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HIGH COURT OF CALCUTTA
G. K. MITTER, J.
Raikishori Dassi
Versus
Official Trustee of West Bengal
Suit No.318 of 1959
Decided On : 21-09-1959
WILL - CONSTRUCTION - SHEBAITI - SUCCESSION - HINDU LAW - RULE IN TAGORE V. TAGORE - APPLICABILITY - VALIDITY OF CLAUSE 4 OF THE WILL - RIGHT OF PLAINTIFF AS SHEBAIT - INTERPRETATION OF CLAUSE 4 - JOINT TENANCY - PRINCIPLE OF SURVIVORSHIP - APPLICABILITY - RIGHT OF PLAINTIFF TO ACT AS SHEBAIT - COSTS.
Fact of the Case:
The plaintiff, the only surviving daughter of the testator, filed a suit for a declaration that she had become a shebait of certain deities in the place of the deceased, Tarag Dassi and Kristo Moti Dassi, for construction of the Will of Pulin Behari Dutt dated March 5, 1934 for the purpose of ascertaining succession to the shebaitship of the deities mentioned in the plaint, for a declaration that the purported consent decree dated August 7, 1936 in Suit No. 1695 of 1935 and the purported order dated August 23, 1941 in Suit No. 14 of 1941 are not binding on the plaintiff, for an injunction restraining the defendant Gora Chand Dutt from preventing the plaintiff from acting as a shebait and for other reliefs.
Finding of the Court:
The Court held that the provision for appointment of shebaits to succeed the two daughters and the nephew is invalid according to Hindu Law. The direction that after the death of the named persons "the lineal male descendant or descendants of the said shebaits shall be the shebait of the said deity," infringes the rule of succession in Hindu Law. The testator sought to appoint only the descendants in the male line of the named shebait to function after their death to the exclusion of females. The Court further held that the plaintiff is entitled to be a present shebait of the deity. The Court also held that the costs of all parties appearing must come out of the debutter estate.
Issues: 1. Does the provision of clause 4 of the Will of Pulin Behari Dutt attempt to lay down a line of succession to shebaiti not permissible in Hindu Law? 2(a). On the proper construction of the Will of Pulin Behari Dutt is the plaintiff the present shebait of the Deity? (b). If so, is the plaintiff in possession of the shebaiti as contemplated by section 14 of the Hindu Succession Act? 3(a). Is the provision in clause 12 of the Will invalid for the reasons given in paragraph 26 of the plaint? (b). Is the plaintiff entitled to the accumulated funds in the hands of the defendant No. 1? 4. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: The rule in Tagore v. Tagore (I A Sup Vol. 47) (PC) is applicable to the office of the shebait in this case. The testator sought to appoint only the descendants in the male line of the named shebait to function after their death to the exclusion of females. The testator never intended to make any independent gift to any one in particular after the death of the named shebaits.
Final Decision: Suit decreed.
2. The defendants in this suit are (1) the Official Trustee of West Bengal, (2) Gora Chand Dutt, a nephew of the Testator, Pulin Behari Dutt, (3) Premchand Sen, (4) Dunialal Dhur, (5) Kedarnath Dhur, (6) Gopal Chand Dhur and (7) Kalidas Dhur, being daughters sons of the said testator and lastly (8) Sree Sree Lakshmi Mata Jew, a Hindu Idol located at 43, Bancharam Akrur Lane, Calcutta. The plaintiff is the only surviving daughter of the testator. A genealogical table showing the relationship of the parties is given below :
3. The testator Pulin Behari Dutt executed a Will on March 5, 1934 appointing his youngest daughter Kristomati Dassi, his nephew, Gora Chand Dutt and one Ajit Kumar Roy as the executrix and executors of his Will. The Will recites that the testator had five immovable properties namely (1) 18, Thakurdas Lane, (2) 16, Chaitan Sen Lane, (3) and (4) 13 and 13/1/1, Hidaram Banerjee Lane, (5) a plot of land situate at Kayatolla Road, Ballygunge. Excepting the last mentioned property all the others are situated within the original jurisdiction of this court.
4. The material portions of the relevant provisions of the Will are as follows :
Clause 3 - "I have established the deity or Thakur Sree Lakshmi Mata Jew at present located at 33/2D Sankaritolla East Lane to be removed to my own house at premises No. 18, Thakurdas Palit Lane as hereinafter provided."
Clause 4 - "I give devise bequeath and dedicate unto the said deity ............ all that the messuages lands hereditaments and premises No. 18, Thakurdas Palit Lane ................ for ever and absolutely and I hereby appoint my eldest daughter Sreemutty Tarak Dassee, my youngest daughter Sreemutty Kristomati Dassee and my nephew Gora Chand Dutt ............ jointly to be the shebaits of the said deity or Thakur Sree Sree Lakshmi Mata Jew for their respective life or lives and after their death the lineal male descendant or descendants of the said shebaits shall be the shebaits of the said deity or Thakur ...........
Clause 5 - "I hereby direct my executors and trustees to keep the said premises No. 18, Thakurdas Palit Lane in Calcutta in good repair and habitable condition and to pay the Municipal Taxes, Government Revenue and other outgoings in respect of the said premises out of the income of my estate."
Clause 6 - "I hereby further direct my executors and trustees to collect the rents issues and profits of my estate including the said premises No. 18, Thakurdas Palit Lane and to pay thereout the repairs, municipal taxes, Government revenue and other outgoings and also to pay the expenses of the daily and periodical Sheba or worship of the said deity .............. to the said shebaits in the manner mentioned in Schedule A hereunder written and the surplus to be invested in Government Promissory Notes or Municipal Debentures which shall merge in Debutter Estate."
5. By clauses 7 and 8 the testator directed the executors and trustees to allow his wife and his youngest daughter with her family to reside in a portion of the said premises No. 18, Thakurdas Palit Lane during the term of their natural lives.
6. By clause 9 the testator directed his executors and trustees to pay out of the income of his estate a sum of Rs. 30/- per month to his wife Sreemati Saibalini Dassee for her maintenance during the term
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