AGHORE NATH MUKERJEE Vs. KAMINI DEBI

JUDGEMENT

(1.) The substantial question of law which arises in this appeal relates to the right of succession to the office of shebait of a private religious endowment created by v the Will of one Ram Kamal Mukerjee executed on the. 4 February 1845. Ram Kamal died on the 1st August 1845, and left a widow Baroda Sunderi, a daughter Kamini, and three brothers Ham Kumar Madhusudun and Chundra Mohun. His Will, which was addressed to his wife and his three brothers, authorised his three wives to adopt a son in succession, provided for various legacies, and created a religious endowment of the residue for the maintenance of the idol Gopal Jew consecrated by his mother. The four persons to whim the Will was addressed were appointed shebaits, and so far as the devolution of the office of shebait is concerned, the instrument contained the following provision: "On your death these responsibilities shall similarly devolve on your heirs in the order of seniority, if they adhere to the ancient religion." The true meaning and legal effect of this provision is the subject of controversy between the parties to this litigation.

(2.) It appears that after the death of the testator, the endowment was managed by the trustees, till, upon the death of Ram Kumar and Chandra Mohan, the surviving trustees, Baroda Sunderi and Madhusudan, began to deal with the properties in contravention of the terms of the Will, and execution-creditors of the trustees attached part of the estate for the satisfaction of their personal debts. Under these circumstances, in 1863 Ashutosh Mritonjoy and Aghore Nath the sons of Madhusudan, commenced an action against, their father, who had wasted the debutter properties, as also against the purchasers of different portions of the estate and the daughters of Ram Kamal and Deno Nath (a fourth brother who had predeceased Ram Kamal) and the widow of Chandra Mohan, for construction of the Will and for declaration of the trust created (hereunder. The defendant Kamini,the daughter of the testator Ram Kamal, denied the genuineness of the Will, and further urged that it did not create any valid endowment all. On the 14 March 1864, the Subordinate Judge decreed the suit, declared the Will to be genuine, and held that as there was a valid religious endowment, the sale and attachment were null and void. On the 22 November, 1864. Kamini appealed to this Court against the decree of the Subordinate Judge, and a separate appeal was preferred by one of the purchasers. On the 25 May 1865, a Division Bench of this Court pronounced the Will to be genuine and untainted by fraud, and affirmed the decree of the Court of first instance on the ground that there was a valid religious trust and the alienation of any portion of the endowed properties was illegal. The estate, after this appears to have been managed in accordance with the terms of the Will till October 1879 when Madhusudan, the sole survivor of the original trustees, died. On the 6 May 1880, Kamini commenced an action for construction of the Will, for the determination of the nature and extent of the interest of the idol Gopal Jew in the estate of the testator, for appointment of a suitable person as shebait of the endowed properties, for1 the administration and efficient management thereof, and for incidental reliefs. She joined as defendants to the suit the representatives of the different branches of the family including Ashutosh, Mritonjoy and Aghore Nath, the sons of Madhusudan. On the 3 September 1881, the Subordinate Judge made his decree, by which he found that the claim of the plaintiff for possession of the estate of her father by right of inheritance was unfounded. He declared that the entire property of flam Kamal had vested absolutely in the idol Copal Jew and appointed Ashutosh to act as shebait in terms of the Will, inasmuch as Damayanti, the widow of Chandra Mohan, though senior in age and entitled as the senior amongst the heirs of the original trustees to a preferential right to the office, had declined to act. Kamini appealed to this Court and on the 15 September 1883, her appeal was allowed. It was ruled by this Court that there was no valid debutter and that subject to the religious charge created by the Will there was a devise of the surplus proceeds for the benefit of the heirs of the testator himself and of his four brothers in equal shares. Kamini was dissatisfied with this decision and appealed to Her Majesty in Council. Ashntosh and the other defendants also obtained leave to cross-appeal with reference to the effect of the decision in the earlier suit of 1863. On the 3 May 1888, the Judicial Committee dismissed the appeal of Kamini and allowed the cross-appeal. Kamini V/s. Ashutosh 16 C. 103 : 16 I.A. 159. Their Lordships held that the question of the effect of the Will and the nature of the disposition made thereby was res judicata. They further held that Ashutosh had a preferential title to the office of shebait on the ground that the effect of the Will was to constitute as shebait the senior in age among the heirs of the original shebaits and that as the actual senior had disclaimed, the next senior in age was the proper shebait. Shortly after this decision of the Judicial Committee, Ashutosh who had been declared the lawful shebait thereby, died on the J3 August 1888. Damayanti now laid claim to the office of shebait though she had previously retired in favour of Ashutosh. She was resisted by Kamini and the other members of the family including Aghore Nath and his brothers: Consequently, she commenced an action in 1888 for construction of the Will, and for the appointment of herself as shebait, or if the Court should decide against her claim, for the appointment of such person as was entitled to that office under the Will. Kamini who was one of the defendants, laid claim to the office as also Aghore Nath. Upon this state of the pleadings, an issue was raised as to which of the parties was most qualified for the post. On the 15 August 1889, the Subordinate Judge held that as Damayanti had disclaimed the office of shebait in the previous litigation, she could not retract her renunciation, and as Kamini was the next senior in age among the other heirs of the original shebaits, she was entitled to the office in preference to Aghore Nath. Damayanti then appealed to the District Judge who held on the 16 April 1890 that neither she nor Kamini was entitled to the office--not the former, because though by reason of seniority in age she had the first claim, she was not a fit and proper person for the office--and not the latter, because though as the next senior in age she had the next best claim to the office, she was disqualified by the attitude of hostility she had taken up against the trust and the improper dealings she had made with the endowed properties. In this view, the District Judge appointed Aghore Nath as the next senior in age and qualified in every way to hold the office. Kamini and Damayanti were both dissatisfied with this decision and preferred separate appeals to this Court. On the 31st,August 1891, the appeal of Damayanti was allowed, and that of Kamini dismissed. It was declared that Pamayanti, as the eldest heir then living of any of the original shebiits, was entitled to the office, inspite of her previous disclaimer, which was not for all time but merely in favoar of Ashutosh personally. Damayanti, thus appointed shebait discharged the duties of her office for a period of fourteen years till her death on the 4th October 1905. Disputes then broke out between Katliini and Aghore Nath as to their respective rights to the office of shebiit, and on the 10 January 1903, Kamini commenced the present action against Aghore Nath for declaration of her preferential right to the shebait-ship. The defendant resisted the action on the ground that upon a true construction of the Will, the plaintiff had no title to the office, and that in any view she was disqualified by reason of her past conduct and present circumstances from holding the office of trustee. The plaintiff in reply urged that the question of the order of succession to the office of sebait was res judicata and could hot be re-opened in view of the decisions in the suits of 1.883 and 1888. The Courts below have concurrently held that the question is res judicita and that the plaintiff is qualified to hold the office of siiebvit. In this view, a decree has been made in favour of the plaintiff which declares her right to the office of shebait and entitles her to the possession of the debutter properties in that character. The defendant Aghore Nath has now appealed to this Court and he has been joined in the appeal by the other defendants, some of them members of the family, who have made common cause with him in contesting the claim of the plaintiff to the office of shebait. The decision of the learned District Judge has been assailed substantially on four grounds, namely, first, that the question of the title of the plaintiff to succeed to the office of shebait in preference to the first defendant is not res judicata; secondly, that upon a true construction of the Will, it ought to be held that the plaintiff has no title to the office of shebait, and that the only persons who are successively entitled to that office are the heirs of the three brothers of the testator according to seniority in age; thirdly, that, in any view, the plaintiff is not a fit and proper person to hold the office of trustees of this religious endowment; and, fourthly, that the appellants ought not to be made liable for the costs of the litigation which should be paid out of the estate.

(3.) In support of the first ground it has been urged, first, that the decision in the suit of 1889 is not res judicata because the question now raised was not directly and substantially in issue in that litigation; secondly, that the decision in the suit of 188S is not res dudicata because the question now raised was not directly and substantially in issue in that suit, and there was the additional circumstance that the parties now arrayed as plaintiff and defendant were then arrayed as co-defendants; and, thirdly, that the decision in neither of the two previous litigations can operate as res judicata, because it was an erroneous decision upon a question of law, and the cause of action which has given rise to the present litigation is different from the cause of action in the previous suits.