G.C. Gupta, J. - (1.) This appeal is directed against decree dated 22.9.1988 passed by the learned Trial Judge. The facts giving rise to the present appeal briefly stated are as follows : One Srinath Das an eminent vakil of this court governed by Dayabhaga School of Hindu Law died on 13.9.1907 leaving a Will whereby he created a Debutter and dedicated the following properties to the family idols Sri Sri Laxmi Janardan and Sri Sri Mangal Chand which were located at No. 10, Srinath Das Lane, Calcutta: (i) Premises No. 10, Srinath Das Lane, Calcutta. (ii) Premises No. 1, 4, 9 and 17, Srinath Das Lane, Calcutta. (iii) No. 14, Wellington Street, Calcutta. (iv) Premises No. D 47/209. D 47/210. D 47/210/1 -A and D 47/ 210/1 -B. Rampura, Varanasi, U.P. with furniture and fittings. (v) Various immovable properties in Khulna, Jessore and Faridpur (now in Bangladesh).
(2.) The testator had 5 sons one of whom died issueless long before the death of the testator. The testator appointed shebaits. The relevant portion of the Will where provision for appointment of shebaits is made reads as follows: "I appoint my youngest sort Rajendra Nath Das as Shebait, after him my eldest grandson Jogendra Nath Das alias Udoy Kumar Das in the male line, if legally fit and entitled to do the work, after him my next grandson in the male line Jatindra Nath Das alias Arun Kumar Das, if legally fit and entitled to do the work and so on my grandsons in the male line by my two sons Surendra Nath Das and Rajendra Nath Das according to seniority in age shall be successive shebaits. In default of my grandsons in the male line my great -grandson in the male line shall be successive shebaits in the manner stated above and go on for every one grade after another."
(3.) Rajendra Nath Das died on 25.1.1930. After his death Jogendra Nath Das became the Shebait. He died on 21.5.1972. Jatindra Nath Das died before Jogendra Nath Das. It appears, after his death, Bhuban Mohan Das assumed office of a Shebait. Although in the Will Jatindranath Das has been referred to as the youngest grandson of the testator, it has not been disputed by the parties that the said Bhuban Mohan Das was born during the life time of the testator. After the death of Bhuban Mohan Das, Dhirendra Nath Das the defendant No. 1, son of Jatindranath Das. staked claim to shebaitship on the basis that he is the eldest male member of the family. Bhuban Mohan Das by his Will dated 16.9.1981 has purported to appoint Sri Kanchan Kumar Das who is the defendant No. 9 as the next Shebait. The plaintiffs being some of the other great grandsons of the testator have presented the Originating Summons contending that (a) the line of succession laid down by the testator insofar as the same related to the persons who were not in existence at the time of his death is invalid; (b) after the death of Bhuban Mohan Das the office of Shebait has reverted to all the heirs of the testator; (c) that female descendants or male descendants through female descendants are not concerned with the subject matter and as such they were not made parties; and (d) that the plaintiffs and the defendants being the surviving great -grandsons of the testator are his heirs in accordance with the Hindu Law of succession obtaining at the time of the death of the testator and are the joint shebaits of the Debutter estate.;