Profulla Chorone Requitte & Ors. v. Satya Chorone Requitte

SARKARIA, J. These two appeals on certificate arise out of the appellate judgment and decree, dated July 21, 1969, of the High Colll1 at Calcutta. The facts of the case are as follows :- ---~ Late Babu Durga Charan Requitte was the grandfather of Satya

Charan Requitte, defendant, and plaintiffs l and 2. He owned consi-derable immoveable property. He was an inhabitant of Chander-nagore (then a French territory). The suit property is situated in Chandernagore. Among others, it included a big residential house containing about 84 or 85 rooms with extensive grounds, gardens and tanks. In this house, which he was occupying for his residence, he had his family Deity Sree Sree Iswar Sridhar Jiew.

Durga Charan made and published two Wills, one dated June 4, 1898 with regard to his properties in the then British India, and the other dated June 6, 1898 with regard to his properties situated in the French territory of Chandernagore. By these two Wills, Durga Charan appointed his wife, Saraswati Dassi, his two sons, Shyama Chorone Requitte and Tarini Chorone Requitte and his nephews, Ashutosh Das .;... I and Bhola Nath Das, executrix and executors and trustees of the (:State left by him. The Wills provided that the trustees would hold the bequeathed properties left by the testator according to the terms of the Wills for the legatees and the beneficiaries mentioned therein. The Wills also provided that in case of death or retirement or refusal or incapacity to act of any of the trustees, the continuing trustees of trustee for the time being, or the executors or administrators of the last acting trustee might appoint any other person or persons to be a trustee or trustees in place of the trustee or trustees so dying or desir-ing to retire from or refuse etc. But, in no case, the number of the trustees should be less than two.

By his Will, dated June 6, 1898, Durga Chorone created un abso-lute Debutter in favour of the said family Deity and devised and be-queathed to his executors and trustees named therein, his dwelling house with gardens and tanks appertaining thereto sitµated in Chi,nder-nagore, "upon T111st to smnd possessed of and to hold, retain and use the premises and endowed or Debutter property for the service and worship of" his said family Deity. By that Will, he further directed that this family idol "shall be located in my said house in Chander-nagore which said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or Idol."

Th~ testator died on Angust 27, 1898. Thereafter, the Will, dated June 6, 1898, was duly probated and the trustees came into possession of the Debutter properties and carried on the administration of the estate and the Sewa and Puja, as directed in the Will.

Smt. Saraswati, widow Gf Babu Durga Chorone, who was one of the trustees nan1ed in the Will, died on October 30, 1913, while her son, Shyama Chorone, another trustee, died on December 21, 1925.

P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, !.) 435 Thereupon, Tulsi Chorone son of Shyama Chorone was appointed a new trustee in place of his father, Bhola, the other co-trustee, refused to act as such. Therefore, his son, Devindra wa's appointed as trustee by the continuing trustees. Turani Chorone died on or about May 29, 1939 and the continuing trustees appointed his son, Profulla Chorone as a trustee. Tulsi Chorone died on August 17, 1952 and the continuing trustees similarly appointed Bhagwati, son of late Shyama Chorone as a new trustee. Debendranath Das died on or about March 7, 1956, and the continuing trustees appointed Salish Chandra Das, a son-in-law of late Shyama Chorone as a new trustee in his place.

In or about the year 1934, the descendants of the settlor, Durga Chor~ne, some of whom were the then trustees, referred certain dis-putes with regard to the endowed property to the arbitration of one Bhringeswar Sreemany. The disputes referred to the arbitrator included rival claims by the sons and grandsons of Durga Chorone, to their resi-dence in the Debuttor property belonging to the family Deity. The Arbitrator made an Award on September 6, 1934, whereby he allotted rooms Nos. 72 and 82 to Satya Chorone, respondent, who had been in use and occupation from before. The Arbitrator made similar allot-ments of other rooms in the said house in favour of the other sons and grandsons of the settlor.

On April 20, 1959, Profulla Chorone Requitte, Bhagwati Chorone Requitte and Salish Chorone Das, the then trustees instituted Title Suit No. 28 of 1959 in the Court of the Subordinate Judge, 1st Court, Hooghly. The plaintiffs prayed for two reliefs in the plaint : (i) Pos-session by ejectment ·of the defendant, Satya Chorone Requitte, pri-marily from all the six rooms, alleging that the defendant had been occupying the same as licensee under the plaintiffs and the said licence had been revoked : (ii) in the alternative, for possession of the four rooms mentioned in Item No. 1 of Schedule 'B' of the Plaint, which had not been allotted to !Jim under the award.

The plaintiffs' ca'se, as laid in the plaint, was that since the dwel-ling house belonging to the Deity, had a large number of roonis the trustees allowed temporarily the sons and grandsons of Durga Chorone to occupy and use for their families some of the rooms in the said dwelling house as licensees. It was further alleged that in the year 1966, the defendant illegally and forcibly occupied Room Nos. 63, 35, 46 and 57 in the aforesaid house without the knowledge and con-sent of the trustees causing serious inconvenience in the due perfor• mance of the religious ceremonies of the Deity according to the terms of the Will. It was further contended somewhat inconsistently that the dwelling house at Chandemagore being absolute Debutter belong-ing to the Deity, no person, except the trnstees, has any legal right in the said house which can only be used for the Sewa Puja of the family Deity located in the house; that the arbitration award of 1934 is not binding on the Deity and/or the trnstees who were not parties to the arbitration; that the award was beyond the scope of the reference and was adverse to the Trust, itself.

In his written statement, the defendant traversed the material alle-gatious in the plaint and asserted that he was in use and occupation of the rooms in dispute in his own right as a Shebait. He further pleaded that the plaintiffs had no right to represent the Deity and had no locus standi to maintain the suit as trnstees; that since all the Shebaits had not been joined as parties the suit was incompetent.

The subordinate Judge dismissed the suit holding, inter alia, that : (i) By his Will, Babu Durga Chorone had absolutely dedicated the property in dispute to the family Deity, Sree Sree Iswar Sridhar Jiew, but he had not under that Will made any testamentary disposition of his Shebaiti rights in respect of this Debutter property which, on the death of the testator, devolved under Hindu Law upon his descendants, who in consequence, were entitled to reside in the house as Shebaits.

(ii) The Trustees were not Shebaits. Only the descer,dants of Babu Durga Chorone had become Shebaits and had Shebaiti right in the endowed property.

(iii) The award made by the arbitrator, Bhringeswar Sreemany, was valid and binding upon the plaintiffs.

(iv) The plaintiffs could not recover possession from the defen-dant as trustees.

(v) The plaintiffs were not entitled to represent the Deity and had no locus standi as trustees to maintain the suit on behalf of the Deity.

(vi) The defendant had a right to occupy the rooms in suit as c<>-shebaits .

(vii) The plaintiffs having not claimed any relief in terms of the arbitration award, were not entitled to any relief in respect of Room Nos. 35, 46, 57 and 63.

Aggrieved, the plaintiffs preferred an appeal to the District Judge, who dismissed the same and 'affirmed the decision of the Trial Court.

Against the appellate decree of the District Judge, the plaintiffs carried a Second Appeal to the High Conrt at Calcutta. The Divi-siQn Bench of the High Court, by its judgment dated July 21, 1969~

P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, !.) 437 allowed the appeal, in part, and granted the plaintiffs' a decree for Khas possession of Room Nos. 35, 46, 57 and 63 in the said dwelling house; but not in respect of Room Nos. 72 and 82 mentioned as Item No. 1 of Schedule 'B' to the Plaint.

After obtaining the certificate under Article 133(1) (b) of the .... Constitution, as it then stood, the plaintiffs have filed Civil Appeal

1873 of 1970 against the partial dismissal of their claim in respect of Room Nos. 72 and 82; while the defendant has filed Civil Appeal 1874 of 1970, praying that the plaintiffs' suit ought to have be~n dis-missed in respect of Room Nos. 35, 46, 57 and 63 also. Both the appeals will be disposed of by this common judgment.

Jne following pedigree table which has been compiled from the material on record by the learned counsel for the appellant, will be helpful in understanding the relationship of the parties and other con-nected facts :-

Durga Chorone died on 27-8-1898 ~kraswati -~---

(Widow). Shyama ~qorone Tarani C~orone Executrix died (Son) (Son).

on 30-10-1913. Executor, died Executor died on 21-12-25 on 29-5-39_ I I I ' I hi .

Hart Tulsi Satya B agwatt

Wife Chorone Chorone Two sons & (Defdt.) (Plff. 2) their fami-I lies & one , unmarried !

daughter. j 111re< Wife, six wife, five 1'

sons & sons and sons & two \ their families daughters families. and five (one un-1 daughters married). \ (one un-married).

I Profulla Chorone lmulya (Plff. l). (not a party) life 4 life,2sons daughters . & 6daugh-ters (3 un-married.) The principal question that falls to be determined in these appeals _ is, whether the settlor had constituted the same set of persons as

Shebait as well us Trustees. This question turns on a construction of the-V,'ill.

Mr. Lal Narain Sinha, learned Counsel for the appellant in Civil Appeal No. 1873 of 1970 submits that the answer to this question must be in the affirmative because the Settlor, Durga Chorone Re-quitte had by express words in the Will, (Ex. 6/6A), dated June 6, 1898, imposed an obligation on the trustees to hold, manage and use the suit property which he bad thereby absolutely dedicated to the family idol, for the service and worship of the idol. It is maintained that although the word 'Shebait' is not used in the Will, yet the said obligation cast on the Trustees by inevitable implication clothed them with the character of Shebaits, also.

As against this, Mr. Ashok Sen contends that the answer to the question posed must be in the negative. It is urged that the words "to hold, retain and use the pTemises . . . for the service and worship of my family deity", on which Mr. Sinha's argument rests, do not necessarily mean that the Testator had disposed of his Shebaitship rights, also, and vested them in the Trustees. Tt is stressed that there are no words in the Will which, expressly or necessary implication, constituted the Trustees as Shehaits; that the testator has not used the word 'Shebait' anywhere in the Will; nor did he employ the word 'manage' or 'manager' anywhere in the Will while charging the Trus-tees to hold and use the premises as Debutter property of the idol. According to the learned counsel, if the Will is construed as a whole in the light of the surrounding circumstances, it would be clear that the trust created was not a continuing trust but one which would terminate as soon as the Executor-Trustees handed over the bequea-thed properties to the beneficiaries. It is pointed out that the two Wills, one dated June 4, 1898, and the other dated June 6, 1898, should be read as complementary to each other. The necessity of executing two separate Wills arose, because the properties bequeathed by the Will (Ex. 6) were situated in the then French territoriei., while those covered by the Will dated June 4, 1898, were situated in the British India. There were several beneficiaries under these Wills, and the family idol was one of them. The recitals in these Wills-according to the counsel-particularly in the Will dated June 4, 1898, show that the testator had kept, in tact, the right of residence of his widow and daughters-in-law and other heirs in the property dedicated to the idol. This, says Mr. Ashok Sen, is a sure indication of the fact that the founder did not want to part with his Shebaiti rights, which were heritable property, in favour of the Trustees, to the exclu-sion of his natural heirs under Hindu Law.

Mr. D. B. Mukherjee, appearing for the appellants in Civil Appeal No. 1874 of 1970, further submitted that the words "to hold!, retain

P. c. REQUITTE V. s. c. REQUITTE (Sarkaria, !.) 439 llnd use the premises as endowed or debutter property for the service and worship of my family deity", if properly construed in the context of the Will as a whole and surrounding circumstances, mean that the Executors and Trustees would hold the property in trust for the benefit of the deity and the shebaits. In the alternative, counsel submitted that even if it is assumed arguendo that they were so appointed, the line of succession set out in the Will would be hit by the principles laid down in Tagore v. Tagore('), Ganesh Chandra v. Lalit Behary('); Jagadindra v. Rani Hemanta Kumari(•) and by the Rule against perpetuities (Manohar v. Bhupendra)('). It is further con-tended that since the founder did not dispose of the Shebaitship but only founded the worship of the Thakur, Shebaitship would vest in the heirs of the founder. For this proposition, reliance has been placed on Gossamee Shree Greedhareejee v. Rumanlaljee(•).

In reply to this, Mr. Sinha submits that trusteeship with power to nominate successor is an estate recognised by law, and in such a case the founder does not create an estate of inheritance contrary to Hindu Law of Succession, nor does the question nf the rule of perpetuity arise because the founder does not determine the choice of the succeeding Trustees. Reference has been made in this behalf to LL.R. 24 Madras 219, and Underhill's treatise on "Trusts", 12th Ed. pp. 534-35 at 23-31. It is maintained that the Trust in question is a continu-ing trust; it did not come to, an end when the Trustees had fully per-formed their duties and obligations as executors of the Will, that the general principle underlying Section 77 of the Trust Act is applicable to the case in hand. lt is further submitted that of the two Wills, the later must prevail and rderence to the earlier Will, for the purpose of dete.rmining whether the heirs of the Settlor had been given a right of residence in the suit property, is irrelevant.

Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal cha,racter and incidents of Shebaitship. Property dedicated to an idol ve.sts in it in an ideal sense only; ex-necessitas.. the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait can-not be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokes-man, its authorised representative entitled to deal with all its temporal

·------~-- (!) I.A. Supp. l, Vol. 47.

(2) 63 I.A. 448.

(3) 31 I.A. 203.

(4) 60 Cal. 452.

affairs and to manage its property. As regards the administration of the debutter, his position is analogous to that of a Trustee, yet, he i:> not precisely in the position of a Trustee in the English sense, becaus•~ under Hindu L'aw, property absolutely dedicated to an idol, vests in the idol, and not in the Shebait. Although the debutter never vest> in the Shebait, yet, peculiarly enough, almost in every case, the She-bait has a right to a part of the usufruct, the mode of enjoyment, amf the amount of the usufruct depending again on usage and custom, if not devised by the founder.

As regards the service of the temple and the duties th•at appertain to it, h.e is rather in the position of the holder of an office; but even so, it will not be quite correct to describe Shebaitship as a mere office,. "Office and property are both blended in the conception of Shebait· ship". Apart from the obligations and duties resting on him in con-nection with the endowment, the Shebait has a personal interest in the endowed property. He has, to some extent, the rights of a limited' owner.

ShelYaitship being property, it devolves like any other species of hec ·'.able property. It follows that, where the founder does not dis-pose of the shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist [Gossamee Shree Greedharejee v. Rumanlaljee, (ibid.) ]

Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of a family idol, the public are not interested. The present ca'se is one of a private debutter. The distinction is im-portant, because the results logically following therefrom have been given effect to _l:iy Courts, differently.

Aooording to English Law, the beneficiaries in a private Trust,. if sui juris 11nd of one. mind, have the power or authority to put arr end to the trust or use the trust fund for any purpose and divest it from its original object. Whether this principle applies to a private endowment or debutter created under Hindu Law, is a question on which authorities are not agreed. In Doorganath Roy v. Ram· Chunder Sen('), it was observed that while the dedication is to it public temple, the family of the founder could not put an end to it, but "in the case of a familv idol, the consensus of the. whole family might give the (Debutter) estate another direction" and tum it into a secular estate.

Subsequently, in Pramatha Nath Mullick v. Pradyunma KumQI' Mullick('), the Judicial Committee clarified that the property cannot be taken away from the idol and diverted to other purposes without the consent of the idol through its earthly agents who, as guardians of the deity, cannot in law consent to anything which may amount to an extinction of the deity itself.

Although, Shebaitship is heritable property, yet, it C'annot be freely tnu1sferred by the Shebait. But there are exceptions to this general rule. Some of such exceptions recognised in several decisions, are : alienation in favour of next shebait, or one in favour of the heir of the transferor, or in his line of succession, or in favour of a co-shebait, particularly when it is not against the presumed intention of the founder. (See Nirod Mohini v. Shibdas(') and Mancharan v. Pranslwnkar(').

The Bombay High Court has also pointed out in Radhu Nath v. Purnanand ('), that if any one of the Shebaits intends to get rid of his duties. the proper thing for him to do would be to surrender his office in favour of the remaining Shebaits. In the case of such a transfer in favour of co-shebait, no policy of Hindu L'aw is likely to be affected, much less the presumed intentions of the founder.

Now, let us deal with the problem in hand in the light of the principles cited above.

The first question that falls for detennination is : Whether the founder's intention ~·as to confer rights of Shebaitship on the persons designated by him as 'trustees' in his Will? In other words, did he by the Will, dated June 6, 1898 (Ex. 6/6A), dispose of the Shebait-ship of the deity, also? 'If the answer to this question is fonnd in the negative, shebaiti rights in this endowed property will devolve, according to Hindu Law, on all the heirs of the founder, including the defendant. In that situation, the defendant with his family, like the other co-Shebaits, will be taken as residing in the debutter property, in his own right. If, however, the answer to the said question is fonnd in the affirmative, the further question to be considered would be with regard to the effect of the Award dated June 29, 1934 (Ex. C) on the respective claims of the parties.

(l) 52 I.A. 245.

r (2) I.L.R. 36 Cal. 975.

(3) I.L.R. 6 Born. 298.

(4) I.L.R. 47 Born. 529.

We will now take up the first question.

Mr. Sinha, learned counsel for the appellants, submits that since by his Will, dated June 6, 1898, the founder had "devised and be-queathed" the Chandernagore house to the pl'aintiffs-trustees "upon Trust to stand possessed of' and "to hold, retain and use the premises as endowed or debutter property for the worship of the family Thakur'', his intention was to constitute the trustees as Shebaits of the property having the exclusive right to manage the debutter, to serve the idol and to preserve its property. It is submitted that the founder had by these express words, invested the trustees both with the legal title and Shebaitship, although the beneficial title (in an ideal sense) was vested in the idol.

The passage in the Will on which Mr. Sinha relies for the cons-truction propounded by him, runs as under :

"I desire, devise and bequeath to my Executors and Executrix and Trustees hereinafter named . . . my dwelling house with garden and tanks appertaining thereto situate in Lal Bagan in Chandernagore. Upon trust to stand pos-sessed of and to hold, retain and use the premises an endowed or Debutter property for the service and worship of my family Thakur or idol Sreedhar Jew, which I hereby direct shall be located in my said house in Chandernagore which said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or Idol."

(Emphasis supplied) The crucial words are those that have been underlined.

It may be observed that this Will, in English, appeoars to have been drafted in pursuance of legal advice by an expert draftsman. The omission of the words "management", "1nanager' 1 "custodian of the , idol" or "ministrant of the idol" from the Will, therefore, cannot but J( be intentional.

It seems clear to us tlrat the underlined words in the above ex-tract, by themselves, merely create a trust/ or endowment and indi-cate the nature and purpose of the endowment. These words do not touch or deal with Shebaiti rights. This inference receives sup-port from the surrounding circumstances.

Further, in arriving at the true import of the words "to hold, retain and use the premises an endowed or Debutter property for the service and worship of my family Thakur', it will not be improper to look to the conduct of the Trustees and the members of the family of the founder.

There is no antagonism between the two Wills, one dated June 4, 1898 and the other dated June 6, 1898, of the founder. Indeed, in

sense they are complementary to each other. There is a reference in the Will, dated June 4, 1898, to the Testator's dwelling house at Chandernagore, which under the Will (Ex. 6) was endowed to the family deity. From the following provisions in the Will, dated June, 4, 1898, .it is clear thoat the testator intended that the dwelling house at Chandernagore would be used by his heirs for their residence :

"(a). I further direct my said Executors and Trustees out of the said rents and profits of the said premises num-ber 39, Chowringhee Road to pay monthly a sum of Rupees Fifty for the maintenance to each of my daughter-in law Smt. Gopeswari Dassee wife of my eldest son Shyama Chorone Requitte and Nagendra Mani Dassee wife of youngest son Tarine Choron-e Requitte during their lives respectively and provided they reside with their res-pective husbands at my dwelling house in Chandernagore.

(b). The Trustees shall pay monthly a sum not exceed-in Rupees Two hundred in addition to the interest of Government securities of the nominal wlue of Rupees Twenty thousand hereinafter mentioned and directed to be applied for the purpose of household and other monthly expenses of my family, namely wife and sqns and sons' wives and other relatives of mine who shall reside in my dwelling house at Chandernagore.

( c). To pay and apply the net interest of Government securities on the nominal wlue of Rupees Twenty thousand for the house-hold and other monthly expenses of my family, namely, wife and sons and also sons' wives and other and other relatives of mine who shall reside in my dwelling house at Chandernagore and also to pay and apply the net interest of Government securities of the nominal value of Rupees six thousand for the costs and expenses of keeping and maintaining my said family dwelling house at Chander-nagore in proper repair and in payment of all taxes and assessments in respect thereof."

(Emphasis supplied) Looking to the general tenor of the document, it will not be inappropriate to interpret the words "wife, and sons, and sons' wives, r and other relatives of mine" in the above-quoted portions of the Will,

as including all the descendants and heirs of the testator.

Thus construed conjointly, tl)e two Wills make it clear that al-though the entire family )muse, comprising 84 or 85 rooms, at Chandernagore was formally endowed to the faniily idol, yet the tes-tator's intention was that his heirs and descendants would also be entitled to use this house ~s their family dwelling house, apart from the room wherein the idol was enshrined.

It may be further noted that in the Will, dated June 4, 1898, the testator made the following provisions for the Sewa puja of the idol at Chandernagore and for other religious festivals :

(i) The trustees shall set ap•art interests of Government secur.ities for the daily expenses of worship of the idol.

(ii) The Trustees shall pay and apply the net interest of Govern-ment securities of the nominal value of Rs. 25,000/- for the yearly expenses of the Durga Puja festival at Chandernagore.

(iii) The Trustees shall pay and 11pply the net interest of Govern-ment securities of the nominal value of Rs. 15,0001-for the yearly expenses of the Dolejatra of the faniily idol, Thakur Sreedhar Jew at Chandernagore.

The aforesaid provisions further show that although the trustees were provided with the funds for the Sewa-puja of the family deity and for other festivals out of the estate left by the testator, but they were not expressly constituted as Shebaits of the deity. It will, therefore, be not unreasonable to infer that the intention of the testa-tor W\lS that these funds would be expended for the purposes indi-cated by him, through the Shebaits.

Another telling circumstance appearing in evidence is that after the death of the widow and the two sons of the testator, their heirs, also, continued to live in this family dwelling house at Chander-nagore.

It may be further noted that by the Will, dated June 6, 1898, no legal title in the endowed property was vested in the trustees. The title was expressly vested in the family idol to whom the property was absolutely dedicated. The testator did not create a trust estate in the sense in which it is understood in English Law.

The above-quoted provisions from the Wills further show that no rights to act as ministrant of the idol were conferred upon the Trus-tees. On the other hand, a mere obligation to hold 11nd use the pro-perty for the endowment indicated was imposed upon the per>ons designated as 'trustees'.

Reading the two Wills together, with particular focus on the pro- <visions extracted iu this judgment, it is clear that the testator, Durga Chand Requitte, did leave Shebaitship uhdisposed of; his presumed intention being that Shetaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the Trustees under the Will may, at the most, amount to a curtailment of the right to manage the endowed property which a Shcbait would otherwise have. But, such curtail-ment by itself would not make the ordinary rules of succession in Hindu Law inapplicable in regard to the devolution of Shebaitship, which is heritable property.

The upshot of the above discussion is that in spite of the inter-position of the Trust for management of the endowed property, the Shebaitship remained undisposed of and, as such, the defendant and other descendants of Durga Chand Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu Law.

In arriving at the conclusion that in spite of the interposition of the Trust, the founder by his Will left the Shebaitship undisposed of, and as such, the defendant also, under Hindu Law, became one of the Shebaits, we are fortified by the inference arising out of the facts j admitted by no less a witness than Plaintiff No. 3, Satish Chandra

Dass, himself, who alone deposed for the plaintiffs. Though he claimed that there were no Shebaits of the deities and the trustees were managing the Shebaiis, he categoricallY admitted the following facts :

(a) "The disputed house is a big house", having 84-85 rooms. "It is the only family dwelling house" of the sons and grandsons ol Durga Chorone Requittc, who live in it, while "the deity is installed in room No. 66 in the first floor".

r

(b) "The inmates of the disputed house, as far as practicable, look after the bath of the deity as also the preparation of Naibedya (tray containing the offerings) and Bhog (food) of the deity".

Thus even according to the plaintiffs-appellants, only the descen· ~"ii~ dants and heirs of the founder, who live in the endowed house, have

throughout been acting as ministrants of the fumily idol, which, as already noticed, is one _of the vital characteristics of a Shebait. In other words, the sons and the descendants of Durga Chorone Requit-i te, alone, have throughout been acting as co-shebaits of the family I deity, to the exclusion of the 'trust'ees' who were not his descendants.

The first two courts were, therefore, right in holding that the Shebai~I rights remained with the heirs of the founder.

Assuming for the sake of argument, that the 'trustees' were also vested with the rights and obligations of a Shebait, then also, the evi-dence on the record shows that !hose trustees who were not descen-dants of the founder, Durga Charon Requitte, never acted as such. They went out ot the picture long ago and must be presumed to have renounced their Shebaiti rights in favour of their co-shebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to the accommodation in their residential occupation. Thereupon, the trustees agreed with the descendants of the founder by means of the Agreement (Ex. E) to refer the dispute to the sole arbitration of Shri Shringerwar Shrimani. The arbitrator, inter alia, held that the heirs of late Durga Charon Requitte and his descendants alone had the rights to act as Shebaits. There is documentary evidence on the record to show that this award (Ex. G) given by the arbitrator was accepted by the 'trustees'. The present plaintiffs-appellants, by their letter dated June 18, 1950 (Ex. A/7), asserted their rights on the basis of this award and described the defendant-respondent as a shebait of the deity. The letters (Ex. A-8 and A-10) also point to the same conclusion.

Thus, even if it is assumed that originally, the trustees were re-garded as having been constituted as Shebaits, then also, those among them who were not family members or descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favO"Jr of the descendants of the founder. Such a relinquishment made in favour or the co-shebaits, will be valid.

From whatever angle the matter may be looked at, the conclusion is inescapable that Shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent, who is admittedly a grandson of the founder, had been regarded as one of the Shebaits, and as such, entitled to reside in the disputed rooms. All the Shebaits were therefore, necessary parties; but all of them have not been impleaded. The Trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the Trustees. The right to sue on behalf of the deity wsts in the Shebaits. All the Shebaits of the deity not having been made parties, the suit was not properly constituted, and was liable to be dismissed on this :score •I alone.

In the view we take, it is not necessary to decide, whether the 'trust' created by the Will of Durga Chorone Requitte was a continu-ing trus~ or not, or whether the mode of devolution of the office of Trustees indicated by the founder in his Will was or was not hit by the rule in Tagore v. Tagore (supra).

For the foregoing reasons, we allow the defendant's appeal (Civil Appeal No. 1874 of 1970), set aside the judgment of the High Court, and dismiss the plaintiffs' suit. In the result, Civil Appeal No. 1873 of 1970 filed by the Plaintiffs, ipso facto fails, and is dismissed. In the circumstances of the case, there will be no order as to costs. C.A. 1873/70 dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1873-1874 of 1970. a.

From the Judgment and Decree dated 21-7-1969 of the Calcutta High Court in Appeal from Appellate Decree No. 30/67.

Lal Narain Sinha and Sukumar Ghosh for the Appellant in C.A. 1873/70 and Respondent in C.A. 1874/70.

A. K. Sen (In C.A. 1874/70) and D. N. Mukherjee for the Res-ponderit in C.A. 1873/70 and Appellant in C.A. 1874/70.