S.K. Ghose, J.
1. This is a second appeal by the plaintiff in Suit No. 4 of 1937 and it raises a question with regard to the right of a shebait under an idol called Sridhar Jiu Thakur. The following genealogical table will show the position of the parties.
HARISH CHANDRA BANERJEE
| | | |
Bidhu Bhusan. Priya Nath Karunamoy Bhagabati
| | |
Hari Mohan ------------------------ Kumud Nath
(defendant 2) | | | |
| Nirmal Ammal Bimal |
| plaintiff (defendant 6) (defendant 5) Nihar Ranjan
Transferred to Jyoti |
Prosad, (defendant 1) ----------------------------
Tushar (lunatic : defendant 3) Anil (defendant 4).
2. The idol was the ancestral deity of the four sons of Harish Chandra Banerjee. In the year 1286 B. S. or 1890 A. D., a deed of partition (Ex, B) was drawn up amongst the three brothers, Bidhu, Priya and Karunamoy and Kumud, son of the deceased daughter of Harish Chandra. By that document, property yielding an income of Rs. 26 odd was allotted for the worship of the idol and the puja was performed according to the deed by the aforesaid four persons in rotation. Bidhu, who was a Subordinate Judge and had no children, built a Ghat, two rooms for the Thakur and a Dolemancha which he dedicated to the idol in 1890 or 1891. He also performed the pujas of the idol so long as he was alive. He died in 1909. On 1st January 1908 he executed a will (Ex. 3) by which he gave G. P. Notes of Rs. 10,000 for the worship of the idol and appointed as shebaits his nephews Nirmal Chandra Bannerjee, the present appellant, Hari Mohan Bannerjee and his grand-nephew Nihar Ranjan Banerjee. The will further provided that each shebait would have power to nominate a successor in his absence (abartamane) and if any shebait died without nominating a successor, then the eldest among his heirs would be the shebait.
3. It is not disputed that the provisions of the will were objected to by any of them. The will was probated and three shebaits mentioned therein undertook to perform the sheba of the idol. In 1913 a deed of agreement was drawn up (Ex. 4) by which it was arranged that the sheba was to be performed by rotation. As a matter of fact Nirmal, the plaintiff-appellant, had to stay away on business. Nihar who was a Deputy Magistrate, had also to stay away and the result was that Hari Mohan was the person who was left in charge of the worship. It is not disputed that Hari Mohan lost his character and money with the result that the Thakur was turned out of the Thakur bari and kept in the house of a priest since 1914. Hari Mohan's own house was sold and he occupied the Thakurbari with his wife. The latter was also a woman of bad character. Further the amount of Rs. 10,000 which was given to the Thakur by Bidhu was given as a loan to one Suresh on a handnote in favour of Hari Mohan.
4. It has been found that this state of things continued from 1914 to 1925, when Jyoti Prosad, defendant 1, came upon the scene. He is a relation of the family and his maternal grandfather and Nihar's grandfather were two brothers. It is not disputed that he was holding a very respectable position and further his house is just on the other side of the Thakurbari. In 1925 Hari Mohan executed a deed of neogpatra by which he nominated Jyoti Prosad as his successor to perform the sheba and relinquished the shebaitship in his favour. Thereafter Hari Mohan left the place with his wife and since 1925 Jyoti Prosad had been performing the sheba. He gave notice to Nirmal and Nihar, Nihar did not raise any objection. But Nirmal at first sent a pleader's letter to Jyoti Prosad. Afterwards he appeared to have become friendly with Jyoti Prosad. The learned Subordinate Judge in the Court of Appeal below relying on letters Ex. 22 series, had found that Nirmal agreed to perform the sheba in consultation with Jyoti Prosad. Nihar died in 1927. His sons Anil and Tushar also did not take any part in the performance of the sheba, although asked by Jyoti Prosad to do so.
5. Then occurred events which led to the filing of the suit. Nirmal and Tushar brought a suit upon the handnote for Rs. 10,000 against Pannalal and Jaharlal, sons of Suresh. This suit was dismissed by the lower Appellate Court. But it was brought to the High Court on appeal. Nirmal did not prosecute the suit further and it was dismissed for default. It appears that he got two bonds executed in favour of his son-in-law for Rs. 12,000 on 23rd July 1935 and the suit was dismissed for default on 12th August 1935. The learned District Judge has found that Nirmal's explanation as to why the suit was dismissed for default is not satisfactory and that there was no reason for suspicion that he compromised with Pannalal and Jaharlal, On 11th September, 1935 Jyoti Prosad filed Suit No. 3 of 1935 for a declaration that he was the shebait in respect of the one-third share of Hari Mohan and that Nirmal and Tushar, the shebaits in respect of the two-thirds share, forfeited their rights as they ceased to perform the sheba and that they had abused the trust imposed on them. On 21st December 1935 Nirmal brought Suit No. 4 of 1935 against Jyoti Prosad for a declaration that Jyoti Prosad was not the shebait, as the neogpatra was invalid. The contest was between Nirmal on one side and Jyoti Prosad on the other. The other defendants -did not appear.
6. Two suits were tried together in the first Court. The Subordinate Judge dismissed Jyoti Prosad's suit and decreed Nirmal Banerjea's suit. He found that the neogpatra was a deed of sale and as such void, that the appointment of Jyoti Prosad as shebait in succession to Hari Mohan was not warranted by the terms of the will and that Nirmal and Tushar were not estopped from challenging the claim of Jyoti Prosad. He also found that Nirmal's suit was not barred by limitation. Against the decision of both the suits, appeals were taken to the District Judge. In Nirmal's Suit No. 4 the learned District Judge came to the conclusion opposite to that of the Subordinate Judge. The District Judge found that neogpatra was not a deed of sale and that even if money passed, the deed was not void; that the appointment of Jyoti Prosad was not against the terms of the will and that Nirmal's suit was barred by limitation. Accordingly he directed that Suit No. 4 should be dismissed with costs. In Suit No. 3 the learned District Judge came to findings in favour of Jyoti Prosad and remanded it for determination of the question whether Nirmal Banerjee and Tushar Banerjee had abused the trust imposed on them by misappropriating the amount of Rs. 10,000. The present second appeal was filed by Nirmal Banerjee and it relates to Suit No. 4,
7. I propose now to deal with the question which will determine the fate of the appeal. The first question in this appeal is whether the neogpatra executed by Hari Mohan in favour of Jyoti Prosad is valid as held by the District Judge, or invalid as held by the Subordinate Judge. Now the will of Bidhu Bhusan Banerjee dedicated the properties in suit to the idol and laid down the line of shebaitship, and the point turns on the question whether that direction is consistent or inconsistent with the shebaitship being hereditary. The idol is no doubt ancestral. The original endowment was not created by any document. It is not surprising that in practice the sheba was carried on by the eldest member of the family and so the partition deed of 1886, Ex. B, provides that the shebaitship would go by the eldest sons (jeshthadi krame). If the shebaitship were hereditary, the persons entitled to it at the time of Bidhu's death would be Nihar, Hari Mohan and the three sons of Karunamoy. Now Bidhu gave express directions as to succession in para. 2 of his will. He appointed as shebaits by name Nihar, Hari Mohan and Nirmal one of the sons of Karunamoy, leaving out the other two sons, defendants 5 and 6. The material passage is:
Each of the shebaits is empowered to appoint a future shebait in his own place (to act) after his death (abartamane). If any shebait dies without appointing a future shebait in his own place then his eldest heir will be the shebait in his place.
8. Therefore, ordinarily the shebaitship would go by nomination. On failure of nomination, it would go to the eldest heir, not even then to all the heirs. Regarding as an accretion to the original debuttar, which was a small one, the endowment of Bidhu Bhusan could only be accepted upon the donor's terms : Gossami Sri Giridhariji v. Ramanlalji Gossami (1890) 17 Cal 3 and Ashutosh Seal v. Benode Behari Seal : AIR1930Cal495 . There is no doubt that the endowment has been accepted upon the donor's terms. This is found by the District Judge. The partition deed of 1886 cannot regulate the succession to Bidhu Bhusan's endowment. The agreement of 1913 divides the palas, not amongst all the heirs of Harish, but only amongst the three shebaits appointed by Bidhu Bhusan. No other case is made in the plaint and the suit indeed is based upon the particular endowment as made by Bidhu Bhusan. Mr. Bose also, for the appellant in this Court, has not sought to carry his rights further back than the will. His contention is that the last clause in para. 2 of the will makes the shebaitship hereditary, and that the condition as to nomination is not an essential one which the Thakur must either accept or reject before accepting the endowment. In my judgment the terms read as a whole are inconsistent with such a contention.
9. That being the position with regard to the testator, founder of the endowment, the question whether the word abartamane means 'after death' is of little importance. If Hari Mohan had the right to nominate his successor, could he not relinquish the shebaitship in his favour? It may be that on behalf of Jyoti Prosad this point was more strongly urged before the District Judge than the point that Hari Mohan had incurred civil death which was urged before the Subordinate Judge. It is after all a question of law. The learned District Judge has answered it in favour of Jyoti Prosad relying on Giris Chandra Saw v. Upendra Nath Giridas : AIR1931Cal776 . Mr. Bose has sought to distinguish that case on the ground that there the person in whose favour the relinquishment was made was already a successor in the line of inheritance in accordance with the terms of the grant. But, if it is conceded that relinquishment may be made in favour of the rightful successor, it would seem to make no difference whether the successor is there by inheritance or by nomination in accordance with the terms of the grant. The neogpatra cites as authority the agreement and the will and
in accordance therewith appoint you (Jyoti Prosad) as substitute shebait to act as shebait in my place for the remainder of my life and after my death.
10. The conclusive finding of fact is that Hari Mohan had become incompetent and that the appointment of Jyoti Prosad was distinctly for the benefit of the idol. So far therefore it cannot be said that the appointment of Jyoti Prosad was invalid. The Subordinate Judge has referred to the fact that for 50 years or so, the shebaitship has remained in the family. But this cannot outweigh the terms of the will, as I read it. Perhaps there was no occasion for making a change until Hari Mohan became a waster. Jyoti Prosad also is no stranger; he is even a relation and a close neighbour. Further the finding is that he has taken interest in the worship of the idol for more than the three original shebaits Hari Mohan, Nirmal and Nihar. Indeed the Subordinate Judge finds that Jyoti Prosad's concern was the welfare of the deity and not personal gain and had he not appeared on the scene, the idol would have been in a bad way. The Subordinate Judge says:
In the present case the alienation wag to a closely connected member of the family and he seems to have more interest in the worship of the idol than any one else and the only motive of the transferee was the interest of the deity and not personal gain and it is clearly for the benefit of this deity that this alienation was made and there are special circumstances in this case, as stated above, for, if Jyoti Prosad had not taken charge of the Thakur, the Thakur would have remained in the house of the priest, and there would have been no proper worship of the deity according to the last wishes of the donor and there wars every chance of the money being misappropriated.
11. This passage will have bearing on the question of the neogpatra being treated as a kobala. But as to the facts it is not possible to take any other view in this second appeal. But, it is contended for the appellant, the neogpatra must be thrown out because it was really a sale of the shebaitship for Rs. 2000. No doubt it is found: that this amount was paid by Jyoti Prosad to Hari Mohan but the argument that it was consideration for the neogpatra is not based on sufficient materials. The document of course does not mention any consideration. On the face of it, it is not a deed of sale. The Subordinate Judge has referred to the deposition of Jyoti Prosad who said that he frequently paid money to Hari Mohan, viz. Rs. 2000, Rs. 100, Rs. 200 and Rs. 50 before as well as after the deed for helping, as he required help, as his creditor sometimes brought warrants. On the neogpatra the value was put at Rs. 2000 for the pur. pose of registration. Mr. Bose had drawn our attention to Ex. 4, a letter dated 17th April 1926, from Hari Mohan to Nirmal which mentions that there is prospect of receipt of Rs. 1000. Nirmal in his deposition gives oral support to his case that Rs. 2000 was consideration for the neogpatra. This evidence did not impress the District Judge. Unlike the Subordinate Judge, the District Judge does not definitely find that Rs. 2000 was paid as consideration. It might be that the money was paid to help Hari Mohan out of his difficulties and then he went away from his creditors. But that does not make the transaction necessarily a sale and as such invalid. Special circumstances conducive to the benefit of the idol have sometimes been held to validate an alienation inter vivos : Nirod Barani Dassi v. Shibadas (1909) 36 Cal 975. It must be held therefore that the neogpatra executed by Hari Mohan in favour of Jyoti Prosad is valid.
12. The next point is that of limitation. Before the Subordinate Judge it was con. tended that the suit is barred under Article 91 or under Article 120, Limitation Act. He negatived both contentions and held that the proper Article was 124, and so the suit is not barred being within twelve years of the date of the neogpatra. The District Judge has held that the suit is barred under Article 120. The decision turns upon what we consider to be the main relief asked for in the suit. It is to declare that Jyoti Prosad is not the shebait and the neogpatra is invalid. Once it is found that the office is not hereditary, Article 124 must be left out of account. There is also no question of adverse possession as between Nirmal and Jyoti Prosad. For such a suit, there is no period of limitation except under Article 120: Jagan Nath Das v. Birbhadra Das (1892) 19 Cal 776 and Debendra Nath Mitra v. Sefatulla : AIR1927Cal130 . The suit is more than six years from the date of the neogpatra. Therefore it is time-barred. The next question is that of estoppel. The point is whether Ex. 22 series, certain letters which were addressed in 1930-31 by Nirmal to Jyoti Prosad, indicate that he had accepted or acquiesced in Jyoti Prosad's appointment as shebait. The District Judge has held that they do so indicate and further that in point of fact Jyoti Prosad had actually been doing the work of shebait since his appointment by the neogpatra. He tried to induce Nirmal and Tushar to join him in the work, but they did not care and no para was kept up as provided for in the agreement. However so far as the neogpatra is concerned, it is conceded by Mr. Gupta for Jyoti Prosad that a case of estoppel cannot be pressed as against Nirmal. The point therefore loses force. On our findings on the other points this appeal fails. It is dismissed with costs.
13. I agree.