LAKSHMI NARAYAN SINHA Vs. GOSTHA RAMAN SINHA

JUDGEMENT

(1.) The plaintiffs, who are the appellants before us, instituted the suit for a declaration that they are the shebaits of the deity Radhagovinda Deb Thakur, and for khas possession and mesne profits of the properties which are admittedly the endowed properties of the said deity. Their right to the last mentioned reliefs depend entirely upon the validity of their claim to the office of Shebaitship. They base their claim to the said office as being the nearest agnates of Ganesh Singh and so entitled thereto on the basis of a will executed by the said Ganesh Singh on 23 Falgoon 1285 corresponding to 6 March 1879. Ganesh Singh died childless shortly after the execution of the said will which was duly probated by his widow Raj Kumari. It is the common case of both the parties that in pursuance of the provisions contained in the said will Raj Kumari consecrated the idol and orally dedicated the properties to its Sheba shortly after her husband's death, but the formal arparnama was executed by her on 17 Assar 1326= (2 July, 1919) by which she appointed the defendant, who is her sister's daughter's son as the shebait. The plaintiffs maintain that by her appointment the defendant cannot become a shebait of the said idol, and the Shebaiti right must devolve according to the provisions contained in the will of Ganesh Singh, to whom the properties originally belonged. According to them by the terms of the said will Raj Kumari became the first shebait, then the sons of the two sisters of Ganesh according to seniority, and thereafter his agnates were given a heritable right to the said office. They aver that Raj Kumari died on 9 Kartic 1327=(26 October 1920) survived by Ram Kissen, a sister's son of Ganesh, and on the death of the latter in Vadra 1334=(August-September 1927) they have become the shebaits. The suit was instituted on 1 November 1932, on the day on which the civil Courts re-opened after the Puja holidays. The defendant denied that the plaintiffs are the agnates of Ganesh, averred that Raj Kumari having established and consecrated the idol and actually endowed the properties, though it be according to the wishes of Ganesh, was the founder of the endowment and so entitled to appoint the defendant as shebait, and even if the office of Shebaitship was to devolve according to the terms of the will of Ganesh, the plaintiffs are not the shebaits and the son of a sister's son of Ganesh named Nani Gopal, being alive, is the shebait under the said terms.

(2.) The learned Additional Subordinate Judge who tried the suit has found that Ganesh was governed by the Mitakshara law, that the plaintiffs are the nearest agnates of Ganesh and so his heirs, that Raj Kumari died on 26 October 1920, that Ganesh had three sisters's sons, Ram Kissen, Lakhminarayan and Janaki, that the last two of them predeceased Raj Kumari, but Ram Kissen survived her but died in Varda 1334 and that at the date of the suit Lakhminarayan's son Nanigopal was alive. The said findings were not challenged in the lower appellate Court or before us and must be taken as final between the parties. The learned Subordinate Judge also held that as the validity of the debutter came from the will of Ganesh, the latter and not Raj Kumari was to be considered as the founder of the endowment and that the appointment of the defendant by her aparnamah was invalid. The Subordinate Judge, however, held that on a correct construction of paras. 5 and 6 of Ganesh's will Nanigopal was the shebait and dismissed plaintiffs suit on the ground that the defendant had succeeded in pleading jus tertii. On appeal the learned District Judge, though maintaining the said interpretation of paras. 5 and 6 of the said will, dismissed the suit on another ground. He said that Raj Kumari got an absolute estate under the will of Ganesh, that she was at liberty not to create the debutter, though Ganesh had so directed in his will, that she must accordingly be taken to be founder and so the appointment by her of the defendant as Shebait was perfectly valid. Before us the defendant-respondent's advocate has urged both the grounds, the one given by the Subordinate Judge and the other given by the learned District Judge, for dismissal of the plaintiffs suit. The learned advocate for the plaintiffs-appellants puts his case very briefly. He says that no beneficial estate was conferred by the will of Ganesh on his widow or anybody else but the persons designated in his will, including his widow, were made executors or trustees by necessary implication for the establishment of the idol and its worship, that the rules of devolution of the office of Shebaitship are those defined in the said will and that the true construction of paras. 5 and 6 is what the plaintiffs contend for. As both the points urged by the respondent and the contention of the appellants depend upon some part of the will or the other, it is convenient to set down all the material terms at one place. In para. 1, the testator states that it is his earnest desire to consecrate the idol and to dedicate all his properties to it and that with that desire he had already ordered the sculptor to make it. That if he recovers from his illness he would himself establish the said idol, but if he happened to die, then the persons named below, that is the persons to whose care his properties are to be committed, should within a very short time after his death consecrate the said idol (which he had already ordered to be made) and after dedicating his properties to its worship shall be bound to remain in possession as its Shebait. The things necessary for the sheba would be duly met from the said properties. If the said person does not establish the idol or after having established the same neglects its sheba she or he shall be removed and be deprived of the property.

(3.) Paragraph 2 is as follows: After my death my wife Raj Kumari Burmanya after becoming my Uttaradhikary in respect of all my properties, after duly performing my sradh and after acting in accordance with the terms of para. 1 shall construct a temple and after consecrating the idol shall become the shebait of the said idol and the said properties shall remain under her management.