself a 'property' and can be disposed of by Will. He has relied on a passage from Underbill's Law of Trust and Trustees, 11th Edition page 511 and Tristram and Coote Probate Practice, 21st Edition, page G36, in support of this contention. There is, however, a binding Bench decision of this Court as indicated before, in which it has been specifically held that such a power of appointment of a sebait cannot be the subject-matter of testamentary disposition. Having regard to my view that shebaiti being not a mere office but property can be the subject-matter of testamentary instrument, this argument of Mr. Deb need not be considered and I give no decision on that point.
10. For reasons given above, 1 hold that the instant instrument is a testamentary instrument of which probate can fce granted. No objection having been taken as to the proper execution and attestation of the instrument according to law, I am bound to pronounce in favour of the Will. There will be an order for grant accordingly after discharging the caveat and I make an order accordingly. I,. reed hardly say that I am not adjudicating as to the validity of that appointment or as to the power of the testator to make an appointment None of these questions are being adjudicated in this testamentary proceedings.
11. In the facts of this case the parties will beartheir costs.