SRIPATI CHATTERJEE Vs. KHUDIRAM BANERJEE

JUDGEMENT

(1.) These two appeals arise out of two suits, the plaintiffs in one suit being the defendants in the other, in respect of the right of shebaitship of a Thakur named Radha Benode Jew. The facts which are necessary for the determination of these appeals are these: Thakur Radha Gohinda Jew was the family deity of one Man Govinda Banerjee who had only a turn in the worship of the said Thakur and his agnate relations were also co-shebaits with him. The Thakur had some debutter lands dedicated by the ancestors of Man Gobinda of about 120 bighas in area. Man Gobinda had no children. By a registered "Will executed in 1306 he appointed one Tarak Nath Chatterjee and his heirs to act as shebaits of the Thakur after his and his wife's death. Dissatisfied with the conduct of Tarak, Man Govinda, when he was about 70 years old, by an arpannamah executed in 1308, dedicated certain immovable properties in favour of the family Thakur for the better performance of the worship during his turn of worship, and also for the annual festivals of the Thakur and by the said deed he provided that during his life he shall continue to be the shebait and after his death his widow will succeed to the office and then on her death, his agnate relatives, the plaintiffs in Suit No. 1951 of 1919 and their heirs in succession will become the shebaits in his place. In 1316 Man Gobinda executed another deed of gift by which he dedicated some further immovable properties to the said Thakur and made a gift of his right as a shebait of his turn of the worship in favour of one Nil Kumari Devi, the mother of the Chatterjees the plaintiff in Suit No. 2094 of 1919. This gift was given immediate effect and Nil Kumari Devi was installed as shebait in his own place and she managed the dedicated properties and acted as shebait of the Thakur. It appears that in a rent suit in 1911, while Man Gobinda was still alive she was made a party in that suit and she was treated as a co-shebait, taking the place of Man Gobinda, by the other co-shebaits of the Thakur. Man Gobinda died in 1319 and his widow died in 1320. Then a dispute broke out between the parties as to the possession of the properties, dedicated to the Thakur by Man Gobinda, and it culminated in a proceeding under Section 145 of the Criminal Procedure Code with the result that the Banerjees were maintained in possession of 6 bighas and the Chatterjees, the heirs of Nil Kumari, were maintained in possession of 2 bighas of the endowed lands. Each party brought a suit with respect to the land which was declared in possession of the other under Section 145 of the Criminal Procedure Code. As I have already stated the Banerjees brought Suit No. 1951 and the Chatterjees brought Suit No. 2094 both of 1919, the plaintiffs in one suit being the defendant in the other. Both the Courts below have found in favour of the Banerjees and therefore, decreed Suit No. 1951 and dismissed the Suit No. 2094. The Chatterjees have brought these second appeals against the judgment and decree of the Subordinate Judge of Assansol who affirmed the decree of the Munsif of the said place.

(2.) Both the Courts came to the conclusion that the appointment of the Banerjees by the arpannamah of 1308 was not revocable by Man Gobinda and, therefore, the subsequent appointment of Nil Kumari by the deed of gift) of. 1316 was invalid. Consequently the Banerjees were declared as the shebait of the Thakur of the dedicated properties and as such they got a decree for possession of the lands held by the Chatterjees whose suit was dismissed.

(3.) The Subordinate Judge further finds that the gift by Man Gobinda to Nil Kumari was operative so long as he was alive; and that Nil Kumari acted as she-bait even during the life time of Man Gobinda and that she was treated as a co-shebait by the other shebaits of the family Thakur. It is then observed by the learned Subordinate Judge that " the god was not the property of Man Gobinda alone " and later on he says: "Man Gobinda was not the founder of god or of god's estate, he added to that estate; with the consensus of all the shebaits this change in the succession was not made." It is difficult to follow what the learned Judge meant to decide on the basis of his observations that Man Gobinda was not the founder and that he was one of the many shebaits. If the learned Subordinate Judge was thinking that a subsequent shebait has no right, although he might mate additional gifts to a family Thakur, to alter the rule of succession established by the founder, then Man Gobinda had no authority to appoint either the Chatterjees or the Banerjees who base their claim only on the arpannamah and not on their right as the successor of the original founder who apparently has more successors than the Banerjees, the plaintiffs in Suit No. 1951. It was the common case of the parties that Man Gobinda could and did appoint shebaits with reference to the properties dedicated by himself and also by his ancestors but the question as to the validity of such appointment has not been determined having regard to the fact that Man Gobinda was merely a co-shebait. Upon the facts admitted by the parties and on the findings arrived at by the lower Appellate Court the following questions arise and must be decided before the rights of the parties can be determined. (1) Was the appointment of the Banerjees by the deed of 1308 revocable by Man Gobinda? (2) Was the appointment of Nil Kumari and her heirs as shebaits in the place of the Banerjees by the deed of 1316 valid? (3) What is the effect of the two deeds in respect to the lands dedicated by Man Gobinda by these deeds?