GANESH CHUNDER DHUR Vs. LAL BEHARY DHUR

JUDGEMENT

(1.) This appeal raises a question as to the validity of the provisions for the shebaitship of certain Hindu idols made by the will of Luckey Narain Dhur, who was a Hindu governed by the Dayabhag School of Hindu Law, and who died on 26 March 1927. The following genealogical table will show the relationship of the parties: The testator was survived by his widow and by his three sons. The material clauses of the will, which was made and published on 18 November 1923, and under which his sons Kartick and Ram were appointed executors, are as follows: 9. Subject to the payments aforesaid I give the rest and residue of my estate unto my executors and trustees upon trust to pay the balance of the income of my said estate to the shebaits for the time being of the Thacoors Netai Gour and, etc., established by me and located at my family dwelling House No. 23, Sankaritola Lane to be applied by the said shebaits for the time being for the expenses of daily Sheba and periodical festivals and ceremonies of the said Thacoors as are usually observed and performed in Hindu families of my caste and I direct that after the death of all the legatees under this my will my executors and trustees shall make over the whole of the corpus and undrawn income of my said estate unto the shebaits or shebait for the time being of my said Thacoors upon the trusts as aforesaid. 10. It is my will and I direct that the said house and premises No. 23, Sankaritola Lane shall always remain for the location and use of the said Thacoors and my Executors and Trustees or the shebaits shall have no power or authority to sell, mortgage or dispose of or deal with the said premises in any manner whatever and if at any time the said house and premises is acquired for any public purposes under any enactment for the time being in force them (sic) I direct that my executors and trustees shall with the money received for such acquisition purchase or build a suitable house in Calcutta or its suburbs for the location and use of the said Thacoors. The shebaits for the time being of the said Thacoor shall be entitled to live with their family in the said house and premises No. 23, Sankaritola Lane or in any other house or premises where the said Thacoors may for the time being be located and my executors and trustees shall also allow my daughter Srimati Sowdamini Dassi to reside in the said premises No. 23, Sankaritola Lane during her life. 11. I appoint my sons Kartick Chunder Dhur and Ram Chunder Dhur to be the shebaits of the said Thacoors and I direct that upon the death, retirement or refusal to act of any of them or any of the future shebaits the then next eldest male lineal descendant of Kartick Chunder Dhur or Ram Chunder Dhur shall act as a shebait in place of the deceased or retiring shebait or shebaits refusing to act as such-it being my intention that the eldest for the time being in the male line of my said sons Kartick Chunder Dhur and Ram Chunder Dhur shall always remain as joint shebaits and in the event of the death or refusal to act of any shebait the then next male member of the branch to which the shebait dying or refusing belonged shall act as a shebait in his place and stead.

(2.) The testator's son Kartick died on 24 May 1927, leaving his son Netye, and the testator's son Ram died on 17 October 1928, leaving four sons as shown in the pedigree. On 25 April 1929, letters of administration de bonis non were granted to the Administrator-General of Bengal, whereupon disputes arose as to which descendants of the testator were entitled to act as shebaits and to receive payment of the income of the estate, and the present suit was by originating summons taken out by the Administrator-General on 1 August 1933, for determination of the following questions: 1. On a true construction of the will of Luckey Narain Dhur is the appointment of shebaits after the death of Ram Chandra Dhur and Kartick Chandra Dhur (since deceased) and the line of succession to shebaitship created by C1. 11 of the said will valid ? 2. If not, who are the persons at present entitled to act as shebaits to the deities mentioned in the said will in the events which have happened ? 3. In the events which have happened, to whom is the income of the residuary estate to be made over ?

(3.) It is agreed that there was a valid gift for life to the testator's sons Kartick and Ram respectively, but it is maintained by the appellant that the rest of the clause is invalid in respect that it attempts to lay down a line of succession which is not permissible under the Hindu law, and that the persons entitled to act as shebaits are the heirs of the testator, including the appellant. The respondents maintain that Lalbehary and Netye, who were in life at the testator's death, and were respectively the next eldest male lineal descendants of Earn and Kartick respectively on their deaths', were entitled to act as shebaits and to the income of the estate, by virtue of a gift for life to them, which was independent of the line of succession otherwise invalidly sought to be laid down by the testator. Panckridge, J., who tried the case, upheld the contention of the present appellant, by a judgment dated 10 January 1934. On appeal, this judgment was reversed by Lort-Williams and Costello, JJ. who held that Cl. 11 can be construed as an intention to make an independent gift of the office for life to such person as happened to answer the description of eldest male lineal descendant' at the date of the death, retirement or refusal to act of Kartick or Ram.