SM BHABATARINI DEBI Vs. SMASHMANTARA DEBI

JUDGEMENT

(1.) The three preliminary-issues disposed of by my judgment dated 2 August, 1937 embraced only some of the questions covered by the issues originally raised. The original issues may now be set out: 1. Was any valid dedication in favour of Thakur Sri Sri Iswar Sitaram Jew effected by the deed of 31 March 1922? 2. Was the said deed given effect to? 3. If so, was the same validly put an end to by the deed of 13 February 1929 by the consensus of the settlor Sital Chandra Banerjee, his son and son's wife and the other parties who signed the said deed? (4) If not, on a true construction of the said deed of 31 March 1922 in the circumstances that have happened, is the plaintiff Bhabatarini entitled to the sole shebaiti? (5) Is the plaintiff estopped from bringing this suit by reason of the arrangement and settlement made on 30 August 1929 and the benefits received thereunder and also by virtue of the deed to which she was a party dated 13 February 1929? (6) If the plaintiff was a shebait, has the plaintiff relinquished her rights thereto? (7) Is the plaintiff entitled to maintain this suit?

(2.) Mr. Banerjee on behalf of the defendant has invited me to hear him again upon the second and third preliminary issues and I have done so. As regards the second of these issues, Mr. Banerjee has argued that upon a true reading of the cases already considered, I ought to hold that it is his client and not the plaintiff who is entitled to the shebaiti under the deed of 1922, and he has also drawn my attention to three decisions which were not cited in his previous argument, namely the cases in Kandarpamohan V/s. Akhoychandra , Lal Behary Dhur V/s. The Administrator-General of Bengal and Dia Parkash V/s. Bhana Mal (1936) 23 AIR Lah 241. I have considered the whole question again in the light of the cases previously relied upon, and all those now cited, and I have given careful attention to Mr. Banerjee's argument, but in my judgment there is nothing either in the authorities or the argument, which would justify me in arriving at a different conclusion from that already expressed.

(3.) As regards the third of the preliminary issues, Mr. Banerjee has submitted that as the provisions of the deed of 1922 relating to the devolution of the office of shebait after Panchanan's death are invalid and of no effect, there is a reverter to the founder of the right of nomination, and in support of this contention reliance has been placed upon the cases in Vaidyanatha Aiyar V/s. Swami Natha Aiyar (1924) 11 AIR PC 221, Pramotha Nath v. Pradhyumna Kumar Mullick , Prasanna Deb V/s. Bengal Duara Bank Ltd. , Sitaldas Babaji v. Partap Chunder (1910) 11 CLJ 2, Gouranga Sahu V/s. Sudevi Mata (1918) 5 AIR Mad 1278, Raj Krishna Dey V/s. Bepin Behary Dey (1913) 40 Cal 251, Manikavachaga Desikar V/s. Parma Sivan (1929) 16 AIR PC 53, Guru Pada Haldar V/s. Manmohan Mukherjee , Manohar Mukherjee v. Peary Mohan Mukherji (1920) 7 AIR Cal 210 and Manohar Mukherji V/s. Bhupendra Nath Mukherji (1932) 19 AIR Cal 791 at page 493. The first three of these cases seem to have no real application, and the others support no more than this proposition, that when succession in the line of shebaits indicated by the founder fails, the right to nominate the shebait reverts to the founder or his heirs. Mukherji J. has expressed the effect of the earlier cases in his judgment in Manohar Mukherji V/s. Bhupendra Nath Mukherji (1932) 19 AIR Cal 791 at page 493 in these words: It has now been held by all the Courts in India that when the shebaitship does revert to the heirs, they have the right to nominate a fresh shebait, presumably on the ground that the right of nomination is appurtenant to the right of management.