1. This appeal is by the plaintiffs from a decision of the Subordinate Judge, Second Court, Hooghly, reversing a decision of the Munsif, First Court, Hooghly, and arises out of a suit brought by the appellants for recovery of possession of certain properties upon dectaration of their title thereto as she-baits of a certain deity, and further for a declaration that defendant 1, now respondent, had acquired no right as shebait.
2. The properties in question formerly belonged to one Kadambini Dasi, who by an arpannama, or trust deed dated 15th Aghrayan 1316 B. S. (1st December 1909) dedicated the same to her father's family deity Rajrajeswar Thakur, at the same time appointing herself as shebait for the duration of her lifetime. There was a provision in the deed that on her death her father's agnate, Sashi Bhusan Nag, or failing him some other cosharer, who might be living should succeed as shebait.
3. Kadambini died in Chaitra 1325 B. S. (1919), and thereupon defendant 1 took possession of the properties in suit claiming to have been appointed shebait by a will executed by Kadambini about two months prior to her death. The plaintiff then instituted this suit contesting the validity of the will; and pleading further that in any case defendant 1 had renderei himself liable to be removed from his office as shebait by failing to comply with the directions contained in the will.
4. Defendant 1 pleaded that his appointment as shebait under the will was perfectly valid and that he had carried out the directions in the will.
5. Of the other defendants 2 to 8, defendants 4 to 8 appeared and supported the case of defendant 1.
6. The trial Court on the authority of the case of Gouri Kumari v. Indra Kumar A.I.R. 1933 Cal. 30, held that Kadambini had no power to make any change in the order of succession of shebaits as laid down in the deed of endowment, and that consequently defendant 1 had acquired no right. The Munsif held further that defendant 1 by failing to live on Kadambini's ancestral bhita as enjoined in the will, had forfeited his right to the shebaitship and had rendered himself liable to removal. The suit was accordingly decreed.
7. An appeal was then taken to the District Court, and the learned Subordinate Judge following a later decision of this Court Sripati Chatterjee v. Khadi Ram : AIR1925Cal442 held that Kadambini had during her lifetime power to alter the appointment of shebait, and that the appointment of defendant 1 was valid. He further found that there had been no default on the part of defendant 1 in regard to compliance with the directions of the will. The appeal was accordingly allowed and the suit dismissed with costs. The plaintiffs have now preferred this second appeal.
8. The question of law involved is whether Kadambini having executed the de-buttar, or trust deed could by her will subsequently executed change the order of succession of shebaits in tb.8 absence of any reservation made to that effect in the trust deed. A translation of that deed has been placed before us, and we are satisfied that it contains no clause reserving such power. That being so the matter seems to be concluded by the decision of this Court in the case of Gouri Kumari Dassi v. Indra Kamar, which was relied , upon by the trial Court. The learned Subordinate Judge preferred, to use his own words, to follow a later decision of this Court Sreepati Chatterjee v. Khadi Ram but we think that he erred in so doing for two reasons, partly because the observations upon the point in the later case were in the nature of obiter dicta, and partly because that decision is directly in conflict with the earlier decision.
9. It was urged on behalf of the respondents that in any event the plaintiffs are not agnates of Shashi Bhusan Nag, and that they cannot therefore be shebaits. The evidence however does not substantiate this, and goes to show that they are agnates, and as such qualified to hold the office. If the matter were not concluded by the authority referred to above I should have been inclined to think that there is some distinction between revoking a trust and merely altering the arrangements for carrying it out, e. g., as regards the shebaits. There are no doubt good reasons why a trust for religious purposes should be held to be irrevocable but those reasons seem hardly to apply to the agency employed for administering the trust. So long as the donor remains alive it might be thought that, while he would have no power to revoke the trust, it would be open to him to alter the arrangement as to shebaits in the event of such necessity arising, as for example where a shebait appointed under the trust subsequently showed that he was utterly unfit to discharge the duties of the office. We are bound however by the decision referred to above. The result therefore is that the appeal must be allowed, the judgment and decree of the Subordinate Judge set aside, and the decision of the Munsif restored. Bach party will bear its own costs throughout.
10. The dispute in this case relates to the shebaitship of a family deity Rajrajeswar Thakur established by Kadambini, a Hindu lady who dedicated the disputed lands to the deity by a deed the 15th Agrahan 1316 B. S. By this deed the founder appointed herself as the first shebait and after her death, Sashi Bhusan Nag one of her father's agnates, as the next shebait and in the absence of the latter any other agnatic relation of her father. Plaintiff 1 Manorama Dasi is widow of a predeceased son of Sashi Bhusan Nag and plaintiff 2 is his son.
11. On the 9th Magh 1325 B. S. nearly two months before her death, she executed a will in which she referred to the deed of dedication of 1316, to the fact of Sashi Bhusan's death during her lifetime, to the absence, of a suitable agnate of her father to act as shebait and appointed defendant 1 as shebait after her. Defendant 1 obtained probate of the will and dispossessed the plaintiffs from the disputed lands. Hence this suit by the plaintiffs in which plaintiffs pray for declaration of their title as shebaits and for recovery of possession and mesne profits. Defendants 2 to 8 are the other agnates of Kadambini's father and were added as parties on the objection of defendant 1. The main defence of defendant 1 who alone contested the suit is that Kadambini altered the line of she-baits by her will and consequently plaintiffs have no title to the shebaitj ship which under the will has vested in the contesting defendant.
12. The Munsif overruled this defence and held that as Kadambini had not reserved to herself the power of revoking the appointment of shebaitship in the deed of dedication, she had no power to alter by her will the line of she baits and gave a decree to the plaintiffs declaring their title as shebaits and directing that they do get khas possession. The claim for mesne profits was dismissed.
13. On appeal by defendant 1 the Subordinate Judge came to an opposite conclusion and held that Kadambini had ample power to revoke the appointment of she-baits by her will as by the deed she did not preclude herself from revoking the line of succession of shebaits as laid down in the deed and dismissed plaintiffs suit. The question in this appeal by the plaintiffs is which of these decisions is right ?
14. It is contended for the appellant that Kadambini after having laid down the rule of succession of shebaits could no longer alter it as the property ceased to belong to her after the deed of dedication and vested in the deity and in support of this contention reliance is placed on the case of Gouri Kumari v. Indra Kumar. This decision undoubtedly supports the appellant. It is contended for the respondent that the soundness of this decision has been questioned in a later case i.e. in the case of Sripati v. Khadi Ram. There are no doubt observations in this judgment which support the view taken by the Court below, but those observations are in the nature of obiter dicta for in that case the founder had expressly precluded himself from altering the line of succession of shebaits as laid down in the deed of dedication and it was quite unnecessary for the learned Judges to pronounce any decision on the question as to whether where there is no reservation in the deed of the power of revocation it is competent to the founder to revoke the rule of succession of she-baits.
15. The position therefore is this: that in Gouri Kumari's case Woodroffe, J. (with whom Cuming, J. concurred) held that it was clear law that the founder could not make any change in the order of succession of shebaits unless he has made a reservation to that effect in the deed of dedication. In that case Uma Charan De, the founder, laid down an order of succession of shebaits in the deed of dedication by which he founded the debuttar and it was held that he could not make any change in the order in his life time. There, by the deed of dedication the eldest wife of the founder was to be the shebait after his death. The founder during his life by another subsequent deed appointed his younger wife as the shebait after him and the learned Judges held he could not do so.
16. In the case of Chandi Charan Das v. Dulal Baik A.I.R. 1926 Cal. 1083 Page, J., agreed with this decision and held that the founder after dedication is functus officio as founder and that the only rights which he retains were those that appertain to the office of shebait. Nalin Chatterjee, J., did not express any opinion on the question. We have therefore the decision of Woodroffe and Cuming, JJ., which is directly in point and the decision of Page, J., supporting the view taken therein. As against this we have the obiter dicta of one of the learned Judges. We are bound to follow the decision of the Division Bench and hold that the founder in this case had no authority to revoke the line of succession which he laid down in the arpannama or deed of dedication.
17. There are texts of Hindu law which would seem to suggest that the donor exercises a sort of supervision over the shebait's rights and duties and can remove a shebait during his lifetime if he is not competent. But an examination of those texts will show that they refer to public and charitable endowments and not to dedications made to family idols. We have therefore to approach the question from a broader point of view. By the deed of dedication the lady appointed her father's agnates as the she-baits after her and after this provision in the deed can she go back upon her word ?
18. It is now well settled that when a shebait is founded the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution: Giridharaji v. Ramanlalji  17 Cal. 3 and Mohanlalji v. Gordhan Lalji  35 All. 283. And where the founder has not laid down an order of succession of shebaits in the deed of dedication he can certainly confer a shebaitship upon some person other than the person carrying on the sheba: see the following observations of their Lordships of the Judicial Committee in the case of Pramatha v. Pradamunya Mullick .
The person founding a deity and becoming responsible for those duties is do facto and in common parlance called shebait; this responsibility is of course maintained by a pious Hindu either by the personal performance of the' religious rites or-as in the ease of Sudras to which caste the parties belonged-by the employment of a Brahmin priest to do so on his behalf, or the founder, at any time before his death, or his successor likewise may confer the office of she bait on another.
19. The concluding sentence of this extract if divorced from the facts of the case may lead to the conclusion that it is competent to the founder of an endowment to alter the line of succession of shebaitship during his lifetime but there is nothing in the actual decision of their Lordships of the Judicial Committee in this case which would suggest that even if the line of succession of shebaits is laid down in the deed of endowment it could be altered by the donor during his lifetime, if the next shebait dies. The position of the founder is that of a she-bait after the dedication. She divests herself of all rights, title and interest in the property which becomes the property of the deity and by a will the testatrix could duly make dispositions in respect of property which is her own. It may be said that it is possible to divide the deed of endowment into two parts, viz.: (i) the part which is a gift inter vivos to the idol with the founder as shebait during the lifetime; (ii) the part laying the rule of succession to shebaitship after her death and to treat the document partly as a gift in praesenti and partly, so far as the succession of shebaitship after the testator's death is concerned, as testamentary. It will not be right so to treat the deed. Here the disposition of the shebaitship has been made by the founder in the deed and the latter has not reserved any power in the deed to alter the devolution of shebaitship and in those circumstances she is not competent to interfere with the rule of succession which she has formulated in the arpannama.
20. Under the English law an appointment once made by deed could not be altered except in the case of public and charitable endowments: see Chokalingam v. Duraswami A.I.R. 1928 Mad. 327: see observations of Srinivasa Ayyangar, J.
21. This would also seem to be consonant with the rule of Hindu law about utsargas or dedications. At p. 337 of Mr. Mandlick's well-known commentary on Vyavahara Mayukha while dealing with public charities the author points out that the repair and control of things thus dedicated and the ownership of which have been renounced generally rest with the renouncer according to the usage of the country and quotes a passage from Mitramisra in Vyavaharadhyaya in support of the conclusion that the dedicator has a sort of guardianship over the thing dedicated. But the discussion shows that it is with reference to public endowments as for instance dedication of tanks and wells to the public.
22. For these reasons we think the decree and decision of the Court of appeal below must be set aside and that of the Court of first instance restored.