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1980 Supreme(Pat) 178
PATNA HIGH COURT
Medini Prasad Singh, J.
Sitesh Kishore Pandey
Versus
Ramesh Kishore Pandey
Appeal From Appellate Decree No. 736 of 1975 ;
Decided On : SEPTEMBER 5, 1980
The line of succession laid down in Samarpannama was invalid as it created successive life estates, which is not permissible under Hindu Law.
Headnote:
HINDU LAW - SHEBAITSHIP - VALIDITY OF LINE OF SUCCESSION - APPOINTMENT OF SHEBAITS - INTERPRETATION OF DEED OF ENDOWMENT - EXERCISE OF POWER BY APPELLATE COURT UNDER ORDER 41, RULE 33 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
The dispute arose over the validity of the line of succession of Shebaits after the death of Kaushal Kishore Pandey, as laid down in Samarpannama (Ext. 9) dated 10.04.1926, executed by Ramudar Pandey and Ram Manohar Pandey. The lower courts had removed the appellant, Sitesh Kishore Pandey, from Shebaitship due to his omissions and commissions. The appellant challenged the validity of his removal and the lower appellate court's modification of the trial court's decree, which granted Shebaitship to the plaintiffs and defendants 2 and 3, in the absence of an appeal by the plaintiffs.
Finding of the Court:
The High Court held that the line of succession laid down in Samarpannama was invalid as it created successive life estates, which is not permissible under Hindu Law. The court also held that the lower appellate court had the jurisdiction to modify the trial court's decree under Order 41, Rule 33 of the Code of Civil Procedure, as it was necessary to do complete justice between the parties.
Issues: 1. Whether the line of succession laid down in Samarpannama was valid under Hindu Law? 2. Whether the lower appellate court had the jurisdiction to modify the trial court's decree under Order 41, Rule 33 of the Code of Civil Procedure in the absence of an appeal by the plaintiffs?
Ratio Decidendi: 1. The court held that the line of succession laid down in Samarpannama was invalid as it created successive life estates, which is not permissible under Hindu Law. The court relied on the principles laid down in Tagore V/s. Tagore, (1872) 9 Beng LR 377, and Ganesh Chandra V/s. Lal Bihari, (1936) 63 Ind App 448, which held that a person capable of taking under a will must be in existence at the death of the testator and that no person can succeed thereunder as heir to the estates described in the terms which in English Law would designate as estates tail. 2. The court held that the lower appellate court had the jurisdiction to modify the trial court's decree under Order 41, Rule 33 of the Code of Civil Procedure, as it was necessary to do complete justice between the parties. The court relied on the wide language of Order 41, Rule 33, which empowers the appellate court to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require.
Final Decision: The appeal was dismissed.
1. This second appeal filed by defendants I and 2 and the deity Ram Jankiji (D. 9) raises a question as to the validity of the line of succession of Shebaits after the death of Kaushal Kishore Pandey (who died in 1962) as laid down in Samarpannama (Ext. 9) dated 10.04.1926, executed by Ramudar Pandey and Ram Manohar Pandey.
It raises a further question as to whether the lower appellate Court while dismissing the appeal before it, was competent under Order 41, Rule 33 of the Code of Civil Procedure to set aside the decree granted by the trial Court in favour of defendants 2 and 3 in absence of any appeal by the plaintiffs and when the appeal was filed only by defendants 1 and 9. This will clearly appear from the questions formulated by this Court by order No. 6 dated 13th August 1979. The main appellant is defendant No. 1 Sitesh Kishore Pandey, the eldest son of Kaushal Kishore Pandey. Appellant No. 3 is his son. Defendant No. 1 has lost in both the courts below. The following genealogical table will show the relationship between the parties: It is agreed that the line of succession is valid up to Kaushal Kishore Pandey. It is also an admitted fact that after his death in 1962 his elder son Sitesh Kishore acted as Shebait. The plaintiff-respondents have challenged the validity of his appointment as Shebait. He has been removed from Shebaitship by the two Courts below on account of his omissions and commissions, that is, executing sale deeds and transfers of a number of properties of the deity, for cutting trees of the deity and amalgamating the land of the deity with his own land etc. The Subordinate Judge, Darbhanga by his judgment dated 28th June 1967, held that after his removal from Shebaitship, the plaintiffs and all the adult members of defendants second party, namely, the sons of defendant No. 1 were entitled to be Shebaits of Thakurji as provided in the deed of endowment (Ext. 9) and directed defandant No. 1 to make over charge to them within two months from the date of his judgment. Defendant No. 1 and the deity took an appeal to the District Judge, Darbhanga. It was heard by the Second Additional District Judge, Darbhanga who affirmed the judgment of the trial Court with some modification holding that P.W. 1 was alone the nearest agnate of the founders and he alone was entitled to be Shebait under law, that defendant second party being remote agnatic relations of the founders were not entitled to be Shebaits. To this extent, modification was made in the decree of the trial Court and with this modification he dismissed the appeal. Hence this second appeal by defendants 1, 2 and 9.
2. In order to appreciate the two contentions raised on behalf of the appellants, it is necessary to quote here the material provisions of the deed of endowment (Ext. 9) which was created on 10th April, 1926, and under which Kaushal Kishore Pandey and his eldest son and others were appointed Shebaits. They are as follows:-
"We the executants shall remain managers of the aforesaid property on behalf of Shri Sanehi Siromani Rai Sri Ram Jankiji during our lifetime. If any male, issue is born to us the executants, in that case, after the death of us the executants, the said male issue shall be manager. If the said male issue is minor, in that case, Babu Kaushal Kishore Pandey cousin brother of us the executants shall be the guardian of the said minor and manage the affairs till he attains majority. After attaining majority, he himself shall manage the affairs. If several sons are born, all the sons, the heirs, shall be the managers of the said Dewottar property. In this way, male issue of the family of us the executants shall be Shebait and manager, generation after generation.
(2) If no male issue is born to us the executants, and if we die issueless, in that case, the two widows of us the executants shall be the managers of the dedicated property aforesaid and they shall manage the entire affairs with the advice of Babu Kaushal Kishore
