1. The following genealogical tree shows the relationship of the parties in this case:
LUKHYNARAIN DHUR-KODAMONI(died 26th March 1927)||------------------|-----------------|Kartick Gonesh (deft.7) Ram Chunder(died 24-5-27) | (died 17-10-28)| Madan (plaintiff |Netai Chand |(infant deft. 5) ||--------------|------------|------------|Lal Be- Bon Behari Rash Behari BankuHari,deft. 2 (infant (infant Beharideft. 3). Deft. 4). (infantdeft. 5)
2. Lukhynarain Dhur, the testator, died on 26th March 1927, leaving three sons of whom the eldest, Kartick, survived him only by a few months, dying on 24th May 1927, leaving Netai Chand, an infant, as his heir. The plaintiff Madan Mohan Dhur, is the son of the testator's second son, Gonesh (defendant 7). The testator's third son, Ram Chunder, died in October 1928 after the institution of the present suit on 21st August 1928. Ram Chunder left four sons of whom the eldest, Lal Behari, is a major, the other three being minors.
3. The testator's will, which was made on 18th November 1923, was the subject of certain probate proceedings in this Court instituted by Ram Chander as the surviving executor. His brother Gonesh had filed a caveat. The probate proceeding was settled, Gonesh consenting to an order that the caveat be discharged and that probate of the will should issue. In consideration that Ram Chunder agreed to pay Gonesh's costs. Gonesh undertook inter alia not to bring any further suit regarding the will. This was on 13th March 1928, and on 24th August following the present suit was begun by Gonesh's son Madan. It appears that immediately after the testator's death Gonesh transferred his interest in his father's estate to one Manick Lal Dutt and on 18th August 1928, that is immediately before the present suit, Manick Lal Dutt conveyed the interest of Gonesh to the plaintiff Madan.
4. The testator's will was very simple. He gave all his moveable and immovable properties to his executors upon trust to convert the moveable properties into money, and directed them to pay out of the income of his estate certain monthly sums during the lifetime of certain legatees. In this way he directed an expenditure of Rs. 180 per month distributed in varying sums between his wife, his eldest and youngest sons and his daughters. He also gave a monthly sum of Rs. 30 to Madan on certain terms. Subject to these payments, he gave the rest of his estate to his executors upon trust to pay the balance of the income to the shebaits for the time being of certain Thakurs established by the testators and he directed that after the death of all the legatees, the executors should make over the whole of the corpus and undrawn income of his estate to the shebait or shebaits for the time being. He dedicated his house for the location and use of the Thakurs and he appointed his sons Kartik and Ram Chunder to be the shebaits of the Thakurs, giving certain directions as to the line of succession to the shebaity. By the plaint in this suit, Madan sought to have a construction of the will and propounded several questions to the Court.
5. Upon Ram Chunder's death, the plaint was amended by substituting his sons in his place, and the Administrator-General of Bengal was added as executor. By his plaint Madan contended first of all that the trusts in favour of the idols were illusory and colourable and thus invalid, and that even, if valid, they amount merely to a charge upon the properties for such small sum as is necessary to maintain the ordinary worship of the family deities. On this footing the plaintiff would be entitled to his father's one-third share in the bulk of the testator's properties, subject to the legacies. As regards the debutter created by the will, the plaintiff says that Ram Chunder, and after him his son, Lajbehari, acting as shebaits, had not been performing the sheba properly and that Ram Chunder had been misappropriating the funds of the endowment and had been illegally preventing the plaintiff from taking part in the worship of the deities. He alleged originally that Earn was unfit to be she-bait and should be removed, and upon Ram Chunder's death he alleged the same thing of Lalbehari. He further claimed that the devolution of the shebaity as laid down in the will was void and illegal with the result that upon the death of Kartick and Ram Chunder, the office of shebait belonged to all the heirs of the testator, of whom his father Gonesh was one. Accordingly he claimed that his father Gonesh should be appointed she-bait.
6. At the trial no evidence whatever was given in support of the attack made upon Ram Chunder or Lalbehari, either as regards misappropriation of funds or as regards exclusion of the plaintiff from the worship, or as regards their unfitness to be shebaits. Nor was it even contended at the trial that the debutter was only illusory and colourable. Two points only were taken before the learned Judge and the same two have been taken before us. The first point arises upon Clause 9 of the will and the question to be decided is whether this creates a mere charge upon the properties for the expenses of the worship with the result that, subject to this charge and subject to the legacies, the testator's property, other than the dwelling house, is undisposed of by the will and must go to the testator's heirs as upon an intestacy. It is contended for the defendants that the gift is an absolute gift to the Thakurs and that nothing is left undisposed of by the will.
7. The clause has been set out in the judgment of the learned Judge who has held that subject to the legacies the whole of the residue is given absolutely to the Thakurs and that what they took under the will is not the benefit of a mere charge upon the residue for the customary expenses of the family worship, but that they took the residue absolutely. In my opinion the learned Judge is right in his construction. The whole of the balance of the income is to be paid to the shebaits until the legacies have come to an end. And thereupon the direction is that the whole of the corpus and un-drawn income is to go to the Thakurs. On this point the appeal fails. The second question arises upon Clause 11 of the will.
8. Upon this it is contended that it is not possible in law to limit a hereditary office so that it shall descend in a manner unknown to the Hindu law, namely, to the person who at the time of each succession is the eldest male lineal descendant. The plaintiff before the learned Judge contended, as would appear from his judgment, that the directions in Clause 11 should not take effect after the death of the testator's grandsons. Before us it was contended that the clause is good only in so far as it appoints Kartick and Ram Chunder to be shebaits in their own lifetime and that on the death of these two, it does not operate at all notwithstanding that grandsons were alive at the testator's death. That is to say, that at present the right to the shebaity is in all the heirs of the testator, including Gonesh and Lalbehari's younger brothers. Some interesting and difficult questions arise upon this contention, but the first question which arises is not less important than the others, namely, whether the Court at the suit of Madan will entertain a claim that Gonesh should be she-bait.
9. Madan, during his father's lifetime, had no interest whatever in the shebaity and claims none by his plaint. Gonesh by his written statement supports the claim that he should be made she-bait, but brings no suit of his own to assert his right. Whether his undertaking of 13th March 1928 in the probate proceeding not to bring any further suit regarding the will would be effective to prevent Gonesh from bringing a suit of his own need not be considered. If it would, the existence of the undertaking is all the greater reason for not permitting a suit to be brought by his son on his behalf if the son has no right of his own to maintain the suit.
10. Before us Mr. Pugh for the appellant has contended that the plaintiff has no right to the shebaity, but that he, as a person interested in the worship, as a member of the family, is entitled to bring a suit to secure that another person who has a right to the shebaity should be put in possession of the office. In support of this contention he has referred us to the case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick . The question in that case was whether a shebait should be allowed to remove the idol from the thakurbari to his own house. As this question affected the question of the location and worship of the deities, it was held by the Judicial Committee that all persons having a right to worship have an interest in the question and even the females of the family were held to have an interest, and indeed a special claim to protection seeing that they are excluded from the managership of the idols.
11. The question before us however is solely the question whether Gonesh, as heir, has any right to be shebait and whether he should be put in joint possession of the office with the other dejure shebaits. In my judgment, the appellant's contention that he, in his mere capacity as a person with a right to worship the deities, can bring a suit to assert another person's claim to the shebaity is altogether unfounded. I know of no case which affirms or suggests any such doctrine. The doctrine moreover is, as a matter of practice, inconvenient to the point of absurdity. If it were once accepted, then no person claiming to be shebait would ever bring a suit in his own name. Such suits would almost invariably be brought in the name of some female of the family and the door would be opened wide to manifest abuse. If the worship is not properly conducted, if the funds of the endowment are not properly applied, the Courts are doubtless open to any worshipper, as Lord Macnaghten intimated in the case of Ramanathan Chetti v. Murugappa (1906) 29 Mad 283. But a right to an office of a share in a hereditary office must be asserted by the person claiming it, and it is not open to any worshipper to assert such a right on behalf of another person. The joint holders of the office of shebait can make any proper arrangement which they may choose as between themselves for discharging the duties of management and conduct of the worship. The right of the shebait is a legal right ; a partition may be obtained by a shebait to enable him to enjoy his right in severalty by a scheme for pallas or turns of worship. In my judgment the doctrine that a claimant to the shebaity can set up any worshipper to litigate the question of the claimant's right to the shebaity is a new doctrine and a bad doctrine. At the hearing of this appeal it was intimated to us by the learned counsel for the appellant, and also by the learned counsel for Gonesh, that in order to enable the plaintiff to succeed, Gonesh would be willing to relinquish his right to the shebaity, with a view to giving the plaintiff a right to his father's place. This is entirely contrary to the form of the suit and no such relinquishment has yet taken place. These offers may therefore be ignored. At present there is no certainty that Madan, on any view, will ever become entitled to be shebait. There is no complaint before us on the part of Netai Chand or on the part of Lalbehari's younger brothers. Lal-behari is, in any view, one of the shebaits. As the attack on the conduct of the endowment has so little in it that it was not even attempted at the trial, I am of opinion that it is in no way obligatory upon this Court to discuss purely hypothetical questions which may never arise ; and that the learned Judge rightly refused to entertain this part of the plaintiff's case.
12. The argument for the plaintiff is not bettered by asking us to act on the analogy of a Hindu widow and the prospective reversioner. I do not quite know why the law as to a Hindu widow should be applied to a Dayabhag father, but in any case a suit by the prospective reversioner to put the Hindu widow into possession is not a very hopeful form of suit ; neither is the Court obliged to entertain a suit by one reversioner against another to settle in the widow's lifetime their respective claims to the succession upon the hypothesis that both would survive the widow.
13. Complaint was made before us that the learned Judge had not properly exercised his discretion in making the plaintiff pay one set of costs to the defendants. In my judgment, in the circumstances of this case, the learned Judge exercised his discretion very reasonably. The appeal should be dismissed with costs to the Administrator-General and with one set of costs to be divided between Lalbehari and Netai Chand.
14. I agree.