MT ANURAGI KUER Vs. PARMANAND PATHAK

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for the establishment of the plaintiffs shebaiti right to certain temples founded fey one Hanuman Pathak, brother of the great-grandfather of the plaintiffs. Plaintiffs case was that Hanuman was a member of a joint Hindu family and established the temples from the income of the joint family among other sources and dedicated certain self-acquired properties to them. Hanuman died in Aghan 1315, leaving behind a widow named Rajbansi Kuar and a grandson by a predeceased daughter, Mahabir Misser, besides one brother Debi, his son Madho, and Ragho, Debi's grandson by a predeceased son. Debi died shortly after, and apparently also Madho, leaving him surviving a son Sarju, father of the plaintiffs. In September 1908, an ekrarnama, Ex. A, was executed by. Ragho and Sarju on one hand and Rajbansi Kuar and Mahabir Missir on the other, according to which Rajbansi Kuar was to be shebait for life and was to be succeeded by Mahabir as "absolute proprietor" of the shebaiti interest, subject only to a right of pre-emption reserved in favour of the other executants and their heirs in case any pressing necessity of the temples compelled a transfer of any of the temple properties.

(2.) According to the plaintiffs, this ekrarnama was invalid and did not operate to confer upon Mahabir any powers other than those of a shebait appointed by the family. Rajbansi Kuar died about a year after the ekrarnama, and Mahabir succeeded her as shebait. In August 1932, Mahabir executed a deed of gift in favour of the defendant in respect of the temples and their properties besides certain properties acquired by Mahabir himself and dedicated to the temples. Plaintiffs claimed that the temples were their family deoasthans, that Mahabir had no right to appoint the defendant to be shebait, and that they had the right themselves to work as shebaits or appoint others as such. Mahabir was not impleaded as a party to the suit, the reason apparently being that he died shortly after the deed of gift in favour of the defendant while the suit was instituted in May 1934.

(3.) The trial Court found that the temples and the temple properties were the self-acquired properties of Hanuman; and there has been no further dispute on this point. It held that the shebaiti right followed the line of inheritance from the founder and that Mahabir thus became absolutely entitled to it after the death of Rajbansi Kuar, so that the ekrarnama, Ex. A, merely acknowledged and ratified the existing right of Rajbansi Kuar and after her of Mahabir Missir in the shebaitship. Mahabir's gift in favour of the defendant was found by the learned Munsif to be no more than the appointment of the defendant as the next shebait after Mahabir for the worship of deities, and therefore valid under the ruling in Khetter Chunder Ghose V/s. Haridas Bundopadhya (1890) 17 Cal. 557. Even if the gift were to be regarded as invalid, the plaintiffs were not, in the view of the learned Munsif, entitled to claim the shebaitship as heirs of the founder since the shebaiti right had vested in Mahabir as full owner. The plaintiffs had not even made any claim as heirs of Mahabir, and therefore the learned Munsif dismissed the suit.