JOGINDRA NATH DUTTA Vs. ADMINISTRATOR

JUDGEMENT

(1.) This is an appeal by special leave of His Majesty in Council from a judgment and decree of the High Court of Judicature at Fort William in Bengal in its appellate jurisdiction, affirming with certain modifications a judgment of that Court in its ordinary original civil jurisdiction.

(2.) The questions argued by the appellant arise out of the will of the deceased Manick Lall Dutt, a Hindu of the Subarnabanick Community, governed by the Dayabhaga School of Hindu Law, who died on 3 January 1928. The testator, on the narrative that he had no son or daughter and that he was a widower, and intended to make a gift of his whole estate for charitable and religious purposes for the special benefit of himself and his ancestors, revoked all previous wills, appointed the Administrator - General of Bengal and his successor or successors in office for the time being to be the sole executor and trustee of his will and bequeathed to him his whole movable and immovable estate upon trusts created by the will. The testator then directed the Administrator - General as his executor and trustee to sell and convert into cash his whole movable and immovable properties with specified exceptions and to invest the same in Government securities. He declared that he had established and installed deities or Thakoors Radhakanto Jew and Gopal Jew in his house in Calcutta and directed his executor and trustee to spend out of the estate a sum not exceeding Rupees forty - five thousand on the purchase of land and the construction thereon of a building suitable as a Thackoorbati or on the purchase and adaptation of a building suitable as a Thackoorbati, and he declared that the new Thackoorbati and the land appertaining thereto should be the absolute property of the deities. (The executor and trustee subsequently carried out the direction by purchasing premises in which the deities were located after October 1931.) The testator next directed his executor and trustee to hold Rupees one lac and seventy - five thousand to be invested in Government securities which were to form the Radhakanto Jew and Gopal Jew Debutter Fund, which also was to be the absolute property of the two deities. Out of the income of this fund the executor and trustee was directed to pay for the periodical repairs and upkeep of the Thackoorbati, to pay monthly a sum of rupees two hundred and fifty to the shebaits to meet the expenses for the daily sheba, worship and bhoga of the deities. He also directed that the balance of the income should be spent on specified charitable and religious purposes, and that his executor and trustee should in consultation with the shebaits frame a scheme for the administration of the fund and that he should be at liberty to provide for a reserve fund up to the limit of Rupees ten thousand out of the surplus income. He provided that a widowed niece should be entitled to live in the Thackoorbati and that she should attend to the sheba and be maintained out of the income of the debutter fund. He further directed that none of his shebaits or other relatives should have any right to reside in the Thackoorbati. The following provisions of the will (being clauses 11 and 12 and part of clause 14) are set out in full and in the testator's own words because it is on them that the questions to be considered turn. "11. I appoint by brother Upendra Nath Dutt, my nephew (sister's son) Hira Lall Seal son of Hari Pado Seal Chandranagore, my cousin Jogendra Nath Dutt son of Joy Gopal Dutt deceased and my cousin Manick Lall Dutt son of Radha Nath Dutt deceased and the Secretary for the time being of the Subarnabanick Samaj now of No. 8 Hidaram Banerjee Lane aforesaid to be the shebaits of the said Thackoors. 12. I direct that upon the death of any one of the first named four shebaits the adult eldest male lineal descendant of the shebait dying shall be and become a shebait in his place and stead and so on. In case any of the said four shebaits or their successors shall die without leaving any lineal male descendant or in the case of any of them being unable or unwilling to act the surviving shebaits (including the Secretary for the time being of the Subarnabanick Samaj) shall appoint a fit and proper person from the Subarnabanick community as a shebait in the place and stead of the shebait so dying or being unable or unwilling to act and in case of difference of opinion amongst the surviving shebaits as to the person to be appointed the opinion of the majority will prevail and the majority of such surviving shebaits shall make the appointment. I further direct that in case any of the shebaits dies leaving a lineal male descendant who happens to be a minor the surviving shebaits shall appoint a shebait in the manner aforesaid who shall be and continue to be a shebait till such minor shall attain age and upon such minor attaining age he shall become a shebait of the said Thackoors and the shebait who shall have been so appointed to act as a shebait during the minority of such lineal male descendant shall cease and be discharged from further acting as a shebait. I further will and direct that the number of the shebaits shall always be five including the Secretary of the Subarnabanick Samaj. I also direct that in case of difference of opinion amongst the shebaits with reference to the management and carrying on the Seba of the said Thackoors and the festivities the opinion of the majority of the shebaits shall prevail. In case there be no majority amongst the shebaits or the shebaits cannot agree as to the management and carrying on the Seba the shebaits shall submit their points of variance to Babu Surrendra Lall Pyne attorney at law whom I hereby appoint as the supervisor over the shebaits and the decision of the said Surendra Lall Pyne shall be final and binding. I further direct that in case of death of the said supervisor or his incapacity or unwillingness to act as such supervisor my executor and trustee shall appoint a fit, proper and respectable disinterested person from the Subarnabanick community as such supervisor. I will and direct that the shebaits shall carry on the Seba and festivities of the said Thackoors jointly and not by turns and if any of the shebaits disagree and become opposed to joint management and carrying on of the sheba and festivities or offers any resistance thereto such dissentient shebait or shebaits shall retire and the surviving shebaits or the majority of them in case of difference of opinion shall appoint a shebait or shebaits from the Subarnabanick Community as the case may be in his or their place and stead. It is my desire that the shebaits appointed by me or those that may hereafter be appointed shall form a committee of management. I further will and direct that in the event of any disagreement amongst the shebaits and until the same is adjusted in the manner aforesaid my Executor and Trustee shall pay the monies required for the performance of sheba bhoga and other festivities of the said Thackoors as aforesaid to at least two of the shebaits for the time being on receipt or receipts signed by them and countersigned by the Supervisor for the time being. 14. I further direct my said Executor and Trustee to invest a sum of Rupees Twenty thousand in Three and a half per cent. Government securities and set apart the same styled as "Golapmony Dassee Fund" named after my mother. I will and direct that my Executor and Trustee shall pay and apply the net income of the said fund after payment of his commission in respect thereof for college fees of three or four poor Bengali Hindu students of the Subarnabanick community to be selected and nominated by the Executive Committee of the Subarnabanick Samaj and in case such Samaj be not existent by four respectable members of the Subarnabanick community to be appointed for that purpose by my Executor and Trustee for giving free Medical education in the said Charmichael Medical College or some other Medical College or Institution affiliated to the Calcutta University throughout the whole course of studies."

(3.) The Subarnabanick Samaj is a body registered under the Indian Societies Registration Act, 1860, the regulations of which provide for two Secretaries. Accordingly on 3 March 1931, the Administrator - General as executor and trustee applied by originating summons to the High Court of Calcutta for interpretation of the will and for directions. He called as defendants the two Secretaries of the Samaj and the four Shebaits appointed by the testator. The summons was heard by Panckridge J. who dealt with it by declaring that the appointment of the Secretary for the time being of the Subarnabanick Samaj was void from uncertainty and that neither of the Secretaries was appointed a shebait either severally or jointly with his co - secretary, and that the number of the shebaits should not be five but four. Since the date of the decree pronounced by Panckridge J. the number of shebaits has consistently been four. In July 1932, as two of the original shebaits, Upendra and Hira Lall Seal, also known as Dhirendra, were unwilling to act and relinquished their appointments, the executor and trustee (respondent 1 in this appeal) requested the remaining shebaits (appellants 1 and 2 in this appeal) to fill up the vacancies. This they did by a purported appointment, dated 31 July 1932, in favour of Tarini Charan Seal and Tustu Charan Pyne. Subsequently Tarini Charan Seal ceased to act and by instrument dated 28 June 1935, appellants 1 and 2 and Tustu Charan Pyne purported to appoint Dulal Chand Dutt (appellant 5 and a son of appellant 2) as shebait. Tustu Charan Pyne became unable to act as shebait from 1 March 1935. The acting shebaits were then 1, 2 and 5 appellants, and they by an indenture dated 20 July 1935, purported to appoint Tinkori Dutt (appellant 6 and son of appellant 1) a shebait in place of Tustu Charan Pyne.