The main legal point established in the judgment is the interpretation of the indenture and the application of the Hindu Women's Rights to Property Act in determining the shebaitship of the deity.

JUDGMENT

Mukharji, J. - This is a suit by the widow of Mrintunjoy Mullick deceased against his minor son Debebrata Mallick who is the sole defendant in this suit appearing through his guardian ad litem Goloke Nath Mullik appointed under order of this Court dated 21st November 1947. The plaintiff asks for a declaration that she is the sole shebait of the Deity Sri Sri Iswar Nitya Gopal Jiu or alternatively for a declaration that she is the joint shebait with the defendant and for construction of an indenture dated 10th October 1934 and for other reliefs No evidence has been led by any of the parties to this suit and questions raised in this suit have been argued on questions of law on the construction of the said indenture and interpretation of Hindu Women's Eights to Property Act (XVIII [18] of 1937) as amended by Act (XI [11] of 1938).

2. The issues raised are the following:

1. Is the plaintiff entitled to be the sole shebait of the deity as alleged in Para. 8 of the plaint?

2. Alternatively are the plaintiff and the defendant joint shebaits of the said deity?

3. Is the defendant the sole shebait as alleged in para. 3 of the written statement?

4. To what relief, if any, is the plaintiff entitled?

3. The material part of the geneological table which is relevant for the determination of the questions raised in this suit is set out hereunder:

4. Mritunjoy and Sm. Nitto Sundari executed an indenture dated 10th October 1934. The indenture recites inter alia the death intestate of Dhananjoy on 28th August 1907 leaving him surviving Sm. Nitto Sundari and Mritunjoy. Mritunjoy was the adopted son of Dhananjoy and Sm. Nitto Sundari. Mritunjoy was 32 years of age at the time of the execution of the indenture.

5. It is also recited in the indenture that premises No. 14 Sakrapara Lane, Calcutta, was purchased by Sm. Nitto Sundari in her own name on 13th January 1920 out of the monies belonging to Dhananjoy and conveyed to Mritunjoy by another indenture of even date with the indenture in suit. The Deity Sri Sri Iswar Nitya Gopal Jiu was established, consecrated and located at No. 14 Sakrapara Lane by Sm. Nitto Sundari with the consent and concurrence of Mritunjoy.

6. The indenture proceeds to dedicate to the said deity properties described in Schs. 'A' and 'B' thereof including premises No. 14 Sakrapara Lane.

7. The properties were conveyed by the indenture to Sm. Nitto Sundari as trustee on certain trusts in respect of No. 14, Sakrapara Lane, Calcutta, and other properties in Sch. 'A' separately and more particularly described in the said indenture.

8. After having declared the trusts the indenture proceeds to make provisions for the devolution and succession of the shebaits. The material provisions on this point may be summarised as follows:

(1) Sm. Nitto Sundari was constituted and appointed as the first shebait for the term of her natural life.

(2) After her death her son Mritunjoy was to become the shebait of the deity.

(3) After Mritunjoy's death his wife Sm. Kironbala and after her death the heirs of Mritunjoy shall be and act as the shebait or shebaits of the said Thakur.

9. As I have said before, Dhananjoy died intestate on 28th August 1907. Nitto Sundari died in or about the year 1938. Sm. Kironbala was the wife of Mritunjoy and she was the person referred to in the said indenture. Mritunjoy and Sm. Kironbala had their son the defendant Sm. Kironbala died on 14th January 1942. Mritunjoy married again within about a month's time and married the plaintiff on 25th February 1942. Mritunjoy died within a few months thereafter on 4th July 1942.

10. It is necessary at this stage to refer to a will which is pleaded in the written statement. It was alleged that two days before the death of Mritunjoy he executed a will on 2nd July, 1942 and probate of the said will was granted in September 1942. But on 18th June 1942 (1947?) such probate was revoked and the matter was set down as a contentious cause being testamentary Suit No. 3 of 1947. Such testamentary