Judgement

Appeal (No. 51 of 1935) from a decree of the High Court in its appellate jurisdiction (July 20, 1934) reversing a decree of the High Court in its original jurisdiction (January 10, 1934).

This appeal raised questions as to the validity or otherwise of the provisions relating to the succession of the Shebaitship of certain Hindu idols contained in the will of Luckey Narain Dhur, deceased. The main question was whether the testator had in cl. 11 of his will laid down a line of succession, which is invalid under Hindu law.

The facts, the relevant provisions of the will, and the contentions appear from the judgment of the Judicial Committee.

The suit was tried by Panckridge J., who held that " Cl. 11 cannot be construed as an independent gift to the persons who happen to answer to the description of the eldest male lineal descendant of the original Shebaits at the time of their deaths. In my opinion the clause attempts to lay down a line of succession which is not permissible under the Hindu law and is therefore invalid on the authority of Manohar Mukherji v. Bhupendranath Mukherji (( 1932) I. L. R. 60 C. 452 ; 37 Cal. W. N. 29.)."

An appeal was heard by a Division Bench consisting of Costello and Lort-Williams JJ., who, setting aside the judgment of Panckridge J., held that " &. n can be construed as providing (inter alia) for independent gift for life to .... the persons who happened to answer the description of eldest male lineal descendants of [the testators two Shebait sons] at the times of their respective deaths, and they are the persons at present entitled to act as Shebaits."

1936. July 13, 14. De Gruyther K.C. and L. P. E. Pugh for the appellant.

Dunne K.C. and S. P. Khambatta for the respondents Nos. 1-5.

Sir Thomas Strangman for respondent Administrator-General of Bengal.

July 29. The judgment of their Lordships was delivered by

LORD THANKERTON. This appeal raises a question as to the validity of the provisions for the shebaitship of certain Hindu idols made by the will of Luckey Narain Dhur, who was a Hindu governed by the Dayabhag School of Hindu law, and who died on March 26, 1927. The following genealogical table will show the relationship of the parties —

Luckey Narain Dhur — Kadammoni Dasi

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Kartick Ganesh Ram

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Netye Madan |

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Lal Behary Bon Behary Rash Behary Banku Behary

The testator was survived by his widow and by his three sons. The material clauses of the will, which

was made and published on November 18, 1923, and under which his sons Kartick and Ram were appointed executors, are as follows "9. Subject to the payments aforesaid I give the rest and residue of my estate unto my executors and trustees upon trust to pay the balance of the income of my said estate to the Shebaits for the time being of the Thacoors Netai Gour and etc., established by me and located at my family dwelling-house No. 23, Sankaritola Lane to be applied by the said Shebaits for the time being for the expenses of daily Sheba and periodical festivals and ceremonies of the said Thacoors as are usually observed and performed in Hindu families of my caste and I direct that after the death of all the legatees under this my Will my executors and trustees shall make over the whole of the corpus and undrawn income of my said estate unto the Shebaits or Shebait for the time being of my said Thacoors upon the trusts as aforesaid.

" 10. It is my Will and I direct that the said house and premises No. 23, Sankaritola Lane shall always remain for the location and use of the said Thacoors and my Executors and Trustees or the Shebaits shall have no power or authority to sell mortgage or dispose of or deal with the said premises in any manner whatever and if at any time the said house and premises is acquired for any public purposes under any enactment for the time being in force them (sic) I direct that my exeutors and trustees shall with the money received for such acquisition purchase or build a suita