RAJESHWAR MULLICK Vs. GOPESHWAR MULLICK

JUDGEMENT

(1.) This is a suit by Rajeshwar Mullick against his brother Gopeshwar Mullick and his nephew Gorachand Mullick to have the rights of the plaintiff under the will of his uncle Lalit Mohan Mullick ascertained and declared. The second defendant Gorachand has not appeared to defend the suit, and the contest has therefore been between the two brothers, Rajeshwar and Gopeshwar. The sole question in the case is as to the validity of Clause 5 of the will of Lalit Mohan Mullick, whereby he directed as follows:--"My wife Srimatee Sudevi Moni Dasi shall on my demise take the money which I have been, receiving for the expenses of services, according to my turn...to Sri Sri Ishawar Radha Gobind Jee established by my grandmother, the late Chitra Dasi, and perform the said services during her lifetime, and I confer on my wife Sudevi Moni Dasi the same right that I now have to the Ishawar Jew's jewellery, plate, etc., and on her demise I confer on my nephew Sriman Rajeshwar Mullick Babaji the right, etc, in respect of the expenses, jewellery, etc., of the said service. He and his son's son, etc, in succession shall enjoy by performing this service." The endowment, the shebaitship of which is now in question, is a private endowment founded by Ghitra Dasi, widow of Ram Lochah Mullick, by an ikrar dated 25 May 1820, a postscript dated 27 February 1822, and her will dated 8 December 1842. The following pedigree table shows the family and descendants of Chitra Dasi: [For the pedigree, see the next page.]

(2.) I do not propose to set out in detail the facts, as to which there is no dispute, for they appear sufficiently from the plaint. and from the various documents which have by the consent of parties been laid before the Court. The will of Lalit Mohan was made as far back as 1891, but his widow, Sudevi Moni Dasi, did hot die until May 1906. The question as to the validity of the bequest in plaintiff's favour has therefore only recently arisen. The simple question is whether Lalit Mohan had power to dispose of his own right of worship, and the turn (or pala) which he had enjoyed, in favour of the plaintiff to the exclusion of the defendants, who would in ordinary course have succeeded to such right of worship and pala by inheritance along with the plaintiff. There are no longer any emoluments attached to the offices, and it here fore only the bare right of service which is in dispute.

(3.) A large number of oases were cited by counsel relating to religious endowments, but it was frankly conceded that there was no direct authority for or against the proposition which the plaintiff lays before the Court. It would therefore serve no good purpose to discuss those authorities in detail. The law on the subject will be found in Chapter XII of Mr. Mayne's work on Hindu Law, and in the Introduction to Ganapathi Iyyer's wort on Religious Endowments at pp. clxi--clxiii and ccxi sqq, where all the cases are given. The general conclusions I draw from the authorities may be stated in a few words. Originally both partition and alienation both of the property devoted to a religious purpose like the present, and also of the shebaitship or right of worship were alike forbidden custom, however, and convenience intervened, and the right to partition of a shebaitship came to be recognised. I may point out that it has been accepted by the family with respect to the present endowment, and has been recognised by this Court in the several judgments and decrees which are now before me. The worship has for a long time past (since the days of Chitra Dasi's sons) and still is carried on by the various she baits in palas. It is in respect of one only of such palm that the present suit is brought Turning to alienations, it was pointed out by Ranade J. in Rajaram V/s. Ganesh (1898) I.L.R. 23 Bom. 131 that a distinction has always been drawn between alienations to strangers and those to members of the family, and also between compulsory and private alienation. The learned Judge also indicated that as to private alienations no general rule prohibiting them can be lard down. It must depend on each case, first, on the expressed intentions of the founder (if any) and, secondly, and failing that on any custom or usage of the family substantiated by evidence. The two cases most relied upon by plaintiff's counsel were Sitarambhat V/s. Sitaram Ganesh (1869) 6 Bom. H.C. 250 and Mancharam V/s. Pranshankar (1882) I.L.R. 6 Bom. 298. In the first, an alienation of a temple-office by a grandfather to his grandchildren by way of relinquishment was upheld. In the second, the alienation was by will to a sister's son, the widow of the testator, who was his next heir, expressing her acquiescence in the bequest. It is obvious that cases of relinquishment stand, in a different footing, for there is no exclusion of some third person.