B.K. Mukherjea, J.
1. The facts giving rise to these two connected appeals which arise out of one and the same suit may be shortly stated as follows : One Peari Mohan Nandi, a resident of Kantal in the district of Dacca, installed two Idols in his house, and by a deed of arpannama, dated 21-4-1920, dedicated a number of properties in favour of these Deities. Under the terms of the arpannama, Peari was to be the shebait during his life time, and after his death the shebaitship would devolve upon his sons, grand, sons, great grandsons and other male descendants. There is a clause in the arpannama which clearly indicates that no female heir could become a shebait till the line of male descendants was extinguished. Peari had two sons by his first wife who predeceased him, namely, Radhika and Brindaban. Radhika is defendant 1 in the suit, while Brindaban is dead, and his three sons and heirs who are all minors figure as defendants 2 to 4 in the suit. After the death of his first wife, Peari married again, and by his second wife he had two sons, namely, Amrita and Nidanta who are the plaintiffs in the suit.
2. It appears that after the death of his first wife, the feelings between Peari and his eldest son Radhika became very much estranged, and on 5-7-1936, Peari executed a second deed of arpannama by Which he altered the line of shebaits appointed by the first document. This new deed provided that after the death of Peari, not all his sons, but his sons by the second wife only would be entitled to succeed as shebaits. Peari died soon after the execution of the second deed, and the present suit has been filed by his two sons by the second wife for a declaration that the plaintiffs are the sole shebaits of the Deities under the second arpannama of the founder, and neither Radhika nor the other defendants who are the sons of Brindaban have any claim to succeed as shebaits. There was a further prayer that in case the defendants were found to be shebaits in law, they might be removed on account of their misconduct under the terms of the first arpannama itself.
3. The suit was contested by defendant 1 alone. The other defendants who were represented by a Pleader guardian did not put any separate contest, but merely adopted the written statement of defendant 1. The contentions of defendant 1 were substantially of a two-fold character. In the first place, it was averred that the line of succession laid down in the second arpannama was invalid in law and that Peari had no legal right to alter the appointment of shebaits as made in the original deed of dedication. The second defence was that there was no improper act committed by him which would justify his removal from shebaitship. It is admitted that there were quarrels between him and his father, but the root cause of all these quarrels, it was alleged, was not any improper conduct on the part of defendant 1, but the extreme partiality, of his father to his step-mother, whom his father married at the age of 62 and the children born of her. The learned Subordinate Judge who heard the suit decided all the points in favour of the plaintiffs and gave them a decree. It was held by the Subordinate Judge that the second arpannama was a valid document, and Peari was quite within his rights to alter the line of shebaits provided for in the first document inasmuch as the disposition of shebaitship as made by him therein was not valid in law. The Subordinate Judge further held that defendant 1 behaved very badly towards his father and step-mother, and was guilty of several acts of misappropriation and waste with regard to the debuttar estate itself, but as he was not a legal shebait under the second arpannama, no question of removing him from his office did at all arise.
4. On appeal, the learned District Judge took a different view. According to him, the appointment of shebaits as made in the first document could not be altered by the founder by any subsequent document. The defendants, therefore, were entitled to act as shebaits as legal heirs of the founder, although the disposition of shebaitship after the death of Peari was not valid in law. The District Judge held further that by reason of misconduct, defendant 1 was liable to be removed from his office of shebait. The result was that the appeal was allowed in part. The plaintiffs were held to be shebaits along with defendants 2 to 4, and defendant 1 was removed from shebaitship with effect from the date of the founder's death. Against this decision, two appeals have been taken to this Court. Appeal No. 1113 of 1940 is by defendant 1, and his contention in substance is that the Court of appeal below, while finding him to be a shebait and entitled to succeed along with the other heirs of the founder on the death of the latter, erred in law in removing him from his office on the, ground of misconduct which was not established by the facts admitted and found. In the other appeal, being No. 1215 of 1940, the plaintiffs figure as the appellants, and they have raised the point that the second arpannama was a perfectly valid document, and consequently, they were entitled to act as sole shebaits of the Deities to the exclusion of all the defendants.
Appeal No. 1215 of 1940.
5. We will take up appeal No. 1215 of 1940 first for, if the plaintiffs' contention is accepted, the defendants will have no right to act as shebaits, and the question of removing defendant 1 would not at all arise. Now, so far as the plaintiffs' appeal is concerned, Mr. Gupta did not dispute the proposition of law which seems to be fairly well established by authorities of this Court, namely, that in the absence of express reservation in the deed of arpannama, it is not competent to the founder of a debottar to make a change in the line of succession of shebaits laid down in the deed of dedication : vide Gouri Kumari v. Ramanimoyi Dassee 10 A.I.R. 1923 Cal 30 and Narayan v. Bhukanmohini : AIR1934Cal244 . His contention, in substance, is that this principle cannot apply to the present case as the rules of devolution of shebaitship as laid down in the deed of dedication are invalid in law. In such eases, it is argued that it is open to the founder to make a fresh appointment of shebaits by a subsequent deed. In the present case, both the Court3 below have held that the provision in the first deed of dedication under which shebaitship was to be confined to the male descendants of the founder is not a valid provision in law. The language of the document further makes this clear that there is no independent and separate gift of the shebaiti rights in favour of the sons of the founder which could be given effect to by a Court of law. The disposition of shebaitship, therefore, fails altogether after the death of Peari. The consequence of this, in our opinion, would be that after the death of Peari, the rights of shebaitship would devolve according to the ordinary law of succession, and all the heirs of the founder would be entitled to act as shebaits: vide Ganesh Chunder v. Lal Behary Dhur .
6. But does the failure of disposition of the shebaiti rights after the death of the first shebait give the founder a right to alter the line of succession laid down in the instrument of dedication although no such power was reserved by him in the deed? The answer, in our opinion, would be in the negative. A dedication of a property to a deity is irrevocable, and the rules, if any, laid down by the founder at the time of dedication regulating succession to the office of the shebait should be deemed to be irrevocable also unless; the power of revocation is reserved by the grantor. It was observed by Mukherji J. in Narayan v. Bhukanmohini : AIR1934Cal244 as follows:
The Judicial Committee in Gossamee Sri Greedharjee v. Roman Lallji ('89) 16 I.A. 137 has very clearly pointed out that when the founder of an endowment dedicates properties to a deity and appoints a shebait or lays down the order of succession to a shebaitship, he makes a gift with a condition attached, and that the Deity or those who speak for him on earth-need not take advantage of the gift; but that if the gift is taken, and the condition insisted on, it must be observed.
7. Whether the principle enunciated by their Lordships of the Judicial Committee in Gossamee Sri Greedharjee v. Roman Lallji ('89) 16 I.A. 137 is strictly applicable to such cases or not,, we think that the condition relating to the rule of succession of shebaitship laid down by the grantor, when he makes the grant, forms an integral part of the dedication itself: vide Brindaban v. Sri Bangji Mahraj : AIR1937All394 . If the dispositions are invalid after a certain period, the law will certainly take its course, and the shebaitship would revert to the founder; or his heirs, but that would not give the founder a right to make fresh disposition of shebaitship unless he has reserved such powers to himself. The result, therefore, is that we think that the view taken by the Court of appeal below is right, and this appeal is dismissed. We make no order as to costs In this Court.
Appeal No. 1118 of 1940.
8. The other appeal need not detain us long. The only point raised by Mr. Chandra Sekhar Sen who appears on behalf of the appellant is that although his client, defendant 1, might have been guilty of misconduct prior to the death of his father, as he did not do any bad act after he became a shebait, no ground for removing him from the office of shebait exists, according to the terms of the arpannama. We think that we cannot put such a restricted interpretation upon the terms of the arpannama which clearly says-that if the shebait is guilty of misconduct, he cannot remain in the office. The trial Court has given a long list of the acts committed by defendant 1 which cannot but rank as misconduct. He went even to the length of beating his father and certainly did assert his own right to the debottar property adversely to Deity. We think, therefore, that the decision of this point too by the lower appellate Court is correct, and this appeal should also fail. We dismiss this appeal, but make no order as to costs in this Court.