KANDARPA MOHAN GOSSAIN Vs. AKHOY CHANDRA BOSE

JUDGEMENT

(1.) For the purposes of the question which falls for determination in this appeal it would be sufficient to state the following facts: On 13 September 1916 two ladies, Surobala Dasi and Sarajubala Dasi, who were sisters, dedicated by a deed of settlement a piece of land with a temple and a house standing thereon to a deity whom they had installed and consecrated there in and appointed themselves shebaits and conveyed to themselves the said properties upon trust for the management and performance of the worship of the said deity, It was provided in the deed that the expenses of the worship were to be defrayed out of the moneys to be paid to them by the trustees of the temple, derived from properties to be settled thereafter for the maintenance thereof and that the shebaits shall have no proprietary interest in the temple and house and the land appertaining thereto and shall have no power to sell, mortgage, alienate, encumber or in any way deal therewith but shall merely be managers for the protection and repairs of the premises and performance of the worship according to a scheduled scheme. Then followed Clause 5 of the deed which is the clause of importance in this case. It ran in these words: That the said settlors shall during their natural lives act as such shebaits as aforesaid with power to each of them to nominate or appoint by deed or will her successor in office. In default of such appointment by the said Sm. Surobala Dasi her spiritual guide, Babu Mohendra Nath Chatterji of Salkia, or in case of default his eldest male heir, and in like default by the said Sm. Sarajubala Dasi her spiritual guide Babu Hari Mohan Gossain, or in the case of his death his eldest male heir, jointly with the survivor of the said settlors, and after the death of both of the said settlors and in default of such appointment as aforesaid the said two spiritual guides or their or his eldest male heir shall act as joint shebaits of the said deities, and thenceforth the future shebaits shall consist of the eldest male descendants of the said Mohendra Nath Chatterji and the said Hira Mohan Gossain, provided always that every future shebait of the said deities shall have like power to nominate and appoint by deed or will his successor in office.

(2.) Sarajubala acted as shebait until she died in April 1917 without appointing her successor. Thereupon the said Hari Mohan Gossain acted as shebait. Surobala never acted as shebait. On 19 July 1921 Harimohan Gossain died without appointing any successor, and thereupon the plaintiff Kandarpa Mohan Gossain, who is the only son of Harimohan, acted as shebait in his place, On 20 April 1931 Surobala died appointing her successor. The present suit was instituted while she was alive and with her as a defendant. The question to be determined is whether the plaintiff was entitled to succeed his father Harimohan as shebait. Lort Williams, J., has held upon the authority of Jatindra Mohan Tagore V/s. Ganendra Mohan Tagore (1872) IA Sup Vol 47 and Monohar Mukherjee V/s. Bhupendra Nath Mukherjee AIR 1932 Cal 791, that the provision in the deed that the succession is to be held by certain heirs of Harimohan to the exclusion of others in a line contrary to the Hindu law of inheritance was invalid, and so the plaintiff, who can succeed only under that provision had no title. He has held that upon the terms of the deed the only question was whether the plaintiff can be said to have taken by way of gift over upon the death of his father Harimohan, or whether he could only take by way of inheritance under a provision which was invalid. He has held that the intention of the deed was not to provide for a gift over after Harimohan's death in favour of the plaintiff, in which case only the plaintiff could succeed. In the above view, he has dismissed the suit, which rests on the foundation of the plaintiff's title as shebait. The plaintiff has appealed.

(3.) Before dealing with the appeal it would be convenient to notice a contention which Mr. Banerji has put forward on behalf of the defendant, now respondent. He has urged that even on the assumption that the provision referred to above is a valid one, it gives no place to the plaintiff. He has contended that the plaintiff could come in on the death of Sarajubala, if Harimohan was not then alive, under the words, in like default by the said Sm. Sarajubala Dasi har spiritual guide Babu Hari Mohan Gossain, or in case of his death his eldest male heir.