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 genealogical table:
(See page 418.)
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 Salgram Thakur, and certain other properties for the performance of the ancestral Durga puja, Syama puja and Jagadhatri 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 But that grant was revoked on the application of Taranath and Taranath himself obtained probate as already stated.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 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 defendant. 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 Ka and Kha are debutter properties according to the will of Bhoyaharini Debi; and (2) that it may be declared that the
Bamandas Mukhopadhyaya_____________________________|_____________________________| | | |Arundas Umanath (dead) Taranath Srinath______________|______________ | __________|_________| | | | | | |Girindra Harendra Norendra | Sankarnath Ramaprosad RamaniDefendant 2 (dead) (dead) | Plaintiff______________|______________ ______________|______________| | | | |Dhirendra Satindra Atindra First wife Bhoyaharini |(dead) (Defendant 4) (dead) | || (Defendant 5) Lambodari (Defendant 6) Second wifeThakurdas | Nagendrabala(Defendant 3) Mohini Mohan (dead) || |Bibhuti Bhusan (Defendant 7) |___________________________|___________| | |Son 1st daughter 2nd daughterBarada Bhusan= Aditya ProbodhDayamoyi (wife) (husband) (husband)alias (Biddyullata)(Defendant 1)performed the sheba of the idol and the pujahs. Taranath 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 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 the 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 maurarasi mokarari 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 and he accepted the position that the properties had been properly 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 executors. 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. Makhanlal Mukerji A.I.R. 1928 Cal. 160, and Ananda Chunder Chuckerbutty v. Brojolal Singh A.I.R. 1923 Cal. 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 founder and 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 Goswami v. Ramanlalji  17 Cal. 3 and Jagadindra v. Hemanta Kumari  32 Cal. 129 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 muffussil, and in some cases it may include the office of a shebait having reference to the context. 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 shehait 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 deity, Sri Sri Sridhar Salgram Thakur, and that the property mentioned in schedule Kha 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.