Sabyasachi Mukharji, J. -
(1.)KALI Charan Dhar who was possessed of considerable wealth created a debutter for the benefit of the Idol Thakur Shree Shree Iswar Radhakanto Jew, Sri Sri Iswar Radharani Thakurani and Sri Sri Iswar Narayan Jew. For the aforesaid purpose on the 29th January, 1938, the said Kali Charan Dhar executed a deed of dedication in respect of certain properties mentioned in the said deed including moveable and immovable properties and he conveyed the same to the trustees appointed by the said deed. He also laid down the manner of appointment of the trustees. It is not necessary for the purpose of this originating summons to refer to the said clauses in detail. It is sufficient if it is mentioned that in the deed the settlor expressed the intention of making dedication completely in favour of the said deities. The settlor appointed himself the first shebait and thereafter provided as follows:
And the said donor doth hereby declare and direct that from and after the death of the Donor his sons Ramesh Chandra Dhar, Sripati Charan Dhar, Suresh Chandra Dhar, Tarak Chandra Dhar and Gonesh Chandra Dhar and their respective heirs shall be the shebaits of the said idols and Thakurs Sree Sree Issur Radhakanto Jiu, Sree Sree Issur Radharani Thakurani and Sree Sree Issur Narain Jew and that they shall perform the daily and periodical shebas or worships of the said Idols in the following manner, that is to say the said Ramesh Chandra Dhar and his heirs shall perform the daily and periodical sheba for the 1st year following the death of the Donor, the said Sreepati Charan Dhar and his heirs during the second year, the said Suresh Chandra Dhar and his heirs during the third year, the said Tarak Chandra Dhar and his heirs during the fourth year and the said Gonesh Chandra Dhar and his heirs during the fifth year and so on from year to year in rotation. And it is further declared that after the death of any of the said Ramesh Chandra Dhar, Sreepati Chandra Dhar, Suresh Chandra Dhar, Tarak Chandra Dhar and Gonesh Chandra Dhar their respective male heirs shall be the Shebaits in their place and stead.
(2.)THE said Kali Charan Dhar died intestate on or about 8th February, 1940 leaving him surviving his five sons, namely, Ramesh, Sripati, Suresh, Tarak and Gonesh. Thereupon, Suresh Chandra and Manmatha Nath Das became the Trustees of the said debutter estate in place and stead of the said settlor Kali Charan Dhar along with Tarak Chandra Dhar and Ramesh Chandra Dhar in terms of the said deed. On or about 30th June, 1947, a suit being Suit No. 1731 of 1947 was instituted by Sripati Charan Dhar one of the sons of Kali Charan Dhar since deceased for construction of the said deed dated 29th January, 1938, for framing of a scheme, for proper management of the debutter estate and for other reliefs. On 4th January, 1950, a preliminary decree was passed by consent of the parties in the said suit. Pursuant to the preliminary decree, special referee was appointed for framing a scheme. There was an application for variation of the scheme and certain modification of the scheme was accepted and a decree was passed by this Court on the 8th September, 1954. On the 8th September, 1958 Ganesh Chandra Dhar died intestate leaving him surviving his widow Radharani and three sons, namely. Gora Chand, Gorak Chand and Gobinda Chand being the defendants Nos. 4, 5 and 6. On 27th February, 1949, Ramesh Chandra Dhar died intestate leaving him surviving his widow Santosh Kumari Dassi, four sons, namely, Kedar Nath Dhar, since deceased, Kanailal Dhar, Baidyanath Dhar since deceased and Sambhu Nath Dhar, eight daughters, namely, Sm. Sova Rani Dhar since deceased, Sm. Rebati Dhar, Sm. Parbati Dhar, Sm. Uma Rani Dhar, Sm. Jayabati Dhar, Sm. Kankabati Dhar, Sm. Menokabala Dhar and Sm. Ashima Dhar. On the 29th November 1964 the said Kanailal Dhar died intestate leaving him surviving certain heirs mentioned in paragraph 17 of the affidavit in support of the summons. Baidya Nath Dhar died intestate on the 7th December, 1966, leaving him surviving his heirs as mentioned in paragraph 18 of the said affidavit. Suresh Chandra Dhar died on the 23rd December, 1966, leaving him surviving his three sons as mentioned in paragraph 19 of the said affidavit. Kedar Nath Dhar died intestate on the 18th January, 1973, leaving him surviving his widow Satyavama Dassi and two sons being defendants Nos. 15 and 16 namely Sachindra Nath Dhar and Rathindra Nath Dhar and three daughters. Sovarani Pal died on the 14th October, 1973, leaving her surviving her husband and other persons mentioned in paragraph 21 of the said affidavit. There were orders from time to time by this Court regarding appointment of trustees, In terms of the scheme of worship current turn or pala commenced from 8th February, 1975, and ended on 7th February, 1976. The next turn or pala of worship commencing from 8th February, 1976, and ending on the 7th February, 1977, was due to Sripati Charan Dhar since deceased, Sripati died intestate on 20th April, 1972, leaving him surviving the said Tarak Chandra Dhar as his only surviving brother and soil male heir under the Hindu Succession Act, 1956. In the premises on the death of Sripati Charan Dhar the shebaiti right belonging to Sripati under the deed of debutter devolved on his only surviving brother and sole male heir vested in Tarak Chandra Dhar. according to the plaintiffs. The plaintiffs in these circumstances have taken out this originating summons for answers to the three following questions:
(a) Whether upon death of Sripati Charan Dhar on April 20, 1972, Tarak Chandra Dhar became entitled to perform Sevapuja or pala of the idols Sree Sree Iswar Radhakanto Jew, Sree Sree Iswar Radharani Thakurani and Sree Sree Iswar Narayan Jew in terms of the Deed of Debutter Settlement dated January 29, 1938 as the only male heir of Sripati Charan Dhar.
(b) Did the right to perform Shebapuja or pala to the said idols by Sripati Charan Dhar devolved on and/or vested in Tarak Chandra Dhar on April 20, 1972, as the only male heir upon the death of Sripati Charan Dhar.
(c) Are the plaintiffs entitled to perform pala or seba puja of the idols Sree Sree Iswar Radhakanto Jew, Sree Sree Radharani Thakurani and Sree Sree Iswar Narayan Jew as heirs of Tarak Chandra Dhar since deceased in place and stead of Sripati Charan Dhar, since deceased in terms of the Deed of Settlement dated January 29, 1938.
(3.)IT was contended on behalf of the plaintiffs that shebaitship was property and the devolution of the said property as indicated by the Deed of Settlement was not repugnant to Hindu Law.
The settler did not lay down any line of succession repugnant to Hindu Law but only provided for gift over to the male heirs in the contingency contemplated by the said deed. In aid of the argument that where the property was given to the trustees and shebaits had no personal or beneficial interest in the debutter property the rule in Tagore v. Tagore, 1872 Ind App Supp Vol. p. 47 (PC) ought not be made applicable, reliance was placed on the decision of Gokul Chand De v. Gopi Nath Dey,, AIR 1952 Cal 765. On the other hand counsel relied on the decision in the case of Madhavrao Ganpatrao v. Balabhai Raghunath,, 55 Ind App 74 = ( : AIR 1928 PC 33) as also unreported judgment of A.K. Sarkar, J., in Suit No. 3245 of 1952 (Cal) - Ganesh Chandra Dhar v. Sripati Chandra Dhar. It was, further, contended that pala or turn of worship was itself property and as such heritable and the settlor had laid down a line of devolution and according to the intention of the settler on the death of Sripati Chandra Dhar, Tarak Chandra Dhar became his sole heir and, therefore, the right of pala or turn of worship on Sripati's death had developed on Tarak Chandra Dhar. In aid of this submission reliance was placed on the decisions in the case of Mitta Kunta Audhicarry v. Neerunjun Audhicarry,, (1875) 14 Beng LR 166 in the case of Limba v. Rama, : (1889) ILR 13 Bom 548 and in the case of Nirode Mohini Dassi v. Shibadas Pal,, (1909) ILK 36 Cal 975. Reliance was also placed on the decision of this Court in the case of Sm. Sovabati Dassi v. Kashi Nath, : AIR 1972 Cal 95.