Sabyasachi Mukharji, J. -
(1.)It appears that one Sriram Mukherjee by a deed executed on 10th January, 1917, created a debutter in respect of his moveables and the premises being No. 15, Amherst Row, Calcutta and dedicated the said properties to the Idol Sri Sri Sitala Thakurani. By the said deed the settlor appointed himself as the only shebait. He thereupon stated, inter alia, as follows:
"I appoint my wife Srimati Kusum Kumari Devi and her brother Sreman Ashutosh Bhattacharyya who is my most affectionate and Sriman Nanilal Bhattacharyya son of Srimati Basanta Kumari Devi, the sister of my said wife, the Joint Shebaits after my death. After my death my said wife Srimati Kusum Kumari Devi and Sriman Ashutosh Bhattacharyya and Sriman Nanilal Bhattacharyya, being the shebaits of the said deity shall jointly and holding the same opinion, perform the Seba Puja and Bhog etc., of the said deity out of the income of the said debuttor property. My said wife, during her lifetime shall be one of the Shebaits and after her death the said Sriman Ashutosh Bhattacharyya and Sriman Nanilal Bhattacharyya only shall remain Shebaits and after their death, their male heirs according to seniority, shall be appointed She-baits and shall duly carry on the Seba and Puja etc., of the said Iswari Thakurani. ...."
(2.)One Hiranbala claiming to be the great grand-daughter of Sriram Chandra Mukherjee being the granddaughter of the Gyanada Devi who is alleged to be the daughter of Sriram Mukherji by his first wife has taken out this originating summons for answering the following questions:--
(a) Whether the plaintiff Sm. Hiranbala Devi as the sole heiress and legal representative of Haripada Bhattacharyya, the beneficiary under the said deed of dedication and coupled with the said decree is the shebait of the plaintiff deity along with the defendants; (b) Whether the offices of shebait-ship of the plaintiff deity has devolved upon the plaintiff Hiranbala Devi upon the death of her husband Haripada Bhattacharyya; (c) Whether the plaintiff Hiranbala Devi entitled to participate in the management and administration of the estate of the plaintiff deity; (d) What are the scope, effect and meaning of the said deed of dedication dated January 10, 1917 and the said decree dated January 31, 1938 and in the event there is any ambiguity, necessary directions be given for the same."
It is, however, denied and disputed in this case that Sreeram Mukherjee had another wife or that Gyanada Devi was a daughter of Sreeram Mukherjee or that the plaintiff is great grand daughter of Sreeram Mukherjee. In view of such dispute, in my opinion, it is inappropriate in this originating summons to attempt to answer questions (a), (b) or (c). Whether Hiranbala Devi at all has any right or claim to the said shebaitship is dependent upon whether she in fact is the great grand daughter of Sreeram Chandra Mukherjee. In view of the disputes raised, I, therefore, decline to answer the questions (a), (b) and (c) in paragraph 15 of the affidavit in support of the originating summons.
(3.)So far as question (d) is concerned, in my opinion, it is well settled that a testator by Will cannot lay down a line of inheritance which is inconsistent with general law of inheritance. This principle was laid down by the Judicial Committee in the case of Juttendro Mohan Tagore v. G.M. Tagore, (1872) Ind App Sup Vol. 47 (PC). In view, therefore, of the principle laid down in the aforesaid decision and the decision of the Judicial Committee in the case of Gnanasambandha Pandara v. Velu Pandavam, (1899) 27 Ind App 69 (PC) and the Full Bench decision of this Court in the case of Monohar Mukherjee v. Bhupendra Nath, AIR 1932 Cal 791 (FB) in my opinion it must be held that in so far as the settlor purported to lay down that after the death of Ashutosh Bhattacharya and Nanilal Bhattacharya their male heirs according to seniority would become the shebaits, the settlor was laying down a line of succession repugnant to Hindu Law. In the premises, the said provision is void. Counsel for the defendant contended that in so far as the settlor bequeathed the shebaitship to Ashutosh Bhattacharya and Nanilal Bhattacharya the same was valid and they became the shebaits absolutely. If the line of succession to be followed after the death of Ashutosh Bhattacharya and Nanilal Bhattacharya be void as contended on behalf of the plaintiff, then it was argued on behalf of the defendants that the devolution should be to the heirs of Ashutosh Bhattacharya and Nanilal Bhattacharya. I am unable to accept this contention. In this case, on proper construction of the clause set out hereinbefore it is manifest that Ashutosh and Nanilal were not made shebaits absolutely or were not given shebaitship absolutely. They were directed to be shebaits for their lives and the settlor laid down the line of succession on their death. A similar clause was considered by the Judicial Committee in the case of Ganesh Chandra v. Lal Behary, 63 Ind App 448 - (AIR 1936 PC 318) where the settlor by his Will appointed two executors' sons to be the shebaits and directed that upon the death, retirement or refusal to act by any of them or any of the future shebaits, the next eldest male lineal descendants of these two sons would act as shebaits. It was held by the Judicial Committee that there was severable and independent gift in favour of persons who were to take respectively on the death of the testator's two sons and on the death of these two sons succession to the office of shebaitship and the income of the estate must devolve according to Hindu Law of succession. The provision of the clause set out hereinbefore in so far as it related to the holding of the office of shebaitship after the death of the two sons constituted an invalid attempt to lay down a line of succession which was not permissible under the Hindu Law. In the aforesaid view of the matter, I must hold that in so far as the settlor purported to lay down that after the death of Ashutosh Bhattacharya and Nanilal Bhattacharya their male heirs according to seniority would become she-baits, the said direction is void, inasmuch as Ashutosh Bhattacharya and Nanilal Bhattacharya were not appointed shebaits absolutely. They were only given the right to act as shebaits for their respective lives. In my opinion on the death of Ashutosh Bhattacharya and Nanilal Bhattacharya the subsequent direction of devolution of interest being void, the shebaitship must revert to the heirs of the settlor. I, therefore, answer Question No. (d) by saying that as regards the deed of dedication in so far as it lays down on the death of Ashutosh Bhattacharya and Nanilal Bhattacharya the male heirs in seniority become shebaits, the same is void and on their death the shebaitship would revert back to the heirs of the settlor. I may mention here that the decree dated the 13th January, 1938, referred to in question has not affected this clause.