Amitabha Dutta, J.
1. This is an appeal by the defendants from the decision of the learned Subordinate Judge, Second Court, Midnapur remanding the suit for retrial on a particular issue after giving the plaintiff opportunity to amend the plaint.
2. The material facts of the case are not in dispute. Neinai Mondal of Bar Chimutia P. S. Tamluk was separate from his five brothers and had considerable properties. He married thrice to have a son and his third surviving wife was Jhanadamoyee. Ha brought up Rakhal, son of his brother Titu. Nemai Mondal made absolute dedication of his properties to two duties viz, Shree Shree Iswar Radeshyam Jew Thakur and Shree Shree Iswar Parameswar Jew Thakur installed by him under two deeds of endowment dated 2-8-1926 and 6-8-1926, appointing himself as the sole shebait. He prescribed the mode of devolution of shebaitship in tha following manner : After his death his son and thereafter his wife and if no son is born to him his wife Jnanadamoyee will be the next shebait. After the death of Jnanadamoyee the shabaiti right will devolve on Rakhal. After Rakhal' 8 death his male descendants only (excluding all female heirs and their descendants) will become shebaita one after another. In case Rakhal or any of his sons or grandsons dies without any mala issue, then the nearest descendant of the founder's brothers and if there be more than one such descendant then one Who to the senior mostin age and religious in mind among the members of the same class will become the shebait of the deities. Nemai Mondal died in 1342 B. S. leaving his widow, two daughters Basan Bala (the defendant No. 17) and Mokshada (the defendant No. 18) and no son. Jnanadamoyee died in 1350 B. S. Thereafter Rakhal became shebait and he died without any son in Baisakh 1354 B. S. At the time of execution of the deeds of endowment and the death of the founder his three other nephews (brother's sons) who were living were Mohendra (father of the contesting defendants Nos. 1 to 6), Kalipada (the plaintiff) and his brother Haripada (the defendant No, 16). After Rakhal's death Mnhendra exercised the shebaiti right till his death which took place in Jaistha 1365 B. S. The two daughters of the founder and their sons purported to execute a deed of relinquishment called Tyagpatra' dated 29th Kartick 1361 B. S. (15th Nov., 1954) in respect of the shebaiti right in favour of Mahendra, father of the defendants Nos. 1 to 6.
3. The plaintiff brought the suit for a declaration of his shebaiti right and other incidental relief alleging that the aforesaid deed of relinquishment is fraudulent, collusive and void and claiming that he is the sole shebait of the deities according to the terms of the deeds of endowment.
4. The contesting defendants resisted the suit on the ground that after Rakhai's death the daughters of the founder became entitled to ihe shebaiti right and they relinquished their limited interest in favour of Mahendra Mondal who thus became the absolute shebait and whose interest devolved after his death on the defendants Nos. i to 6.
5. The learned Munsif has found that the disposition of the shebaiti right to Rakhal for life under the deeds of endowment is valid that the order of succession laid down after the death of Rakhal limited to his male heirs and their descendants and excluding his female heirs and their descendants being inconsistent with the Hindu law of inheritance is void that the shebaiti right therefore, devolved on the defendants Nos. 17 and 18 the two daughters and heirs of the founder after Rakhai's death in Baisakh 1354 B. S. and that the plaintiff having no right as shebait is not entitled to any relief in the suit. On these findings the trial Court has dismissed tbe suit.
6. Before the first appellate Court both parties accepted the position that the line of succession prescribed in the deeds of endow-ment is valid up to the disposition of the shebaiti right to Rakhal for life and that after Rakhai's death the shebaitship reverted to the defendants Nos. 17 and 18 who were the heirs of the founder as his daughters. Before the Court of appeal a contention was raised on behalf of the plaintiff/appellant that as the defendants Nos. 17 and 18 relinquished their limited interest in the shebaiti right by the registered deed of relinquishment in Kartick 1361 B. S., the shebaitship devolved on the next heirs of the founder who were Mahendra Mondal, Kalipada Mondal (the plaintiff) and his brother Haripada Mondal each having l/3rd share. The appellate Court being conscious that the plaintiff was raising a new case inconsistent with the plaint in which the said deed of relinquishment has been seriously challenged as void, came to the conclusion that the plaintiff should be given an opportunity to make out his new case and in that view remanded the suit to the trial Court directing retrial on framing the issue viz., 'Whether the plaintiff has got l/3rd right to the office of Shebaitship in the facts and circumstances of the case' after giving the plaintiff opportunity to amend ihe plaint,
7. The learned advocate for the defendants/appellants has submitted before this Court that the Court of appeal below has erred in law in permitting the plaintiff to amend the plaint for raising a new case totally inconsistent with paragraph 8 of the plaint in which the deed of relinquishment has been seriously challenged as fraudulent, collusive and void. It is further submitted that the founder's daughters along with their sons could not validly relinquish or surrender their limited interest in favour of Mahendra one of the brothers' son of the founder who was not the nearest reversioner as surrender of a Hindu woman's estate to be valid must be made in respect of ihe whole estate in favour of the entire body of the nearest reversioners.
8. On the other hand it is submitted on behalf of the plaintiff/respondents that as Mahendra, Kalipada and Haripada, three nephews of the founder Nemai Mondal were alive at the time of execution of the deeds of endowment and also at the death of the founder they became entitled to the shebaiti right in equal shares after the death of Rakhal without any male issue and so the first appellate Court was right in remanding suit in exercise of its power under Order 41, Rule 33 of the Code of Civil Procedure.
9. In my view, the aforesaid submission on behalf of the plaintiff/respondents is notwell founded and cannot prevail as it militates against the decision in the case of Tagore v. Tagore (1872-9 Beng LR 377) (PC). In that case property was bequeathed to (1) A for life and his heirs in tail male, (2) after failure or determination of the above estate, to 3 and his heirs in tail male and (3) after failure or determination of the last mentioned estate to the heirs of C in tail male. At the time of the testator's death A and B were alive but C was dead; A had no son; B bad a son; D born in the lifetime of the testator. C's grandson F was alive at the time of the testators death. The testator died leaving an only son S. It was held by the Privy Council that A took life interest and all other bequests were void. The estates tail male were void as they were inconsistent with the Hindu law of inheritance. Although B and D were alive at the time of the testator's death they took nothing under the will for they were only to make after failure or determination of the previous series of estate that is to say after the actual exhaustion of the line of A in conformity with the will which could not arise. The incapacity of A's line to succeed by reason of illegality of the will did not entitle B or D to any benefit under the will. For the same reason F who was in existence at the testator's death took nothing under the will (vide Mulla's Hindu Law 13th Edition pages 418-419). Similarly in the present case the founder's disposition in the deeds of endowment was that after the death of Rakhal his male descendants will become shebaits one after another excluding the female heirs or their descendants and only after failure or determination of these previous series of estates the nearest descendant of the founder's brothers or the senior most among them if their be more than one of the same class, will become shebait. The incapacity of Rakhal's line to succeed because of the illegality of such disposition contrary to the Hindu law of inheritance did not entitle any of the three nephews of the founder who were alive at the time of the deeds of endowment to any benefit under those deeds. This position also follows from the principle inherent in Sections 16 and 25 of the Transfer of Property Act. The principle is that if the subsequent interest is to take effect upon the failure of the prior interest and the prior interest is against the law and so invalid, the subsequent interest would also fail. So there can be no question of the plaintiff's succeeding to any interest in the shebaitship under the deeds of endowment.
10. It is settled law that whom the founder makes a limited grant of shebaitship the residue still remains in him or his heirs as an estate of inheritance. When the limited shebaitship end the next shebait would be the person in whom the residuary shebaiti right had come to vest at that time by devolution or successive devolutions as the case may be under the Hindu law of inheritance. (See Bhabatarini Debi v. Ashalata Debi, (1943) 70 Ind App 57 : (AIR 1943 PC 89)).
11. The registered deed of relinquishment of Kartick 1361 B. S. marked Exhibit 'C' shows that the two daughters of the founder relinquished their shebaiti right in favour of Mahendra, father of the defendants Nos. 1 to 6 and the sons of the limited owners who were the nearest reversioners also joined in executing the deed. But it is doubtful whether such a transaction can be supported on the theory that it amounts in effect to surrender in favour of the nearest reversioners and relinquishment or gift by them of the estate to the stranger. In Mummareddi v. Pitti Durairaja, : 2SCR655 B. K. Mukherjea J. (as he then was) delivering the judgment of the Supreme Court felt the necessity to reconsider the view expressed in Nobokishore's case (1884) ILR 10 Cal 1102 (FB) based on such theory of extension of the doctrine of surrender involving the double fiction of a surrender by the widow in favour of the consenting reversioner and a transfer by the latter to the alienee although both the fictions are contrary to actual facts. The plaintiff has impugned in the plaint the deed of relinquishment but has not adduced any oral evidence to support his challenge. In any event, the alienation is prima facie binding on the daughters of the founder who are alive. Even if the plaintiff is permitted to plead an inconsistent case that the deed of relinquishment is valid and operative, he will not gain anything as in that case the shebaitship would go to Mahendra and after his death to the legal heirs of Mahendra. There is no legal basis of any possible claim of the plaintiff to 1/3rd share in the shebaiti right regarding which the first appellate Court had proposed the framing of an issue for decision on retrial of the suit. It is futile to raise such issue in this suit.
12. For the aforesaid reasons, I find that the Court of appeal below has failed to exercise its discretion properly and did not pay sufficient attention to the legal position in making the impugned order of remand which cannot, therefore, be sustained.
13. In the result, the appeal is allowed. The decision of the first appellate Court is set aside and the judgment and decree of the trial Court are restored. The parties do bear their own costs throughout.