1. This second appeal arises out of a suit for declaration of title to and recovery of possession of about 5 cottas of land together with a house and a Siva temple standing thereon. The property originally belonged to one Pran Krishna Haldar who died in 1868 leaving him surviving his widow Nitambini Debi and his mother Biswamoyi Debi. Nitambini died in 1919 and Biswamoyi died in 1899. On 26th March 1868, Nitambini mortgaged the disputed property reciting in the mortgage deed that she had to pay the decretal debt of Pran Krishna Haldar amounting to Rs. 200 and to raise Rs. 250 for her own maintenance. Subsequently the mortgagee brought a suit and obtained a decree and on 30th December 1870, Biswamoyi auction-purchased the property in execution and obtained possession on 2nd March 1872. In September 1889 she executed a deed of gift or endowment in respect of the disputed property in favour of the Siva idol established by her and appointed one Jadu Nath Mukherjee as the first shebait. In 1901, Jadu Nath executed another deed by which he appointed his two sons Lal Gopal Mukherjee and Kalipada Mukherjee shebaits and also laid down the line of succession in his family. It may be noted here that Biswamoyi had already died. Gurupada Haldar who is defendant 1 in the present suit became the reversioner to the estate of Pran Krishna Haldar on the death of Nitambini and in 1923 he instituted Title Suit No. 203 to recover possession of the disputed property alleging that Nitambini had only a widow's interest and Biswamoyi had purchased only that interest.
2. The suit was brought against Lal Gopal and Kalipada who were in charge as shebaits of the idol. The suit ended in a compromise on 21st January 1927 and the result was that the property was divided about half and half, Gurupada taking one half and Lal Gopal and Kalipada taking the rest in the name of the idol. The present plaintiffs, who are the sons of Lal Gopal and Kalipada, allege that their fathers were unduly influenced by the relatives of defendant 1, Gurupada Haldar and the neighbours, and that they had acted improperly as shebaits in entering into the compromise. The plaintiffs further allege that they took their fathers to task, whereupon the latter ceased to act as shebaits and permitted the plaintiffs to act as shebaits. By the said compromise decree the title of the Siva Thakur to the suit land has been clouded and so the plaintiffs have brought the present suit. Lal Gopal and Kalipada have been made pro forma defendants 2 and 3; they have filed a short joint written statement supporting the plaintiffs' case. The suit is contested by Gurupada Haldar, defendant 1. His defence is that the plaintiffs have no locus standi to sue, that Nitambini had only a widow's interest which was purchased by Biswamoyi and the latter's right ended when Nitambini died in 1919, and further that the compromise in the suit of 1923 is binding on the plaintiffs.
3. The trial Court found that Nitambini had mortgaged for legal necessity and that she intended to bind the entire estate, but that there was nothing to show that the mortgagee intended to enforce the liability against the entire estate. On the contrary, only the right, title and interest of the judgment-debtor Nitambini were sold and not the entire estate of Pran Krishna Haldar. Therefore Biswamoyi did not acquire absolute title to the property. Gurupada inherited it after the death of Nitambini and the endowment was no longer valid. At the same time the Subordinate Judge held that the plaintiffs were validly appointed shebaits and that the solenama was not binding on them. In the view that he took of the auction-purchase, the Subordinate Judge dismissed the suit. On appeal the District Judge agreed with the Subordinate Judge on all the points except with regard to the auction-purchase. He held that the entire estate passed to the auction-purchaser. In that view he decreed the suit. The present second appeal is preferred by defendant 1.
4. The first question in this appeal is whether the plaintiffs have locus standi to bring the suit. Both the Courts below have found that the plaintiffs are validly appointed shebaits. The plaintiffs are four in number. According to the cause title in the plaint, plaintiff 1 is the son of Lal Gopal Mukherjee and plaintiffs 2, 3 and 4 are the minor sons of Kalipada. Mukherjee represented by their guardian mother Nagendra Bala Debi and they are described as shebaits of the Siva Thakur established by Biswamoyi. In para. 13 of the plaint it is alleged that the plaintiffs are the validly appointed shebaits according to the original deed of endowment of Biswamoyi. The reliefs that they asked for are first: A declaration that the property belongs to the idol Siva established by Biswamoyi, secondly that the solenama decree in Title Suit No. 204 of 1923 is not binding on the idol and that defendant 1 may not possess any part of the suit property under the said decree and, thirdly, that the plaintiffs are to recover possession. The learned District Judge has given a decree in these terms:
That the suit be decreed with costs, it being declared that the title and possession of the property in suit is in Siva, and in the plaintiffs as shebaits of Siva; that the decree in Title Suit No. 204 of 1923 is not binding against the deity Siva and against the property in suit. It is further ordered that the plaintiffs as shebaits of the deity Siva may take delivery of possession of such part of the property in suit as has been occupied by defendant-respondent 1 in pursuance of the decree in Suit No. 204 of 1923.
5. It is conceded by the learned advocate appearing for the plaintiffs-respondents in this Court that this decree is really in excess of the reliefs asked for in the suit, inasmuch as it gives to the plaintiffs a declaration of their shebaiti right which was not asked for in the plaint. To understand the question of locus standi, it will be necessary to refer to the original deed of endowment, Ex. 1 which was executed by Biswamoyi Debi. The material part of the document runs as follows:
But having it in my mind to dedicate the house to Siva Thakur, I dedicate today the said house to the idol of Siva by this deed of gift. Whatever right, title and possession I had in the said house vest from this date in the idol of Siva and now I have become old and afflicted with various diseases and unable to perform the seva of the idol of Siva, so I appoint Jadunath Mukhopadhya, son of late Shambhu Chandra Mukhopadhya, as shebait. The said shebait will keep the said house in his own right, title and possession, let out the same and perform the seva and repair the house from the proceeds of the rent of the house and from the income from my jajmans (disciples). May God forbid, if during my life time the said shebait dies, then I shall again appoint another shebait. If the said shebait becomes aparag (incapacitated) to perform seva, he will be entitled to appoint another shebait in the same manner, but he shall not be entitled to do any injurious act such as gift, sale, mortgage or transfer, etc. (of the said property) obstructing the seva work. Be it expressed further that my heir shall have no connexion with this house.....
6. It is apparent from the above that Biswamoyi divests herself and her heirs and vests the property in the idol Siva. Next she appoints Jadunath Mukhopadhya as shebait in his own right, title and possession. Thirdly she provides for the succession in this way, namely, so far as Jadunath is concerned he is to appoint his successors if he should become incapacitated (missing text) and further Biswamoyi reserves to herself the right to appoint another shebait in case Jadunath should die in her lifetime. The document does not go any further and does not make any provision for future appointments after Jadunath's successor. The learned District Judge remarks in his judgment that the
endowment deed provided expressly that the services to Siva would be continued without reference to the grantor's heirs after the grantee's death, and I agree with the learned lower Court that by implication Jadunath, the original grantee, was entitled to fix the succession to shebaitship provided that such succession fixed did not go against the law.
7. It seems to us that the learned Judge was in error in thinking that there was an express provision that the service to Siva would be continued with reference to the grantors's heirs. There is no reason, so far as the terms of the endowment go, why the ordinary law should not apply, namely that on failure of shebaits, the question of appointment will revert to the family of the founder. Both the Courts however have found that it was the intention of the founder that Jadunath should have full authority in the matter of appointment of successive shebaits. Considering that this was the intention, it must be read consistently with the terms of the endowment. It is perfectly clear from the terms that the founder intended first, that the shebait must be an effective shebait, that is one capable of performing the worship and, secondly, that he should appoint a successor only in the contingency of his being incapacitated. This brings us to the arrangement made by Jadunath by the deed of appointment, Ex. 2. By this deed he professed to act according to the terms of the deed of Biswamoyi and stated that he had become old and unable to perform the seva, etc., on account of illness, and then he proceeded to appoint his two sons Lalgopal and Kalipada Mukherjee. So far Dr. Basak, appearing for the appellant in this Court, has stated the appointment cannot be questioned even though it was of two shebaits and not one. The deed then goes on to provide as follows:
I, according to the order in the said deed of gift, appoint you down to your sons, grandsons, heirs and representatives, as shebaits to perform the daily seva work of the idol of Siva. From this date, as my representatives, you, down to your sons, grandsons, heirs and representatives, enjoy and possess the said debuttar house as shebait of Sri Sri Siva Thakur . . . etc.
8. It is contended that this laying down the rule of succession in the family is in-consistent with the terms of Biswamoyi's grant. I am not impressed by Dr. Basak's argument that the appointment of the plaintiffs would be repugnant to Hindu law on the ground that they were unborn at the time of the original grant and his reference to the case of Bai Motivahu v. Bai Mamubai (1897) 21 Bom 709, cannot be accepted as that case may be distinguished on the facts. But there is authority for the proposition that a fundamental change in the devolution of the office of shebait, which is inconsistent with the terms of the original foundation, cannot be valid. Even the founder cannot alter the line of succession unless he has reserved that right to himself. In the case of Ashutosh Seal v. Benode Behari Seal 1930 Cal 495, there was an addition to the existing foundation, a subsequent shebait having by another deed of endowment dedicated cortain additional properties. There it was pointed out that each case must be governed by the terms of the particular dedication subject to the principles laid down in Gossami Sri Gridhariji v. Romanlalji Gossami (1890) 17 Cal 3 which was a case of shebaitship remaining in the family of the founder. In the present case Jadunath by his deed of appointment Ex. 2 was not even making any addition to the existing foundation. On the other hand, he was adopting a course of personal aggrandisement by keeping the shebaitship in the family which was inconsistent whit the terms of the original foundation. Since there is no dispute that, so far as Lalgopal and Kalipada are concerned, their appointment was valid, the next step to see is whether the plaintiffs have been validly appointed. Looking back to the original conditions of the endowment, the first question is whether Lalgopal and Kalipada had been incapacitated. The plaintiffs' own case as stated in the plaint itself shows that that was not the reason for the appointment of the plaintiffs. The reason was that there was a quarrel over the compromise which was effected in T. S. No. 204 of 1923. This is confirmed by the deed of appointment which was executed by Lalgopal and Kalipada in favour of the plaintiffs in February 1931, vide Ex. 10, that is, subsequent to the institution of the suit which was on 16th May 1930. In this document the executant Lalgopal and Kalipada state:
Then while we were exercising our right of shebaitship in respect of the said god Siva peacefully, we, at the instigation of some wicked men, surrendered our said right of shebaitship in the month of January 1930 in your favour giving you full liberty to carry on the sheba of the said Siva . . .
9. Then they proceed:
In January 1930 we surrendered our right of shebaitship in your favour and since then you have been performing the said shebaiti work being invested with the right of a shebait of the said Siva Thakur according to the provisions of the deed by the late Biswamoyi Debi and Jadu Nath Mukhopadhya and our shebaiti rights have been completely extinguished . . .
10. Then comes the second question, was this an appointment of effective shebaits, that is, of persons who are capable of performing the seva? Now we find that three of the plaintiffs are minors who are represented in the suit by their mother guardian; plaintiff 1 is stated to have been born in 1909 and therefore he was 21 years old at the time of the suit. These certainly were not persons who were capable of performing the seva as evidently was intended by the original founder. The learned Subordinate Judge says:
The shebaits were entitled to relinquish in favour of persons who would succeed after his death.
11. This might be in accordance with the terms of the deed of appointment executed by Jadunath Mukhopadhya, Ex. 2. But such an appointment is against the terms of the original grant. In the case of Mohan Lalji v. Gordhan Lalji Maharaj (1913) 35 All 283 it was held that the rule that the heirs of the founder succeed to the shebaitship laid down in the case of Gossami Sri Gridhariji v. Romanlalji Gossami (1890) 17 Cal 3 is subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship. We think the appointment of the present plaintiffs is opposed to this principle. It is not argued for the respondents that the plaintiffs are validly appointed shebaits and in fact Mr. Roy Chowdhury appearing for the respondents has suggested that the question of valid appointment may be left open. It is contended that the plaintiffs have been given charge by the existing shebaits and further that defendant 1, Gurupada, cannot question the appointment of the plaintiffs because Biswamoyi in her deed of endowment expressly excluded her heirs from any connexions with the house. This argument, however, overlooks the fact that defendant 1, Gurupada Haldar, does not profess to be an heir to Biswamoyi. He is heir to the estate of Pran Krishna Haldar on the death of Nitambini Debi. This is his defence and this was also his case in the plaint in T. S. 204 of 1923. No doubt it is possible for a de facto shebait or even a stranger to bring a suit to recover possession of the idol's property. See the case of Mahadeo Prasad Singh v. Karia Bharti 1935 P C 44 which affirmed the principle laid down in Ram Charan Das v. Munshi Naurangi Lal 1933 P C 75, namely that the plaintiff in actual possession as Mohunt is entitled to maintain a suit to recover property not for his own benefit but for the benefit of the math. These are cases of Mohunts in actual possession seeking to set aside a grant made by a predecessor, but there is the vital difference in the present case. The fathers of the plaintiffs are the validly appointed shebaits and are still living. They made the compromise with Gurupada.
12. The argument is that in the suit, No. 204 of 1923, they were only defendants in their personal capacity and not as shebaits. But if we look to the substance of the thing, this argument cannot be accepted. The terms of the solenama, vide Ex. D, shows that it was declared that the plaintiff Gurupada had no title to and possession in the portion obtained by the defendants and that the defendants were to possess the same down to their descendants as shebaits of the Siva Thakur. The true position seems to be that Lalgopal and Kalipada now want to get rid of the compromise by resort to a subterfuge. They have set up their sons in their place, so that the compromise may be got rid of and it is open to the defendant Gurupada to raise the question whether the plaintiffs have any locus standi to bring the suit. It seems to us that the plaintiffs have no locus standi. It is next contended for the appellant that Biswamoyi did not purchase the entire estate. It is pointed out that even if it be held that there was legal necessity for the mortgage as stated in the deed of mortgage, the same doed shows that it was Biswamoyi's action that gave rise to the necessity; therefore it was not open to Biswamoyi to take advantage of her own wrong. On the other hand, there is the compromise by which Gurupada himself accepted the position that the endowment was valid even after the death of Nitambini. Whatever it may be, it is not necessary to decide the question, having regard to the fact that it is found that the plaintiffs have no locus standi to bring the suit. The suit must therefore be dismissed. The result is that the appeal is allowed, the judgment and the decree of the lower appellate Court are set aside, and the plaintiffs' suit is dismissed. The contesting defendant 1 is entitled to his costs in all the Courts.