Judgment

R.S.SARKARIA, J:- These two appeals on certificate arise out of the appellate judgement and decree, dated July 21, 1969 of the High Court at Calcutta. The facts of the case are as follows:-

Late Babu Durga Charan Requitte was the grandfather of Satya Charan Requitte, defendant, and plaintiffs 1 and 2. He owned considerable immovable property. He was an inhabitant of Chandernagore (then a French territory). The suit property is situated in Chandernagore. Among others, it included a big residential house containing about 84 or 85 rooms with extensive grounds, gardens and tanks. In this house, which he was occupying for his residence, he had his family Deity Sree Sree Iswar Sridhar Jiew.

2. Durga Charan made and published two Wills, one dated June 4, 1898 with regard to his properties in the then British India, and the other dated June 6, 1898 with regard to his properties situated in the French territory of Chandanragore. By these two Wills, Durga Charan appointed his wife, Saraswati Dassi, his two sons, Shyama Chorone Requitte and Tarinin Chorone Requitte and his nephews, Ashutosh Das and Bhola Nath Das, executrix and executors and trustees of the estate left by him. The Wills provided that the trustees would hold the bequeathed properties left by the testator according to the terms of the Wills for the legatees and the beneficiaries mentioned therein. The Wills also provided that in case of death or retirement or refusal or incapacity to act of any of the trustees, the continuing trustees or trustee for the time being, or the executors or administrators of the last acting trustee might appoint any other person or persons to be a trustee or trustees in place of the trustee or trustees so dying or desiring to retire from or refuse etc. But, in no case, the number of the trustees should be less than two.

3. By his Will, dated June 6, 1898, Durga Chorone created an absolute Debutter in favour of the said family Deity and devised and bequeathed to his executors and trustees named therein, his dwelling house with gardens and tanks appertaining thereto situated in Chandernagore, upon Trust to stand possessed of and to hold retain and use the premises an endowed or Debutter property for the service and worship of" his said family Deity. By that will, he further directed that this family idol "shall be located in my said house in Chandernagore which said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or Idol."

4. The testator died on August 27, 1898. Thereafter, the Will, dated June 6, 1898, was duly probated and the trustees came into possession of the Debutter properties and carried on the administrator of the estate and the Sewa and Puja, as directed in the Will.

5. Smt. Saraswati, widow of Babu Durga Chorone, who was one of the trustees named in the Will, died on October 30, 1913, while her son, Shyama Chorone, another trustee died on Dec. 21, 1925. Thereupon, Tulsi Chorone son of Shyama Chorone was appointed a new trustee in place of his father, Bhola, the other cotrustee, refused to act as such. Therefore, his son, Davindra was appointed as trustee by the continuing trustees. Tarani Chorone died on or about May 29, 1939 and the continuing trustees appointed his son, Profulla Chorone as a trustee. Tulsi Chorone died on August 17, 1953 and the continuing trustees similarly appointed Bhagawati, son of late Shyama Chorone as a new trustee. Debendranath Das died on or about March 7, 1956 and the continuing trustees appointed Satish Chandra Das, a son-in-law of late Shyama Chorone as new trustee in his place.

6. In or about the year 1934, the descendants of the settlor, Durga Chorone, some of whom were the then trustees, referred certain disputes with regard to the endowed property to the arbitrarion of one Bhringeswar Sreemany. The disputes referred to the arbitrator included rival claims by the sons and grandsons of Durga Chorone, to their residence in the Debuttor property belonging the f