A widow of the founder of an endowment has the power to create a new line of shebaits, and the Niyoga rule cannot be applied to invalidate an adoption.

Ramaswami, J.

1. This appeal is brought on behalf of the plaintiffs against the judgment and decree of the Additional Subordinate Judge of Mozaffarpur, dated 30th July 1945.

2. The plaintiffs 1 and 1(a) are the deities Sri Ram and Sri Janki installed in a temple in village Nawahi; and plaintiff No. 2 Mahanth Rasik Siromani is the shebait of the deities. The plaintiffs alleged that Ramanugrah Narayan Singh built the temple and installed the deities, Ram and Janki therein and spent a sum of about Rs. 9000 per year for maintenance of the temple, expenses of Rasbhog and entertainment of the Sadhus. In the year 1288 Fs., Ramanugrah endowed properties described in Schedule 1(a) of the plaint by way of Sankalp to the deities and constituted Mahanth Mithila Saran as a shebait. The properties yielded an income of Rs. 1200 or thereabout. As this was insufficient Ramanugrah continued to provide additional funds from his estate in order to carry out the objects of the endowment. In 1288 Fs. Ramanugrah laid the foundation stone of the temple, but he could not complete it as he died shortly after leaving a widow Mst. Jagatrup Kuer and two sons Awadhbehari Narain Singh and Janki Narain Singh. Janki died in Asin 1300 Fs., and Awadhbehari died in September 1903 without leaving any issue or any widow. On 28th June 1906 Jagatrup Kuer endowed properties described in Schedule 1/b of the plaint by a registered document. Jagatrup included all the properties of Schedule 1/a but she failed to state that there was an oral dedication by her husband of these properties. By this document the widow constituted herself as first shebait with power to nominate her successor. On 14th December 1914 the widow executed a deed of shebaitnama appointing Mithila Saran as shebait and handed over the idols and properties to his charge. On 14th June 1917 Jagatrup Kuer died but Mithila Saran continued to be she-bait for the endowed properties.

3. In the year 1929, the defendant claimed that he was nearest reversioner to the estate of Ramanugrah Narain Singh on the ground that he had been adopted by a collateral Kishun Kishore Narain Singh. The defendant challenged the validity of the endowment and claimed that he was entitled to the properties as the nearest reversioner of Mst. Jagatrup Kuer. The suit (Title Suit, 51 of 1929) ended in compromise. Mithila Saran acknowledged that endowment was not binding upon the defendant. The latter in his turn agreed that Mithila Saran would continue in possession and upon his death, defendant would get possession as owner of the properties. On 20th October 1935, Mithila Saran also executed a deed of Ladavi, exhibit 56, relinquishing in favour of defendant properties described in Schedule 1/c of the plaint. These properties were acquired by Mithila Saran out of the income of the religious endowment. On 14th April 1938, Mithila Saran died whereupon plaintiff No. 2, who was the seniormost Bairagi chela of Mithila Saran obtained possession of the properties. But on 12th July 1938, plaintiff No. 2 was forcibly dispossessed by the defendant who took charge of the temple and its compound and drove out the Sadhus who were inmates of the temple. The deities, plaintiffs 1 and 1/a, therefore, asked for a declaration of their title to the properties and plaintiff No. 2, Rasik Shiromani asked for a declaration that he is shebait and for recovery of possession of the properties on behalf of the deities. The plaintiffs have also asked for a decree for mesne profits.

4. The defendant contested the suit on the ground that Rasik Shiromani was not chela of Mithila Saran and was not competent to maintain the suit. The defendant alleged that Ramanugrah did not build the temple nor in-stal any deities or dedicate any properties. The defendant on the contrary asserted that Jagatrup Kuer was the founder, that she had alienated the properties by Samarpannama in 1906 under the spiritual influence of Mithila Saran. The defendant asserted that he was va