Asutosh Mookerjee, J.
1. This is an appeal by the first defendant, in a suit for declaration that the plaintiff has a four annas share in the shebaitship of a deity, Syamsundar, established by his paternal grandfather and for confirmation or recovery of possession of the corresponding share of the properties of the endowment. The claim was contested by the widow of the step-brother of the father of the plaintiff. The Subordinate Judge held that the title of the plaintiff to the shebaitship was established and made a decree accordingly. On the present appeal, that decision has been assailed as founded on an erroneous construction of the Will of the founder. The relationship between the parties may be elucidated by the annexed genealogical table:
First wife= Jasmant Das =Second wife
Kishori [Will, 22-7-1882. Bhagirathi
| Died, 20-9-1882.] |
| | | | | |
Raimohan Payrimohan, Jogendra Brojendra, Sarada, |
Defendant No. 2, Died June, 1890. Died 12-1-1807. Died 30-8-1887 Died 30-8-1887 |
| Window Kunjamani, |
| Defendant No. 1. |
| | |
Nikunjabehari, | |
Plaintiff, | _______|
Two daughters. Died after
2. Jasmant Das died on the 25th September 1882, and the question in controversy turns upon the true construction of the Will he executed on the 22nd July 1882. The testator provided that all his properties would devolve on his family deity Syamsundar and his widow Bhagirathi would be executor in respect of the same. He further laid down that on the death of his widow, his youngest son Jagadanand and on the death of the latter, his son Brojendra would be successively installed in the office of executor, and all acts would be done under their management. The Will concluded that his sons by his first wife were disobedient and accordingly would not be appointed executors.
3. On the death of the testator, Bhagirathi proved his Will, but died before she could take out Probate. Meanwhile, Jagadananda also died. Probate was accordingly granted to Brojendra, who himself died not many years later on the 30th August 1887. Jogendra then took out Letters of Administration with copy of the Will annexed, but he died on the 12th January 1897, leaving a widow Kunjamani, the first defendant in the present suit, as also two daughters by her. Sarada died on the 10th February 1898, unmarried, like his brothers Jagadananda and Brojendra. Pyarimohan died in June 1890 leaving an infant son Nikunjabehari, who is plaintiff in this suit. Sarada had applied for Letters of Administration after the death of Jogendra, but he died before orders were passed. After this, applications were made for the same purpose by Raimohan, Kunjamani and others, but on the 3rd September 1902, this Court held that no Letters of Administration could be issued as the estate had been completely administered, and the only object of the rival applicants was to secure indirectly a decision upon the question of title to the shebaitship. In 1906, a suit was instituted by Kunjamani against Raimohan and some of the kinsmen of his father for declaration that she was the shebait of the deity Syamsundar. The Court held that she was shebait to the extent of an eight annas share and made a decree accordingly. Nikunjabehari had not been made a party in that suit and he consequently instituted the present litigation on the 26th September 1910 for declaration that he himself was interested to the extent of a four annas share in the shebaitship. This claim was unsuccessfully contested by Kunjamani in the Court below and the substantial question in controversy now is, whether the plaintiff has the title claimed.
4. We are of opinion that the effect of the Will was to constitute Bhagirathi, Jagadananda and Brojendra successive shebaits of the endowment, though they are described as executors in respect of the endowed property. The testator did not prescribe how the shebaitship would devolve after the death of Brojendra. In these circumstances, the devolution of the office of shebait follows the line of inheritance from the founder; in other words, it passes to his heirs unless there has been some usage or course of dealing which points to a different mode of devolution: Rajah Muttu Ramalinga Setupati v. Perianayagam 1 I.A. 209; Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty 4 I.A. 76; 1 M. 235; 1 Ind. Jur. 134; 3 Sar. P.C.J. 687; 3 Suth. P.C.J. 382; Janoki Debi v. Gopal Acharjia Goswami 10 I.A. 32; 9 C. 766; 13 C.L.R. 30; 4 Sar. P.C.J. 411; 7 Ind. Jur. 218; Gossami Sri Gridhariji v. Romanlalji Gossami 16 I.A. 137; 17 C. 3; 13 Ind. Jur. 211; 5 Sar. P.C.J. 350; Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69; 23 M. 271; 4 C.W.N. 329; 10 M.L.J. 29; 2 Bom. L.R. 597; Jagadindra Nath Roy v. Hemanta Kumari Debi 31 I.A. 203; 3.2 C. 129; 7 Bom. L.R. 765; 8 C.W.N. 809; 1 A.L.J. 585; Mohan Lalji v. Tikait Sri Gordhan Lalji 19 Ind. Cas. 337; 40 I.A. 97; 35 A. 283; 17 C.L.J. 612; 17 C.W.N. 741; 11 A.L.J. 548; 15 Bom. L.R. 606; (1913) M.W.N. 536; 14 M.L.T. 27; Sital Das Babaji v. Pertap Chunder Sarma 3 Ind. Cas. 408; 11 C.L.J. 2; Sheo Prasad v. Aya Ram 29 A. 663; A.W.N. (1907) 210; 4 A.L.J. 565; Mohan Lalji v. Madhsudan Lala 6 Ind. Cas. 77; 32 A. 461; 7 A.L. 3. 430. In this connection, we must bear in mind the observation of Sir Richard Couch in Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69; 23 M. 271; 4 C.W.N. 329; 10 M.L.J. 29; 2 Bom. L.R. 597 that the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore I.A. Sup. 47 at p. 66; 9 B.L.R. 377; 18 W.R. 359; 2 Suth, P.C.J. 692; 3 Sar. P.C.J. 85 is applicable to an hereditary office and endowment quite as much as to other immovable property and that the Hindu Law of inheritance does not permit the creation of successive life-estates in an endowment [see also Manorama Dassi v. Kali Charan Banerjee 31 C. 166; 8 C.W.N. 273; Gopal Chunder Bose v. Kartick Chunder Dey 29 C. 716]. What then is the result of the application of these principles to the case before us? The founder had nominated Bhagirathi, Jagadananda and Brojendra as successive shebaits, and had given no further direction as to the devolution of the office thereafter. Consequently, upon the death of Brojendra the shebaitship vested in Raimohan, Pyarimohan, Jogendra and Sarada, who were the heirs of the founder at the time. On the death of Pyarimohan the interest in the shebaitship vested in him passed to his son Nikunjabehari. Upon the death of Jogendra his interest devolved upon his widow Kunjamani. Upon the death of Sarada his interest in the office passed to his step-brother Raimohan. Consequently, at the date of the institution of the suit, Raimohan had a half share in the office, while Nikunjabehari and Kunjamani had one-fourth share each.
5. But it has been argued for the appellant that Bhagirathi, Jagadananda and Brojendra took successive life-estates in the office, with the result that the remainder at the death of the founder constituted a vested interest in the hands of his six sons. In this view, Nikunjabehari would get through his father Pyarimohan one-sixth share, while Jogendra would ultimately receive a half share by transmission to him of the interests vested in Jagadananda and Brojendra; Raimohan would thus have a third share by absorption of the interest of Sarada. We are of opinion that this contention is unsound and that the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life-estate, as expounded by their Lordships of the Judicial Committee in Rewun Persad v. Radha Beeby 4 M.I.A. 137; 7 W.R. (P.C.) 35; 1 Suth. P.C.J. 172; 1 Sar. P.C.J. 327; 18 E.R. 651, has no application to cases of the description now before us. No doubt, a shebait holds his office for life [ Rajeshwar Mullick v. Gopeshwar Mullick 35 C. 226; 12 C.W.N. 323; 7 C.L.J. 315]; but this does not signify that he has a life-interest in the office with the remainder presently vested in the next taker. The entire office is vested in him, though his powers of alienation are qualified and restricted. [C. Vidyapurna Tirthaswami v. Vidyanidhi Tirthaswami 27 M. 435 at p. 442; 14 M.L.J. 105, where Subrahmania Ayyar, J., describes the spiritual head of a Mutt as a 'corporation sole'.] The position of a shebait is analogous to that of a Hindu female (widow, daughter or mother) in possession of the estate of the last full owner rather than to that of the holder of a life-estate. When a Hindu female is thus in possession, she represents the estate completely and though her powers of disposition may be of a restricted character, no one else has a vested interest in the estate during her life-time. Similarly, when a founder has given valid directions as to the devolution of the shebaitship, as in the present case, upon the death of the last shebait, the office vests in persons who at the time constitute the heirs of the founder, provided the last shebait has not taken it absolutely; when the office has so vested in them, upon the death of each member of the group, it passes by succession to his heir, subject to the important qualification formulated by the Judicial Committee in Mohan Lalji v. Tikait Sri Gordhan Lalji 19 Ind. Cas. 337; 40 I.A. 97; 35 A. 283; 17 C.L.J. 612; 17 C.W.N. 741; 11 A.L.J. 548; 15 Bom. L.R. 606; (1913) M.W.N. 536; 14 M.L.T. 27, namely, that the rule that when a worship of a thakoor has been founded, the shebaitship is vested in the heirs of the founder in default of evidence that he has disposed of it otherwise or of there being some evidence of usage, course of dealing or some circumstances to show a different mode of devolution, cannot be applied so as to vest the shebaitship in persons who, according to the usages of the worship, cannot perform the rights of the office. We hold accordingly that on the death of Brojendra, the last shebait named by the founder, the office vested in the four sons of the founder then alive; and this, notwithstanding the fact that the founder intended to exclude his sons by his first wife, for as Willes. J., said in Jatindra Mohan Tagore v. Gonendra Mohan Tagore I.A. Sup. 47 at p. 66; 9 B.L.R. 377; 18 W.R. 359; 2 Suth, P.C.J. 692; 3 Sar. P.C.J. 85, the heir at law, though in terms excluded from benefit under the Will, cannot be excluded from his general right of inheritance without a valid devise to some other person. We may add that precisely the same result follows if we hold, on the authority of the decision of the Judicial Committee in Tripurari Pal v. Jagat Tarini Dasi 17 Ind. Cas. 696; 40 I.A. 37; 40 C. 274; 17 C.L.J. 159; 17 C.W.N. 145; 13 M.L.T.4; (1913) M.W.N.34; 15 Bom. L.R. 72, that the shebaitship vested absolutely in Brojendra, and, on his death, devolved on his heirs, namely, his four surviving brothers, Raimohan, Pyarimohan, Jogendra and Sarada. The decree made by the Subordinate Judge correctly determines the rights of the parties and as no question of limitation really arises on the evidence, that decree must be affirmed.
6. The result is that the appeal is dismissed with costs. We assess the hearing fee at ten gold mohurs.