1. These are three appeals Nos. 1416, 1514 and 1515 of 1920, which are analogous, though a question arises, in the second and the third appeal as to whether an appeal lies, a question which does not arise in the first appeal.
2. The first appeal arises out of a suit brought by the second wife of one Uma Charan Dey for recovery M of rent. An objection was taken by the defendants in that suit that the plaintiffs-appellants had no title to sue as the Shebait and that the title of Shebait was in the elder widow of Uma Chanm Dey, Uma Charaa Dey secured a deed of gift, in respect of his moveable and immoveable properties constituting the same Debutter in the year 1915 and making himself the first Shebait. That document provided for the devolution of the office of. Shebaitshipsas follows: 'After my demise my eldest wife Srimati Raman Kumari Dasi shall be the Shebait of the deities and after her my youngest wife Srimati Gouri Kumari Dasi shall be the Shebait. After the death of my both wives, if there be any son born from the womb of my said wives, then that son will be the Shebait, and for want of that if I take any son as dattak the said dattak son shall be Shebait. If through misfortune there be no son born of me and in case I could not take a son as dattak then the Shebait or Shebaits selected by me, by a Will or any other document of my properties he or they shall be She-baits. The Debutter properties will be managed by the Shebaits after me.' Now, it is clear law that Uma Charan Dey could not make any change in the order of succession of Shebaits unless he had made reservation to that effect in the deed, and the question before us in this appeal is whether, upon a true construction of this document, there had or had not been such a reservation as entitled him to appoint as he subsequently did his second wife as Shebaits. In my opinion he had, no authority to appoint his second wife as Shebait as he did in the year 1917, Upon the construction of this document. I think that, after the death of Uma Charan Dey, his eldest wife was to be the Shebait and Sifter, her his younger wife and after the death of both of tiem either the natural son or the adopted son of the creator of the trust, and, it is only after the two wives had, taken in the order mentioned in the document and in the absence of any natural or adopted son that provision was made in the deed for selection of & Shebait. In my view, therefore, Uma Charan Dey was not competent to pass over the eldest wife; who was the Shebait under the deed, of 1915 and to make an appointment in favour of the younger wife by the deed of 1917.
3. But then it is said that for 19 months the period for which rent is claimed the tent accrued due during the lifetime of Uma Charan Dey. It is then argued that even if Uma Charan Dey could not, validly, appoint his, second wife to succeed him after his death he might have appointed his second wife to act during His lifetime. Assuming that he could have done this and assuming that the plaintiff-appellant could have during the lifetime of Uma Charan sued to recover on behalf of the deity the rent accruing due during the lifetime of Uma Charan Dey. we have it as a fact that no such suit was brought. Now, there is an arrear of rent for the period as mentioned. The question arises, who is entitled to sue for recovery. of such arrears which involves the discussion of the question with which I have already, dealt and the answer to which is that only the senior widow can sue to recover such rent on behalf of the deity.
4. Therefore, in my opinion this appeal fails and must be dismissed with costs.
5. As regards two other appeals a further objection is taken on the ground that no second appeal lies and I am disposed to think that there are some grounds for this contention. But it is not necessary to decide this question, because on the merits, the two appeals must fail for the reasons which I have given in dealing with the construction of the deed of dedication in the first appeal. The second and third appeals are also dismissed with costs.
6. The connected Rules are discharged no order is made as regards the costs of these Rules.