1. This is an appeal from a decree based upon an award of certain arbitrators which was accepted by the Court with a slight modification. As alternative to the appeal there is an application in revision. The suit in which the said award was made was instituted by Dwijendra and Robindra, the two younger sons of one Rai Radhashyam Das Adhikari Bahadur deceased, in their personal right and also as shebaits of a certain deity, against their eldest brother Barendra who was sued both in his personal right and as the other shebait of the said deity. The sons of the said plaintiff were subsequently added as co-plaintiffs. The plaintiffs asked for declaration of title and confirmation of possession in a two-thirds share in certain properties by right of survivorship. They prayed that if it be found that the properties were subject to a charge for debsheba the said charge might be declared. In the alternative, they prayed that if the properties be found to be debutter, their rights as shebaits be declared and they be put in joint possession with the defendant and a scheme be framed for the performance of the sheba (worship). On a joint application by all the parties the suit was referred to certain arbitrators who made an award the important terms whereof were the following:
1. That the properties are the absolute debutter properties of the deity. 2. That the defendant had been duly installed by the previous mohunt of the deity and he was the sole mohunt of the endowment, validly appointed. 3. That the next mohunt would have to be nominated by the defendant from amongst the descendants of the late mohunt Rai Radhashyam Das Adhikari Bahadur, and failing such nomination during his lifetime the said descendants shall nominate one from amongst themselves to be such mohunt. That the plaintiffs would get maintenance from the debutter properties and to that end certain properties specified in a schedule were to be given to them, to be enjoyed by them from generation to generation but with no power of transfer or alienation. 5. That the plaintiffs and their descendants will have free access to the temple and right of worship therein. 6. That Jatindra who was said to have been adopted by the defendant would on no account be appointed mohunt, not even if he was so nominated by the defendant. 7. That provision for the maintenance of Jatindra would have to be made by the defendant out of the secular properties left by the late mohunt, the father of the plaintiffs and the defendant.
2. The award being submitted, the defendant put in an objection on the ground that some portions of it were beyond the scope of the reference and outside the subject-matter of the suit. The Subordinate Judge overruled the objection except as regards one matter, namely as regards the provision relating to the maintenance of Jatindra. Pursuant to his decision, a decree was drawn up incorporating all the clauses of the award referred to above with the exception of C1. 7. This decree is the subject-matter of the appeal and the application in revision. On 10th June 1930 the appeal was preferred, and the application was filed on the next day, the 11th. On 31st March 1931 Barendra died. On 15th June 1931 Jitendra, who, as already stated, was alleged to have been adopted by Barendra prior to the suit and was no party therein, applied to this Court to be substituted as appellant in the place of Barendra and obtained an order from the Registrar to be so substituted. On 23rd November 1931, Robindra, one of the plaintiffs, denying the factum as well as the validity of the adoption of Jitendra and also Jitendra's right to the shebaitship under the alleged nomination of Barendra, and claiming to have been elected by the male descendants of the mohunt Rai Radhashyam Das Bahadur as provided for in the award, put in a petition asking that the order obtained by Jitendra for his substitution might be vacated. On 18th December 1931, Jitendra filed an affidavit asserting that his adoption was valid and also that he had been appointed by Barendra as his successor in accordance with the custom governing the endowment and further that there was a custom under which the shebaitship devolved by lineal primogeniture. Now, the first question to be considered is whether on the death of the appellant Barendra, the appeal can proceed at the instance of Jitendra as appellant substituted in his place. The deity was not a party to the suit and so no determination made by the award and affirmed by the decree will affect the rights and interests of the deity so as to make a shebait of the deity bound thereby. Jitendra too was not a party to the suit and the Subordinate Judge has rightly observed in his judgment:
Jatindra Nath Adhikari is not a party to the suit. The arbitrators therefore had no authority to adjudicate his rights, and any decision made behind his back is certainly not binding on him and cannot in any way affect his legal status or right. From that standpoint any adjudication regarding his rights cannot but be outside the scope of reference and wholly beyond the jurisdiction of the suit.
2. The parties, it should be stated here, are governed by the Mitakshara law. Whatever rights Jitendra may have either personally as adopted son of Barendra or as mohunt or shebait of the deity, either by nomination or by right of lineal primogeniture, are not rights which have in any way been affected by the decree and in no sense can it be said that Jitendra is a legal representative of Barendra in so far as such rights of his are concerned. The adjudication contained in the award as affirmed by the decree is an adjudication which is entirely a personal one in so far as Barendra was concerned and on Barendra's death has spent all its force except as regards parties who were the other parties to the suit. The Court below has expressly said that the decree will have no effect so far as Jitendra is concerned, and it will be a waste of procedure to let him come in only to have the same thing said once again his presence. There is no application before us by anybody else to come in and prosecute the appeal in the place of Barendra. The result is that in our judgment the order obtained by Jitendra for his substitution should be vacated, and it being held that the appeal has abated, the appeal as well as the application, should be dismissed. There will be no order for costs.