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High Court Of Calcutta
Murari Mohan Dutt, D. C. Chakravorti
ANATH BANDHU DE - Appellant
Versus
KRISHNA LAL DAS - Respondent
Second Appeal 674 Of 1970
Decided On : 09/04/1978
HINDU LAW - SHEBAITSHIP - SUCCESSION - APPOINTMENT OF SHEBAIT - VALIDITY - LINE OF SUCCESSION IN TAIL MALE - VOID - APPOINTMENT OF IMMEDIATE SUCCESSOR BY FOUNDER - VALID - BREAK IN MODE OF DEVOLUTION - REVERSION TO HEIRS OF FOUNDER - ADVERSE POSSESSION - NOT ACQUIRED.
Fact of the Case:
The plaintiff, claiming to be the lawful shebait of a deity, filed a suit for a declaration of title, permanent injunction, and accounts. The defendant, the son of the last shebait, contested the suit, claiming that he was the lawful shebait. The lower courts dismissed the suit, holding that the line of succession in tail male laid down in the will of the founder of the debutter was void and that the plaintiff did not become the shebait after the death of the last shebait.
Finding of the Court:
The High Court held that the line of succession in tail male laid down in the will of the founder of the debutter was void and that the plaintiff did not become the shebait after the death of the last shebait. The court also held that the appointment of the defendant as the next shebait by the last shebait was invalid, as the last shebait was only entitled to appoint his immediate successor. The court further held that the shebaitship would revert back to the heirs of the founder, as there was a break in the mode of devolution as laid down by the founder.
Issues: 1. Whether the line of succession in tail male laid down in the will of the founder of the debutter was valid. 2. Whether the plaintiff became the shebait after the death of the last shebait. 3. Whether the appointment of the defendant as the next shebait by the last shebait was valid. 4. Whether the shebaitship would revert back to the heirs of the founder.
Ratio Decidendi: 1. The line of succession in tail male laid down in the will of the founder of the debutter was void, as it was opposed to Hindu law. 2. The plaintiff did not become the shebait after the death of the last shebait, as the last shebait did not appoint him as his successor. 3. The appointment of the defendant as the next shebait by the last shebait was invalid, as the last shebait was only entitled to appoint his immediate successor. 4. The shebaitship would revert back to the heirs of the founder, as there was a break in the mode of devolution as laid down by the founder.
Final Decision: The appeal was dismissed, but the parties were directed to bear their own costs throughout.
( 1 ) THIS appeal is at the instance of the plaintiff and it arises out of a suit for declaration of title, permanent injunction and for accounts.
( 2 ) THE case of the plaintiff was that one Nayan Chand Nandi installed the deity Sree Sree Gopinath Jew Thakur at 5a, 5b, and 5c, Ratan Babu Road, Cossipur, more than a century ago. His son Mathura Mohan dedicated the Ka schedule properties to the deity. The Kha schedule properties were acquired out of the income of Ka schedule properties. By an Arpannama executed by Mathura Mohan in or about Ashar 1229 B. S. , he appointed his widow Rashmoni and his brother's widow Jagadiswari as joint shebaits of the deity. The Arpannama is not, however, traceable. After the death of Jagadiswari, the shebaitship of the deity devolved upon Rashmoni who acted as the sole shebait up to about 1859. By a will dated October 21, 1859, Rashmoni appointed her relation Sristidhar as the shebait of the deity. Sristidhar, by a will which was probated, created a line of succession to the office of the shebait. He appointed his four sons, namely, Harinarayan, Haripada, Haribhusan and Harimohan as the successive shebaits and it was directed that after their deaths the eldest, for the time being amongst his grandsons, great grandsons and lineal male desendants would be the shebaits of the deity. As per the direction in the will of Sristidhar, Harinarayan, the father of the plaintiff, became the shebait.
( 3 ) IT appears thai there was some dispute amongst the sons of Sristidhar about the shebaitship of the deity. Haribhusan and Harimohan, the father of the defendant No. 1, instituted a suit, being Title Suit No. 89 of 1918 which was re-numbered as Title Suit No. 1 of 1927, in the Court of the Second Additional Subordinate Judge, Alipore, against Harinarayan and Sm. Manjusree Dasi, the widow of Hari-pada, relating to the shebaitship of the deity. That suit was eventually compromised between the parties and a compromise decree was passed on March 2, 1928. It was inter alia directed in the said compromise decree that the parties would be bound by the terms and conditions as mentioned in the will dated Magh 29, 1310 B. S. of the late Sristidhar Dey including the direction for appointment of successive shebaits. Further, it was directed that in accordance with the terms of the said will, the defendant No. 1 Harinarayan would continue as the she-bait, and on his death or relinquishment of the office of shebait, the plaintiff No. 1 Haribhusan Dey and in his absence, the plaintiff No. 2 Harimohan Dey would successively become the shebaits. Harinarayan remained the shebait till September 14, 1928 when he died and thereafter Haribhusan became the shebait. Haribhusan died on April 18, 1948 and thereafter Harimohan became the shebait. Harimohan died on March 3, 1960, but before his death he appointed his son Krishnalal, the defendant No. 1, as the she bait on February 7, 1955. The contention of the plaintiff was that the appointment of the defendant No. 1 was illegal. It was the plaintiff's case that he was the original shebait of the deity and was entitled to have the custody of the deity and to possess the debutter properties on behalf of the deity. Accordingly, the plaintiff filed the said suit for a declaration that he was the lawful shebait of the deity and for permanent injunction and accounts.
( 4 ) THE pro forma defendents Nos. 1 to 8, who are the heirs of the other sons of Sristidhar, supported the plaintiff. Krishnalal who was the principal defendant contested the suit. His defence was that under the Arpannama of Mathura Mohan, the relevant provisions of which were to be found in the will of Rashmoni, Sristidhar could not lay down any line of succession in his will. He was only entitled to appoint his next successor-shebait. In any event, Sristidhar having created a line of succession in tail male which was unknown to Hindu law, such line of succession was void and invalid. Harimohan, who was t
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