Mookerjee and Beachcroft, JJ.
1. This is an appeal on behalf of the plaintiff in a suit for declaration that he is the sole shebait of an idol Lakshmi Barahaji Thakur, and that the first defendant is not entitled to act as shebait, either jointly with him or separately. It appears that, on the 5th December 1888, in the coarse of a litigation between some of the present parties and the predecessors of the others, a petition of compromise was filed, by which the parties agreed to dedicate specified properties for the benefit of the idol. Under that petition of compromise one Nemai Chand Dey was appointed the first shebait. Twelve years later, on the 5th December 1900, the parties to the petition of compromise executed a deed of dedication, called an arpannama, by which the endowment previously intended to be created was confirmed. Under the arpannama Nemai Chand Dey was to continue as the shebait of the idol. It was further provided that, if the shebait was found guilty of neglect in the performance of the worship, or of causing any injury to the estate, the other co-sharers, or a majority of them, would be competent to dismiss him and appoint another member of the family as a shebait. The modes in which the properties were to be managed, the accounts rendered and the income applied for the benefit of the endowment were also defined in this instrument. It was finally stated therein that the rules regarding the office of shebait would apply to the present she-bait, as well as to the shebait who might succeed to that office in future. There was no provision made, however, for succession to the office of shebait; the parties contemplated the removal of a shebait by reason of default or misconduct; but they made no provision, for the contingency, which was sure to happen, namely, the death of the first shebait. Nemai Chand Dey died on the 15th November 1907, and shortly afterwards the plaintiff' obtained from the majority of the members of the family a neogpatra (or deed of appointment), whereby he was installed as shebait of the idol. The first defendant, one of the sons of Nemai Chand Dey, however, did not join in this appointment, and subsequently got his name registered in the books of the Collector as a joint shebait along with the plaintiff. Thereupon, on the 10th July 1908, the plaintiff; commenced this action for declaration of his title as shebait, and for a further declaration that the defendant was neither the exclusive nor a joint shebait. The Subordinate Judge has held, that the plaintiff has not been lawfully appointed shebait of the idol. He has further held, that the proper procedure to follow is for the parties to agree to the appointment of a shebait. Pending such agreement amongst the representatives of the founders, the Subordinate Judge has by his decree placed the endowed properties in the hands of a receiver, who was originally appointed receiver pendente lite. The plaintiff has now appealed to this Court, and has argued that under the arpannama of the 5th December 1900 the representatives of the founder were competent, upon the death of the first shebait, to make an appointment to the vacant office, and that such power has been validly exercised in his favour by the majority of the members of the family under the neogpatra of the 7th February 1908. In our opinion there is no foundation for this contention.
2. As we have already stated, the founders omitted to provide for the contingency which has happened, and might easily have been foreseen. There is no provision in the arpannama of the 5th December 1900 for the devolution of the office of shebait, and, in circumstances like these, the Court will not read into the deed of endowment a provision for appointment to the office of shebait, which is not to be found therein. It was faintly suggested at one stage of the argument, that the clause which provides that the rules regarding the office of shebait shall apply to the then shebait, as well as to the shebait who might succeed to that office in future, was wide enough to meet the present contingency. It was fully realised by the appellant, however, that this provision was of no avail because the rule for the appointment of a successor to the office of shebait could not possibly apply to the then shebait who had been appointed as such twelve years previously. The position, therefore, is that the shebait is dead, and there is no provision in the deed of endowment about the mode in which the office is to be filled up. The principles applicable to a case of this description were formulated in the case of Sital Das Babaji v. Protap Chandra Sarma (1902) 11 C. L. J. 2. These principles are threefold: first, the devolution of the trust upon the death or default of each trustee depends upon the terms on which it was created, or the usage of the particular institution where no express trust deed exists: secondly, when the worship of an idol is founded, the office of shebait is vested in the heirs of the founder, in default of evidence to show that he has disposed of it otherwise; thirdly, where a shebait appointed by the founder fails to nominate a successor in accordance with the condition or usage of the endowment, the management reverts to the representatives of the founder, even though the endowment has assumed a public character. In the case before us, therefore, upon the death of the original shebait it became incumbent upon the representatives of the founders to make an appointment to the office of shebait. This they have failed to do, because they are not unanimous as to the person to be appointed. It cannot be held, that an appointment by the majority is valid in the absence of a provision in the deed of endowment to that effect. Consequently the Court is called upon to appoint a shebait. It cannot be, disputed that the power of a Court to appoint a new trustee is very wide; it exists, and will be exercised, whenever there is a failure of suitable person to perform the trust, either from original or supervenient disability to act. It is an elementary principle that trusts will not be allowed to fail for want of a trustee, and, consequently, if the nominee dies, before qualifying or afterwards, the Court will appoint a trustee. If any authority is needed for this elementary proposition, reference may be made to the cases of In re Orde (1883) 24 Ch. D. 271. Re Ambler's Trusts (1888) 59 L. T. N. S. 210. Gunson v. Simpson (1868) L. R. 5 Eq. 332. and In re Smirthwaite's Trusts (1871) L. R. 11 Eq. 251. The appointment of a fit and proper person to be a new trustee is, however, not a matter of arbitrary discretion of the Court. The appointment must be made subject to well known and defined rules. These rules are stated in In re Tempest (1866) L. R. 1 Ch. Ap. 485. where Lord Justice Turner formulated the following three principles: first, the Court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected therefrom; secondly, that the Court will not appoint a trustee with a view to the interest of some of the persons, beneficially interested under the trust, in opposition either to the wishes of the founders, or to the interest of the other cestuis que trusts; and, thirdly, that the Court, in appointing a trustee, will have regard to the question, whether the appointment will promote or impede the execution of the trust, for the very purpose of the appointment is that the trust may be better carried into execution. In the case before us, the deed of appointment makes it clear that the founders had two things in view: first, that there should be only one shebait; and, secondly, that the shebait should belong to the family which had founded the endowment. Consequently, in appointing the next shebait, the Court will select the most suitable person amongst the members of the family. But the materials on the record are not sufficient to enable us to make an order in this behalf.
3. The result is that this appeal is allowed, the decree of the Subordinate Judge discharged, and the case remitted to him, in order that he may appoint a suitable person from amongst the members of the family of the founders as the next shebait.
4. We may point out, that the Subordinate Judge had no authority to place the endowed properties permanently in the hands of a receiver. If, in his opinion, the plaintiff was not validly appointed shebait, the proper course to follow was, either to dismiss the suit, or, if the parties so desired, to appoint a shebait and place the properties in his hands. This latter order could be properly made only after amendment of the plaint. The plaintiff has accordingly asked for permission to amend the plaint by the insertion of an additional prayer clause to the following effect that if the title of the plaintiff as- shebait under the arpannama be held invalid, the Court may appoint a suitable person as shebait. This application is not opposed by the respondent, and is granted. The plaint will be amended accordingly.
5. The costs of this litigation up to the present stage will be borne by the parties themselves; the costs subsequent to the remand may, if the Subordinate Judge so directs, be paid out of the estate.