BHABATARINI DEBI Vs. ASHALATA DEBI

JUDGEMENT

(1.) THIS suit was brought in the High Court at Calcutta on August 22, 1933. The plaintiff was Bhabatarini daughter and only child then surviving of one Sital Chandra Banerjee, a Hindu governed by the Dayabhaga, who had died in 1929. He had in his lifetime established certain family idols and had dedicated to them considerable properties movable and immovable/ His only son Panchanan had died in 1932 leaving a widow Asamantara and three daughters.

(2.) BY her suit Bhabatarini claimed to have become on the death of Panchanan entitled to the sebaiti of the idols and to the management of the debut-ter property. She impleaded Asamantara and her daughters as persons wrongfully in possession of the debutter properties and falsely claiming to be se-baits : though as between themselves the widow on ordinary principles of succession would of course take before the daughters. Bhabatarini and Asamantara have both died while the present appeal to His Majesty was pending, the former on February 15 and the latter on January 18, 1939. The question to be answered is whether on Panchanan's death the sebaiti devolved upon his heirs-that is, in the first place, upon his widow-or whether it went to Bhabatarini as the person who at that date was the nearest surviving heir of the founder Sital Chandra. The learned trial Judge Khundkar J. took the latter view and by his decree of August 26, 1937, found in favour of Bhabatarini, but on appeal Derbyshire C. J, and Mukherjea J. found in favour of Asamantara, and their decree of July 11, 1938, dismissed the suit. The same principles apply on the death of these two ladies. On the view taken by the trial Judge the sebaiti is now vested in the sons of Bhabatarini and of the sister who had predeceased her-the seven appellants. On the view taken by the appellate bench it has devolved, upon Panchanan's daughters, the three respondents. SITAL CHANDRA (d. 1929). = RAJLAKSHMI (d. 1926). | | ||Bhabatarini (d. 1939) Panchanan (d. 1932)Sudhanshu Badani =Krishnandan =Asamantara (d. 1939) (d. 1928) | | =Niranjan| ||| _______________________________________ | | | |||| Ashalata Kanaklata Diptilata | | (Respondent) (Respondent)(Respondent) |||| | |||| Hriday Baidya2 daughters | (Appellant) (Appellant)|| || | | || Kiriti Bihbuti Mritunjoy Jyotirmoy Hiranmoy4 daughters(Appellant) (Appellant) (Appellant) (Appellant) (Appellant)

(3.) SAVE for one case, however, no decision appears to have been directed to declaring for the purposes of any case like the present, the exact method of determining the individual person or persons who should be the first takers after those specifically nominated to the office by the founder. The decision which deals with this precise question is Kunjamani Dasi v. Nikunja Bihari Das (1915) 20 C. W. N. 314, 404, a decision of Mookerjee and Richardson JJ. In that case the founder left a widow and six sons. He nominated his widow and two sons to be successively sebaits after his death and gave no further directions. When the last of the three nominated sebaits died, it was held that the next takers were "the heirs of the founder at the time"-namely, the four sons then surviving. It was argued to the contrary that on the death of the founder all his sons took a vested interest subject to the right of the nominated persons-that is, a remainder subject to three successive life estates in the office. This view was, however, rejected, Sir Asutosh Mookerjee saying (p. 317) : We are of opinion that this contention is unsound and that the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life estate, as expounded by their Lordships of the Judicial Committee in Rawun Persad v. Mussumat Radha Beeby (1846) 4 M. I.A. 137 has no application to cases of the description now before us. No doubt, a shebait holds his office for life, (Ra-jeshwar Mullick v. Gopeshwar Mullick (1907) I.L.R. 35 Cal. 226) but this does not signify that he has a life interest in the office with the remainder presently vested in the next taker. The entire office is vested in him, though his powers of alienation are qualified and restricted.... The position of a shebait is analogous to that of a Hindu female (widow, daughter or mother) in possession of the estate of the last full owner rather than to that of the holder of a life estate. When a Hindu female is thus in possession she represents the estate completely and though her powers of disposition may be of a restricted character, no one else has a vested interest in the estate during her lifetime. Similarly, when a founder has given valid directions as to the devolution of the shebaitship, as in the present case upon the death of the last shebait, the office vests in persons who at the time constitute the heirs of the founder; provided the last shebait has not taken it absolutely ; when the oftice has so vested in them, upon the death of each member of the group, it passes by succession to his heir....