MANOHAR MUKHERJI Vs. BHUPENDRANATH MUKHERJI

JUDGEMENT

(1.) The appellant, Monohar Mukerjee, is defendant 1 in the suit which was brought on 14th April 1923, to obtain a decision as to the person entitled to be shebait of two family deities established by the common ancestor of the parties, one Jaga Mohan Mukerji who died in 1840.

(2.) By his Will Jaga Mohan endowed the Thakurs with certain debutter properties. As regards the office of shebait he directed in effect that his eldest son should be the first shebait and after his death his other sons in the order named successively. He gave a further direction that after the death of all his sons, the eldest male in the family should be the sole shebait and that no daughter's son or daughter should hold the office. Monobar Mukherji, the appellant, is the eldest male member of the family. He claims to be entitled to the office of shebait under the terms of his grandfather's will. The learned Subordinate Judge has held that the provision that the shebaiti should devolve upon the eldest male member is illegal, a Hindu not being competent to direct that a shebaiti right should descend to his heirs by a course of descent unknown to Hindu law. He has accordingly declared that upon a proper construction of the will of Jaga Mohan Mukerji, the shebaiti right is now vested in his heirs as upon an intestacy. The appellant contends that this decision should be reversed, first because the validity of the provision made by the will of Jaga Mohan'has been affirmed in previous suits between the parties and is res judicata between them and, secondly, upon the more general ground that the provision is not contrary to law but is valid and effective.

(3.) Having overruled the pleas of res judicata we find it necessary to deal on the merits with the question whether the testator as founder of the idols and grantor of the endowment has validly directed that the office of shebait should be held from time to time by the eldest male member among his descendants or whether his direction is ineffectual to carry the office to the hands of Monobar Mukherji the appellant who fulfils the testator's conditions but was not born in the testators lifetime. Hitherto the protracted litigation over this shebaiti has proceeded upon the footing that the will makes a complete dedication of the property specified in item 5 of the Scheduie thereto. The plaint raises no question as to this still less does it contain any suggestion that the gift of Jaga Mchan to the idols is in any way invalid. No such points were raised at any time in the trial Court. Before us the Advocate-General for the plaintiff pointed to the provision that the surplus moneys of the endowment should be spent upon maintenance of childless widows of the family and the construction of roads for public use and the excavation of tanks. He suggested that these last objects not being part of the worship of the idols the debutter was not an absolute dedication to the idols. This contention was not pursued sufficiently to enable me to understand how it affects the case before us; it is not in my opinion open to the plaintiff and I do not appreciate how it assists the plaintiff to uphold the decision of the trial Court or is otherwise of use to him. But in any case, a direction that the shebait shall spend any surplus income on certain charitable objects or pious acts is not uncommon in Hindu debutters, and does not make the dedicacation incomplete. The dedication if merely colourable will be bad but the provisions here in question affect surplus income only and are subordinate to the main religious purpose, A Hindu God may be allowed to do some works of charity.