Judgment

Mukherjea J.- This appeal is directed against an appellate judgment of the Calcutta H. C., dated 19-5-1950, which affd, the judgment of a single Judge of the Original Side of that Ct. passed on 9- 2-1949, in Suit No. 2481 of 1947.

2. The pltf. who is the applt, before us, is the widow of one Mrityunjoy Mullick, & wealthy Hindu resident of Calcutta, while the deft. who is still an infant, is the only son of Mrityunjoy born of his first wife Kiranbala, who died during the lifetime of her husband. The controversy between the parties centres round the short point as to whether the pltf, is entitled, after the death of her husband, to act as shebait of an idol named Sree Sree Nittogopal Jew founded by Mrityunjoy & his mother, either solely or jointly with the deft. her stepson.

3. To appreciate the points that have been canvassed before us in this appeal, it will be necessary to narrate a few antecedent fact about which there is no dispute between the parties. It may be stated here that neither side adduced any evidence before the trial Judge during the hearing of the case & the questions raised up the suit were argued as questions of law turning on the construction of the indenture which created the endowment as well as of the provisions of the Hindu Women s Rights to Property Act (Act XVIII [18] of 1937) as amended by Act (XI [11] of 1938).

4. It appears that one Dhananjoy Mullick, who was the adoptive father of Mrityunjoy, died on 28-8-1907, leaving behind him, his widow Nitto Sundari & the adopted son Mrityunjoy, who was then a minor. On 11-2-1910 Nitto Sundari obtained Letters of Administration to the estate of the deceased Dhananjoy limited during the minority of the adopted son. On 13-6-1920 the widow purchased a house property in the City of Calcutta -being premises No. 14, Syakrapara Lane- out of the monies belonging to the estate of her husband, & on 10-10-1934 she conveyed the said property to Mrityunjoy who had by that time attained majority. On the very same day that this property was conveyed to Mrityunjoy, Nitto Sundari & Mrityunjoy together executed an indenture, by which certain properties described in Sch. A & B of the document & inCluding premises No. 14, Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. The indenture recites that Nitto Sundari had, with the consent & concurrence of her son, established & consecrated the said idol & located it in premises No. 14, Syakrapara Lane, & that she had been performing the worship & periodical festivals of the deity according to Hindu rites. The documents lays down in detail the various rites, ceremonies & festivals of the idol that are to be performed daily or at specific periods, & the way in which the expenses necessary for these purposes are to be met from the income of the dedicated properties. A remuneration of 25 per cent, of the net income at the debater property has also been provided for the Shebait or Shebaits for the time being. After deClaring the various trusts, the indenture proceeds to produce for appointment of Shebaits & for devolution of shebaitship in the following manner:--- "That the said Sm. Nitto Sundari Dassi doth hereby constitute & appoint herself the Shebait of the said Thakur for & during the term of her natural life & doth hereby deClare that after her death her son the said Mrityunjoy Mullick shall become the Shebait of the said Thakur & after his death his wife Sm. Kiranbala Dassi & after her death the heirs of the said Mrityunjoy Mullick shall be & act as the Shebait or Shebaits of the said Thakur & she doth hereby deClare him or them such Shebait or Shebaits accordingly & doth hereby direct & deClarre that the daily worship & other periodical festivals & ceremonies of the said Thakur should be performance by such Shebait or Shebaits. Provided, however, that in case the said Mrityunjoy Mullick shall happen to die "without any issue or without giving any authority to his wife him surviving, to adopt, then such case it shall