MOHENDRA NATH BAGCHI Vs. GOUR CHANDRA GHOSH

JUDGEMENT

(1.) The present suit is brought by two persons in their capacity as executors of the Will of one Sidheswar Goswami, who by his Will created a Debutter in favour of his deity Sri Sri Gour Gopal and appointed his four disciples as Shebaits. They are Gopeswar Das Goswami, Gobinda Das Brojobashi, Hariswar Das Goswami, and Kristeswar Das Goswami. The last two persons appear to have taken no part in the matter of this Debutter, and they do not appear to have been heard of as stated in paragraph No. 2 of the plaint and as alleged before us. The Will, after appointing these four persons as Shebaits, provided that if Gopeswar Das was unable or unwilling to carry on the Sheba, then Sri Jogneswar Goasain would act as Shebait in his place; and it is stated that this man Jogneswar has not been found also. Nothing, however, turns upon the facts that are stated here in the view that I take of this case. The other two, Gopeswar Das and Gobinda Das, by deeds of transfer made over their Shebaitship to the 1st and 2nd defendants. It is stated, though this is disputed, that the fourth defendant took a document from his transferee, the defendant No. 1, under which the former was to act as Shebait during his life. One of the original Shebaits is thus in office, and the other original Shebait, Gopeswar Das, is said to be engaged in the Shebaiti work. The plaint alleges that the transfers of the Shebaiti right were unauthorized as a matter of law. It also alleges that the Sheba was not properly carried on by the defendants. It asks that possession of the Dabutter property may be made over to the executors, that the transferees defendants Nos. 1 and 2 may be evicted and that the deeds may be declared null and void and that defendant No. 3 may be declared incompetent as Shebait. No special mention is made in the prayer of the plaint as regards defendant No. 4. At the trial the plaintiffs said that they did not require any adjudication on the charges of misconduct and said that they would rest their case on the question whether the transfers of the Shebaitship were authorised or not The testator died in 1898 In 1899, there was a compromise in a suit brought by Gopeswar Das Goswami against the executor and executrix, That suit was compromised upon the terms that Gopeswar Das Goswami and Gobinda Das Brojobashi should be Shebaits and should be able to appoint succeeding Shebaits of their respective Shebaiti right by means of a Will or by any other document to whom so ever they pleased. A question has arisen as to the accuracy of the translation of the 7th clause in the petition of compromise.

(2.) It has been suggested on behalf of the respondents that this clause confers upon the Shebaits the right only to appoint their successors upon their death.

(3.) By the appellants, it is contended that there is no such limitation and we have, therefore, had that clause translated by a translator of this Court who says that it was as follows: The two aforesaid Shebaits shall be competent to appoint succeeding Shebaits in respect of their respective shares of Shebaitship by a Will or any other deed, and to make over his (their) Shebait share to whomsoever they like.