R.C. Mitter, J.
1. The plaintiffs, who are the appellants before us, instituted the suit for a declaration that they are the shebaits of the deity Radhagovinda Deb Thakur, and for khas possession and mesne profits of the properties which are admittedly the endowed properties of the said deity. Their right to the last mentioned reliefs depend entirely upon the validity of their claim to the office of Shebaitship. They base their claim to the said office as being the nearest agnates of Ganesh Singh and so entitled thereto on the basis of a will executed by the said Ganesh Singh on 23rd Falgoon 1285 corresponding to 6th March 1879. Ganesh Singh died childless shortly after the execution of the said will which was duly probated by his widow Raj Kumari. It is the common case of both the parties that in pursuance of the provisions contained in the said will Raj Kumari consecrated the idol and orally dedicated the properties to its Sheba shortly after her husband's death, but the formal arparnama was executed by her on 17th Assar 1326=(2nd July 1919) by which she appointed the defendant, who is her sister's daughter's son as the shebait. The plaintiffs maintain that by her appointment the defendant cannot become a shebait of the said idol, and the Shebaiti right must devolve according to the provisions contained in the will of Ganesh Singh, to whom the properties originally belonged. According to them by the terms of the said will Raj Kumari became the first shebait, then the sons of the two sisters of Ganesh according to seniority, and thereafter his agnates were given a heritable right to the said office. They aver that Raj Kumari died on 9th Kartic 1327=(26th October 1920) survived by Ram Kissen, a sister's son of Ganesh, and on the death of the latter in Vadra 1334=(August-September 1927) they have become the shebaits. The suit was instituted on 1st November 1932, on the day on which the civil Courts re-opened after the Puja holidays. The defendant denied that the plaintiffs are the agnates of Ganesh, averred that Raj Kumari having established and consecrated the idol and actually endowed the properties, though it be according to the wishes of Ganesh, was the founder of the endowment and so entitled to appoint the defendant as shebait, and even if the office of Shebaitship was to devolve according to the terms of the will of Ganesh, the plaintiffs are not the shebaits and the son of a sister's son of Ganesh named Nani Gopal, being alive, is the shebait under the said terms.
2. The learned Additional Subordinate Judge who tried the suit has found that Ganesh was governed by the Mitakshara law, that the plaintiffs are the nearest agnates of Ganesh and so his heirs, that Raj Kumari died on 26th October 1920, that Ganesh had three sisters's sons, Ram Kissen, Lakhminarayan and Janaki, that the last two of them predeceased Raj Kumari, but Ram Kissen survived her but died in Varda 1334 and that at the date of the suit Lakhminarayan's son Nanigopal was alive. The said findings were not challenged in the lower appellate Court or before us and must be taken as final between the parties. The learned Subordinate Judge also held that as the validity of the debutter came from the will of Ganesh, the latter and not Raj Kumari was to be considered as the founder of the endowment and that the appointment of the defendant by her aparnamah was invalid. The Subordinate Judge, however, held that on a correct construction of paras. 5 and 6 of Ganesh's will Nanigopal was the shebait and dismissed plaintiffs' suit on the ground that the defendant had succeeded in pleading jus tertii. On appeal the learned District Judge, though maintaining the said interpretation of paras. 5 and 6 of the said will, dismissed the suit on another ground. He said that Raj Kumari got an absolute estate under the will of Ganesh, that she was at liberty not to create the debutter, though Ganesh had so directed in his will, that she must accordingly be taken to be founder and so the appointment by her of the defendant as Shebait was perfectly valid. Before us the defendant-respondent's advocate has urged both the grounds, the one given by the Subordinate Judge and the other given by the learned District Judge, for dismissal of the plaintiffs' suit. The learned advocate for the plaintiffs-appellants puts his case very briefly. He says that no beneficial estate was conferred by the will of Ganesh on his widow or anybody else but the persons designated in his will, including his widow, were made executors or trustees by necessary implication for the establishment of the idol and its worship, that the rules of devolution of the office of Shebaitship are those defined in the said will and that the true construction of paras. 5 and 6 is what the plaintiffs contend for. As both the points urged by the respondent and the contention of the appellants depend upon some part of the will or the other, it is convenient to set down all the material terms at one place. In para. 1, the testator states that it is his earnest desire to consecrate the idol and to dedicate all his properties to it and that with that desire he had already ordered the sculptor to make it. That if he recovers from his illness he would himself establish the said idol, but if he happened to die, then the persons named below, that is the persons to whose care his properties are to be committed, should within a very short time after his death consecrate the said idol (which he had already ordered to be made) and after dedicating his properties to its worship shall be bound to remain in possession as its Shebait. The things necessary for the sheba would be duly met from the said properties. If the said person does not establish the idol or after having established the same neglects its sheba she or he shall be removed and be deprived of the property.
3. Paragraph 2 is as follows:
After my death my wife Raj Kumari Burmanya after becoming my Uttaradhikary in respect of all my properties, after duly performing my sradh and after acting in accordance with the terms of para. 1 shall construct a temple and after consecrating the idol shall become the shebait of the said idol and the said properties shall remain under her management.
4. Paragraphs 3 and 4 are not material for this suit. Para. 5 is as follows:
After the death of my wife, two of the sons of my two sisters according to seniority shall become the shebaits of the said idol and Uttaradhikari of the properties and shall in accordance with para. 1 act with unity and harmony. If owing to quarrels among them the sheba and management of the idol's properties suffer then my agnates shall be able to act according to the terms of para. 7 and the heirs of my sisters' sons in succession according to seniority shall be entitled to be appointed shebaits.
5. Paragraph 6:
In the absence of my sister's sons my agnates according to nearness of kin shall become the Uttaradhikaries of my properties, that is becoming shebaits, shall perform their duties in accordance with the directions given in para. 1. If the line of agnates becomes extinct with the time then my Guru Priest, etc... shall become shebaits.
6. Paragraph 7 of the will provides for the removal of a shebait for assigned reasons and for the filling up the vacancy so caused by the appointment of the person who would come in if the removed person had died. One thing is quite clear from this will. The dominant intention of the testator was that a deity was to be established and that all his properties were to be dedicated for its worship. The deity was indicated, for he had already ordered a sculptor to make it and the deity so ordered was to be the one to whose worship all his properties are to be applied. To effectuate this object the testator laid down the manner in which he thought he would best accomplish his desire if he died before the idol was made. It is equally clear that the testator was not using the word Uttaradhikary, which ordinarily signifies an heir, for the purpose of conferring a beneficial interest. In para. 6 he clearly indicates that the said word and the word Shebait are convertible terms. The word Uttaradhikary in para. 2 of the will in our opinion means only the legal representative of the testator, the person who is charged by him with the duty and obligation to consecrate the idol and establish its worship. Raj Kumari was not given any beneficial rights in his properties after his death and only such rights as can be enjoyed by a shebait was conferred on her on the establishment of the idol. We cannot therefore agree with the learned District Judge that she was given an absolute estate and that she could in law refuse to establish the idol or refuse to appropriate the income of the properties to its worship. The fact that the idol was not consecrated or its worship not established by Ganesh but by Raj Kumari in terms of the will does not in our opinion make any difference, the case being governed by the principles laid down by the Full Bench in Bhupati Nath v. Ramlal Mitra (1910) 37 Cal 128.
7. In that case one Umesh Chandra Lahiri died on 29th June 1890 after having executed a will on 16th June 1890. He appointed Ramlal Moitra and three other persons as trustees and directed them to pay certain allowances to his widow and other persons and to maintain the worship of his family idols during his turn of worship. He also gave his widow authority to adopt. In the event of his widow not adopting a son he directed his trustees to establish an idol to be called Annandamoyee Kali Thakurani after his mother and to apply the surplus income of his properties for its worship. In the event of the said idol not being established and the surplus income not used for its sheba and worship, the testator's Rangpur properties were to pass to his Guru and his sons. In 1894 the widow died without adopting a son. The trustees shortly thereafter established the idol. The suit was filed by the Guru's son to get the Rangpur properties on the ground that the trust for the establishment of the said deity and for its worship was void as the testator himself had not established the idol during his lifetime. This ground was negatived by the Full Bench. Sir Lawrence Jenkins, C.J. referred to the texts of Hindu law and pointed out that if a person promised a gift for religious purposes his son must be compelled to make it. A passage quoted by him from the Mahanirvan Tantra to the following effect is relevant:
Property thus given by a man or appropriated (by him) to religious uses cannot be set aside by his son and the rest. The giver is competent to take care of the wealth or property endowed for religious purposes. He can no longer resume it, because Dharma is then the master or owner of such property. Let the owner himself or his representative, O Goddess, appropriate to pious purposes the corpus of the property or its income according as it may have been resolved.
8. Then after pointing out that such a trust for religious purposes would not be void for uncertainty he observed thus:
Then, does it invalidate the disposition that the discretion is for the spending of the surplus income of the 'sheba and worship of the kali' after establishing the image of the kalee after the name of my mother? I think not.
9. This decision establishes the position that the direction by Ganesh for the establishment of the idol, etc., creates a valid trust for religious purposes which the person so directed must carry out and it establishes beyond doubt that the view of the learned District Judge that Raj Kumari was at liberty either to establish the idol and its worship or not is erroneous. It necessarily follows that the directions given by the creator of the said trust, namely by Ganesh, in his will for the appointment of shebaits and the rules for the devolution of the said office are good and binding and cannot be disregarded. As the endowment flows from the authority of Ganesh he must be considered as its founder. We accordingly overrule the ground given by the learned District Judge for the dismissal of the suit. The next and the only remaining question that remains for consideration is what are the rules of devolution of shebaitship laid down by Ganesh. His widow, Raj Kumari, was to be the first shebait and on her death his sister's sons, according to a certain order. But the question is whether any heritable right has been conferred on his sister's sons. The sister's grandsons are not mentioned in the chain of succession laid down in paras. 5 and 6 of the will.
10. The first part of para. 5 gives the shebaiti right to the widow and then to the sister's sons. The opening lines of para. 6 say that in the absence of the sister's sons the agnates according to nearness in degree are to come in. In the last part of para. 5 the sister's sons' descendants are mentioned. This part is quite clear, namely that they can be appointed by his agnates if his sister's sons while acting as shebaits are removed by the agnates for the reasons mentioned therein. That contingency has not happened. The acceptance of the contention of Mr. Chakrabarti that a heritable right to the office was conferred on the sister's sons and that on the extinction of the line of the sister's sons the agnates can only come in, as shebaits would involve our putting in some additional words at the opening of para. 6, and striking out the word '3' (and) in the last part of para. 5. It would also render superfluous the reference in this paragraph by the testator to para. 7 of the will which deals with removal of shebaits and the appointment of the next man in the line of succession. On a proper construction of paras. 5 and 6 of the will we hold that Raj Kumari became the first shebait and on her death on 26th October 1920, Ram Kissen, the sister's son of Ganesh, became and continued to be the shebait till his death in Vadra 1334 (August-September 1927), and thereafter the plaintiffs, the nearest agnates of Ganesh, became shebaits. We accordingly set aside the judgments and decrees of the lower Courts and decree the plaintiffs' suit. The plaintiffs will have a declaration that they are the shebaits of the idol Radhagovinda Deb Thakur and they will recover khas possession of the properties in suit and get mesne profits from the defendant. The plaintiffs will get costs throughout.
Nasim Ali, J.
11. I agree.