1. In this case the plaintiff Panchanan Banerjee brought his suit making as co-plaintiff the deity or Thakur Sri Sri Issur Sitaram Chandra Jiu. The object of the suit is to have a declaration that the plaintiff Panchanan Banerjee is the sole shebait of the deity in question and the main purpose of the plaintiff in seeking this declaration is explained by the fact that certain property dedicated to this deity has been acquired by the Calcutta Improvement Trust and that an award of Rs. 84,000 has been made as compensation therefor. This money is now lying in a certain Court and the plaintiff has brought this suit to establish that he is the person who is in charge of or managing the properties of the deity and that he is entitled and solely entitled to collect this money. So far as the property is concerned it appears from an affidavit of assets which was filed (in the Goods of Soshi Bhusan) in 1922 that the items 1, 2 and 3 and 3/1, Balaram De Street were assessed to rates by the Corporation of Calcutta upon certain annual values - those annual values total a sum of Rs. 2,294. But beyond this reference in the affidavit of assets I am not aware that there is any real evidence as to the income that has in the past been obtained from these properties, nor is there before the Court any statement of account showing what has been done with that income during the last 20 years or so.
2. The endowment with which we are concerned was made by one Ram Chand Mukerjee and if we desire to know the conditions of the endowment and the order of succession to the shebaitship we have to study the will of Ram Chand Mukerjee. It appears that the founder Ram Chand Mukerjee died so far back, as 1862. He left a son Panchanan by his first wife and two sons Ramlal and Sashibhusan by his second wife. Panchanan it appears had no son. His branch is made a party to this suit by his daughter's sons of the name of Ganguli who though impleaded have taken no part in the proceedings. They were impleaded at the instance of the learned Judge and not at the instance of the defendants. Ramlal and Sashibhusan died in 1895 and 1911 respectively, Ramlal's branch is represented by his grandson Surendra and two sons Greedharee and Juggernath who are defendants to the suit and contest the plaintiff's claim to be the sole shebait of the idol. Sashi, as I have stated, died in 1911. He had a son Kherode who predeceased him. Kherode had a son Ramsevak and a daughter Ganesjanani. Ramsevak died in 1923 leaving his widow Mayabati. Ganesjanani had married a man named Earn Kali and the plaintiff is their son.
3. It appears that after Ram Chand's death there was a partition suit between his sons and his secular properties were divided not on the basis that by his will absolute interest went to Ram Chand's grandsons but on the basis that his sons took an absolute interest in the property. The properties having been divided it further appears that litigation ensued between the brothers and in the end the interest of Ramlal in the property left by his father was purchased in execution by his brother Panchanan. By the will of Ramchand Mukerjee apart from his gift to his sons to which I shall refer in a moment Ram Chand left a legacy of Rs. 30,000 to be invested in company's paper or landed properties and reserved separately for the maintenance of the deity with which we are concerned. The interest or rent accruing due on the Rs. 30,000 was intended by him as an endowment to the deity. His three sons were all executors to the will and they were all responsible for the fact that this sum of Rs. 30,000 was not at first set aside but after the property had been partitioned between them in the manner to which I have referred and after Ramlal's interest therein had been purchased by Panchanan, Panchanan and Sashibhusan agreed that the properties now in question should be given over to the idol in satisfaction of the legacy of Rs. 30,000 which had been given by their father under his will. I mention this to show that there can be no doubt that the properties with which we are concerned are governed by the terms of Ram Chanel's will and that the rights of the parties as regards the management of this debuttar property are to be found in the first instance by scrutiny of Ram Chand's will. Now the passage in the will is to the effect that there are certain idols of an ancestral character and there is this idol to which I have referred and which has been established by Ram Chand himself. The will goes on to say : 'Seba or service I make over to my three sons for interest' and it appears that by this he means that he makes them over to his sons for their lifetime. The will then states:
after their death my sons' sons will get absolute the said real property and the seba and services of Sree Sree Ishore Jeeoos or Deities.
4. It goes on to point out that if any of his sons die without leaving a son or adopted son or son's son then his share will be included in his 'estate' and his two surviving sons will enjoy and possess and that after their death their sons will get absolutely the shares of their respective fathers.
5. The first question which arises upon this direction in the will of Ram Chand is whether or not the plaintiff has to make out, apart from a claim by adverse possession, that he obtained shebaity right by being an heir of Ram Chand Mukerji. In my view it is wrong to say that according to the direction of the founder no person in time to come shall be a shebaib unless he is an heir of Ram Chand and it appears to me that it is consistent with the direction of Ram Chand and with the ordinary principle applicable to this matter that the plaintiff should be entitled to make out a right to be one of the shebaits of this Thakur by showing that he is an heir of Soshibhusan. In the case of Kunjamani Dasi v. Nikunja Behari Das  22 C.L.J. 404 this question was discussed and it will suffice to refer to that case as being a reason for rejecting the contention that it is necessary for the plaintiff to show that he is one of the heirs of the founder himself.
6. Now the plaintiff's case is made out in this way. He says that at the time of Ram Chand's death Panchanan had no son, and that the right to shebaitship became vested in Ramlal and Sashibhusan. He says that Sashibhusan during his lifetime was the only person who in fact enjoyed and possessed the office of shebait and that, whatever be the reason up to 1895 while Ramlal was alive and after Sandal's death from 1895 to 1911, there is no evidence of Ramlal or any of his sons taking part with Sashibhusan in the management of the debuttar property. Sashibhusan in his will claimed to have a right to nominate his successor and he nominated Kherode by his will and Kherode's son Ramsevak. Prom 1911 to 1923 Ramsevak conducted the worship and managed the property of the deity and during all this time there was no claim on the part of any of the sons of Ramlal or any representative of Panchanan to have an interest in the worship or in the management of the property. Then it is said that after Ramsevak's death his widow Mayabati Debi became his heir and made an arrangement with this plaintiff in the probate suit (No. 3 of 1925) by which she gave up her claim to shebaitship in favour of Ramsevak's estate and in this way Mayabati has effaced herself and the plaintiff is entitled not only to succeed Ramsevak in his office but also to claim exclusive possession of this office.
7. Now there are two main questions in this case. One is whether the transaction with Mayabati is a good transaction so as to enable the plaintiff to claim as representing the line of Ramsevak and Sashibhusan and secondly if so whether the possession of the office by Sashibhusan and Ramsevak enables the plaintiff to set up a right by adverse possession.
8. In my opinion, the bargain between Mayabati and the administrator to the estate of Ramsevak to the effect that Mayabati would give up her right to the shebaitship is a bad bargain and cannot be upheld. The learned Judge has treated it as being an attempt to sell a religious office, an attempt on the part of a person who has succeeded to the, office of shebaitship to sell her right for own pecuniary advantage. In my judgment, that is the right way on the facts of this case of treating this transaction. The learned Judge says:
It was first argued that this was a good sale for the benefit of the deity, but that is an untenable position. Shebaits cannot traffic in dedicated properties.
9. He then dealt with Various other matters and said:
It was then argued that the lady surrendered her right. This was said to be analogous to the surrender of her estate by a widow. But that doctrine depends on the effacement of the widow and the complete surrender of her estate and cannot, therefore, be arrange for cash. Then it was said to be a family arrangement but the entire family was not consulted and even the coshobaits wore not consulted and therefore it was not valid as a family settlement. It was suggested that it was a compromise of a claim and not an alienation. But the sum and substance of the transaction was the sale of a religious office for money and that is entirely wrong and utterly invalid and in matters of this description it is the substance of the matter that decides its validity and it matters not what it is called and it is hopeless to try to give an open and shameless side a more politic name after it has been perpetrated.
10. Now the language of the learned Judge is somewhat strong but I do not dissent from it. Ramsevak had for several years been at enmity with his wife. It appears that she had to take recourse to a police Court to make him pay her maintenance and that he was ordered to pay her Rs. 20 a month. When ho made a will ho provided that she would be paid this Rs. 20 a month for her maintenance and that she would get nothing more, and that the plaintiff, his sister's son would take the estate. Mayabati entered a caveat against the will of her husband and the caveat raised the question whether the will was duly executed. On that question the Court was proceeding to give a decision and Mayabati then took the position of a person who agreed as part of the settlement that the Court should pronounce in favour of the will holding it to be a perfectly good will but stipulated as a term of her giving consent to the grant of probate of the will that she would get no less than Rs. 20,000. Now it is true that by this Rs. 20,000 she would compound the right which she would get under the will. It was also a term of the settlement that she would get Rs. 20 a month until the entire sum of Rs. 20,000 was paid to her and accordingly, the bargain was carried out. The original terms of settlement read that:
in consideration of the sum of Rs. 20,000 to be paid to the defendant Mayabati absolutely she withdraws her caveat
but that was changed subsequently and it was settled that Mayabati should
receive payment of Rs. 20,000 absolutely from the estate of Ramsevak deceased; that Rs. 20,000 shall be a charge on certain property and that the payment of the sum of Rs. 20,000 will be in full discharge and satisfaction of all her claims against the estate of the deceased for her right of residence and maintenance as a Hindu widow and all other claims whatsoever including claim to the debuttar estate.
11. Now in any reasonably strict sense she had no claim or pretence of claim to or against the debuttar estate but she had the right to the office of shebait or trustee of that estate. She had lent no money to the estate or to the previous shebait as such. I will assume, however, that her claim to the office of shebait was intended to be politely clothed by the expression used. Also that her release of her right to the administrator under Ramsevak's will was meant to operate as a transfer or surrender of the office to the plaintiff. I ask myself:
what had this lady's claim to the debuttar estate to do with the validity or invalidity of the execution, of Rarasevak's will?
12. The answer is 'nothing whatsoever.' What she was attempting to do was to make some money out of her obstruction to the grant of the probate of the will, and what the administrator the person bargaining with her has done in the matter is only too clear. He endeavoured to buy her off by obtaining her consent to abandon, relinquish or transfer all her claim to the estate. She wanted Rs. 20,000. He was willing to give her that sum if it included a bargain that she would not make any claim to 'the debuttar estate.' A document was afterwards made out in the form of a release in which it was witnessed that in consideration of a sum of Rs. 20,000 sho released to the administrator all her claims against the estate of the deceased Ramsevak 'including her claim to the debuttar estate.' We have to make up our minds whether it is a valid arrangement under Hindu law either for the effacement of Mayabati or for transfer of her right to the shebaitship. I am of opinion that this is not an arrangement which can be supported upon principles which are applicable to the subject. If a person sells religious office it is contrary to what was laid down by the Privy Council in the well-known case of Rajah Vurma Valia v. Ravi Vurmah  1 Mad. 235. The doctrine on the subject has recently been considered by my learned brother Page, J., in the case of Nagendra Nath Palit v. Rabindra Nath Deb A.I.R. 1926 Cal. 490. This is a clear case of a sale by which a shebait is trafficking for gain in her own office and that is the fundamental and real character of the transaction. It is said that just as there is an anomalous doctrine by which a widow many accelerate the opening of the reversion to her husband's estate by surrendering the whole interest which is vested in her, effacing herself and assuming a character that is at times compared to civil death, so with reference to the office of a shebait if she abandoned the office or surrendered it so as to let in the next reversioner the transaction may be considered good although in the ordinary way the sale of a religious office for gain will not be valid. I am of opinion that the transaction before this Court is in no way analogous to a valid surrender by a Hindu widow of her whole interest in her husband's estate. This case to my mind is a mere device by which Mayabati was trying to get as much cash as possible from the estate. It is then said that Mayabati if she had a claim to represent Ramsevak's estate so far as the shebait is concerned might make a bona fide compromise not contrary to the interest of the idol. (She was not of course in any way thinking of acting for the benefit of idol in making up her mind to convert the office into cash.)
13. But I cannot see that there was any question which could call for compromise in a probate suit and which had any reference to the deity. Whether the will was a good will or a bad will the claim to represent the deity stood untouched. It was thrown into the probate suit merely as something to bargain with because it was coveted by or on behalf of the plaintiff and it was capable of being turned into money. It is quite true that where a surrender by a Hindu widow of her whole interest is bona fide, as for example when it is necessary to enter into a reasonable compromise as to litigation as to her husband's estate the transaction will not be upset because of a reasonable provision for maintenance : Sureswar v. Mahesrani A.I.R. 1921 P.C. 107 and there are cases with even any reasonable provision for her debts. But that is not this case. I do not think that the transaction can possibly be upheld unless we are to say that a shebait may sell his office so long as he sells to the person next in succession to the office. This proposition I refuse to accept. A person cannot be compelled to accept the office of shebait and may be entitled to refuse to continue in it. It may well be that in such a case the office goes to the person then next in succession. But a sale of the office is in my judgment a different thing and the purchaser cannot enforce it. In Mancharam v. Pranshankar  1 Mad. 235 and Narayana v. Ranga  15 Mad. 183 such a sale was thought to be good but in my judgment these authorities should not be followed. In Rajeshwar Mullick's case  35 Cal. 226, Maclean, C.J. said:
No doubt, there are cases and authorities for the proposition that a shebait may by an act inter vivos alienate the shebaitship; but I think I am fairly stating the result of those cases whon I say that such alienations are not regarded with much favour, and that somewhat special circumstances must exist to support them.
14. In Nirad Barani Dasi v. Shibadas Pal  36 Cal. 975 an alienation had been made to a coshebait and it was upheld expressly on the grounds that it was in the interest of the worship and:
seems to have been made without any idea of personal gain.
15. In Khetter v. Hari Das  17 Cal. 557 Banerjee, J. said:
it is true that Hindu law prohibits the sale of an idol and also the partition of it though when there are several idols partition is recognized by custom. But there is no absolute prohibition against the gift of an idol.
16. The learned Judge was himself no mean authority of the most difficult questions of Hindu Law and he supported these propositions by quoting very high authority. In Rajaram v. Ganesh  23 Bom. 131, Ranade, J., said that:
the text law admittedly prohibits both partition and alienation
and vested the validity of such transaction in custom. On this view, that there is a difference between a sale and a transaction not tainted by the motive of private benefit to the transferrer is a proposition for which Rajah Vurma's case  1 Mad. 235 is sufficient authority.
17. In my judgment, the plaintiff is not entitled to stand in the shoes of Ramsevak for this purpose. He is a mere stranger to this religious office and dedicated property and on that ground alone his suit cannot succeed. It cannot succeed on any ground of adverse possession because there has not been 12 years' possession since Ramsevak's death, and if the plaintiff is a mere stranger it is quit clear that he cannot back the possession of Sashibhusan and Ramsevak so as to get any right to the shebaitship of the deity.
18. I shall now proceed to deal with the question whether or not the learned Judge was wrong in refusing to hold that the plaintiff has established that the branches of Ramlal and Panchanan forfeited their rights in this shebaitship by suffering the branch of Sashibhusan to hold possession adversely for over 12 years. In my judgment the case is governed by Article 124, Schedule 1, Lim. Act. What has to be shown is that if Ramsevak's representative or Panchanan's representative had brought a suit in 1927 they would have been barred from asserting their right to be shebaits. If this is made out under Article 124 then it appears to me that under Section 28, Lim. Act, their right would come to an end. The question is whether there has been a lapse of 12 years from the time when Sashibhusan or his representative took possession of the office adversely to the branch of Ramsevak or Panchanan. There is no dobut that the branch of Sashibhusan had possessed this office for much longer than 12 years. The question is:
Did they possess it adversely to the branch of Ramsevak or Panchanan
19. Now the learned Judge has drawn our attention to the decision of the Privy Council in Corea v. Appuhamy  A.C. 230 which was not a case about possession of an office but about possession of land and other properties and has pointed out that if a person who has title takes possession, his possession will as long as possible be attributed to his title rather than attributed to a wrongful act or assertion of right which was not possessed by him.
20. In the case of co-ownership the law is very familiar in this Court, namely that the possession of one co-owner is possession of them all. In order that it may be treated as adverse possession there must be ouster or the equivalent to an ouster. It is familiar law in this Court that when one party out of several has in fact the enjoyment of the property the circumstances may be such and the exclusive enjoyment may be for so long a period as to be some evidence that his holding is adverse to the co-owners though the view taken in this Court is that the possession is not necessarily or usually deemed to be adverse from its commencement. I regard this question as a question of fact and I have to see whether it is established beyond doubt by the plaintiff that the circumstance that Sashibhusan and Ramsevak were allowed to manage this property and conduct the worship of this deity was an open assertion to the knowledge of the other branches that they were claiming a right to exclude the other branches from the shebaitship. As to that the plaintiff's case at the beginning is very unsubstantial indeed, because we find from the will of Sashibhusan that when he died in 1911 he professed to have carried out the duties of shebait by the consent of his brother Ramsevak in his lifetime, so that, it does not seem to me that the plaintiff makes any headway at all during the lifetime of Sashibhusan. Then we find that Ramsevak from the year 1911 to 1923 carried out the worship and the management of this idol just as Sashibhusan did. We remember that the possession of this branch began by arrangement or consent. It is quite clear that Ramsevak's continuance of what has been done by Sashibhusan cannot be assumed to be adverse straightway. Sashibhusan's will was not proved till 1922. There was no effort made to show 'that the terms of the will were drawn to the attention of anybody or that Ramsevak openly or at all was claiming to be acting under a gift of the shebait contained in Sashibhusan's will. There is no evidence that the branch of Ramlal or Panchanan knew or was likely to know what remarks were put upon the receipts from tenants. We have to deal with this matter broadly, and we find that there is a complete absence of any evidence of steps taken by Ramsevak which would call the attention of the members of the other branches to the fact that he was claiming that the branch of Ramsevak alone had any right to the sebaitship of the foundation of Ram Chand.
21. There is one important matter which remains to be considered. There is no evidence showing what the annual profit of Ramsevak was. In point of theory the shebait's duty was to spend the whole of the income on the worship of the deity. I suppose, however, that if the deity had a substantial income it is quite clear that the right to disburse that income in the worship of the deity would be a valuable right. Now the learned Judge has dealt with this case on the footing that there was no profit and that Ramsevak was permitted by the other members of the family to carry on the worship as an honorary shebait just as Sashibhusan had been doing. It is difficult to be sure whether in Ramsevak's time or at any given time the income produced by this property was very substantial. I have said we know what the Corporation assessment was, and what actual value was put upon it by the Calcutta Improvement Trust but whether this property dedicated to the deity yielded an income much more than was necessary to conduct the worship is a matter on which the evidence is scrappy and inconclusive. The learned Judge says:
Presumably the shebait makes no profit out of his office and it is not suggested that Ramsevak did so.
22. He further says:
In all the circumstances specially as there were no profits to share everything concurs to show that there was no ouster.
23. Looking at the matter as a whole it does not seem to be of very great importance whether the idol was removed to Sashsbhusan's house or whether it was left in the Thakurbari with other family idols. It is quite clear that Sashibhusan was the only person who conducted the worship. Ramlal had in a sense no strong claim in his lifetime because he was the person whose property and been sold to his brother Panchanan. It was really Panchanan and Sashibhusan who had to make up the legacy of Rs. 30,000. It seems to me that the other branches of the family might leave it to Sashibhusan's branch without depriving themselves of their rights under Ramchand's will. The learned Judge's judgment was very full and clear on this part of the case and his conclusion was that Ramsevak stepped into the shoes of his grandfather and that it was usage and course of dealing which he vouched to explain his conduct.
24. In these circumstances I am not prepared to dissent from the judgment of the learned Judge upon this question of fact. I do not think that a heavy burden has been discharged. The plaintiff's case was brought in 1927. If it be not clear that up to 1916 there was adverse possession then Randal's branch is not barred by 12 years' adverse possession. A period of 12 years' adverse possession must be proved up to the hilt and conclusively proved by the plaintiff. I am not prepared to say that from 1911 to 1916 it is shown that Ramsevak's possession was adverse.
25. The learned Judge after coming to the conclusion that the plaintiff had no right proceeded to dispose of the rights of other parties by declaration. Now none of the members of Panchanan's branch of the family appeared before the Judge and no one of Randal's branch, asked for any relief of this sort nor did Mayabati. In these circumstances I think it is unreasonable, the plaintiff having been found to have nothing to do with the matter, that the Court should insist in a difficult matter and upon materials which may be very incomplete upon defining the rights of these parties and as objection is taken by those who have appeared I am of opinion that that part of the learned Judge's judgment which gives a declaration as to the rights of these defendants should be discharged altogether.
26. The result is that the appeal by the plaintiff is dismissed with costs and the suit stands dismissed with costs and the declaration which the learned Judge has made is set aside.
27. The cross-objection is allowed but without costs.
C.C. Ghose, J.
28. I entirely agree. The matter has been dealt with at such length by the learned Chief Justice that it may be considered unnecessary for me to add a second judgment. But as this case has been argued for over two days with great vigour by Mr. S.C. Bose, it might not be out of place if I stated briefly my conclusions on one or two points.
29. The geneology of the parties is to be found in the learned Chief Justice's judgment. In my opinion the plaintiff is clearly incompetent to maintain this suit until and unless he is in a position to satisfy the Court, that there is no interest still outstanding in Mayabati as shebait of the Thakur or idol founded by Ramchand Mukherji. It is conceded by Mr. Bose that Mayabati would be shebait of the Thakur in question, but it is said that having regard to the terms of settlement appearing on p. 234 of the Paper Book and of the Indenture dated 21st December 1925 on pp. 236 and 237 of the Paper Book, Mayabati has not now any interest whatsoever as shebait of the Thakur. The arrangement under which Mayabati is said to have put an end to her interest as shebait of the Thakur has been referred to by the learned Chief Justice and I agree with him in the view ho has taken that the arrangement is one which cannot be sustained in a Court of law. If, therefore, it be correct in law that Mayabati has still some interest left in her as shebait of the Thakur (he the plaintiff, being unable to show that interest has been put an end to or has been extinguished in manner known to law) the plaintiff cannot maintain the present suit. It is unnecessary to multiply cases. To my mind the best exposition of the law on this point is to be found in the judgment of Banerii, J., in the case of Srimati Mallika Dasi v. Ratanmani  1 C.W.N. 493, Banerjee, J., points out that it has been held in a uniform current of decisions both in this Court and in the High Courts of Bombay and Madras that a priestly office with emoluments attached to it is inalienable. Page, J., has referred to this decision of Banerjee, J., in one of the recent cases, Nagendra v. Rabindra A.I.R. 1921 Cal. 647, where the earlier and later authorities are collected. In my view Mayabati still remains a shebait. If she is still a shebait, then, so far as the plaintiff is concerned, he is a mere stranger and he cannot step in the shoes of Ramsevak and claim as shebait. This conclusion would be sufficient to enable the Court to dispose of the plaintiff's suit by saying that it is incompetent.
30. The plaintiff, however, urges that by reason of the adverse possession of Sashibhusan and Ramsevak the rights of the sons of Ram Lal, who are the contesting defendants in this suit, have been extinguished and that they have no further interest in the property and cannot claim to have possession thereof as shebaits. Sasibhusan died in 1911. There are materials on the record to show that during Sasibhusan's lifetime, there was no, and could not have been, any adverse possesssion. The circumstances shew further that up to the moment of the death of Ram Lal there was no adverse possession. I am further of opinion that between the death of Ram Lal and the death of Sashibhusan there was no adverse possession as against the heirs of Ram Lal. The circumstances disclosed on the record show that. Therefore, there was no adverse possession up to September 1911 when Sashibhusan died.
31. Now in order to put an end to the rights of the contesting defendants 1, 2 and 3, it would have to be shown conclusively that between September 1911 and September 1923, there had been adverse possession. Now Ramsevak died on 15th April 1923. It is clear therefore that the full period of 12 years from the death of Sasibhusan had not expired when Ramsevak died. The evidence further does not show that after the death of Sashibhusan and during this period there was adverse possession as against the heirs of Ram Lal. There are no accounts of the debuttar estate produced before us. One does not know whether there was any income derivable from the properties which had been dedicated to the Thakur. It may be that the income derived from the rents was not such as to leave any balance after defraying the expenses of the shehait. At any rate the evidence is very scrappy and the conclusion that there was adverse possession as against the heirs of Ram Lal cannot be safely drawn. There are three cases in which the doctrine of adverse possession is referred to at very great length: Jagannath v. Chandi Bibi A.I.R. 1921 Cal. 647 Joy Narayan v. Srikantha A.I.R. 1922 Cal. 8 and Jogendra v. Rajendra A.I.R. 1922 Cal. 54. Bearing in mind what was said in those cases and applying the rule laid down to the facts appearing on the present record, I am unable to say that the circumstances point to the fact that there was an open ouster or that the possession of Sashibhusan and Ramvesak of the dedicated properties was of such a character that the only inference that can be drawn there from is that there was an assertion of hostile title against an ouster of the sons of Ram Lal. That being so I agree with the learned Chief Justice in the conclusion he has arrived at and am of opinion that the plaintiff's appeal and suit must be dismissed with costs in both Courts. I agree with the learned Chief Justice in the order he has made as regards the cross-objection.