Judgement

Appeal (No. 57 of 1940) from a decree of the High Court in its appellate jurisdiction (July 11, 1938) which reversed a decree of that court in its ordinary original civil jurisdiction (August 26, 1937).

The question for decision in this appeal was whether, in the case of a Hindu private religious endowment, on the death of the settlors (founders) only son and heir, on whom the deed of dedication conferred the life tenure of the office of sebait with subsequent limitations which were bad, the office of sebait devolved upon the heirs of the settlor or upon those of his son.

The facts appear from the judgment of the Judicial Committee, and the following pedigree shows the relationship of the parties to the settlor

Sital Chandra (d. 1929)

Rajlakshmi (d. 1926).

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Bhabatarini Panchanan (d. Sudhansh

(d. 1939) 1932) Badani (d.

Asmantara (d. 1928)

1939) Nirnjan.

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Ashalata Kanaklata Diptilata |

(Respondent). (Respondent). (Respondent). |

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Hriday Baidya Two

(Appellant) (Appellant) daughters.

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Kirti Bibhuti Mritunjoy Jyotirmoy Hiranmoy Four

(Appellant) (Appellant) (Appellant) (Appellant) (Appellant) daughters.

The trial judge (Khundkar J.) held that the sebaiti devolved upon the heirs of the settlor; and the High Court on appeal (Derbyshire C.J. and Mukherjea J.) were of opinion that the heirs of the son should succeed to the sebaiti.

J. M. Pringle for the appellants.

Sir Thomas Strangman K.C. and W. W. K. Page for the respondents.

1943. Jan. 22. The judgment of their Lordships was delivered by Sir George Rankin. This suit was brought in the High Court at Calcutta on August 22, 1933. The plaintiff was Bhabatarini, daughter and only child then surviving of one Sital Chandra Banerjee, a Hindu governed by the Dayabhaga, who had died in 1929. He had in his lifetime established certain family idols and had dedicated to them considerable properties, movable and immovable. His only son, Panchanan, had died in 1932, leaving a widow, Asmantara, and three daughters.

By her suit Bhabatarini claimed to have become on the death of Panchanan entitled to the sebaiti of the idols and to the management of the debutter property. She impleaded Asmantara and her daughters as persons wrongfully in possession of the debutter properties and falsely claiming to be sebaits though as between themselves the widow, on ordinary principles of succession, would of course take before the daughters. Bhabatarini and Asmantara have both died while the present appeal to His Majesty was pending, the former on February 15 and the latter on January 18, 1939. The question to be answered is whether on Panchanans death the sebaiti devolved upon his heirs—that is, in the first place, upon his widow— or whether it went to Bhabatarini as the person who at that date was the nearest surviving heir of the founder Sital Chandra. The learned trial judge, Khundkar J., took the latter view, and by his decree of August 26, 1937, found in favour of Bhabatarini, but on appeal Derbyshire C.J. and Mukherjea J. found in favour of Asmantara, and their decree of July 11, 1938, dismissed the suit. The same principles apply on the death of these two ladies. On the view taken by the trial judge the sebaiti is now vested in the sons of Bhabatarini and of the sister who had predeceased her—the seven appellants. On the view taken by the Appellate Bench it has devolved upon Panchanans daughters, the three respondents.

The terms of the dedication made by Sital are to be found in an arpannama or deed of dedication, dated March 31, 1922. Seven years afterwards he purported to cancel this instrument and to rededicate the same properties on different terms by a deed dated February 13, 1929 ; but the High Court have found, and it is now accepted by both parties to the present appeal, that this deed of 1929 had in law no effect upon the previous dedication. The provisions made by Sital for the devolution of the sebaiti are to be found solely in the deed of 1922. Those