1. This originating summons is concerned with the legality of certain dispositions in the will, dated 18th November 1923, of Lakshminarayan Dhar, who died on 26th March 1927. The testator left three sons, Ramchandra, Kartik, and Ganesh. Ramchandra and Kartik were appointed executors by the will. Kartik died before probate was obtained, and probate was granted on 13th March 1928, to the surviving executor Ramchandra, Ramchandra died on 17th October 1928, and on 25th April 1929, letters of administration deonis non were granted to the Administrator-General of Bengal. By Clauses 9 and 10 of the will, a religious endowment was created, and by 01. 11 of the will the following provisions were made for the devolution of the shebaitship:
I appoint my sons Kartikachandra Dhar and Ramchandra Dhar to be the shebaits of the said Thakurs and I direct that, upon the death, retirement or refusal to act of any of them or any of the future shebaits, the then next eldest male lineal descendant of Kartikchandra Dhar or Ramchandra Dhar shall act as a shebait in place of the deceased or retiring shebait or shebait refusing to act as such, it being my intention that the eldest for the time being in the male line of my said sons, Kartikchandra Dhar and Ramchandra Dhar, shall always remain as joint shebaits and, in the event of the death or refusal to act of any shebait, the then next male member of the branch, to which the shebait dying or refusing, belonged shall act as a shebait in his place and stead.
2. The Administrator-General now seeks to have it decided who are the persons who are nob entitled to act as shebaits. The other parties to the summons are Lalbihari Dhar, Banbihari Dhar, Rashbihari Dhar and Bankubihari Dhar, who are the sons of Ramchandra, Nitaichand Dhar, who is the son of Kartik and Ganesh, the surviving son of the testator. Ganesh contends that the provisions of Clause 11 of the will are an attempt to create a line of succession to the shebaitship according to rules which are repugnant to the principles of Hindu law, and he relies on the decision of the Full Bench in Manohar Muherji v. Bhupendranath Mukherji AIR 1982 Cal 791. If this view is correct, it follows that, as both the shebaits appointed by the will are dead, the shebaitship devolves upon the heirs of the testator. The other parties to the summons maintain that the shebaits are Lalbihari, the eldest son of Ramchandra and Nitaichand, the only son of Kartik. It is argued that they succeed their respective fathers, not according to any line of succession laid down by the will, but directly under the will, as though they were named therein, and it is pointed out that, as they were both alive at the date of the death of the testator, their position is not affected by the rule of Hindu law, which forbids a bequest to a person not in existence when the bequest takes effect, that is, at the death of the testator: Tagore v. Tagore (1872) 9 BLR 377. Before deciding this question, I must notice two preliminary points raised on behalf of Lalbihari and Nitai.
3. It is suggested that, by reason of a certain undertaking given by Ganesh, he is precluded from opposing the claim of his nephews to succeed. It appears that Ganesh opposed the grant of probate to Ramchandra and filed a caveat. The matter was set down as a contentious cause, but was eventually compromised, and, by consent, probate was granted and the caveat discharged ; it was also agreed that the costs of both parties as between attorney and client should come out of the estate, and, in consideration of this, Ganesh undertook 'not to bring any further suit regarding the will.' Now, in my judgment, such an undertaking must be construed strictly, and I find it quite impossible to hold that for Ganesh to submit his views as to the validity and construction of Clause 11 of the will, in proceedings initiated by the Administrator de bonis non, is a breach of an undertaking by him not to bring a suit regarding the will. The other point has not really been insisted upon, although the learned Advocate-General has made some observations with regard to it. In August 1928, Madanmohan Dhar, the son of Ganesh, instituted a suit claiming to be the assignee of the interest of Ganesh in the testator's estate, and asking, among other things, for the appointment of Ganesh as shebait. The suit was dismissed by Buckland, J., on 27th March 1930. An appeal was filed and dismissed by Rankin, C.J., and Pearson, J., on 22nd April 1931. The judgment of the Court in its appellate jurisdiction has been reported-Madan Mohan Dhur v. Netai Gour Jew (3). I have read both judgments, and it is abundantly clear that the point, now in issue, was never decided, and that the reason why the suit and appeal were dismissed, was that all the learned Judges were of opinion that it was not competent for the plaintiff to enforce the rights, if any, of Ganesh to the shebaitship. It is true that the opinion was expressed that Lalbihari was, in any view, one of the shebaits, but nothing was said on the question whether his title was based upon the will or upon his being an heir of the testator. Mr. Banerji for Lalbihari relies on the decision of the Judicial Committee in Madhavrao Ganpatrao v. Balabhai Raghunath (4). In that case, a settlor gave, subject to his life interest, one-fourth of the settled property to
my daughter Krishnabai during her life for her sole and separate use and after her death, in trust for the male heirs of the said Krishna bai share and share alike.
4. It was held that the decision of the Bombay High Court that the gift to the male heirs was bad, as creating an estate in tail male, was wrong, and that there was an independent gift to the persons who answered the description of male heirs at Krishnabai's death, subject to the exclusion of those who were nob living when the deed of settlement was executed. In my opinion, that case must be distinguished from the present case. As is pointed out in the judgment delivered by Lord Buckmaster, the gift to the male heirs was absolute, whereas here there is no absolute gift to the heirs of Ramchandra and Kartik or to their next eldest lineal male descendant. On the contrary, a perpetual succession is sought to be established, whereby on the death, retirement or refusal to act, of the eldest male lineal descendant for the time being of either of the two original shebaits, the next eldest male lineal descendant succeeds to the shebaitship. The facts of this case and the language of Clause 11 of the will appear to me to resemble closely the facts in Kandarpamohan Goswami v. Akshay chandra Basu : AIR1934Cal379 and the language of the deed of settlement with which that case was concerned.
5. I hold, accordingly, that Clause 11 cannot be construed as an independent gift to the persons who happen to answer the description of the eldest male lineal descendants of the original shebaits at the time of their deaths. In my opinion the clause attempts to lay down a line of succession which is not permissible under the Hindu law and is therefore invalid on the authority of Manohar Mukherji v. Bhupendranath Mukherji AIR 1982 Cal 791 It follows that the answer to question No. 2 in the originating summons must be that the persons at present entitled to act as shebaits to the deities mentioned in the will are the heirs of the testator Lakshminarayan Dhar. This disposes of the other questions. The Administrator-General is entitled to his costs of a hearing out of the estate as between attorney and client. Ganesh is also entitled to his costs as of a hearing out of the estate. The other parties to the summons may have one set of costs out of the estate between them.
6. I certify for counsel.