Judgement

Consolidated Appeals (Nos. 169 and 170 of 1919) from a judgment and decree (January 10, X908) of the High Court in its ordinary civil jurisdiction, the suit having been heard by a special Division Bench of two judges in order to obviate the necessity of an appeal to the appellate jurisdiction of the Court.

One Gobind Chandra Basak, a Hindu governed by the Bengal school of Hindu law, died on February 7, 1810. He had two wives, Kanakmoni Dasi and Bhaggobati Dasi, of whom the latter alone survived him. Bhaggobati Dasi died on May 29, 1841, having on that date executed a will the construction of which was the subject of the present litigation.

The will commenced with the words "To the fortunate Srijut Udoy Chand Basak, chief among the prosperous, I, Srimati Bhaggobati Dasi, endite this hukumnana"; it then proceeded to make the provisions stated in the judgment of the Judicial Committee.

The present suit was brought in 1904 by the first respond ent, a descendant of Gobind Chandra Basak and his wife Kanakmoni Dasi, who predeceased him, against numerous defendants for the construction of the will, and for a declaration that he was entitled to the shebaitship of the idols. The facts relative to the present decision of the Judicial Committee sufficiently appear from the judgment; the view taken by their Lordships made immaterial other questions to which the arguments at the hearing were directed.

The Division Bench (Brett and Mookerjee JJ.) by its judgment delivered on January 10, 1908, held that the plaintiff, and the defendants who were descended from Kanakmoni Dasi, were not heirs of Bhaggobati Dasi, and had no right to the shebaitship or the estate. The learned judges also held that the question as to those rights had not been determined by the previous litigation and the decree therein made on December 14, 1857, referred to in the judgment of the Judicial Committee. They further held (inter alia) that under the will Udoy Chand Basak was sole shebait, but that no heritable right of shebaitship was conferred on him; that the testatrix dedicated the whole of her stridhan properties to the idols named ; that the bequest of the surplus income of the two houses to Monmohini Dasi, Radha Kanta Sett, and Golapmoni was limited to their lifetime ; that the succession to the shebaitship opened on the death of Udoy Chand Basak, and that at that time Radha Kanta Sett was, according to the Dayabhaga, the heir of Bhaggobati Dasi, and entitled to the shebaitship and the properties ; that accordingly Behari Lal Sett and others were entitled, and not the present appellant Gopal Lal Sett and his brother. They further held that Joy Krishna Basak was at the date of Bhaggobatis death a lunatic, and therefore was permanently excluded from succession, The learned judges made a decree accordingly, and directed that certain accounts should be taken, and that a scheme should be submitted for the approval of the Court by the persons declared to be shebaits for carrying out the religious trusts of the will.

1921. Nov. 11, 14, 15, De Gruyther K.C., Dunne K.C., Ramsay, and K.C., Chaudhuri for the representatives of Gopal Lal Sett, appellant deceased.

Sir George Lowndes K.C., E. B. Raikes, and Dube for the representatives of Puma Chandra Basak, deceased respondent, and other respondents descended from Kanakmoni Dasi.

Upjohn K.C. and Kenworthy Brown for respondents descended from Bhaggobati Dasi through her grandson Radha Kanta Sett.

Parikh for Khoka, a minor respondent through his guardian ad litem.

Dec. 20. The judgment of their Lordships was delivered by

LORD BUCKMASTER. The history of the litigation of which these appeals form part, extending over a period of sixty-five years, has been carefully and minutely examined in the judgment of the learned judges of the High Court of Judicature at Fort William in Bengal, from which Court these appeals have been brought. Their Lordships therefore do not propose to attempt a repetition of the facts, except so f