Sri Ram v. C.P.N Singh

Ramaswami, J.:— This appeal is brought on behalf of the plaintiffs against the judgment and decree of the Additional Subordinate Judge of Muzaffarpur, dated 30th July, 1945.

The plaintiffs (1) and 1(a) are the deities Sri Ram and Sri Janki installed in a temple in village Nawahi; and plaintiff no. 2 Mahanth Rasik Siromani is the shebait of the deities. The plaintiffs alleged that Ramanugrah Narayan Singh built the temple and installed the deities Ram Janki therein and spent a sum of about Rs. 9,000 per year for maintenance of the temple, expenses of Ragbhog and entertainment of the sadhus. In the year 1288 Fs. Ramanugrah endowed properties described in schedule (1)(a) of the plaint by way of Sankalp to the deities and constituted Mahanth Mithila Saran as a shebait. The properties yielded an income of Rs. 1,200 or thereabout. As this was insufficient Ramanugrah continued to provide additional funds from his estate in order to carry out the objects of the endowment. In 1288 Fs. Ramanugrah laid the foundation stone of the temple, but he could not complete it as he died shortly after leaving a widow Mostt. Jagatrup Kuer and two sons Awadhbehari Narain Singh and Janki Narain Singh. Janki died in Asin 1300 Fs. and Awadhbehari died in September 1903 without leaving any issue or any widow. On 28th June 1906 Jagatrup Kuer endowed properties described in schedule 1(b) of the plaint by a registered document. Jagatrup included all the properties of schedule 1(a) but she failed to state that there was an oral dedication by her husband of these properties. By this document the widow constituted herself as first shebait with power to nominate her successor. On 14th December 1914 the widow executed a deed of Shebaitnama appointing Mithila Sharan as shebait and handed over the idols and properties to his charge. On 14th June 1917 Jagatrup Kuer died but Mithila Sharan continued to be shebait for the endowed properties. In the year 1929 the defendant claimed that he was nearest reversioner to the estate of Ramanugrah Narain Singh on the ground that he had been adopted by a collateral Kishun Kishore Narain Singh. The defendant challenged the validity of the endowment and claimed that he was entitled to the properties as the nearest reversioner of Mostt. Jagatrup Kuer. The suit (Title Suit 51 of 1929) ended in compromise. Mithila Sharan acknowledged that endowment was not binding upon the defendant. The latter in his turn agreed that Mithila Sharan would continue in possession and upon his death, defendant would get possession as owner of the properties. On 20th October 1935 Mithila Sharan also executed a deed of Ladavi, exhibit 56, relinquishing in favour of defendant properties described in schedule 1(c) of the plaint. These properties were acquired by Mithila Sharan out of the income of the religious endowment. On 14th April 1938 Mithila Sharan died whereupon plaintiff no. 2 who was the seniormost Bairagi chela of Mithila Sharan obtained possession of the properties. But on 12th July 1938 plaintiff no. 2 was forcibly dispossessed by the defendant who took charge of the temple and its compound and drove out the Sadhus who were inmates of the temple. The deities, plaintiffs 1 and 1(a), therefore, asked for a declaration of their title to the properties and plaintiff no. 2, Rasik Shiromani, asked for a declaration that he is shebait and for recovery of possession of the properties on behalf of the deities. The plaintiffs have also asked for a decree for mesne profits.

The defendant contested the suit on the ground that Rasik Shriomani was not chela of Mithila Sharan and was not competent to maintain the suit. The defendant alleged that Ramanugrah did not build the temple nor instal any deities or dedicate any properties. The defendant on the contrary asserted that Jagatrup Kuer was the founder, that she had alienated the properties by Samarpannama in 1906 under the spiritual influence of Mithila Sharan. The defendant asserted that he was validly adopted by Kishun Kishore Singh and was competent to impeach the alienation made by Jagatrup Kuer. The defendant further maintained that the compromise decree in Title Suit 51 of 1929 operated as res judicata.

Upon these rival contentions the learned Sub-ordinate Judge held in the first place that the compromise decree in Title Suit 51 of 1929 was beyond the authority of the shebait, that it was prejudicial to the interest of the deities and void and did not operate as res judicata. The Subordinate Judge also held that Kamanugrah has constructed a Tnakurbari and had installed the deities and used to meet the expenses of the temple from his own estate. As regards Samarpannama of 1906 the Subordinate Judge found that the properties endowed constituted really ¼th of the whole estate and the widow was not competent to make the endowment since the proportion was unreasonable. He further held that plaintiff no. 2 was the seniormost Bairagi chela to Mithila Sharan but he was not nominated or designated by Mithila Sharan as succeeding shebait. The Subordinate Judge found that defendant no. 1 was validly adopted by Kishun Kishore Singh and was entitled to impeach the alienation made by Jagatrup Kuer. Upon these findings the Subordinate Judge dismissed the suit holding that plaintiff was not entitled to any relief.

The issues arising in this appeal are: (1) whether Jagatrup Kuer could validly make endowment of the properties mentioned in Samarpannama of 1906; (2) whether plaintiff no. 2, Rasik Shiromani, has title as shebait to the endowed properties and whether he is competent to prosecute the present suit on behalf of the deities; (3) whether defendant was validly adopted by Kishun Kishore Singh; and (4) whether the compromise decree in Title Suit 51 of 1929, operates as res judicata.

Upon the first question Mr. Lalnarain Sinha contended that the Subordinate Judge has wrongly held upon evidence that Jagatrup Kuer had dedicated ¼th share of the whole estate. P.W 1, Rasik Shiromani, stated that the annual income of the dedicated properties was Rs. 9,000 in cash and 2,000 maunds of grain. In his previous statement, exhibit NN. P.W 1 had stated that the dedicated properties represented 4 annas share of the estate inherited by Jagatrup Kuer. Mithila Sharan has deposed in the previous suit that the annual income from the dedicated properties was Rs. 9,000 in cash and 3,000 maunds of grain (see exhibit 71). Implicit reliance Cannot, however, be placed upon the statement of Rasik Shiromani that the income from dedicated properties was ¼th share of the whole estate since he was initiated as chela in 1917 and was not even born at the time of Samarpannama. It is a striking fact in this case that the defendant has suppressed all the account books of the estate. The presumption therefore should be drawn that if the account books were produced they would not have supported the case of the defendant. The evidence of D.W 10 Kishori Lal Das, is also important. He admitted when cross-examined that the income of the endowed properties was about Rs. 15,000 and that the total income of the estate of Ramanugrah was rupees eighty to eighty-five thousand in addition to the income from two to three thousand bighas zirat land. The Subordinate Judge has not taken into account this important statement. Upon the evidence it is plain that the endowed properties constituted about 1/5th share of the entire estate of Ramanugrah Narain Singh. It was argued by the Advocate-General that even so the widow has alienated an unreasonable proportion of the estate for religious purpose and the dedication must be declared to be invalid. But no mathematical limit can be fixed to the power of alienation of a widow of husband's property for the purpose of religious acts which conduce to his spiritual benefit. The question whether the property dedicated constitutes reasonable proportion of the whole estate must depend upon the facts and circumstances of each particular case. In Churaman v. Gopi Sahu a gift of slightly less than one-third of the estate was sustained as valid. In a later case Khub Lal Singh v. Ajodhya Misser Mookerjee and Newbould, JJ. held that a gift of 2 bighas out of 10 bighas of land by a widow for the purpose of excavation and consecration in connection with a temple was reasonable. In the present case there is evidence that Ramanugrah constructed the temple in 1288, installed deities and spent about Rs. 9,000 per year for the purpose of Ragbhog. Ramanugrah had died without completing the temple but before his death he had expressed his wish that property should be endowed for the proper maintenance of the temple and the service of the deities. After the death of Ramanugarh his two sons Awadhbehari and Janki died without leaving widows or any issue and Jagatrup Kuer must have realised that her husband's branch had become extinct in the context of these facts it is not unreasonable that the widow should endow 1/5th or even ¼th of her husband's estate, and it must be held that the dedication is valid and competent.

The next important question is whether Mithila Sharan was validly appointed to be shebait by Jagatrup Kuer. It was submitted by the Advocate General in the first place that upon a proper construction of the shebaitnama, exhibit 54, it ought to be held that Mithila Sharan was appointed merely as pujari and not as shebait. Learned counsel founded his argument upon paragraph 5 of exhibit 54 which states that

“the shebait shall perform all work in connection with the Thakurjis and their properties according to my advice and precepts, and on my death according to the advice of Babu Gena Jha, who is the karta putra of me the executant”.

Reference was also made to paragraph 13 which states that the executant would be competent to remove prodigal and immoral shebait and

“to appoint a shebait from among the disciples for the time being who will be deemed fit by majority opinion”.

But the contention of the Advocate-General cannot be accepted as correct. Even if clause 13 was non-existent prodigal and immoral shebaits would be liable to be removed under the law, and it is not possible to argue that the executant reserved any legal right. It is true that paragraph 5states that the shebait will perform all work in accordance with the advice of the executant. But the tenor and effect of the whole document is that Mithila Sharan was vested with the power of managing the properties and with the power of ministering to the deities. In the opening paragraph, the document recites:

“I, the executant, desired to appoint Shri Mahanth Mithila Saran who is a sadhu, pandit, wise man and the guru of my deceased son Babu Janki Prasad Singh as sevait, so that the work might be efficiently done and the properties might be well managed and the shewa of the Thakurji be well performed”.

In the conception of shebait both the elements ‘office’ and ‘property’ are mixed and blended together; and the document makes it plain that both the office and property are conferred upon Mahanth Mithila Sharan who is properly constituted shebait. It should be noticed that the expression ‘shebait’ is used by the executant not once but several times in the course of the document and no special reason has been suggested on behalf of the respondent why the expression ‘shebait’ should not be construed in its technical sense. Upon a consideration of all the terms of the document there can be no doubt that Mithila Sharan was appointed as a shebait and not as mere pujari.

It was next submitted on behalf of the respondent that Jagatrup Kuer was not the founder of the endowment and that she was not competent to lay down a line of succession of shebaits. It was argued that Ramanugrah had built the temple and installed the deities and was the founder of the endowment. It was contended that Ramanugrah could have laid down the course of devolution of the office but it was not competent for Jagatrup Kuer to do so. In my opinion this argument is not correct. The principle is well-settled that when the worship of an idol is founded, the office of the shebait is Held to be vested in the heirs of the founder in default, of evidence to show that he has disposed of it otherwise. In an early case Peet Kunwar v. Chattardhari Singh it was held that where the mutawalli of an endowment dies without nominating a successor, the management must revert to the heirs of the person who endowed the property. The principle of the decision was affirmed by the Judicial Committee in Gossami Sri Girdhariji v. Romanlalji Gossami. “According to Hindu law, where the worship of Thakur has been founded the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution in Gauranga Sahu v. Sudevi Mata it was held by the full Bench that it was competent to an heir of the founder of an endowment, in whom the trusteeship has vested owing to the failure of the line of the original trustees, to create a new line of trustees. The same principle was laid down by Lord Shaw in Pramatha Nath Mullick v. Pradymna Kumar Mullick “The person founding a deity and becoming responsible for these duties is de facto and in common parlance called shebait. This responsibility is, of course, maintained by a pious Hindu, either by the personal performance of the religious rites or—as in the case or Sudras, to which caste the parties belonged—by the employment of a Branmin priest to do so on his behalf. Or the founder, any time before his deatn, or his successor likewise, may confer the office of shebait on another Applying these principles in the present case, it is manliest that Jagatrup Kuer had authority to create a new fine of shebaits. But it was argued by the Advocate-General that the position of Jagatrup Kuer was different and it was not competent on the part of a female heir to nominate or appoint a shebait. The argument cannot be sustained in principle. It is true that the Hindu law of inheritance makes a distinction between the sexes in that a male heir becomes full owner of property inherited by him and transmits it to his heirs while a female heir takes as a limited owner the property passing on her death not to her heirs but to the next heir of the last full owner. There is a distinction in the nature of the interest as regards future devolution—otherwise the nature of the interest with respect to shebait is much the same in the case of a male or female heir. The powers of alienation by a male shebait are restricted in much the same way as those of a female heir or the manager of an infant heir Prosanno Kumari Debya v. Golapchand Baboo. It is settled that a widow's estate is not a life estate but her right is in the nature of right of property and the whole estate is for the time vested in her absolutely for certain purposes. I think, that the power of nominating new trustees is a right which is appurtenant to the right of management and which the widow is competent to exercise. The right of shebaitship may be an anomalous combination of property and office—it may be a species of property. But the power of appointment is not itself property, it is a power which is appurtenant to the right of management. There appears to be no reason why a widow who is an heir of the founder of the endowment and in whom trusteeship has vested ought not to appoint a trustee or create a new line of trustees for the proper management of the dedicated properties. In Ex. Parte Gilchrist Fry, L.J, has pointed out the distinction between property and a power of appointment. “No two ideas can well be more distinct the one from the other than those of ‘property’ and ‘power’. This is a ‘power’, and nothing but a ‘power’. A ‘power’ is an individual personal capacity of the donee of the power to do something. That it may result in property becoming vested in him is immaterial; the general nature of the power does not make it property. The power of a person to appoint an estate to himself is, in my judgment, no more his ‘property’ than the power to write a book or to sing a song. The exercise of any one of those three powers may result in property, but in no sense which the law recognises are they ‘property’. In one sense no doubt they may be called the ‘property’ of the person in whom they are vested, because every special capacity of a person may be said to be his property, but they are not ‘property’ within the meaning of that word as used in law. Not only in law but in equity the distinction between ‘power’ and ‘property’ is perfectly familiar. It was also contended for the respondent that power of appointment is in effect nothing less than a transfer of trusteeship and is, therefore void and illegal. To put it in other words it was argued that the right of the heirs of the founder was limited to their holding the office themselves and did not include the power to nominate or appoint a trustee. But it is not correct to say that nomination of a trustee by the heir of the founder would be tantamount to alienation of office of trustee. This view is supported by the Madras Full Bench case, I.L.R 40 Madras 612, in which it was held that the exercise of the power of appointment of a shebait was not tantamount to alienation of the office of trustee and that the heirs of the founder had right to create a new line of trustees if the trusteeship had vested in them owing to the failure of the line of the original trustees. Also in the Allahabad case Sukhbir Singh v. Nihal Singh the High Court held that a widow could validly appoint and nominate trustees for the proper administration of endowed properties. In support of his argument the Advocate General relied upon Angurbala Mullick v. Debabrata Mullick . But these authorities do not assist the case of the respondent. In Anuragi Kuer v. Parmanand Pathak, the question arose whether the widow Rajbansi Kuer could execute an ekrarnama in favour of Mahabir with respect to the shebaiti interest. It was found by the High Court that the shebait right followed the line of inheritance from the founder and that Mahabir became absolutely entitled to it after the death of Rajbansi Kuar, that the ekrarnama merely acknowledged and ratified the existing right of Rajbansi Kuer and after her of Mahabir in the shebaitship. The High Court revised the finding of the lower court that though Mahabir was the heir of the founder he could only take life interest of the shebait. The High Court held that Mahabir had taken the shebaiti as full owner and the shebaiti must therefore devolve upon his heirs. In the other case, 1951 Supreme Court Journal 394. It was held that although as regards power of alienation the disability of the male and the female shebaits was identical, there was yet a distinction between them as regards the devolution of the shebaiti interest. When a Hindu, female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after, her death not to her heirs but to the heirs of the last male owner. This rule applied even when the right which devolved upon a widow was the right of a shebait. After her death the shebaiti right would not pass to her stridhana heirs but would go to the heirs of the last shebait. The question whether a widow who has succeeded as heir to the founder of an endowment could validly create a new line of trustees did not arise in these decisions. The material facts of the present case are manifestly different.

The question next arises whether the plaintiff is seniormost Bairagi chela of Mithila Sharan and whether he was validly nominated as shebait by the latter. It was maintained on behalf of the respondent that plaintiff was not initiated as chela by Mithila Sharan. The Advocate-General did not refer in detail to the evidence but merely pointed out that in the Ladavi deed, exhibit 56, Mahanth Mithila Sharan had stated that “he had only one chela named Dhanushdhari Sharan who died long before”. It is argued on behalf of the appellants that the defendant by exercising undue influence prevailed upon Mithila Sharan to execute this Ladavi deed and to make an untrue recital therein. The learned Subordinate Judge has commented upon the circumstance that the document was scribed by the defendant's servant and almost all the attesting witnesses were defendant's employees. A year later Mithila Sharan executed a Mokhtarnama, exhibit 64, in which he declared that Rasik Shiromani was his seniormost chela. The Subordinate Judge has examined all the oral and documentary evidence on this aspect of the case and reached the conclusion that plaintiff was seniormost living Bairagi chela of Mithila, Sharan. In my opinion the finding of the Subordinate Judge is correct and no cogent argument has been advanced by the Advocate-General to shake this finding in any respect. It is plain that the plaintiff though not validly nominated as shebait by Mithila Sharan would be heir to Mithila Sharan under Hindu Law, and according to the terms of the Samarpannama, exhibit 55, the plaintiff would be deemed to be a shebait. For exhibit 55 states that the widow shall for her lifetime remain shebait and

“the man whom I shall select shall be shebait on my death”.

Later on the document states:

“If God forbid I the executant be not able to complete the said temple during my lifetime and be not able to instal the Thakurji therein then it will be proper for the said shebait to complete the said temple and install the said Thakurji therein after performing necessary samaiy as the said shebait will further be competent to appoint his successor shebait whomsoever he will deem fit. Similarly every shebait will be competent to nominate his own shebait. If any shebait dies without nominating his successor then in that case the man, who will be the heir of the deceased shebait under the law prevalent for the time being will be the shebait of the said Thakurji”.

The Subordinate Judge held that the plaintiff had no title as shebait on the ground that in the subsequent document, exhibit 54, clause 6 was vague. Clause 6 states:

“The said shebait and other shebaits for the time being will one after another appoint shebaits who will succeed them on their death. If any one do not appoint a shebait then out of several shebaits he, who will be a fit and competent person to be the shebait will be the shebait”.

The Subordinate Judge held that clause 6 was vague and ineffective and the office of shebait will revert to the founder's heir—namely the defendant. The reasoning of the Subordinate Judge appears faulty. It is not really material to examine whether clause 6 is vague and inoperative. For in any case it was not competent for Jagatrup Kuer to alter the line of succession which she had already laid down in the Samarpannama. It follows that the conditions laid down in the Samarpannama must prevail and the office of shebait must devolve upon the successor who will be nominated by the previous shebait, and, if there is no nomination, the heir of the deceased shebait under the Hindu Law will succeed to the office. Under the terms of Samarpannama, exhibit 55, the plaintiff being the seniormost Bairagi chela of Mithila Sharan would succeed to the office of shebait.

It was argued by Mr. Lalnarain Sinha that even if this conclusion is not correct and plaintiff had not validly succeeded to the office of shebait the present suit will still be competent in view of the admitted or proved facts of this case. Learned Counsel contended that even if the defendant was validly adopted and he was entitled to the office of shebait, still defendant cannot properly represent the deities since his interest is manifestly adverse anti he has repudiated the trust. Learned Counsel referred to the written statement in which the defendant denied that Ramanugrah had constructed temple or installed deities or that he made any dedication of properties. The defendant had also impeached the dedication made by Jagatrup Kuer on the ground that the deed was executed under undue influence. In Title Suit 51 of 1929 the defendant had laid claim to the endowed properties as his own. Upon these facts it is manifest that the deities should file the suit not through the defendant but through a disinterested next friend to be appointed by the Court. As a rule, the only person who can bring a suit on behalf of the idol is the shebait, and although an idol is a juridical person capable of holding property, it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are vested in the Shebait Jagadindra Nath v. Hemanta Kumari. But the statement of the rule requires qualification. Where there is a dispute between rival shebaits or where the shebait denies the right of the idol to the dedicated properties, it is obviously desirable that the idol should file suit through a disinterested next friend, nominated by the court. The principle is clearly stated by Lord Shaw in Pramath Nath v. Pradymna Kumar. That was a suit between contending shebaits about the location of the idol, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court. In this case there is good evidence that Rasik Siromani is seniormost Bairagi chela of Mahanth Mithila Saran, that he resides within the Asthal, that he is learned in Sanskrit, that he was in possession of the temple and properties appertaining thereto till he was dispossessed by the defendant. Even should Rasik Shiromani be found not to be a valid shebait of the endowment it is manifest that he has sufficient interest in the deities to represent them as next friend for the purpose of prosecuting the suit.

The question was also debated whether the defendant was validly adopted by Kishun Kishore Narain Singh and whether he was competent to impeach the alienation of the widow Jagatrup Kuer. It was argued for the appellant that adoption was invalid in law since Sarjoo Prasad Singh, natural father of defendant was the brother's son of Genda Kuer, wife of Kishun Kishore, and the adoption was contrary to the ‘Niyoga Rule’. The argument is based upon certain original tests contained in Dattak Chandrika. In section 11, paragraph 7, a text of sage Saunaka is quoted:

“Having taken him by both hands, with the recitation of the prayer, commencing—‘Devasya-twa, etc.’, having inaudibly repeated the mystical invocation—‘angad-ange, etc.’, having kissed the forehead of the child; having adorned with cloths, and so forth, the boy bearing the reflection of a son”.

In paragraph 8 Dattaka Chandrika contains the following comment on the above text of Saunaka:

“The resemblance of a son,—or in other words,—the capability to have been begotten by the, adopter, through appointment, and so forth”.

In Dattaka Mimamsa also Nanda Pandit cites the text of Sakala, which has already been cited in the Dattaka Chandrika, section 1, Article 11. In section V, paragraph 16, the author comments on the word

“The reflection of a son”

and says:

“The resemblance of a son,—and that is, the capability to have sprung from (the adopter) himself through an appointment (to raise issue on another's wife) and so forth…………”.

Nothing is more obscure and unsatisfactory than the manner in which Nanda Pandit deals with this topic. Nanda Pandit concedes that the practice of Niyoga had long become obsolete, nevertheless he assigns no valid reason why the relations prohibited for adoption should be ascertained on the basis of that rule. Nanda Pandit also contradicts himself in another part of Dattaka Mimamsa in which he remarks after quoting verses of Saunaka and Sakala that a boy of another Gotra may be adopted except a daughter's son a Sister's son, and a mother's sister's son. Section 11, paragraph 74 states:

“If no brother's son exist, another even, being the nearest relative, according to the mode mentioned (must be adopted.) Conformably Caunakha (continues). ‘Of Kshatriyas, in their own class positively; and (on default of a sapinda kinsmen) even in the general family following in the same primitive spiritual guide (Guru): of Vaicyas, from amongst those of the Vaicya class (Vaicya-Jateshu); of Cudras, from amongst those of the Cudra class. Of all, and the tribes likewise, (in their own) classes only: and not otherwise. But a daughter's son, and a sister's son, are affiliated by Cudras. For the three superior tribes, a sister's son, is no where (mentioned as) a son”.

Section II, paragraph 107states:

“Sakala has clearly laid down the above points.: ‘Let one of a regenerate tribe destitute of male issue, on that account, adopted as a son, the offspring of a sapinda relation particularly: or also next to him, one born in another family; except a daughter's son, a sister's son and once born in another family: except a daughter's son, a sister's son and the son of the mother's sister.”

Section II, paragraph 108 states:

“By this it is clearly established that the expression “sister's son” (in the last sentence of Caunakha's text section 74), is illustrative of the daughter's son and mother's sister's son and this is proper, for prohibited connection is common to all three. To enlarge would be unless”.

The same contradiction occurs in Dattaka Chandrika which quotes Sakala's vares.

Another serious objection is that the rules of Niyoga are vague; and the ancient texts furnish no definite information on the point. Manu states:

“On the failure of issue (by the husband) the desired offspring may be procreated either by her (Devara) brother-in-law or any other sapinda on a woman duly authorized (Niyukta—ordered or directed)”.

Yajnavalkya states:

“The son of the wife is one begotten on a wife by a Sagotra or any other.”.

In another are he declares:—

“The (Devara) brother-in-law or a sapinda or a sagotra being directed by the Guru (such as the father-in-law), and being sprinkled with clarified butter, should approach the sonless woman after each catamenia for the purpose of procreating a son; should approach until conception, otherwise he would be degraded: a son begotten in this mode becomes the husband's wife's son”.

The passages from Manu and Yajnavalkya therefore lay down that any sapinda or sagotra without any distinction may be appointed to raise issue. In this context, it is important to notice that certain Dharma sastras have strongly condemned the practice of Niyoga. Apastamba states (II. 10, 27) that

“the hand (of a sagotra is considered to be) that of a stranger; that if (the marriage vow) is transgressed, both (husband and wife) certainly go to hell and that the reward obtained from observing the restrictions of the law is preferable to offspring obtained in this manner (by niyoga).”.

Manu also condemns the practice of Niyoga in the strongest terms possible (IX. 64-68). He states that—

“among dvijatis a widow should never be appointed to raise issue from another, for by doing so ancient dharma would be violated, that in the mantras relating to marriage there is no reference to niyoga nor is the remarriage of a widow spoken of in the procedure about marriage, that niyoga is a beastly way and was first brought into vogue by king Vena who thereby caused varnasamkara, and that since that time good men condemn him who through ignorance appoints a widow to produce offspring”.

In the course of his elaborate address Mr. Lalnarain Sinha did not refer to any decision in which the Niyoga Rule has been applied and adoption has been held invalid for that reason. In any case on principle it is difficult to hold that the rules of the immoral and absolete practice of Niyoga should be invoked in order to ascertain who could or could not be adopted. In my opinion the legal objection raised on behalf of the appellants to the validity of adoption cannot be sustained.

The last question is whether the suit is barred on principle of res judicata. It was contended on behalf of the respondent that in Title Suit 51 of 1929 Mithila Saran acknowledged that the endowment was not binding upon the defendant and that upon the death of Mithila Saran defendant was entitled to get possession of the endowed properties through Court. The compromise petition is exhibit 39 and the decree embodying the compromise petition is exhibit J. It is manifest on a perusal of these documents that the right of the deities to the endowed properties became extinct and the defendant was entitled to recover possession as full owner after the death of Mithila Saran. Paragraph 5 of the compromise decree states:

“On the death of defendant no. 2 the plaintiff will be entitled to khas possession and to enter into possession by taking out execution of the decree and will be entitled to get possession over the properties entered in schedules nos. 1 and 2 given below. At that time the plaintiff will be fully competent and entitled to appropriate the said properties and the income therefrom in the manner as he will take. The plaintiff will also be competent to make arrangements for puja, path, sewa, tahal, rag, bhog, parab, and sameiya of the deities of Shri Ram Janki Ji aforesaid, in the manner he will deem proper. Moreover the plaintiff is and will be fully competent to use and appropriate the income from the said properties in the manner he will like, i.e, the plaintiff will have full right and power to bring the said properties in his own use or to use a part thereof in charitable purposes and puja, path, etc., as he will like. Whatever right and power that have been allowed to the plaintiff will all pass to his heirs and representatives”.

It is manifest that the compromise was wholly prejudicial to the interest of the deities and Mithila Saran had no authority to, annihilate the interest of the deities in the endowed properties. The compromise petition and the decree based thereon are in consequence void and illegal and cannot operate as res judicata. The finding of the learned Subordinate Judge on this issue is obviously right and the finding has not indeed been seriously challenged in the argument of the appeal.

For the reasons assigned I would set aside the decree of the lower court and declare that plaintiffs 1 and 1(a) have title to the properties in schedules 1 to 1(f) of the plaint; plaintiff no. 2 is a shebait for the endowed properties, of which he is entitled to get possession from the defendant. Plaintiffs 1 and 1(a) are also entitled to a decree for mesne profits from the date of dispossession to the date on which possession will be restored. I would accordingly allow the appeal with costs throughout.

Sarjoo Prosad, J.:— It is unnecessary for me to recapitulate the facts which have been elaborately set out in the judgment of my learned brother Ramaswami, J. Nor do I consider it useful to refer to the other points already decided by him with which I am in complete agreement. The appeal, however, raises some very serious questions for consideration. They are: (1) whether the female heir of a founder is competent to lay down a line of succession of shebaits, when the founder himself has not otherwise disposed of the shebaitship of the endowment and worship founded by him; (2) whether the ‘niyoga rule’ could be applied to invalidate an adoption which may otherwise be valid in law; and (3) whether a de facto shebait is entitled to a declaration of his right to manage, the properties of the endowment and to recover possession of the properties on behalf of the idol to whom the endowed properties are dedicated as against the heir of the founder who has repudiated the endowment. These are all important and vexed questions of law, and I wish to add a few observations of my own regard to them. I will take up the questions seriatim.

The principle is well settled that the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing or some circumstances to show a different mode of devolution. In the present case Ramanugrah Narayan Singh had built the temple and installed the deities and was the founder of the endowment. It was, therefore, competent for him to lay down the course of devolution of the office of the shebait. This he does not appear to have done. It has not been seriously disputed, nor can it be disputed that the right of the founder to lay down the line of devolution of the shebaitship is a heritable right, and the successor of the founder was entitled to exercise that right. There are numerous decisions to show that it is competent to the heir of the founder of an endowment in whom the trusteeship is vested, owing to the failure of the line of original trustees, to create a new line of trustees. The principle is illustrated by a Full Bench decision of the Madras High Court in Gauranga Sahu v. Sudevi Mata and also by the decision of the Judicial Committee of the Privy Council in Pramathd Nath Mullick v. Pradymna Kumar Mullick. It is, therefore, impossible to entertain the extreme contention of the learned Advocate-General that once the founder has failed to indicate the line of shebaits, his heirs cannot do so. The question, however, still remains whether a female heir of the founder who could not transmit the succession to her own heirs after her death could by appointment lay down a line of succession to the shebaitship. There is no doubt that the powers of alienation by a male shebait are limited just in the same manner as the powers of alienation by a female shebait. In regard to the management of the endowed properties, they stand on the same footing and there is no distinction between them in regard to their powers qua shebait or manager of the idols. The learned Advocate-General, However, has contended that there is a distinction in the nature of their respective interests as to the future devolution of the shebaitship. It is said that the distinction is inherent in the general law of inheritance which governs the two sexes. He relies in support of his contention on a decision of this Court in Anuragi Kuer v. Parmanand Pathak. It was there laid down by a, Bench of this Court that the management and control of the endowed property, besides the right of acting as ministrant to the deities, which together constitute the shebaiti right, follow the line of inheritance from the founder. If the founder is succeeded by a female, she takes only a life interest under the ordinary Hindu law, and after her death the next male heir in the line of inheritance, takes the shebaiti as full and absolute owner. Dhavle, J., pointed out in the case that:

“The Hindu law of inheritance makes a distinction between the sexes in that a male heir becomes full owner of the property inherited by him and transmits it on death to his own heirs, while a female heir (barring such Bombay exceptions as gotraja females) only takes limited owner, the property passing on her death not to her heirs but to the next heir of the last full owner”.

These principles cannot be gainsaid. What is important to notice is that in the above case there was no question of any female heir of the founder having laid down a line of devolution of the shebaitship. The learned Counsel for the appellants has, on the contrary, relied upon this decision in support of his contention that a female heir does not take a mere life estate in the office with the remainder vested in presenti in the next taker, but as a matter of fact the entire estate is vested in her though her powers of alienation are qualified and restricted much in the same manner as the powers of the male heir of the founder. This decision was approved by the Supreme Court in Angurbala Mullick v. Debabrato Mullick. There again there was no question of any line of inheritance to the shebaitship being indicated by a female heir of the founder in whom the shebaitship had become vested for the time being. The question there was whether the word ‘property’ in the Hindu Woman's Eight to Property Act (XVIII of 1937) as amended by Act 11 of 1938 includes succession to shebaitship as an heir of the founder, and it was held in that case that the word ‘property’ as used in the Act does include succession to shebaitship as well. It was also held there that succession to shebaitship, even though there is an ingredient of office in it follows succession to ordinary or secular property, and it is the general Hindu law of succession that governs such cases. The general law having been changed by reason of the aforesaid Act, there was no reason why the law as it stood after the alteration should not be also made applicable in the case of devolution of shebaitship. In this connection it would be just as well to quote the very illuminating observations of Mukherjea, J., when dealing with the nature of shebaiti right and its devolution. The learned Judge observed:

“It is argued that this distinction between the Hindu Woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular property, but this distinction is unmeaning when applied to shebaiti right, for the nature of the interest enjoyed by a male or a female shebait is exactly the same. This argument does not appear to us to be at all convincing. Precisely the same thing happens when the smhebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect of the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself and they exist irrespective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female shebaits may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu woman's estate. When a Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property, goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shebaiti right would not pass to her stridhana heirs but would go to the heirs of the last shebait, Anuragi Kuer v. Parmanand, A.I.R 1939 Patna 1”.

On these decisions, of course, there can be no doubt that the devolution of the shebaiti interest is governed by the ordinary law of inheritance regulating the heirs of the founder, and the Hindu female who succeeds as shebait cannot transmit the interest which she inherits to her own heirs upon her death. But there is nothing in the decision to indicate that she cannot lay down a line of succession to the shebaitship as an heir of the founder acting in the best interest of the idol and the endowed properties; because the exercise of the power of nomination of the succeeding shebait is undoubtedly vested in the heir of the founder who is also the shebait for the time being. Such an act cannot be considered to be an alienation of the shebaiti interest. It seems to be well-settled that this power could be exercised under the circumstances by a male heir of the founder. On principle, therefore, I find no adequate reason to differ from the decision of my learned brother on this point, and I hold in agreement with him that it was legally open to Jagatrup Kuer to create a new line of shebaits by virtue of the shebaitnama (Exhibit 54).

The next contention of the appellants that the adoption was illegal since Sarju Prasad Singh, the natural father of the defendant, was the brother's son of Genda Kuer, wife of Kishun Kishore, and as such contrary to the ‘niyoga rule’ now requires to be examined. The learned Counsel for the appellants has submitted that the adoptive father could not perform niyoga on the mother of the defendant who was in the position of a niece-in-law, or, in other words, the wife of the son of the wife's brother of the adoptive father. My learned brother, if I may say so with respect, has very rightly observed in his judgment that on principle it is difficult to hold that the rules of the immoral and obsolete practice of niyoga should be invoked in order to ascertain who could or could not be adopted. Even though this barbarous practice of niyoga prevailed at some stage in the dark ages, all the ancient writers and sages have almost unanimously condemned it; and at any rate under the spotlight of rapidly advancing Hindu culture, it appears to have completely vanished some three thousand years ago. The rule is really so repugnant to conscience that it is difficult to imagine that a modern jurist would take any notice of the rule much less adopt it as a test for invalidating an otherwise valid adoption. No specific precedent has been cited on the point by the learned Counsel for the appellants. He has, however, strongly founded his argument upon a decision of the Calcutta High Court in Hari Das Chatterji v. Manmatha Nath Mallik wherein it was held that a Hindu of the regenerate class could not adopt a person whose mother the adopter could not have legally married. The case arose under the Bengal School of Hindu Law and related to the adoption of a brother's daughter's son. They held such an adoption to be invalid and they further observed that the marriage rule is not merely recommendatory but mandatory and the doctrine of factum valet did not apply to adoption prohibited by the texts. Incidentally their Lordships refer to various passages in the Dattak Mimansa and the Dattak Chandrika two well-known treatises on adoption, and in particular to the commentary of Nanda Pandit, the author of the latter work with reference to the words occurring in the text which mean “the reflection of a son”. Of course, there are isolated passages in the judgment which lend colour to the contention of the learned Counsel but the case is no authority for the proposition that the ‘niyoga rule’ was applied in that case for the purpose of invalidating the adoption. What was actually adopted and recognised was the ‘marriage rule’ and in the circumstances the decision was justified. I can understand the prohibition that the adoptive father could not take in adoption a boy whose mother he could not have legally married in her maidenhood. In the present case the rule will have no application because there could be no legal bar to Kishun Kishore marrying the mother of the defendant if she were a maiden. I, therefore, find myself in agreement with my learned brother on this point and cannot see my way to accede to the contention of the learned Counsel for the appellants that the adoption of the defendant should be declared invalid on this ground.

The only other point which needs attention now is the point whether the plaintiff as de-facto shebait could sue the defendant for possession of the endowed properties, even assuming that the defendant is the heir of the founder. If it is held that the plaintiff is the rightful shebait, this question does not arise, but the contention has been put forward on the alternative assumption that Jagatrup Kuer had no right to create a new line of shebaits. It is to be remembered that the suit is on behalf of the idols through the appellant as shebait. The idols cannot speak for themselves. Their interest has to be consulted and safeguarded through some one who is a fit and proper person to speak and act for them. The idol is a perpetual minor, and like any other incapacitated person, it is primarily the duty of the Court to protect the interest of the idol. As a general rule the interest of the idol can be protected through the, shebait who is competent to sue and be sued on behalf of the idol, but where the shebait himself repudiates the endowment to the prejudice of the idols concerned in whom the endowed properties are vested, it is impossible for the Court to leave the idols to the sweet mercies of such a shebait. In such the Court has to find out some other next friend or guardian of the idols from amongst the persons competent to act as shebaits. In the present case the defendant having completely repudiated the endowment and the dedication of the properties whether by Ramanugrah or his widow Jagatrup, the interest of the idols cannot be safe in his hands. I am also, therefore, of the opinion that the appellant who was in possession of the temple and properties appertaining thereto until his dispossession by the defendant, was a fit and proper person to act as shebait of the idols and had sufficient interest in the deities to represent them for the purpose of prosecuting the suit out of which this appeal arises and to recover possession of the endowed properties from the defendant.

For the reasons set forth above, I agree that the appeal should be allowed with costs and that the judgment and decree of the court below should be set aside.

Appeal allowed.

K.D