1. This is an appeal by the representatives of the 3rd defendant in a suit instituted by the plaintiff for establishment of his right as Shebait to five shrines and for recovery of dedicated properties appurtenant thereto. There is also a claim for the recovery of the personal properties of the deceased Mohunt. There were three defendants in the suit. The first is a nominee of the late Mohunt; the other two are the representatives of the founder of one of the shrines, namely, the shrine of Lakhshmi Janardan Jew Thakur. In the Court below, the plaintiff entered into a compromise with the 1st defendant in respect of four of these shrines and a consent decree was made in his favour. There was, however, a contest between the plaintiff and the other defendants in respect of the fifth shrine and a decree has been made in favour of the plaintiff. On the present appeal, the controversy has been limited to the Shebait-ship of the properties of this shrine alone. There are really two points for consideration; namely, first, what is the nature of the endowment created by Gopal Chandra Majumdar on the 20th January 1890; and secondly, what is the precise nature of the office of Shebait in relation to that endowment? The answer to these questions depends upon the construction of the Will of the founder.
2. The testator states in the first place that his ancestral deity was Lakshmi Janardan Salgram in his family dwelling house. He dedicates to the worship of the deity Lakshmi Janardan Salgram all his immoveable properties. He then proceeds to appoint a Shebait of the endowment so created. It is stated in the first place that Sarajudas Mohunt Babaji has been performing the acts of worship of the deity and that the testator now appoints him to be the Shebait in future of the said deity. He then proceeds to define the powers of the Shebait. The Shebait is to enjoy and hold possesion of the properties, to manage and protect them, to make collections of profits and to pay them as also to pay revenue to the Collectorate. Upon these terms he is confirmed as Shebait.
3. It is clear that the dedication of the properties is to the deity and not to the Shebait. This is the plain meaning of the language used. But it is made clear beyond doubt by a sentence in the second paragraph of the Will, where provision is made for the maintenance of a lady Umasundari Debi; it is stated that the abovenamed Umasundari Debi is to be maintained from the 'properties of the said deity,' that is, out of the income of the properties dedicated to the deity. Consequently as regards the title to the properties there is no room for controversy. The title is vested in the ancestral family deity of the founder.
4. As regards the nature of the Shebait-ship, the Subordinate Judge, in several places in his judgment, has spoken of 'Shebait Kaem.' He has evidently misread the Will. The original expression is shebaitrupe kaem rahilen, which is accurately translated by the Court translator by the phrase 'he is confirmed as a Shebait.' This signified that before the Will was executed, Sarajudas Mohunt had been temporarily employed by the proprietor to perform the Sheba; and now that an endowment was created, he was permanently confirmede as the Shebait. His position thus was that of a Shebait who was to hold the properties and to manage them for the benefit of the worship of the idol.
5. The devolution of the office of Shebait next requires consideration. The appellant has argued that the founder has made no express provision for that purpose: and that as the endowment is of a quite recent date, affording no time for the growth of a usage or a custom, the right of appointment to the office of Shebait is according to the authorities vested in the founder or his representatives. This contention is supported by the decisions in Sital Das Balaji v. Pertap Chunder Sarma 3 Ind. Cas. 408 : 11 C.L.J. 2; Kunjamani Dasi v. Nikun a Behary Das 82 Ind. Cas. 823 : 22 C.L.J. 404 : 20 C.W.N. 314 which reviewed the earlier decisions on the subject. The same view is accepted as the well settled rule by the Judicial Committe in the case of Sethuramaswamiar v. Meruswamiar 43 Ind. Cas. 806 : 41 M. 296 : 45 I.A. 1 : 27 C.L.J. 231 : 7 L.W. 22 : 4 P.L.W. 91 : 31 M.L.J. 30 : 16 A.L.J. 113 : 22 C.W.N. 457 : 20 Bom. L.R. 514 (P.C.). We may observe parenthetically that there is apparently a misprint in the judgment where the word 'grantee' is used instead of the word 'grantor.' This is obvious from the earlier decision mentioned in the judgment in Romanathan Chetty v. Murugappa Chetty 27 M 192 : 13 M.L.J. 341 which was confirmed by the Judicial Committee in Ramanothan Chetti v. Murugappa Chetti 29 M. 283 : 31 I.A. 139 : 1 M.L.T. 327 : 3 A.L.J. 707 : 4 C.L.J. 189 : 16 M.L.J. 265 : 8 Bom. L.R.498 : 10 C.W.N. 825 (P.C.).
6. It is not necessary for us to consider whether the 2nd and the 3rd defend ants are the representatives of the founder. Although, on the evidence, we are not inclined to adopt the view taken by the Sub-ordindte Judge, yet it is needless to decide this question, for the reason that it is not the case of the plaintiff that he has been appointed Shebait by the representatives of the original founder, whoever these persons may be His contention is that he has succeeded his Guru as Chela and that he has been nominated a Shebait in respect of the other shrines. That undoubtedly does not constitute him the Shebait in respect of the shrine in suit. Even if we assume for a moment that the right of nomination to the office of Shebait was vested in the first Shebait, it is plain that the plaintiff has no title. If the right of nomination was vested in the first Shebait, that right has been exercised in favour of the 1st defendant and not the plaintiff. This is clear from the Will of Sarajudas Mohunt, which was executed by him on the 28th February 1905. In the course of the argument addressed to us on behalf of the respondent, it was faintly contended that the right of nomination was invalidly exercised. It was suggested, first, that so, long as there was a Chela, the Mohunt had no right to make an appointment to the office of Shebait and secondly, that even if the Mohunt was at liberty to moke the appointment, his choice was restricted to persons of his own sect. But there is no evidence in support of these propositions. On the other hand, the statement of Sarajudas Mohunt, the Guru of the plaintiff, completely negatives this assertion. Sarajudas Mohunt stated he had succeeded, not as Chela, but on the strength of the nomination made by the Guru; and also gave another instance where a similar succession had taken place, namely, in the case of Mohunt Ajodhya Das. In the next place, his Guru states that he made a nomination in favour of the 1st defendant in respect of the disputed shrine and its properties, because the idol was that of a house-holder and that with regard to an idol so established it was necessary that the Shebait should be a house-holder. In the face of these assertions, it is impossible for us to attach any weight to the argument that the act of the Mohunt was ultra vires. As we have said, however, it is not necessary for us to go into this part of the case, because, in our opinion, upon the construction of the Will of the founder, it is plain that there was no dedication in favour of the plaintiff and that the first Mohunt had no right to appoint his successors. Consequently, the right of appointment was vested in the founder's family. As the plaintiff does not claim to have been appointed Shebait by the founder or his representatives, at the date of the institution of the suit he had no enforceable title.
7. The result is that this appeal is allowed, and the decree of the Subordinate Judge set aside in respect of the disputed shrine; in other words, the decree will stand, only in so far as it was made by consent between the plaintiff and the 1st defendant. The plaintiff will pay the costs of the defendants both here and in the Court below.
8. We desire to add one observation as regards the mode in which examination of witnesses on commission was conducted. One of the witnesses--a man of 99 years of age--was harassed by questions in a manner which constituted an abuse of the privileges of the cross-examining Pleader; and we hope that a repetition of this incident will never occur. We asses the bearing fee in this Court at Rule 210.