C.C. Ghose, Ag. C.J.
1. I have had the advantage of reading the judgment which has been prepared by my learned brother and I agree with him in the conclusions summarized in his judgment.
2. This is an appeal from the judgments and decrees of my learned brother Lort-Williams, J., and arises in two suits. The appellant Prasaddas Pal was the plaintiff in suit No. 933 of 1930 and defendant in suit No. 838 of 1930. Jagannath Pal and others are plaintiff's in the latter suit. The suit brought by Prasad was dismissed, whereas the suit brought against him was decreed.
3. It appears that one Nilmani Pal, who was governed by the Dayabhaga school of Hindu law, executed, at Calcutta, a deed of endowment, on or about 25th July 1911, by which he dedicated the house and premises No. 61, Clive Street and the house and premises No. 105,Balaram Do Street, to the sheba of the idol Shree Shree Annapoorna, established by him in the latter house and premises, and for feeding the poor and carrying out other charitable objects. He appointed himself as the shebait and five other persons as assistant shebaits for carrying out the sheba of the deity as also for carrying out the charitable objects. These assistant shebaits are named in para. 2 of the plaint in suit No. 838 of 1930. The first three plaintiffs of the suit are three of the five assistant shebaits. It was further provided that, on the death of the said Nilmani Pal, the five assistant shebaits should do the work of the sheba and his wife, Kusumkumari Dasee, will get the shebait's salary and shall reside in the thakur barhi. It was further provided that, on the death of Kushumkumari, his daughter-in-law, Nirmalasundari, would be next shebait and, and on her death, his grandson would be the shebait and on his death, his granddaughter shall be the shebait. Then follows a clause in the deed of endowment which has been the subject of much controversy both before the learned Judge and before us. That clause runs as follows:
In the absence of any such grandson or grand-daughter one of the members of my family who is competent shall be the shebait.
4. The following pedigree will show the state of the family of Nilmani Pal at the time of the suit:
Ramchandra Pal__________________|__________________| | |Baikanthanath Pal Jadunath Pal Nilmani Pal(deceased)(died before (deceased) (deceased)Nilmani Pal) (died before wife Kusum kumari| Nilmani Pal) Dasee| | (died 26th| | Oct. 1914.)| | |Mancendranath Krishnadhone NarendranathPal (deceased) Pal (deceased) Pal (deceased)died before Nilmani died 16th Dec. wife Nirmala sundariPal 1916. Dasee| | (died 24th| | Oct. 1914.| | |Prasadas Pal Jagannath Pal Sm. Durgeshnandini(claimant.) (minor.) Dasee(deceased),died 3rd Dec.,1929.
5. On the death of Durgeshnandini, the assistant shebaits became entitled to select and nominate a person from amongst the descendants of the brothers of Nilmani to act as shebait according to the directions in the deed of endowment. The three plaintiffs, being three out of the four assistant shebaits, selected Jagannath Pal, who is plaintiff 4 in the suit and nominated him to act as shebait. The plaintiffs allege that the defendant Prasaddas Pal, although he was not selected to act as shebait, has been wrongfully asserting that he is the proper person to act as shebait and has taken wrongful possession of one of the properties, viz., 105, Balaram De Street. The plaintiffs made certain allegations against defendant Seetanath Pal in para. 11 of the plaint, but we are not concerned in the present appeal with the relief asked for against him. The fourth surviving assistant shebait Ramchandra Sreemani did not join as plaintiff in the suit and has been made a defendant to the suit. The defendant Prasad, in his defence, stated inter alia that he is the proper person to act as shebait and that the nomination of Jagannath to act as shebait is invalid. On 9th May 1930, Prasaddas Pal filed Suit No. 933 of 1930, in which he asked for a declaration that he is a fit and proper person to be appointed shebait under the deed of trust dated 25th July 1911, and that the defendant Jagannath Pal is not such a person, for an order removing the defendant Jagannath Pal from acting as trustee and the other defendants as co-shebaits, for an inquiry as to who should be appointed co-shebaits in place of the present co-shebaits, for the framing of a scheme of worship to carry out the worship according to the deed of trust dated 25th July 1922, for an account of moneys received by the defendants since the death of Sreematee Kusumkumari Dasee, for receiver, injunction and costs of this suit. The answer to this suit was a denial of Prasad's right to be the shebait. The defendants also pointed out that this suit was really a counterblast to the suit brought by the defendants, i.e., Suit No. 838 of 1930.
6. In both these suits, two issues were raised: (1) whether the word bangsa in the deed of endowment means lineal descendants' or 'members of my family' and (2) whether the consent of all the assistant shebaits for the time being was necessary for the election of the shebait. Both these issues were decided by the learned Judge in favour of the plaintiffs in the earlier suit and against the appellant Prasad Pal, and the suits were decided in the manner already indicated. Against the decrees in the two suits the present appeal has been brought. The learned Advocate-General (Sir Nripendranath Sircar) who appears for the appellant Prasad raises three contentions before us: (1) that the learned Judge has put a wrong construction on the deed of endowment in question in holding that the word bangsa should be taken to mean 'members of my family'; (2) that the finding of the learned Judge that the endowment was partly a public one was wrong, whereas he should have held that it was a private and not a public charitable endowment; (3) that if the trust is a private trust, then, on the statement of the law made by the learned Judge, the consent of all the assistant shebaits, and not simply of the majority of them, was necessary in order to make the election of Jagannath Pal as shebait valid, and, if this position is established, plaintiffs' Suit No. 838 of 1930 should be dismissed. I will deal with the respective contentions in the order in which I have stated them. Taking the first contention, I am of opinion that the word bangsa means family. It would be too restricted an interpretation of the word bangsa to confine it to the lineal descendants of Nilmani Pal's family. That this was the meaning which was intended by the founder would appear clearly from the context in which occurs. The founder states that
in the absence of any such grandson or granddaughter who are the lineal descendants one of my bangsas who is competent in this behalf shall be the shebait.
7. This clearly shows that the member of the founder's family, who is to be elected as shebait, must be outside the line of lineal descendants like grandson or grand-daughter. We have therefore no hesitation in rejecting the contention of the Advocate-General. With regard to the second contention, it is argued that the provision that the whole of the income of the debuttar property shall be wholly spent for the purposes of the debsheba and the feeding of the poor does not make the endowment a public charitable one. It is argued that this provision about feeding of the poor is part and parcel of the debsheba and cannot be regarded as independent charity in which any class of the public was to have a direct and independent interest. The argument is that the feeding of the poor is really incidental to the puja. Mr. Pugh, who appears for the respondent, argues that the trust is principally public, seeing that the feeding of the poor and the feeding of students of educational institutions have been provided for in the deed of endowment. We are unable to accept this contention of the respondent, for it seems to us that the feeding of the poor and the feeding of students, if the income of the debuttar property increases, are really incidental to the main purposes of the endowment, namely, the puja of the deity. The view we take is supported by the decision of Sathappayyar v. Periasami (1890)' 14 Mad 1. We are therefore of opinion that the learned Judge was not right in the view that this trust was partly of a private and partly of a public nature and not one wholly of a private nature. This being our view, the third contention of the Advocate-General must be given effect to. On the authorities cited by Lort-Williams, J., it is clear that, in the case of a private trust, where there are more trustees than one all must join in the execution of the trust. In the present case it is conceded that all the assistant shebaits have not joined in electing Jagannath as a shebait. In the circumstances, the appeal must be allowed and the judgment and decree in both the suits set aside and in lieu thereof it is declared that, subject to the election of a shebait, in place of Durgeshnandini, deceased, by all the assistant shebaits, pursuant to directions that may be given by the Master of this Court, a scheme may be framed for the worship of the deity Shree Shree Ishwar Annapoorna Debee and for carrying out the other objects of the endowment, in a manner so that the scheme might follow as closely as possible the intention of the founder. In our view both Jagannath and Prasad might be appointed shebaits, alternately and a scheme may be framed for a pala of either six months or one year as may be convenient, considering all the circumstances of the case. The framing of the scheme is referred to the Master of this Court, who, after framing the scheme, will submit it for the approval of the Judge sitting on the Original Side. Costs of this appeal and of the two suits including a sum of Rs. 200 on account of the costs of both sides in the reference now pending before the Assistant Referee will come out of the estate.