The main legal point established in the judgment is that the founder could not alter the appointment of shebaits without a reservation in the trust deed.

JUDGMENT

Graham, J. - This appeal is by the plaintiffs from a decision of the Subordinate Judge, Second Court, Hooghly, reversing a decision of the Munsif, First Court, Hooghly, and arises out of a suit brought by the appellants for recovery of possession of certain properties upon dectaration of their title thereto as she-baits of a certain deity, and further for a declaration that defendant 1, now respondent, had acquired no right as shebait.

2. The properties in question formerly belonged to one Kadambini Dasi, who by an arpannama, or trust deed dated 15th Aghrayan 1316 B. S. (1st December 1909) dedicated the same to her father's family deity Rajrajeswar Thakur, at the same time appointing herself as shebait for the duration of her lifetime. There was a provision in the deed that on her death her father's agnate, Sashi Bhusan Nag, or failing him some other cosharer, who might be living should succeed as shebait.

3. Kadambini died in Chaitra 1325 B. S. (1919), and thereupon defendant 1 took possession of the properties in suit claiming to have been appointed shebait by a will executed by Kadambini about two months prior to her death. The plaintiff then instituted this suit contesting the validity of the will; and pleading further that in any case defendant 1 had renderei himself liable to be removed from his office as shebait by failing to comply with the directions contained in the will.

4. Defendant 1 pleaded that his appointment as shebait under the will was perfectly valid and that he had carried out the directions in the will.

5. Of the other defendants 2 to 8, defendants 4 to 8 appeared and supported the case of defendant 1.

6. The trial Court on the authority of the case of Gouri Kumari v. Indra Kumar AIR 1933 Cal. 30 held that Kadambini had no power to make any change in the order of succession of shebaits as laid down in the deed of endowment, and that consequently defendant 1 had acquired no right. The Munsif held further that defendant 1 by failing to live on Kadambini's ancestral bhita as enjoined in the will, had forfeited his right to the shebaitship and had rendered himself liable to removal. The suit was accordingly decreed.

7. An appeal was then taken to the District Court, and the learned Subordinate Judge following a later decision of this Court Sripati Chatterjee and Others Vs. Khudiram Banerjee and Others, AIR 1925 Cal 442 held that Kadambini had during her lifetime power to alter the appointment of shebait, and that the appointment of defendant 1 was valid. He further found that there had been no default on the part of defendant 1 in regard to compliance with the directions of the will. The appeal was accordingly allowed and the suit dismissed with costs. The plaintiffs have now preferred this second appeal.

8. The question of law involved is whether Kadambini having executed the de-buttar, or trust deed could by her will subsequently executed change the order of succession of shebaits in tb.8 absence of any reservation made to that effect in the trust deed. A translation of that deed has been placed before us, and we are satisfied that it contains no clause reserving such power. That being so the matter seems to be concluded by the decision of this Court in the case of Gouri Kumari Dassi v. Indra Kamar, which was relied , upon by the trial Court. The learned Subordinate Judge preferred, to use his own words, to follow a later decision of this Court Sreepati Chatterjee v. Khadi Ram but we think that he erred in so doing for two reasons, partly because the observations upon the point in the later case were in the nature of obiter dicta, and partly because that decision is directly in conflict with the earlier decision.

9. It was urged on behalf of the respondents that in any event the plaintiffs are not agnates of Shashi Bhusan Nag, and that they cannot therefore be shebaits. The evidence however does not substantiate this, and goes to show that they are agnates, and as such qualified to hold the office. If the m