BHABATARINI DEBI Vs. ASHALATA DEBI

JUDGEMENT

(1.) This suit was brought in the High Court at Calcutta on 22 August, 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 moveable and immovable. His only son Panchanan had died in 1932 leaving a widow Asmantara and three daughters. 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 debutter property. She impleaded Asmantara, and her daughters as persons wrongfully in possession of the debutter properties and faslely claiming to be sebaits : though as between themselves the widow on ordinary principles of succession would of course take before the daughters. Bhabatarini and Asmantara have both died while the present appeal to His Majesty was pending, the former on 15 February and the latter on 18 January 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 26 August 1937, found in favour of Bhabatarini, but on appeal Derbyshire C. J., and Mukherjea J. found in favour of Asmantara and by,their decree of, 11 July 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. . Reported in ('38) 25 AIR 1933 Cal 490.

(2.) The terms of the dedication made by Sital are to be found in an arpannama or deed of dedication dated 31 March 1922. Seven years afterwards he purported to cancel this instrument and to re-dedicate the same properties on different terms by a deed dated 13 February 1929; but the High Court have found and it is now accepted by both parties to the present appeal that this deed of 1929 had in law no effect upon the previous dedication. The provisions made by Sital for the devolution of the sebaiti are to be found solely in the deed of 1922. Those which became effective in the events which happened are that Sital and his wife Rajlakshimi should be the first sebaits and that on the death of Sital (who survived his wife) Panchanan should be sebait in his stead. This appointment of Panchanan was followed by provisions purporting to say who should succeed him in the sebaiti, but these provisions were in law of no effect. Upon the death of Panchanan in 1932 the specific provisions validly made by Sital as founder with respect to the succession to the office of sebait became exhausted. What happened then to the sebaiti right ? Cases are not wanting in which it has been said that it goes to the heirs of the founder. Of these the leading authority is perhaps 16 IA 1371at p. 144, where Lord Hobhouse said : According to Hindu law when the worship of a thakoor has been founded the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution.

(3.) The case itself was one in which a custom of primogeniture obtained in the plaintiff's family. The principle thus enunciated was said to be illustrated by the case in 5 Beng LR 181=13 WR 396,2where the founder had appointed his sister sebait and provided that each sebait should appoint his or her successor. The sister having died without making any appointment it was held by Bayley and Dwarkanath Mitter JJ. that "the managership must revert to the heirs of the person who endowed the property." To point to the founder as the person from whom descent was to be traced was enough to end the case as the suit was brought by the sister's husband's brother claiming as her heir and the defendants were the founder's widows. The language of Lord Hobhouse above cited was re-stated by Sir Arthur Wilson in 31 IA 2033at p. 208, in the form that the title to the property, or to the management and control of the property, as the case may be, follows the line of inheritance from the founder. 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 22 CLJ 404 = 20 CWN 314,4a 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 : 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 4 MIA 137,5has no application to cases of the description now before us. No doubt a shebait holds his office for life, 35 Cal. 226,6but 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 office has so vested in them, upon the death of each member of the group it passes by succession to his heir, . . .