SITESH KISHORE PANDEY Vs. RAMESH KISHORE PANDEY

JUDGEMENT

(1.) This second appeal filed by defendants 1 and 2 and the deity Ram Jankiji (D. 9) raises a question as to the validity of the line of succession of Shebaits after the death of Kaushal Ki-shore Pandey (who died in 1962) as laid down in Samarpannama (Ext. 9) dated 10th April 1926, executed by Ramudar Pandey and Ram Manohar Pandey. It raises a further question as to whether the lower appellate Court while dismissing the appeal before it, was competent under Order 41, Rule 33 of the Code of Civil Procedure to set aside the decree granted by the trial Court in favour of defendants 2 and 3 in absence of any appeal by the plaintiffs and when the appeal was filed only by defendants 1 and 9. This will clearly appear from the questions formulated by this Court by order No. 6 dated l'3th August 1979. The main appellant is defendant No. 1 Sitesh Ki-shore Pandey, the eldest son of Kaushal Kishore Pandey. Appellant No. 3 is his son. Defendant No. 1 has lost in both the courts below. The following genealogical table will show the relationship between the parties: <FRM>JUDGEMENT_339_AIR(PAT)_1981Html1.htm</FRM> It is agreed that the line of succession is valid up to Kaushal Kishore Pandey. It is also an admitted fact that after his death in 1962 his elder son Sitesh Kishore acted as Shebait. The plaintiff-respondents have challenged the validity of his appointment as Shebait. He has been removed from Shebaitship by the two Courts below on account of his omissions and commissions, that is, executing sale deeds and transfers of a number of properties of the deity, for cutting trees of the deity and amalgamating the land of the deity with his own land etc. The Subordinate Judge, Darbhanga by his judgment dated 28th June 1967, held that after his removal from Shebaitship, the plaintiffs and all the adult members of defendants second party, namely, the sons of defendant No. 1 were entitled to be Shebaits of Thakurji as provided in the deed of endowment (Ext. 9) and directed defandant No. 1 to make over charge to them within two months from the date of his judgment. Defendant No. 1 and the deity took an appeal to the District Judge, Darbhanga. It was heard by the Second Additional District Judge, Darbhanga who affirmed the judgment of the trial Court with some modification holding that P.W. 1 was alone the nearest agnate of the founders and he alone was entitled to be Shebait under law, that defendant second party being remote ag-natic relations of the founders were not entitled to be Shebaits, To this extent, modification was made in the decree of the trial Court and with this modification he dismissed the appeal. Hence this second appeal by defendants 1, 2 and 9.

(2.) In order to appreciate the two contentions raised on behalf of the appellants it is necessary to quote here the material provisions of the deed of endowment (Ext. 9) which was created on 10th April, 1926, and under which Kaushal Ki-shore Pandey and his eldest son and others were appointed Shebaits. They are as follows:--

(3.) Mr. Prem Lal contended that on a true construction of paragraphs 2, 3 and 5 of the deed the Shebaitship absolutely vested in Kaushal Kishore and his heirs and it could never revert to the heirs of the founders. He submitted that the lower appellate Court did not properly construe the deed of endowment and it has shown ignorance of the provisions of paragraph 5 of the deed. In support of his contention he has relied on Monohar Mukherji v. Bhupendra Nath Mukherji, ILR (1933) 60 Cal 452 : AIR 1932 Cal 791 (FB). Counsel urged that the present case would come under question No. 5 formulated for consideration of the Full Bench in that case. It may be stated that six questions had been formulated by the re- ferring Bench for consideration by the Full Bench. Question No. 5 at page 464 runs as under: