C.C. Ghose, J.
1. This is an appeal against a judgment of my learned brother, Mr. Justice Page delivered on the 18tb August 1925.
2. The facts giving rise to this litigation may be shortly stated as follows:
One Gopal Chandra Seal who was a Hindu inhabitant of Calcutta, died some time in September 1911, leaving him surviving his widow, Srimati Badam Moni Dassi, and three sons, namely, the plaintiff, Lalit Mohan Seal and the defendant Dulal Chandra Seal and one Akhoy Kumar Seal, and after having executed his last Will and testament on the 20th day of August 1910. Akhoy Kumar Seal died some time thereafter, leaving him surviving his two sons, the defendants Brojendra Nath Seal and Banamali Seal. Probate of the said Will was granted, on the 16fch June 1916, to the defendants Brojendra Nath Seal and Banamali Seal, and subsequently on the 10th June 1922 grant of probate was also made to the defendant Kartick Chandra Seal, who is a son of the defendant Dulal Chandra Seal. Gopal Chandra Seal possessed various immovable properties, and in respect of some of his properties he had executed, among others, on the 22nd February 1897, a deed of declaration of trust, and on the 9th August 1906, an indenture of gift. The deed of declaration of trust bearing date the 22nd February 1897, related1 to Premises No. 6, Damzen's Lane, and the settler declared that the said premises should be held by him upon trust to collect the rents, issues, profits thereof and to apply the same in paying the rates, taxes and charges payable in respect thereof, and in maintaining the same in proper repairs and thereafter in applying and expending 1/3rd of such rents, issues and profits in and towards the performance of the daily worship of the settler's family idols during the months of Pous to Chaitra in every Bengali year, and 1/3rd of the residue for the periodical worship of the said idols during the said period, and to set apart the remaining 1/3rd as a reserve fund for the daily or periodical worship of the said idols or for the improvement of the endowed property as the shebait for the time being should consider fit and proper. The settler went on to add as follows:
I do further declare that I shall during my lifetime be the Shebait and managing trustee for the performance of the Sheva and the daily and periodical worship of the said idols and on my death my appointee or appointees, and in case of non-appointment, my wife Sreemutty Badam Money Dassi shall be the Shebait and managing trustee, and after her death my sons Lalit Mohun Seal, Akshoy Chunder Seal, Nilmoney Seal, and Dulal Chunder Seal jointly and severally shall be Shebaits and managing trustees, and after them their appointees and in default of appointment their heirs shall be the Shebaits and managing trustees jointly and severally for the time being and the said hereditaments and premises shall remain vested in the Shebait or Shebaits for the time being.
3. By the said indenture of gift, dated the 9th August 1906, the said Gopal Chandra Seal made a gift of Premises No. 13, Tiretta Bazar Street, to his son Akhoy Kumar Seal.
4. The present suit is brought by the plaintiff for construction of the deed of declaration of trust dated the 22nd February 1897, the indenture dated the 9th August 1906, and the Will of the testator dated the 20th August 1910, and for a declaration of the rights of the various parties to the estate of the said Gopal Chandra Seal upon such construction, and for a scheme to be framed for the daily sheba and periodical festivals of the family idols and for partition by metes and bounds of the estate of the testator. The plaintiff's contention in this suit is that upon a proper construction of the deed of declaration of trust and of the said Will, and bearing in mind that the said idols were the family idols of the testator, who was not, however, the founder thereof, the rights of worship of such idols could not in any way be affected by the said testator by his Will. The plaintiff's further contention is that Premises No. 6, Damzen's Lane, were not made an absolute debutter property, but that the same formed part of the estate of the testator, subject to a trust for spending a part of the rents, issues, profits thereof for the worship of the said family idols.
5. The defendants, Brojendra Nath Seal and Banamali Seal, it appears, contended that under the provisions of the will of the testator they were entitled to be the present Shebaits of the idols. It is unnecessary to refer to the contentions which were put forward by the defendants Kartick Chandra Seal and Abinash Chandra Pal, because, as far as one can make out, they supported the case set up by the plaintiff, nor is it necessary to refer to some of the other deeds executed by Gopal Chandra Seal in his lifetime in respect of some of his other properties because no question has been raised relating thereto.
6. The real contest between the parties at the trial before my learned brother Mr. Justice Page was with reference to Premises No. 8, Damzen's Lane, and No. 111, Belliaghatta Main Road, referred to in the will of the testator, and No. 6, Damzen's Lane referred to in the deed of declaration of trust of the 22nd February 1897 and also in the said will. Mr. Justice Page held that the two Premises Nos. 8, Damzan's Lane and No. 111, Belliaghatta Main Road, passed under the Will of the testator to the widow and to the heirs of the testator free from any charge thereon for the expenses of the worship of the family idols. As regards Premises No. 6, Damzen's Lane, the learned Judge held that the same had been dedicated by way of absolute trust for religious purposes, but that the settlor was not entitled of his own will to alter the existing line of shebaits of the family idols, of which he was as stated above not the founder.
7. On behalf of the appellants, four contentions have been put forward before us:
That Premises No. 8, Damzen's Lane, and No. 111, Bellaghatta Main Road, were clearly intended by the testator to be subject to a charge for the expenses of the worship of the family idols and that the testator did not intend that the said expenses should fall exclusively on 6, Damzsn's Lane;
That the learned Judge was wrong in holding that the persons named in the deed of declaration of trust of the 22nd February 1897 were not and could not be treated as Shebaits of the family idols;
That the learned Judge was in error in directing by his decree a partition of the properties belonging to the testator in the absence of the Thakurs from the record having regard to the decision of the. Privy Council in the case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick ; and
That no partition could have been directed in the absence from the record of persons who have a right of residence under the terms of the will.
8. It may be convenient to dispose of the last two contentions. The case of Mullick v. Mullick turned upon its own peculiar facts and on the facts of that particular case it was held by their Lordships that it was in the interest of all concerned that the idol should appear by a disinterested next friend to be appointed by the Court. In my opinion the case is no authority for the broad proposition that in every case where questions of Deb Sheba arise the idol is a necessary party to be brought on the record.
9. As regards the last contention, the reference apparently is to the two ladies whoso names are mentioned in the Will of the testator on page 10 of the paper-book. The rights of these ladies, whatever they are, have not bean questioned by anybody throughout this litigation and on the facts of this case I am unable to see why the decree for partition could not have been made by the learned Judge in the form in which it was made. It may also be observed that this point has not been taken in the memorandum of appeal, neither was it taken in the pleadings nor urged before the learned Judge at the trial.
10. As regard the first question indicated above the appellants contend that in respect of Premises No. 8, Damzen's Lane, and 111, Belliaghatta Main Road, the intention of the testator was that the said two properties should devolve upon the widow upon certain trusts which include the payment of expenses of the worship of the family idols. Great stress has been laid by the appellants on the opening words in the Will and upon the following directions in the Will:
And I further declare and give and bequeath the room in the family dwelling house, No. 8, Damzau's Lane adjoining to the room of the family idols to my grandson, Abinash Chunder Pal, the son of my deceased daughter Sreemutty Harimoni Dassi, to be used, enjoyed and occupied by him during his lifetime without disturbance and full right of egress and ingress for himself and his firmly without any molestation by any person or persons dwelling in the said dwelling house and I hereby declare and give and bequeath to my wife Sreemutty Badam Mom Dassi the said dwelling-house No. 8, Damzen's Lane, save and except the portion given and bequeathed to my grandson the said Abinash Chunder Pal as hereinbefore mentioned and my garden land situate on No. 111 Belliaghatta Main Road and premises No. 6, Damzan's Lane, for her absolute use and benefit during the term of her natural life with power to collect and realize the rents, profits of the said promises for her support without any claim, demand or control of my sons, Lalit Mohan Seal Akshoy Chunder Seal and Dulal Chunder Seal and to pay the expenses of the worship of the said family idols as provided in the debutter trust deed.
11. It is argued that it was the clear intention of the testator that the widow was to enjoy the properties during her lifetime and that she was also to pay the expenses of the worship of the family idols as provided in the debutter trust deed by which the testator referred to the deed of declaration of trust of the 22nd February 1897.
12. The testator who was a cashier in a solictor's office left a Will, the terms of which were in many ways contradictory and it is not easy to construe a Will of this description. He had in my opinion already by the deed of the 22nd February 1897, dedicated by way of an absolute trust for religions purposes Premises No. 6. Damzen's Lane. The reference to the said premises in the Will of the testator can only be explained on the theory that the testator was reiterating in the Will itself what he had already said in the deed of the 22nd February 1897. Reading the Will as a whole and not overlooking the opening words thereof the learned Judge's finding that the two premises in question, namely, 8, Damzen's Lane, and 111, Belliagbatta Main Road, passed under the Will to the widow and the heirs of the testator free from any charge thereon for the expenses of the worship of the family idols is in my opinion clearly right. The matter, however, can be looked at from another point of view. Assuming that there was a charge on the said two premises for the expenses of the worship of the idols, such charge, bearing strictly in mind the words used by the testator could in my opinion operate only during the life-time of the widow. There are no words in the Will itself taking away the properties from the heirs of the testator, nor are there any words indicative of the testator's intention, if there was any, that even after the widow's death the expenses of the worship of the idols should be defrayed out of the rents, issues and profits of the said two properties. Therefore, as I read the Will, I am unable to deduce from the words used by the testator that he intended to make these two properties debutter in the sense that the income thereof should be laid under contribution for the expenses of the worship of the idols. This disposes of the first point raised by the appellants.
13. As regards the second point, I am of opinion that the learned Judge was right in the view he took that while it was open to Gopal Chandra Seal, who was a Shebait, but not the founder of certain ancestral idols, to endow property for the use and benefit of the said idols, he could not in any way alter the line of Shebaits as laid down by the founder of the idols nor affect in any way the disposition created by the original founder. The conflict of opinion noticed in the judgment of my learned brother, Mr. Justice Page, is in my opinion an apparent one. It is undoubtedly open to persons interested in the maintenance and worship of family idols to create additional endowments for the benefit of such idols. It is also undoubtedly open to such donors to lay down rules for the management of the subsequently endowed properties and to nominate the persons who should be the managers thereof. But such managers, although they may be described by the donor as Shebaits, do not become shebaits of the family idols in the sense in which the shebaits nominated by the original founder are nor do they become entitled to interfere in the management of the originally endowed properties. It is unnecessary to go through the cases on this point. Bach case must depend upon its own facts, and as I read them, they can be reconciled if one keeps in mind the distinction referred to above. In my opinion there is no substance whatever in the second point urged by the appellants and this also must be negatived.
14. The result therefore is that in my opinion this appeal should stand dismissed with costs.
15. I agree.