1. This appeal has been argued at great length and with great-ability and earnestness on both sides, but we do not regret the time occupied as the arguments at the Bar have been of great assistance to us.

2. The facts which have given rise to the present case and several previous cases are that plaintiff's mother's father, Ram Kamal Mukherjee, who died on the 1st August 1845, shortly before his; death, viz., on the 4th February 1845 executed a Will by which, after providing for various annuities and legacies, he made a gift of certain valuable properties to an idol Sri Sri, Gopal Jiu and appointed his wife Barada Sundari Devi and his three brothers Ram Kumar, Madhusudan and Chandra Mohan Mukherjee shebaits of the endowment. As to future shebaits, he made the following provision: "When you all have ceased to be, he who shall be of the Hindu pulsation and senior in age amongst your legal heirs shall have the management conferred upon him." We do not refer here to other provisions of the "Will which will have to be considered in their proper places. This Will has been a fruitful source of litigation and after the death of each shebait the assistance of the Courts has been sought for the construction of the Will. It appears that of the four shebaits appointed under the Will Madhusudhan was the last to hold the shebaitship. In 1863 when Madhusudhan was acting as shebait three of his sons Ashutosh, Mritunjoy and Aghore instituted a suit against him and certain transferees from him and impleaded in the suit all the heirs of the original shebaits--Jogeswar, son of Ram Kumar, Kamini, daughter of the testator and Barada Sundari,. and Damayanti, widow of Chandra Mohan. The suit was for construction of the Will, for declaration of trusts created thereunder and for having the unauthorised alienations of the trust property declared inoperative. Kamini, the daughter of the testator and mother of the present plaintiff, denied the genuineness of the Will and further urged that it did not create any valid endowment. The Principal Sudder Amin who tried the suit decreed it in full, holding that the Will was genuine, that it created a valid religious endowment and that the transfers were null and void. On appeal by Kamini and one of the purchasers, this decree was affirmed by the High Court on the 15th May 1865. There was no further dispute till 1879 when Madhusudhan died. Then Kamini, the mother of the plaintiff, instituted a suit in the First Court of the Subordinate Judge at Alipore for the construction of the Will, for the determination of the nature and extent of the interest of the idol Gopal Jiu in the estate of the testator, for the appointment of a proper person as shebait and for other reliefs. All the then existing heirs of the original shebaits were made parties to the suit. The Subordinate Judge passed a decree in the suit by which he dismissed Kamini's claim for possession of the properties by right/pf inheritance. He declared that the entire property of Ram Kamal had vested absolutely in the idol and appointed Ashutosh the eldest son of Madhusudhan as shebait, Damayanti widow of Chandra Mohan and the senior member in age having waived her right to act as shebait. Kamini preferred an appeal from the decree of the Subordinate Judge to the High Court which allowed the appeal and held that there was no valid endowment, that the Will created a religious charge on the properties and that there was a devise of the surplus proceeds for the benefit of the heirs of the testator and his brothers. The matter was taken in appeal to the Privy Council and in 1888 their Lordships of the Judicial Committee reversed the decision of the High Court holding that the question relating to the construction of the Will and the nature of the dedication were res judicata by virtue of the decision in the suit of 1863. They further held that Asutosh had a preferential right to shebaitship. The decision of the Judicial Committee is reported sub namine Kamini Debi v. Asutosh Mukerji 15 I.A. 159 : 16 C. 103 : 12 Ind. Jur. 410 : 5 Sur. P.C.J. 246 : 8 Ind. Dec. 68 (P.C.). Soon after the decision of the Privy Council Asutosh died on the 23rd August, 1888. Damayanti who had previously waived her right to shebaitship in favour of Asutosh now laid claim to the office and as Kamini resisted her claim, she commenced an action in 1888, for construction of the Will and for the appointment of herself as shebait or of any other suitable person if her claim was disallowed. All the heirs of the original shebaits then living were made parties to the suit. Kamini and Aghore Nath one of the sons of Madhusudhan disputed her right and each claimed the office. The Court of first instance held that Damayanti was disqualified as she had once waived her right and appointed Kamini to the shebaitship. On appeal, the First Appellate Court agreed in dismissing the claim of Damayanti but held that Aghore Nath had the preferential title to the shebaitship. Damayanti appealed to the High Court which held that she being the senior in age among the heirs of the original shebaits was entitled to the shebaitship despite her previous waiver. Damayanti accordingly held the office till her death in 1905, when both Kamini and Aghore came forward to claim succession to the shebaitship. Kamini brought a suit. in 1906 for declaration of her preferential right to shebaitship against Aghore and the present appellant who are Aghore's brothers and succeeded in her claim up to the High Court. There were several litigations between her and Aghore and his brothers but Kamini held the shebaitship till her death in 1916. She was succeeded in the office by Aghore who acted as shebait till his death in 1918. Upon Aghore's death the present controversy arose. On Aghore's death no one among the heirs of the testator and his brothers was left who was alive at the time of the testator's death, all the parties to this suit having been born after that event. Plaintiff, thereupon, instituted the present suit for declaration of his right and that of his brother (defendant No. 23) to the shebaitship of the idol on the ground that on the death of all the persons living at the time of the death of the testator the office of the management of the endowed property reverted to the heirs of the testator. He further prayed that if the above contention was overruled he should be appointed as shebait, being senior in age among the heirs of the original shebaits. This latter claim has been dismissed as it has been found that the plaintiff is not senior in age to defendant No. 1 and we need not consider it any further. As regards the plaintiff's first contention both the Courts below have given effect to it and decreed the suit.

3. The defendants Nos. 1 to 3 have appealed and it is contended on their behalf that the view of the law taken by the Courts below is erroneous. Some other points have been raised which we will consider later, but the main question on which the decision of this appeal hinges is whether the principle of law enunciated in the case of Jotendromohun Tagore v. Gnendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) and extended to an hereditary office and endowment by Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : : 8 Ind. Dec. (N.S.) 591 (P.C.) and now firmly established, that the gift to an unborn person is invalid and contrary to Hindu Law, is applicable to the office of shebaitship.

4. It is first argued that this question is affected by the principles of res judicata in. view of the previous litigations to which the plaintiff's mother Kamini was a party. It is said that the Will of Ram Kamal has been construed on several occasions specially by their Lordships of the Judicial Committee in Kamini Debi v. Asutosh Mukerji 15 I.A. 159 : 16 C. 103 : 12 Ind. Jur. 410 : 5 Sur. P.C.J. 246 : 8 Ind. Dec. 68 (P.C.) who at page 116 Page of 16 C.--[Ed.] of the report observe that it was decided in the suit of 1863 that "the Will was wholly valid and passed the entire estate to the idol." It is argued that the words "wholly valid" must be taken to mean that all its provisions are valid including the devolution of the shebaitship in persons unborn at the time of the testator's death. The questions, raised in the suit of 1863 by Kamini, were that the dedication was illegal and invalid and that at the most it created a religious charge on the secular properties of the testator and their Lordships say that in that suit it was decided that the Will bequeathing the properties to the idol was valid to the whole. extent of the bequest and that the idol took the entire estate. The present question was not under consideration either in the suit of 1863 or of 1880, there was no issue on this point and there was no decision express or implied of this question. In fact the present controversy had not then arisen and there was no occasion or necessity "for considering it. The dispute for the first time arose in 1918 after Aghore's death. We may note that the Will does not expressly say that the shebaitship will also devolve on the heirs of the original shebaits not in existence then. It contains a general provision that the office shall devolve on the heirs of the shebaits appointed under the Will. Plaintiff claims that this provision has now been exhausted and the shebaitship will henceforth follow the estate of inheritance.

5. It is next contended to distinguish the decision of the Judicial Committee of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : : 8 Ind. Dec. (N.S.) 591 (P.C.) that the office of shebait in the present case is not hereditary inasmuch as the condition of appointment is that the succession to the office depends on seniority of age and not on heirship to any particular person. The 4 argument is ingenious but not sound. The shebait succeeds to the office because he is heir to one of the four original trustees." The appellants for instance claim to be appointed shebaits because they are the sons of Madhusudhan. The testator laid down two qualifications for the shebaitship--heirship to one of the original trustees and, seniority in age. The Will expressly says that the shebaitship shall devolve on the heirs of the first shebaits. It is possible that immediately on the death of a shebait his son may not succeed to the office not being senior in age, but it is equally possible that he may happen to be senior in age and succeed his father on the latter's death. In our judgment it cannot be said that the shebaitship in the present case is not a hereditary office.

6. The next point raised is that as no emolument or interest in property is attached to the office in this case it is not within the rule of, Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : : 8 Ind. Dec. (N.S.) 591 (P.C.). The facts of that case properly scrutinised will show that the office there did not carry with it any pecuniary, interest. In fact the Government had taken charge of the temple and the endowment and subsequently' released them in favour of Velu Pandaram grandfather of the plaintiff in that case. That Velu executed an agreement by which he undertook to do the puja, keep the temple in repairs and pay the Government Revenue. There is no mention of the manager making any profit out of the management. In their judgment the Judicial Committee have nowhere referred to the peculiar character of the hereditary office there which attracted the operation of the rule in Jotendramohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.). They hold that Article 121, Limitation Act, applied to the case and then observe that the rule in Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) applies equally to an hereditary office as to a gift. Article 124 of the Limitation Act prescribes the period of limitation applicable to a suit for the recovery of an hereditary office without making any distinction between an office carrying personal benefit and one which has no gain attached to it and which the learned Counsel for the appellants calls "bare trusteeship." We have not been referred to any authority either in the texts of the Hindu Law or in decided cases that there exists in law any difference between a so called "bare" trusteeship and a trusteeship carrying emoluments. It is, however, argued that there are three kinds of endowment; (1) where the whole property and its income are devoted to the idol; (2) where properties are dedicated, to the idol but a portion of the usufruct is given to beneficiaries including the shebait; and (3) where secular property is churged with expenses of the worship of the idol. It is submitted that the endowment in the present case belongs to the first class, and, as held by the Judicial Committee in the case of Vidya Varuthi Thirlha Swamigal v. Balusami Ayyar 65 Ind. Cas. 161 : 48 I.A. 302 : 44 M. 831 : 26 C.W.N. 537 : 41 M.L.J. 346 : (1921) M.W.N. 449 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 245 : 24 Bom. L.R. 629 : 20 A.L.J. 497 : (1922) A.I.R. (P.C.) 123 (P.C.), a shebait is a mere manager and has no right or estate in the endowed property and, therefore, the law of gift to an unborn person should not be applied in the case of shebait. This argument virtually invites us to revise the correctness of the decisions of the Judicial Committee in Gnanasdm-banda Pandara Sannadhi v. Velu Pandaram 65 Ind. Cas. 161 : 48 I.A. 302 : 44 M. 831 : 26 C.W.N. 537 : 41 M.L.J. 346 : (1921) M.W.N. 449 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 245 : 24 Bom. L.R. 629 : 20 A.L.J. 497 : (1922) A.I.R. (P.C.) 123 (P.C.) as also in the case of Gopal Chunder Bose v. Kartick Chunder Dey 29 C. 716 (P.C.), which we are incompetent to do, The case of Gopal Chunder Bose v. Kartick Chunder Dey 29 C. 716 (P.C.) affords a valuable. guide for the determination of the present controversy as the facts of that case are to a great extent similar to those of the present case. There a Hindu testator created an. endowment and directed that shebaitship: should be held by his wife, after her death by his son and after his death by the testator's daughter and her husband and their male children. It was held that oil the death of the last Surviving son of his daughter, the succession to shebaitship failed and the shebaitship reverted to the heirs of the testator. The arguments pressed in this case were also advanced in Gopal Chander Bose v. Kartick Ghunder Dey 29 C. 716 (P.C.). The Division Bench of this Court, whose decision was approved and upheld by the Judicial Committee, observed as follows: "It was contended before us for the respondent that we are not dealing with an actual bequest or gift of immoveable" property, but only with the appointment of persons to superintend and manage the pagoda. It would appear, however, from the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : : 8 Ind. Dec. (N.S.) 591 (P.C.) that the rule in Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) is applicable to a hereditary office and endowment as well as to immoveable property." This, in our judgment, supplies a conclusive answer to the appellant's contention.

7. This being the view we take of the decisions of the Privy Council and the law laid down by it, it is not necessary, to refer to the several cases of this Court to which the learned Counsel for the appellants has drawn our attention in support of his argument. But we propose to refer briefly to a few of them which apparently favour the appellant's contention. The first case is Bisseswar Prasanna Sen v. Bhagabati Prasanna Sen 3 C.L.J. 606. In that case a Hindu Will provided that the senior in age among the lineal descendants and neirs of the testator was to take Charge as shebait of the trust property dedicated to the worship of an idol. It was contended that possible and not actual events must be taken into account and that following the rule in Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) and Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : : 8 Ind. Dec. (N.S.) 591 (P.C.), the gift was bad ab initio as the senior in age amongst the lineal descendants might not be in existence at the death of the testator. It was in short argued that as the bequest would fail at a future time the whole of it is bad in law including the bequest in favour of persons living at the testator's death. The learned Judges held that it is not so and that such directions are common enough in Hindu Wills and they did not think' that there was anything contrary to Hindu Law in the provision. The parties in that case were all alive at the time of the testator's death and the judgment of the Court' so far as it related to the validity of ,the bequest between the parties' to the suit is quite correct. But if the learned Judges intended to hold that the bequest in favour of unborn persona was also' good they went beyond the scope of the suit and their observation must be regarded as obiter dictum and in conflict with the law as laid down by the Privy Council. But as one of the Judges who decided this case, Maclean, C.J., was a party to the case of Gopal Chunder Bose v. Kartick Chunder Dey 29 C. 716 (P.C.), it may. be fairly presumed that the learned Judges meant to hold that the bequest as between the parties to the suit was valid and binding, and it was not bad because at some future time it might fail for illegality.

8. The next case on which reliance is placed is Mathura Nath v.' Lakhi Narain Ganguly 75 Ind. Cas. 435 : 50 C. 426 : (1924) A.I.R. (C.) 68 There the testator had empowered her widow to appoint a shebait in succession to her. She appointed a person who was not in existence during testator's lifetime. The contention was that according to the rule in Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.), the bequest authorising the widow to appoint a shebait who possibly might no be in existence at the time of the testator's death is illegal. The learned Judges held that that rule did not apply in that case. Richardson, J., at page 436 in giving his reasons why Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) did not apply observes that the testator might have' empowered the' Civil Court, instead of the widow to appoint a shebait and the choice in that case need not have been restricted to persons' living at the time of the testor's death. The ratio of that decision is that where appointment to shebaitship is to be made by nomination the rule of law governing directions in a Will for appointment of all unborn person designated or of a designated class will not apply.

9. In Rambrahma Chatterjee v. Kedar Nath Banerjee 72 Ind. Cas. 1026 : 36 C.L.J. 478 : (1923) A.I.R. (C.) 60, the question was whether daughter's sons of the founder who were not in existence at his death were entitled to share in the bhog or offering to the idol. It was held that share in the bhog not being interest in property is not subject to the rule in Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.).

10. In Jatindra Mohan Mondal v. Ghanesyam Chdudhury 72 Ind. Cas. 1019 : 50 C. 266 : 36 C.L.J. 428 : (1923) A.I.R. (C.) 27, air annuity was given by the testator to his daughter and" absolutely to her son who Was not then born. The learned Judges held that an annuity may be given to an unborn person under the Hindu Law.

11. We are of opinion that none of the cases cited by the learned Counsel for the appellants has any bearing on the present question. The learned Judge of the Court of Appeal below remarks that the office of shebaitship in this case carries with it the right to hold and manage properties belonging to the idol and so the appointment as shebait may be said to create an interest in immoveable property. This view is not without justification. It is suggested by the respondent that a sufficient profit is left to the shebait of the idol. This is possible considering the frequent scramble for the office since the death of the testator. But we express no opinion on this point.

12. After a careful examination of the authorities we have arrived at the conclusion that after the death of Aghore the bequest, so far as it provides that the person senior in age among the heirs of the first shebait should be appointed shebait, fails and we hold on the authority of Gopal Chunder Bose v. Kartick Chunder Dey 29 C. 716 (P.C.) and Kunjdmani Dasi v. Nikunja Beliary Das 32 Ind. Cas. 823 : 20 C.W.N. 314 : 22 C.L.J. 404 and other cases that the shebaitship reverts to the heirs of the founder Ram Kamal Mukherjee. It is not disputed that the plaintiff and the defendant No. 23 are the heirs of Ram Kamal.

13. Lastly it is contended that, as the idol was established by the mother of Ram Kamal who founded the present endowment for the worship of that idol, according to Hindu Law, the succession to the shebait-ship of the idol which would include the management of the properties endowed by Ram Kamal, should descend to the heirs of Ram Kamal's mother and reliance is placed for this view on the case of Ananda Chandra Chakravarti v. Broja Lal Singh 74 Ind. Cas. 793 : 50 C. 292 : 36 C.L.J. 356 : (1923) A.I.R. (C) 142. Hence the defendants Nos. 1 to 3 being the heirs of Ram Kamal's mother are entitled to the shebaitship in preference to the plaintiff. This point was not taken in either of the Courts below nor does it appear to have been mentioned in the pleadings. As determination of this question depends upon questions of facts we do not think we will be justified in allowing the appellants to take it at this stage and as Court of Second Appeal we are not in a position to consider it. We may mention one fact to show that we are not competent to deal with this matter. There is no evidence that the idol was consecrated by Ram Kamal's mother. In the translation of the Will which is to be found in the report of the case of Kamini Debi v. Asutosh Mukerji 15 I.A. 159 : 16 C. 103 : 12 Ind. Jur. 410 : 5 Sur. P.C.J. 246 : 8 Ind. Dec. 68 (P.C.) certain vernacular words have been translated as "Thakur Gopal Jiu consecrated by my mother." We have looked into the Bengali document and we do not find that there is any word there meaning 'mother' but there is the sign 'Ishwar' which may indicate God or a dead person. The appellants say that Ram Kamal's mother was dead at the time of the Will; the respondent denies it and there is nothing in the Will to show that she was dead at that time. In these circumstances we are unable to allow the appellants to raise this point in second appeal.

14. In the view we have expressed this appeal fails and is dismissed with costs to the plaintiffs.

15. A cross-appeal is filed by the plaintiff against the order in the decree of the First Court confirmed by the decree of the Additional District Judge whereby his and his brother's possession of the shebaitship and property is declared to be subject to the rights of the defendants and members of the family of the original shebait to reside in the Kidderpore house to repair it if necessary, to get maintenance out of the offerings to the idol and, to enjoy certain other rights.

16. Appeal No. 12 of 1923 is filed by the pro forma defendant No. 23 the brother of the plaintiff against this declaration.

17. In cross-appeal it is urged on behalf of the plaintiff on the principle of Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) that these provisions have lapsed since 1880 and anyhow cannot enure to the benefit of the younger members, not in existence at the time the testator died.

18. It is urged both by the appellants (defendants Nos. 1-3 in the lower Court) and by some of the pro forma respondents (defendants Nos. 12-15 and 16-22) that this matter was already decided by the Privy Council in restoring the order of the Subordinate Judge in the case between the predecessors of the parties reported as Kamini Debi v. Asutosh Mukerji 15 I.A. 159 : 16 C. 103 : 12 Ind. Jur. 410 : 5 Sur. P.C.J. 246 : 8 Ind. Dec. 68 (P.C.) as in that matter the Subordinate Judge had held that these provisions in the Will were valid. The property is that of the idol and the shebaits get no property for their exclusive use by virtue of their office. The property is with the idol and the direction in the Will as to how the income shall be spent is not bad. In deciding this point in the suit of 1880 the learned Subordinate, Judge said:

It is contended for the plaintiff that those persons only who were born at the time of the testator's death, are entitled to maintenance from the estate, and not those who were born afterwards. This contention is based on the principle laid down in Jotendromohun Tagore v. Ganendromohun Tagore I.A. Sup Vol. 47 : 96 B.L.R. 377 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.) viz., that no gift to an unborn person is valid. The Will virtually made no gift to any unborn person, the entire gift was to the idol, who was to have his daily bhog which ordinarily is distributed to the poor and needy or to Brahmins without any inquiry whether they were born during the testator's lifetime or not. That is the immemorial custom of the Hindus in charge of the endowed property. The testator alive to the proverb, that charity must begin at home preferred his blood relations including their future descendants as recipients of the prosad than outdoor beggars or Brahmins.

The five brothers and their descendants who by the Hindu Law are entitled to maintenance from them, are all entitled to the prosad of the idol as well as to reside, in the Kidderpore house; they are also entitled to their poita and marriage expenses as well as the charges of the performance of their parentssradhs to the extent of their ceremonial part. The income of the estate being totally inadequate to meet all the necessary expenditures, all secular' charges like marriage portion, dower, or in the shape of ornaments or the like should not be made from the debutter funds.

19. The Subordinate Judge's order though not approved by this Court was restored by the Privy Council and so the matter cannot be re-opened. Learned Counsel also relied on the principles laid down in the case of Rambrahma Chatterjee v. Kedar Nath Banzrjee 72 Ind. Cas. 1026 : 36 C.L.J. 478 : (1923) A.I.R. (C.) 60, where it was laid down that

"A founder who is competent to provide for the Government and administration of a trust, can give a direction for its management which is not inconsistent with its character as a religious and charitable trust. The test in each case is whether the direction given by the founder is inconsistent with the nature of the endowment as a religious and charitable trust and is a colourable device for the evasion of the law of perpetuities."

The learned Subordinate Judge in 1880 found that the directions were not inconsistent with the character of a religious trust recognised by Hindus and with this opinion we agree. The directions as to management will not cease to be operative simply because the original provisions as to the devolution of the shebait-ships cease to be operative owing to succession to the shehaitship being varied.

20. The cross-objection is, therefore, dismissed with costs to each set of respondents appearing three in all.

21. Appeal No. 12 of 1923 really raises the same point in a different form. The appellant is pro forma defendant No. 23 in the First Court, brother of the plaintiff. He raised certain issues in that Court which were decided against? him, it being-held that his claim which as we have said above is similar to the claim in the cross-objection is barred by res judicata a finding upheld by the learned Additional District Judge.

22. The arguments in his appeal are, however different. Without going into the merits of the claim that the directions to the use of the income accruing to the idol are good and valid his arguments at the But are-

(i). That he is an heir of Kamini, whose interest in the estate arose by virtue of the terms of the Will: he how claims by inheritance from the original testator through his mother Kamini and Kamini in the previous suit did not claim as he does now by inheritance. Hence the ruling in Katama Natchiar v. Raja of Sivaganga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.R. 25 : 19 E.R. 843 which lays down that a reversioner would be hound by a decree fairly and properly obtained against a widow has no application in his case. Karhini's position in the previous litigation was that of a legatee under the Will with a chance of becoming a shebait he is an heir of the testator through Kamini and is not bound by any decision to which Kamini" was a party in another capacity.

(ii). There was no decision in the casa of 1863 on the question now in issue; that suit was confined to the genuineness of the Will and the right of Asutosh to see that its provisions as to the corpus of, the property were carried out. The Privy Council decision of 1888 only declared that the decision on these points were res judicata. It did not decide anything more.

23. The second point may be considered first, and appears to us to be based on a misunderstanding of what the Privy Council decided in the case. The advice Which the Judicial Committee gave to Her, Majesty was that the appeal of the plaintiff in that suit wholly fails and the cross-appeal wholly succeeds. The High Court ought to have dismissed the appeal to them, with costs. Her Majesty in Council decreed accordingly. The decree of the Subordinate Judge restored: by the order is in these words:

ORDERED That the plaintiff's claim to get the estate of her deceased father Ram Kamal Mukherjee by right of inheritance be dismissed, as well as her claim, to be the sole preferential shebait of Gopal Jin: Thakur. It is hereby further ordered, that the entire property of Ram Kamal, deceased having absolutely passed to and been vested in the said Thakur, 'plaintiff's claim' to a partition of that estate be also dismissed. It is further declared" that the heirs and descendants of the five brothers, namely, Ram Kamal Mukherjee and of his four brothers, Ram Kumar Mookerjee, Madhu Sudhan Mukherjee, Chunder Mohan Mukherjee and Dina Nath Mukherjee who are by Hindu Law entitled to maintenance from the said five persons shall be entitled to participate in the daily prosad of Gopal Jiu Thakur as well as to reside in the Kidderpore dwelling-house. It is further declared,' that the expenses of the religious portion only of the ceremonies of sradh of the parents of the aforesaid persons, of the marriages of their sons and daughters, and of the Jagnapobita ceremonies, shall be defrayed out of the income of the debutter estate but on no account shall the said income be used in feasting Brahmins, etc., and other secular offices in connection with these ceremonies. It is hereby also declared, that the said dwelling-house, along with the other properties of the testator, shall be under the control and management of the shebaits for the time being who shall look to the necessary repairs of the buildings as next importance to the daily worship of Gopal Jiu Thakur and distribution of prosad to the members of the family. The shebait for the time being shall strictly carry out the other provisions of the Will concerning Durga Puja, the celebration of the dole jatra ras hindola and nandotsub. If sufficient funds should not be forth-coming from the estate for their due celebration then the religious portion of the ceremonies, viz. the pujas, etc., shall alone be performed. The defendant No. 8 Damayanti Debi, who has the preferential right to be shebait, having declined to accept the duties of shebait, the defendant No. 1 Asutosh Mookerji, as the next senior member of the family, shall conduct all the duties in terms of the Will. The plaintiff shall pay to the defendants Nos. 1, 2 and 3 one set of costs according to the schedule. The plaintiff and the remaining defendants shall bear their own respective costs. The costs incurred by the defendant No. 1, Rs. 10 and those incurred by the defendants Nos. 2 and 3, Rs. 2-8-0 and the one set of Vakil's fees payable by the defendants Nos. 1, 2 and 3 in proportion to the claim amounting to Rs. 899-14-0 and interest thereon, i.e., on the entire amount aforesaid from this day to the date of realization, shall be paid by the plaintiff at the rate of 8-annas per cent, per month.

24. This is the decree which Her Majesty in Council adopted. It is over forty years old and no one has ever suggested before that it was not justified by the judgment of the Judicial Committee and it certainly cannot be challenged before us.

25. The first point needs little argument. The whole of then existing beneficiaries were before the Court in 1863 and in 1880 (in the latter year including the present appellant) and the appellant cannot under any principles urge that he is not bound by the decree of the Privy Council of 1888. But apart from any thing else we have only to add that in considering the appeal and cross-appeal we have come to a decision that the property does not belong either to the plaintiff or the appellant. It belongs to the idol and this appellant is only a she-bait, not an owner--a trustee for the idol bound to carry out the trust which we hold the testator had full power to make.

26. This appeal is, therefore, dismissed with costs. One set divided between the three sets of respondents.