The main legal point established in the judgment is that the appointments of shebaits made by Kalidas were void and the deed of endowment was unqualified and not affected by the appointments made.

JUDGMENT

Rankin, C.J. - The dispute in this case has reference to the shebait right in respect of the deity Sri Sri Raj Rajeswar founded and established by one Madhab Chandra Seal, a Hindu Inhabitant of Calcutta who died in 1866. By his Will made in 1861 and a codicil thereto he had dedicated a certain house, now known as No. 12, Madan Butt's Lane, and made certain provisions in that behalf.

2. The first question which arises upon this appeal is the question whether upon a true construction of this will the persons who from time to time should be trustees under the Will were made shebaits and were given power to appoint new shebaits from time to time. It is expressly conceded on behalf of the appellant Ashutosh Seal, one of the defendants to the suit, that if this question of construction be answered in the negative, he cannot claim under the original foundation any greater right than the decree under appeal has given to him in the office of shebait. The learned Counsel for the appellant has also stated before us that in this Court he does not contend that the plaintiff's suit should fail by reason that the Thakur itself has not been made a party to the suit. I propose, therefore, to address myself in the first instance to this question of construction and to postpone the examination of the facts and circumstances of the case until I have stated my conclusion as to the meaning and effect of those directions in the Will which have reference to the appointment of shebaits.

3. The testator having devised the house in question to the use of his wife Luckhymoney and his nephew Kalidas during their joint lives and to the survivor during life, with remainder to the use of the sons of Kalidas and their heirs male as tenants-in-common in equal shares, makes it clear that this bequest is subject to a trust to permit, such part or portion of the said house and premises as had been used as Thakurbari or for religious purpose to 0continue to be so used for the worship of the deity. He proceeds "I direct i the exeoatrix and executor of this my Will (whom I hereby appoint shebaits of my said Thakur) to allow the silver articles which have been used in the worship of the said Thakur during my lifetime to continue to be so used after my death."

4. This is the only passage in the Will making in express terms any appointment of shebaits. At the end of the Will the testator's wife and Kalidas are appointed executrix and executor. There is nothing in the codicil which can be construed as an appointment of she-baits. The contention for the appellant, however, is that in subsequent passages of the Will the testator has in effect appointed his executors to be trustees and has entrusted to his trustees for the time being the right to appoint their successors. In this way it is said that though the executors as such had been made original shebaits, the Will, upon a true construction, gives to the shebaits for the time being the right to appoint successors to the office of the shebaits. Now, the passage which follows the words which I have quoted bequeaths the residue of the testator's estate to his said wife and nephew upon trust for conversion and investment. It proceeds to direct the

trustees or trustee of this my Will to expend the sum of thirty rupees permensem for daily poojas in the said thakur bari and the additional sum of five hundred rupees per annum for poojas therein on extraordinary occasion...and to pay to my Gooroo the sum of four rupees per mensem during his life and the sum of ten rupees per annum for pooja times and to pay the said Kalidas Seal the sum of one hundred rupees per mensem during his life and so forth.

5. In the end two-thirds of the ultimate residue of the trust fund is given to the testator's wife and Kalidas in equal shares, the other third being bequeathed to Panchkauri Seal and his brother Prosaddas Seal in equal shares.

6. In my judgment there is no room upon the face of this Will for the construction which the appellant as