B.B. Ghose, J.
1. This appeal arises out of an action in ejectment brought by the plaintiff on the allegation that the defendant No. 1 is in possession of certain properties as trespasser. In order to understand the facts, it is necessary to refer to the following genealogical table:
| | | |
Arundas Umanath, (dead). First wife = Taranath = Second wife Srinath
| | | |
-------------------- Bhoyaharini Nagendrabala |
| | | | | |
Girindra, Harendra, Narendra, Lambodari, | |
defendant (dead) (dead) (defendant No. 6) | |
No. 2. | | | |
| Mohini Mohan, | |
------------------------ (dead) | |
| | | | | |
Dhirendra, Satindra, Atindra Bibhuti Bhusan, | |
(dead) defendant (dead) defendant No. 7. | |
| No. 4. defendant No. 5. | |
Thakurdas, | |
defendant No. 3. ------------------------------------ |
| | | |
Son 1st daughter 2nd daughter |
Barada Bhusan Aditya, Probodh, |
Dayomoyee, (wife) (husband). (husband). |
alias Biddyutlata, |
defendant No. 1. |
| | |
Sankarnath Ramaprosad. Ramani.
2. Bamandas Mukhopadhyaya died possessed of considerable property. He made a Will dated the 7th January 1875 making certain dispositions of his property. A portion of the property disposed of by the Will was given to his daughter-in-law Bhoyaharini---first wife of his son Taranath and this is the property now in dispute. Bhoyaharini died on the 18th November 1881 after having executed a Will dated the 16th November 1881. By Clause (1) of her Will, she dedicated certain properties as debutter to the ancestral Thakur of her father-in-law Sri Sri Sridhar Salagram Thakur and certain other properties for the performance of the ancestral Durga Puja, Syama Puja and Jagadhwatri Puja. After her death, her husband Taranath obtained Probate of her Will and he died on the 15th of August 1908 after having executed a Will on the 21st February 1908. Before Taranath obtained Probate of his wife's Will, some of the descendants of Arundas, the eldest son of Bamandas, had taken out Probate of that Will. But that grant was revoked on the application of Taranath and Taranath himself obtained Probate as already stated. Taranath, it is said, was in possession of the disputed properties and performed Sheba of the idol and the Pujahs. Tara-nath had a son named Barada Bhusan by another wife Nagendrabala. This Barada Bhusan died on the 10th March 1909., Defendant No. 1 is the widow of Barada Bhusan and she is in possession of the properties. After Barada's death, it appears that the present plaintiff Sankarnath who is one of the sons of Srinath--the youngest son of Bamandas Mukerji, applied unsuccessfully for Probate of the Will of Bhoyaharini on the allegation that he had been appointed executor. The Court found that there was nothing to administer and, on that ground, Sankarnath's application for Probate was refused. The present suit has been brought by Sankarnath on the ground that he is the sole shebait appointed under the Will of Bhoyaharini and is, therefore, entitled to possession of the debutter properties as against the defendant No. 1 who has no right to possession. The plaintiff has impleaded in the suit all the descendants of Arundas and the daughter and daughter's grandson of Bhoyaharini as defendants. He appears to have brought the suit in his personal capacity. In the body of the plaint, however, he describes himself as shebait and the principal prayers in the plaint are, (1) that a decree be given declaring that the properties mentioned in schedules to and kha are debutter properties according to the Will of Bhoyaharini Debi, and, 74 Ind. Cas. 793 : 50 C. 292 : 36 C.L.J. 356 : (1923) A.I.R. (C) 142, that it may be declared that the plaintiff has a right to the said properties as manager or shebait and that a decree be given to him for khas possession of those, properties by evicting the defendant No. 1. The other prayers are subsidiary to these two principal prayers.
3. The defendant No. 1 resisted the plaintiff's claim on various grounds which it, is unnecessary to mention in detail.
4. A large number of issues were framed in the lower Court; but the Subordinate' Judge has decided the three main points. He has found, first, that the properties in dispute are absolute debutter properties created by the Will of Bhoyaharini, secondly, that the plaintiff was appointed shebait. and, thirdly, that as such shebait, the plaintiff is entitled to possession by ejecting the defendant No. 1.
5. The defendant No. 1 appeals to this Court and some formal grounds have been taken on her behalf; (1) that the plaintiff's suit has not been properly constituted as he has brought the suit in his personal capacity and (2) that there is defect of parties as the two brothers of the plaintiff have not been joined as defendants. It is also stated that there is no allegation in the plaint that the plaintiff asked the pro forma defendants to join as plaintiffs in the suit and they refused to do, so and on that ground the suit ought to fail. In my judgment, none of these grounds is sufficient for the dismissal of the suit. The omission to describe the plaintiff in the cause title as shebait of the idol is certainly a misdescription but it may be cured by amendment without any hardship to the defendant. With regard to the other objections, the answer seems to be that the plaintiff alone can maintain a suit for declaration that certain properties are the debutter properties of his ancestral idol, he being a person interested in the worship Of that idol.
6. Of the principal points that were urged on behalf Of the appellant he first was that the properties were not debutter on the ground that Bhoyaharini had no right to dedicate the properties as she had no absolute title in them. It is contended that the object of Bamandas in making the gift in favour of his daughter-in-law' was that she should hold the property for the benefit of the heirs of Taranath and that she was in the position of a mere trustee. Reliance has been placed upon a passage in the second clause of the Will of Bamandas that any transfer by Bhoyaharini should be made only with the consent of Taranath and the other sons and grandsons of Bamandas. In the previous portion of that very clause of the Will, however, the property was given to Bhoyaharini with power to make gift, sale, mortgage or any permanent maurasi mukurari settlement. That clearly shows that the intention of the testator was to make an absolute gift in favour of the lady. The subsequent restrictions must, therefore, be considered as repugnant to the gift. In my opinion there was an absolute gift to the lady. Further, her husband Taranath himself took out. Probate of the Will of Bhoyaharini by which the properties were dedicated for devasheba. The defendant No. 1 claiming through Taranath as the heiress of his son Barada Bhusan can hardly raise any question as to the validity of the dispositions made under the Will of Bhoyaharini. I am of opinion that the decision of the Subordinate Judge that a valid debutter was created by Bhoyaharini by her Will is correct.
7. The next question that arises is whether the plaintiff can claim the properties as the sole shebait of the Thakurs. This claim is based upon the fourth clause of the Will of Bhoyaharini where she names a number of persons besides her husband Taranath as executor. It is contended on behalf of the appellant that assuming that under that clause Bhoyaharini had appointed the plaintiff as shebait, she could not appoint a new shebait of the ancestral idols, the shebaits of those idols being all the heirs of the original founder of the worship according to Hindu Law. The question has been considered by this Court in two recent cases. Kali Krishna Roy v. Makhan Lal Mukherjee 72 Ind. Cas. 688 : 50 C. 233 : 36 C.L.J. 411 : 27 C.W.N. 411 : (1923) A.I.R. (C) 160 and Ananda Chandra Chakrabarti v. Broja Lal Singha 74 Ind. Cas. 793 : 50 C. 292 : 36 C.L.J. 356 : (1923) A.I.R. (C) 142. In the last mentioned case, it was held that when the worship of an idol has been founded, the shebaitship is vested in the founderand his heirs, unless he has disposed of it otherwise or there has been some usage or course of dealing which points to a different mode of devolution; and' the cases of Gossami Sri Girdharji v. Ramanlalji Gossami 17 C. 3 : 16 I.A. 137 : 13 Ind. Jur. 211 : 5 Sar P.C.J. 350 : 8 Ind. Dec. (N.S.) 541 (P.C.) and Jagadinra Nath Roy v. Hemanta Kumari Debi 32 C. 129 : 31 I.A. 203 : 8 C.W.N. 809 : 6 Bom.L.R. 765 : 1 A.L.J. 585 : 8 Sar.P.C. 698 (P.C.) were cited in support of that proposition. It has been endeavoured on behalf of the plaintiff-respondent to distinguish these cases on the ground that in those cases there was some pre-existing property of the idol and any grant to the idol by a person other than the founder is only an accretion to the pre-existing endowment and the subsequent donor cannot, therefore, appoint new shebaits It is contended that there being no evidence in this case that the idols had any endowed property prior to the gift by Bhoyaharini she was entitled to appoint shebaits for the idols who would manage the property. But it seems to me there is really no difference in principle between the two positions. Where the worship of an idol has been founded there must be some shebait of the idol and, if any donor subsequent to the foundation makes a grant of any property to the idol, it becomes the property of the * idol and unless conditions are attached to the gift the existing shebait of the idol would have the power to manage that property on behalf of the idol. In that view, the plaintiff and all the heirs of the founder of the Thakurs including the defendant No. 1 are shebaits of the idols in question and have the power to manage the properties on behalf of the Thakurs. Further, it seems to be extremely doubtful whether-by Clause (4) of her Will Bhoyaharini purported to appoint any shebait. It may be conceded that the meaning of the word 'executor' is not properly understood in the mufflussil and in some cases it may include the office of a shebait having reference to the contest. But in Clause (4) of her Will, Bhoyaharini does not mention anywhere that the executors will perform the sheba of the idols and in Clause (5), the duties imposed upon the executors with reference to the debutter properties are laid down and they do not include the sheba of the idols. That being so, it cannot be held that plaintiff is the sole shebait and the defendant No. 1 cannot be considered to be a trespasser being herself a shebait of the Thakurs as the heir of her husband, a descendant of the founder. On these grounds the suit for ejectment must fail. It must, however, be declared that the properties dedicated by Bhoyaharini Debi are debutter properties of the Thakurs mentioned in Clause (1) of her Will.
8. The appeal is, therefore, allowed in part and the decree of the Subordinate Judge is modified in this way: It is declared that the property mentioned in schedule ka of the plaint is the debutter property of Bamandas Mukerji's ancestral diety Sri Sri Sridhar Salagram Thakur and that the property mentioned in schedule kka is the debutter property for Bamandas Mukerji's ancestral pujahs of Durga, Syama and Jagatdhatri Thakurs, and that the plaintiff as well as the defendant No. 1 along with all the other heirs of Bamandas are shebaits of those Thakurs. The decree of the Subordinate Judge allowing ejectment of the defendant No. 1 is set aside and the plaintiff's suit in that respect is dismissed. As the plaintiff's suit in ejectment has failed, the defendant No. 1 appellant will be entitled to recover her costs in this Court from the plaintiff-respondent. We assess the hearing fee at twenty gold mohurs. But as the defendant No. 1 resisted the suit on the ground that the properties were secular properties and as that contention has failed she will not be entitled to the costs of the Court below and each party should bear his own costs in that Court. The other parties will bear their own costs throughout.
9. I agree.