(1.) In this suit the plaintiff seeks to obtain a declaration that he is entitled to the shebaitship and para or turn of worship, particulars of which are given in para 10 of the plaint. His claim is based on a registered deed of gift of 14 August 1929, whereby the plaintiff's father, Nibaran Chandra Mukherjee, purported in consideration of natural love and affection to transfer to the plaintiff his (the donor s) right, title and interest to and in the worship of the deity Sree Sree Sidheswari Thakurani and in his several palas or turns of worship. The plaintiff also asks for the partition of a certain joint pala among the parties entitled thereto, or in the alternative a direction for the sale of the said joint pala to the highest bidder among the parties to the suit. The most complete pedigree of the family with which we are concerned is to be found in the written statement of the defendant Adya Nath Mukherjee.
(2.) Of the four defendants, Gocul Chandra Mukherjee and Panchcowrie Banerjee do not appear. The defendant Adya Nath Mukherjee does not contest the plaintiff's claim to a declaration, and his opposition has been limited to the plaintiff's demand to have the joint pala partitioned, and in particular to the proposal that it should be sold to the highest bidder among the parties. The substantial contest is that between the plaintiff and the defendant Narayani Debi. In para 14 of the plaint the plaintiff alleges that by custom the pala is transferable. This allegation is traversed in para 4 of Narayan's written statement, which goes on to state that the shebaitship was all along vested in the heirs of the founder and there was no custom to the contrary. All parties agree that the Hindu law as regards the transferability of the office of shebait by way of gift is accurately summarized at p. 487 of the late Sir Dinshaw Mulla's Principles of Hindu Law, Edn. 8. It will be convenient to set out the relevant passage: Gift-Though a sale of a religious office is void, there is no absolute prohibition against a gift of such an office. Cases of this kind generally arise where the founder of an endowment has reserved the right of management to his own family, or has conferred it upon some other family. In such a, case, it is competent to the shebait to renounce his right of management and transfer it to a person standing in the line of succession, provided the transferee is not disqualified by personal unfitness. Similarly, where there are several joint shebaits, they may renounce their right in favour of anyone of them, provided the arrangement is for the benefit of the endowment. But a gift of the right of management made to a stranger is not valid, unless it is sanctioned by custom.
(3.) The first document relied on by the plaintiff is the will of Shamboo Chandra Chakravarti, a grandson of the founder of the endowment, Ananta Ram Chakravarti. That document is dated 24 November 1923, and a copy is annexed to a bill of complaint filed on the equity side of the Supreme Court in 1842. The testator specifically mentions his interest in the shebaitship in the words, and as to, for, and concerning my interest in and to the idol Sree Sree Sidheswari Thakurani and her temple and all her estate and effects and also to the profit arising from the offering to the said Thakurani and to perform her ceremonies, and he bequeathed this interest along with the rest of his estate to Ramdhone Mukherjee. Another testamentary document which has been put in evidence is the will of Shib Chandra Mukherjee, dated 17 July 1890. This document in itself does not seem to me to carry matters any further, because the shebaitship is not specifically referred to, for the will is a simple document, bequeathing a life interest in the testator's entire estate to his wife with remainder to his sons and grandson in equal shares. It must however be mentioned here that in Suit No. 244 of 1891, which was a partition suit in which Nibaran was the plaintiff, Shib Chandra's will was considered by Sale J., who held that the terms of the will were sufficiently wide to pass the whole estate including the right to worship to the testator's widow for life. In this suit a compromise was effected by a deed of settlement, to which Nibaran, Bireswar, Sarbomangala (widow of Preonath) and Nemaimoni were parties, dated 6 December 1892. Clause 3 deals with those days of the sheba when the worship is "cyclical" and not joint, and contains a provision whereby Sarbomangala leases her pala for consideration to Bireswar for a period of five years. With regard to the joint pala the position is as follows: Since the days of Ramdhone, the grandfather of Nibaran and Adya Nath, the sheba has been performed jointly on certain festival days when the offerings are unusually valuable, these offerings being subsequently divided among the shebaits according to their shares. These days are six in number, being four days of the Durga Puja, one day of the Kali Puja, and one day of the Ratami Puja. With regard to this joint sheba, Clause 4 of the deed provides as follows: It is further declared that keeping the joint pala joint, that is, in common, we have divided and take our ancestral separate seventeen days pala in the above manner, and we four persons declare that none of us four persons and our heirs and representatives shall ever be at liberty to urge objection or plea with regard to the holding of the said palas in the above manner. Should we or they raise any objection or plea it would be void and rejected by the Court.