PRAMATHA NATH MUKHERJEE; AMAR CHANDRA BANNERJEE Vs. ANUKUL CHANDRA BANERJEE AND JOGESH CHANDRA MUKHERJEE; PRAMATHA NATH MUKHERJEE

JUDGEMENT

(1.) This appeal has been argued at great length and with great-ability and earnestness on both sides, but we do not regret the time occupied as the arguments at the Bar have been of great assistance to us.

(2.) The facts which have given rise to the present case and several previous cases are that plaintiff's mother's father, Ram Kamal Mukherjee, who died on the 1 August 1845, shortly before his; death, viz., on the 4 February 1845 executed a Will by which, after providing for various annuities and legacies, he made a gift of certain valuable properties to an idol Sri Sri, Gopal Jiu and appointed his wife Barada Sundari Devi and his three brothers Ram Kumar, Madhusudan and Chandra Mohan Mukherjee shebaits of the endowment. As to future shebaits, he made the following provision: "When you all have ceased to be, he who shall be of the Hindu pulsation and senior in age amongst your legal heirs shall have the management conferred upon him." We do not refer here to other provisions of the "Will which will have to be considered in their proper places. This Will has been a fruitful source of litigation and after the death of each shebait the assistance of the Courts has been sought for the construction of the Will. It appears that of the four shebaits appointed under the Will Madhusudhan was the last to hold the shebaitship. In 1863 when Madhusudhan was acting as shebait three of his sons Ashutosh, Mritunjoy and Aghore instituted a suit against him and certain transferees from him and impleaded in the suit all the heirs of the original shebaits--Jogeswar, son of Ram Kumar, Kamini, daughter of the testator and Barada Sundari,. and Damayanti, widow of Chandra Mohan. The suit was for construction of the Will, for declaration of trusts created thereunder and for having the unauthorised alienations of the trust property declared inoperative. Kamini, the daughter of the testator and mother of the present plaintiff, denied the genuineness of the Will and further urged that it did not create any valid endowment. The Principal Sudder Amin who tried the suit decreed it in full, holding that the Will was genuine, that it created a valid religious endowment and that the transfers were null and void. On appeal by Kamini and one of the purchasers, this decree was affirmed by the High Court on the 15 May 1865. There was no further dispute till 1879 when Madhusudhan died. Then Kamini, the mother of the plaintiff, instituted a suit in the First Court of the Subordinate Judge at Alipore for the construction of the Will, for the determination of the nature and extent of the interest of the idol Gopal Jiu in the estate of the testator, for the appointment of a proper person as shebait and for other reliefs. All the then existing heirs of the original shebaits were made parties to the suit. The Subordinate Judge passed a decree in the suit by which he dismissed Kamini's claim for possession of the properties by right/pf inheritance. He declared that the entire property of Ram Kamal had vested absolutely in the idol and appointed Ashutosh the eldest son of Madhusudhan as shebait, Damayanti widow of Chandra Mohan and the senior member in age having waived her right to act as shebait. Kamini preferred an appeal from the decree of the Subordinate Judge to the High Court which allowed the appeal and held that there was no valid endowment, that the Will created a religious charge on the properties and that there was a devise of the surplus proceeds for the benefit of the heirs of the testator and his brothers. The matter was taken in appeal to the Privy Council and in 1888 their Lordships of the Judicial Committee reversed the decision of the High Court holding that the question relating to the construction of the Will and the nature of the dedication were res judicata by virtue of the decision in the suit of 1863. They further held that Asutosh had a preferential right to shebaitship. The decision of the Judicial Committee is reported sub namine Kamini Debi V/s. Asutosh Mukerji 15 I.A. 159 : 16 C. 103 : 12 Ind. Jur. 410 : 5 Sur. P.C.J. 246 : 8 Ind. Dec. 68 (P.C.). Soon after the decision of the Privy Council Asutosh died on the 23rd August, 1888. Damayanti who had previously waived her right to shebaitship in favour of Asutosh now laid claim to the office and as Kamini resisted her claim, she commenced an action in 1888, for construction of the Will and for the appointment of herself as shebait or of any other suitable person if her claim was disallowed. All the heirs of the original shebaits then living were made parties to the suit. Kamini and Aghore Nath one of the sons of Madhusudhan disputed her right and each claimed the office. The Court of first instance held that Damayanti was disqualified as she had once waived her right and appointed Kamini to the shebaitship. On appeal, the First Appellate Court agreed in dismissing the claim of Damayanti but held that Aghore Nath had the preferential title to the shebaitship. Damayanti appealed to the High Court which held that she being the senior in age among the heirs of the original shebaits was entitled to the shebaitship despite her previous waiver. Damayanti accordingly held the office till her death in 1905, when both Kamini and Aghore came forward to claim succession to the shebaitship. Kamini brought a suit. in 1906 for declaration of her preferential right to shebaitship against Aghore and the present appellant who are Aghore's brothers and succeeded in her claim up to the High Court. There were several litigations between her and Aghore and his brothers but Kamini held the shebaitship till her death in 1916. She was succeeded in the office by Aghore who acted as shebait till his death in 1918. Upon Aghore's death the present controversy arose. On Aghore's death no one among the heirs of the testator and his brothers was left who was alive at the time of the testator's death, all the parties to this suit having been born after that event. Plaintiff, thereupon, instituted the present suit for declaration of his right and that of his brother (defendant No. 23) to the shebaitship of the idol on the ground that on the death of all the persons living at the time of the death of the testator the office of the management of the endowed property reverted to the heirs of the testator. He further prayed that if the above contention was overruled he should be appointed as shebait, being senior in age among the heirs of the original shebaits. This latter claim has been dismissed as it has been found that the plaintiff is not senior in age to defendant No. 1 and we need not consider it any further. As regards the plaintiff's first contention both the Courts below have given effect to it and decreed the suit.

(3.) The defendants Nos. 1 to 3 have appealed and it is contended on their behalf that the view of the law taken by the Courts below is erroneous. Some other points have been raised which we will consider later, but the main question on which the decision of this appeal hinges is whether the principle of law enunciated in the case of Jotendromohun Tagore v. Gnendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) and extended to an hereditary office and endowment by Gnanasambanda Pandara Sannadhi V/s. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : : 8 Ind. Dec. (N.S.) 591 (P.C.) and now firmly established, that the gift to an unborn person is invalid and contrary to Hindu Law, is applicable to the office of shebaitship.