I.P.MUKERJI, J. - (1.) QUESTIONS are asked to this Court on this Originating Summons, under Chapter XIII of the Original Side Rules. The questions are posed by one of the Shebaits of the estate of the deity Thakurani Shree Shree Durga Mata Jew. The questions concern the last Will and Testament of Baikuntha Nath Dutta, a very wealthy citizen of Calcutta, made on 30th July, 1916. He was profoundly religious too. In 1900, he had founded a "thakurbari". He installed this deity there and started worship. By this Will various properties of the testator were dedicated to the above deity housed at the Thakurbari at No. 32, Jugernath Dutta Lane (27, Raja Dinendra Narayan Roy Street, Kolkata). Shebaits were appointed. Clause 5 of the Will dealt with the devolution of Shebaitship. It is set out hereunder: "5. To pay out of the said income as remuneration to the said Shebait or Shebaits as hereinafter provided for acting in the sheba and trust and I direct that after the defraying of the various expenses above directed if there shall be any surplus the same shall not in any ways become payable or divisible amongst my heirs or Shebaits who shall have no claim to any portion thereof but to be invested in the purchase of landed property or Government promissory notes to be held by him or her or them as the case may be upon the trusts hereinbefore declared and on the same conditions herein contained I hereby declare that my wife Srimati Khaganbala Dasi should she survive me will be the First Shebait of the Thakuranee Sree Sree Durgamata Jue and Trustee of the properties which I have hereby dedicated and made Debuttor and as I have no son I declare that after the death of my wife Srimati Khagen Bala Dasi my four daughter Srimati Prabhabati Dasi, Srimati Indumati Dasi, Srimati Pankajini Dasi and Srimati Bibhabait Dasi (the first two named daughter are being childless widows) or such of them as will survive me and my wife shall be the shebaits and Trustees of the Thakurannee Sree Sree Durgamata Jue and of the said Debuttor property. And I declare that on the death of my said daughters Srimati Prabhabait Dasi and Srimati Indumati Dasi or either of them her or their shares of shebait rights and reminerations shall lapse and pass on equally to my two other dauthers Srimati Pankajini Dasi and Srimati Bibhabati Dasi only and in the event of the demise of both or either of the latter namely Srimati Pankajini Dasi and Srimati Bibhabati Dasi the said rights and remunarations of Srimati Prabhabati Dasi and Srimati Indumati Dasi or of either of them should pass on respectively to the sons of the said Srimati Pankajini Dasi and Srimati Bibhabati Dasi irrespective of whichever of them predeceases the other. And I further declare that if my said daughters Srimati Pankajini Dasi and Srimati Bibhabati Dasi shall die at any time before or after acceptance of shebaitship their respective sons will be entitled to become shebaits in the place of their respective mothers the said Srimati Pankajini Dasi and Srimati Bibhabati Dasi. And I also declare that after the death of my last surviving daughter such of the sons of my said daughters Srimati Pankajini Dasi and Srimati Bibhabati Dasi as will follow the Hindu religious shall be the Shebaits and Trustees of the Thakuranee Sree Sree Durgamata Jue and of the said Debuttor property and on the death of any or all my grandsons their respective Shebait rights shall pass on to their respective sons and their sons in perpetuity as the heirs of their respective fathers. And I hereby declare that it shall be lawful for the shebait or shebaits ............ (Illegible) being to act in the Trust by his her or their duly constituted attorney's whenever it shall appear to the said Shebait or Shebaits just and convenient.................. ."
(2.) THE Will was altered by a Codicil dated 15th July, 1919. The alteration with regard to succession was as follows: "I hereby declare that my wife Sreemutty Khagan Bala Dassi, should she survive me, my third daughter Sreemutty Pankojini Dassi and my son -in -law - Arindom Mitter, the husband of my said third, daughter Sreemutty Pankojini Dassi, will be the first Shebaits after my death of the Thakoorani Sree Sree Doorga Mata Jue and Trustees of the properties which I, by my said Will dated 30th July 1916, have dedicated and as also hereby dedicate and make Debutter and after them my legal heirs, Viz. all the sons of my said third daughter Sreemutty Pankojini Dassi will be Shebaits and Trustees of the Thakoorani Sree Sree Doorga Mata Jue and of the said Debutter property but only such of them as will follow the Hindu Religion and on the death of all or any of grand -sons their respective Shebait rights or Shebaits' rights shall pass on their respective sons and their sons and their son's sons in perpetuity as heirs of their respective fathers even if any of my grandsons predecease their mother the said Sreemutty Pankajini Dassi leaving male issue and I hereby declare it shall be lawful for the Shebait or Shebaits for the time being to act, in the Trust by her his or their constituted attorneys whenever it shall appear to the said Shebait or Shebaits just and convenient." Many years have passed since the making of this dedication. The main question that is posed is whether the stipulation in the Will and in the Codicil that Shebaitship would vest only in sons of the Shebaits is valid or not. The problem in this case concerns the rule against perpetuity. The rule applies equally to transfer of property inter vivos as it does to transmission of property by succession. In this case those rules regarding transmission of property by succession are relevant. It is a very ancient English rule. It arose out of policy considerations. The owner of a property, while bequeathing it, could not postpone the vesting of the absolute legal and beneficial ownership thereof indefinitely. He could not fetter the powers of alienation, indefinitely.
(3.) AS Lord Nothingham LC observed in 1681 in the Duke of Norfolk's case (1681) 2 Swans 454 at 460: "the law hath so long laboured to defeat perpetuities, that now it is become a sufficient reason of itself against any settlement to say it tends to a perpetuity ... such perpetuities fight against God, by affecting a stability which human providence can never attain to, and are utterly against the reason and policy of the common law." ;