1. In my opinion, this appeal must succeed. The suit is by a son against his mother and certain brothers and it appears that the father by his Will made certain properties subject to trust for the benefit of a family Thakur. The Will recites that there is an idol Shiva installed at Benares and that the testator desires certain pujas to be continued to be performed for ever without interruption and, to that reason he creates a trust of the property in Schedule (ka) for the performance of all those pujas, and appoints his wife as the sole trustee for the term of her life for the purpose of carrying out the said debsheba and for performing the puja. It is provided that the wife will take possession of the property and, on receiving the profits, will perform the puja and. carry out the sheba as mentioned in the schedule as trustee for the term of her life. It is further provided that, on her death, the sons and their descendants are to become trustees and to have certain palas or turns of worship. There is a provision that if there is any saving or a balance of money left, Government promissory notes shall be purchased and so forth. The shedule contains a series of sums of money specified for particular purposes; as for the Autumnal Durga Puja Rs. 500; for the Annapurna Puja, Rs. 400; for the worship of Shiva installed by self Rs. 480; and so forth. These being the terms of the Will it appears that a certain amount of money was saved out of the income of the dedicated properties and we come to a time when one of the sons brings a suit against the mother and that suit is compromised by a solenama. The suit was a suit of 1913 and it was compromised on 17th February 1915. First of all, the parties gave up their respective claims against each other for partition and accounts and:
none of the parties, shall be competent to claim any account against another party or the other parties for the period up to the present date. As defendant 1 is the mother of all the other parties, she shall remain the sole shebait or trustee of the debuttar property as long as she will remain alive under the provisions of the Will of the late Gangadhar Sen.
2. The first of the terms recites that by the Will certain properties were made debuttar. It then recites that the mother, the shebait and trustee of the debuttar property, purchased the three properties in Schedule (ga) as such trustee and it says that:
all the eight properties or any other property which may be afterwards purchased for the purpose of the debuttar estate shall be treated as absolute debuttar property under the terms of the Will of the late Gangadhar Sen.
3. The solenama goes on to say that:
as the amount of costs fixed for carrying on the works of the debseba by the Will was insufficient, we all parties unanimously fix the amount of the said costs at the total sum of Rs. 3,120 as mentioned in Schedule (gha) below.
4. Thereafter, the terms of the compromise go on to arrange that certain of the parties are to take lease from the shebait of certain portions of the debuttar property at certain rents. That being the position, the plaintiff brings the present suit in 1924 and he alleges first of all, that he is a shebait of the idol which was established by his father, though there i3 no proof whatever of that fact. He then recites the solenama and says that defendant 1 has not been making proper expenses for the upkeep of the sheba, that she is not carrying out the worship properly, spends too little on ceremonies, does not offer bhog or puja properly and does not make the yearly, allowances for the puja as provided by the Will. The plaintiff then alleges that he wanted to look into the accounts of the trustee or shebait but the defendants failed to show him the accounts, that he gave a pleader's letter and that he did not receive any reply. He then alleges in general terms mismanagement and misappropriation of money and says that defendant 1 is not fit to be a shehait and should be removed and that a new scheme according to requirements should be framed on the basis of the solenama. On that case the parties want to trial and the evidence adduced before the learned Subordinate Judge was in a very narrow compass.
5. There were three witnesses for the plaintiff. First of all the plaintiff himself. He says that he never has been allowed to see the accounts. But in spite of that, he says:
The Benares proparty fetohes an income. The said income is not entered in the accounts of the trustee.
6. He alleges also that the trustee does aofc pay the revenue or the rents of the debuttar property. It turns out that the plaintiff's wife was a person to whom certain rent was payable that some quarrel took place between the parties and that there was one suit by the plaintiff's wife. He then says -that he demanded inspection of the debuttar accounts and was refused, that he sent a pleader's letter and that he was never allowed to inspect the accounts. He also says that there used to be certain articles for the worship of the deities and ha does not see where they are now. He admits that there was a burglary and that he has not any idea as to what became of those articles. The only rent in arrear, according to his evidence, appears to be the rent due to his wife. He then makes a complaint that as regards the portion of the debuttar property which is let out to him, he has not had his fair share of repair; his brothers have had their portions repaired and his portion has not been repaired. That is the only evidence that is given by the plaintiff. He calls a witness who says that the plaintiff bought some building materials from him to construct a privy. The plaintiff calls a third witness who says that Durga Puja, Annapurna Puja and Jagadhatri Puja are now performed by the defendants on the same scale in which they were performed before. The plaintiff's ease is then closed.
7. Now, the question we have to ask ourselves is whether the plaintiff has made any case whatever for a decree for account against his mother, the trustee and shebait. I am very clearly of opinion that the plaintiff discloses no case upon which the Court can be asked to make a decree for accounts against his mother as the shebait and trustee. I will assume for the sake of argument and also because I think it is probably the law that the plaintiff being one of the heirs of Gangadhar Sen was a person who would be entitled to complain of waste or mismanagement of this trust fund; but, in order that he may bring a case for account - still more a case for the framing of a schema or the removal of a shebait, it is necessary that he should show that there has been some default on the part of the shebait - either mismanagement or failure in some important duty. His evidence that the lady did not keep the account is utterly unsubstantial. Taking the plaintiff's evidence by itself, his own story is that he asked to see the account and was refused. It does not appear to me to be a sound proposition that he is a person who has any right to see the account; and in my judgment it is not established that the shebait misconducted herself in refusing to let him see the account. His complaint about the non-repair of his particular, portion of the property and his allegation that certain sums of money have not been entered in the account which he says he never saw are merely materials for a very weak case.
8. However, the plaintiff's brother was put into the box for the defendants. He is one of the brothers whom the mother has employed to manage this debuttar property. This brother says that the plaintiff did not at any time ask him to show the account of the debuttar estate. He says that the accounts were written by a Sirkar and were kept by him for his mother. He talks about the pay they gave to the Sirkar. He denies that he did receive any pleader's letter. He says that certain property has been repaired and the inner portion of the plaintiff's rooms was not repaired because the plaintiff had the key. He brings the accounts with him and exhibits them one by one saying in whose handwriting they were. He says that they were kept correctly and regularly in the ordinary course of business and that the sums spent on the pujas are greater now than used to be spent before. He explains about the rent suit of the plaintiff's wife on the ground that the plaintiff having become an insolvent, there was some question about the title of the plaintiff. He explains also about the articles that were lost by the burglary and what articles were lost. That witness having come into the box is not cross-examined at all about the account or any portion of the account. No attempt is made to show by cross-examination that the income of the Benares property has not been correctly entered. No attempt is made to show that the accounts are in any way defective.
9. It was open to the plaintiff, had he been so minded, to obtain discovery of the accounts. It was quite open to him when he came to Court to have the accounts carefully scrutinized and to have cross-examined defendant's witness to show the defects in the accounts or to show waste or mismanagement on the part of the lady. Nothing of the sort was attempted. The defendant's witness having brought the accounts into Court is not cross-examined about them. In these circumstances it appears to me that the duty of the Subordinate Judge was to dismiss with costs. It is true that the defendants did not object to the solenama which was scheduled to the decree in the previous suit being amended by the addition of certain provisions for the keeping of account and on another matter, and to that extent there might have been a decree by consent. But this plaintiff has proved nothing against the shebait; no failure of any duty either in the way of management or in the way of keeping the account. The learned Judge appears, notwithstanding that there was no evidence against her on any point in the account, to have gone through the accounts for himself later on and because certain things seemed to him to require explanation - no explanation having ever been asked for from the defendants' witness, he makes a preliminary decree for account against the lady. The learned Judge was wrong in so doing. He ought to have held at the end of the plaintiff's evidence that there was nothing to answer; at all events at the end of the defendant's evidence he ought to have held that the plaintiff's case had been blown out of water so far as the accounts were concerned, the plaintiff having been entirely unable to substantiate by cross-examination his case as made in the plaint.
10. In my judgment, therefore, this appeal, so far as it is an appeal from the preliminary decree must be allowed save that part which was not objected to, namely the scheme on the basis of the solenama and the two amendments to that which were consented to at the hearing. Save that the suit should be dismissed and in my judgment, the plaintiff should pay the costs of the lower Court at the preliminary hearing As regards the appeal from the final decree it is only necessary to say that that will be allowed and the decree of the Court below will be set aside with the costs of that hearing too. The defendant-appellant must have her costs of this appeal.
11. I entirely agree.