1. By a deed of settlement, dated 13th September 1916, Surabala Dasee and Sarojabala Dasee dedicated a certain piece of land and a temple and a house erected thereon to a certain deity, which they had installed and consecrated therein, and appointed themselves as shebaits, and conveyed to themselves, as such shebaits, the said properties upon trust, to supervise and manage the Bheba and periodical festivals thereof, and defray the expenses out of money to be paid to them by trustees of the temple, derived from properties to be settled thereafter for the maintenance of the sheba. The shebaits were to have no proprietary interest in the temple, land or house, but were to be entitled to a share of the daily offerings. The deed further provided that the settlors should be the shebaits for their lives, with power by deed or will to appoint their successors:

“In default of such appointment by the said Sreemati Surabala Dasee her spiritual guide, Babu Mahendranath Chatterji of Salkea, or, in case of his death, his eldest male heir, and in like default by the said Sreemati Sarojabala Dasee, her spiritual guide, Babu Harimohan Goswami or in case of his death, his eldest male heir, jointly with the suvivor of the said settlors and after the death of both of the said settlors, and in default of such appointment as aforesaid the said two spiritual guides or their or his eldest male heir shall act as joint shebaits of the said deity, and thenceforth the future shebaits shall consist of the eldest male descendant of the said Mahendranath Chatterji and the said Harimohan Goswami, provided always that every future shebait of the said deity shall have like power to nominate and appoint by deed or will his successor in office.”

2. In case any shebait should become incapable or unfit, he could be removed, and the person next entitled to become shebait was to succeed in his place, and on failure thereof, the trustee or trustees for the time being of the temple and the dedicated properties was to nominate and appoint a proper shebait in the office, it being the intention of the settlors that at no time should there be less than two shebaits of the deity. By an indenture made at the same time, Sarojabala Dasee, in order to provide for the maintenance of the sheba, settled the whole of her property including certain property in Calcutta, on trust, and appointed the defendant Akshaychandra Basu to act as trustee, with power to manage the said property and to supervise the management of the shebaits appointed under the deed of dedication, and apply the income to be derived from the settled property as therein directed, and appoint shebaits in case of failure under the terms of the deed of dedication. By her will, dated 29th December 1916, Sarojabala Dasee left all her property on trust to the said Basu, to secure an income for the maintenance of the sheba and by a further settlement, dated 13th March 1917, she made a further settlement dedicating the Calcutta property to the deity.

3. Sarojabala acted as shebait until she died in April 1917, without appointing her successor. Thereupon, the said Harimohan Goswami acted as shebait. Surabala never acted as shebait. On 19th July 1921, Harimohan Goswami died, without having appointed any successor. Thereupon, the plaintiff acted as shebait in his place. On 20th April 1931, Surabala died, without appointing her successor. In this suit, the plaintiff, who is the only son and therefore the eldest male heir of Harimohan Goswami alleges that he is the shebait under the terms of the deed of dedication and sues defendant 1, A.C Basu, as trustee of the Thakur and of Sarojabala's property and defendant 2, Abinashchandra Chatterji, as shebait, on the ground that he succeeded Surabala under the terms of the deed, being the eldest male heir of Maneendranath Chatterji. Both the plaintiff and Abinashchandra Chatterji were alive at the time when the three deeds and the will were made. The plaintiff states that defendant 1 has failed to carry out the directions contained in the deeds of settlement and dedication and claims various reliefs against him. No relief is claimed against defendant 2. Further, he makes a claim against defendant 1, in respect of another idol, which belongs to defendant 1. In my opinion this claim cannot be made in this suit, which is brought against defendant 2 in his representative capacity only, by the plaintiff as the shebait of a different idol. By his written statement, defendant 1 asks the Court to construe the deeds and decide whether the plaintiff and Abinashchandra Chatterji or either of them is entitled to be shehait. He further alleges that the plaintiff is a person of licentious and criminal habits and unfit to be a shebait, and that he has brought this suit to forestall defendant 1, who was about to take steps to remove him from the office of shebait. Defendant 2 says that the plaintiff has wrongfully excluded him from acting as shebait.

4. The following issues were raised: (1) That the plaintiff is not a shebait, and has no right to sue because; (a) the settlors were not the founders of the sheba; (b) the deed of dedication prescribes a line of inheritance unknown to the Hindu law. (2) That the plaintiff is not a shebait, on the ground that, as no property was given to the idol, the dedication was not valid. (3) That the suit was not brought an the name of the idol as it should have been. (4) That the suit is time-barred. (5) That the plaintiff has been paid already more than he is entitled to, and that it is for, him to account to the defendant and not vice versa. (6) That the personal claim with regard to the other idol cannot be included in the suit.

5. I have already decided the last issue in favour of the defendant. Issue 5 is a matter of account and I have not investigated it. No. 4 has not been pressed and, in my opinion, the suit is not barred by limitation. I find No. 3 in favour of the plaintiff. It is sufficient in this case for the plaintiff to bring the suit in his own name, but in his representative, capacity as shebait of the named idol. There is no substance in No. 2, which I find in favour of the plaintiff. Apart altogether from the property settled in the hands of the trustees, the deed of dedication vested a temple, a dwelling-house and a price of land in the hands of the shebaits. As to issue 1(a), I hold that Surabala and Sarojabala were the founders of the sheba as appears from the deed of dedication.

6. There remains to be decided issue 1(b), upon which defendant 1 has mainly relied. This raises questions which are not free from difficulty, but certain rules are now beyond dispute. The settlors were Hindus, and the deeds must be construed, so far as is possible, in accordance with Hindu law. The office of shebait is a kind of property and not merely an office, and the rules laid down in the case of Tagore v. Tagore . 1872 9 BLR 377 apply to it: Manohar Mukherji v. Bhupendranath Mukherji . AIR 1932 Cal 791. Thus, although the settlors may provide for succession to the office, they must not in so doing attempt to create an estate? unknown to Hindu law, and a provision that the succession is to be held by certain heirs of the founder to the exclusion of others in a line contrary to the Hindu law of inheritance is invalid. This rule, in my opinion, applies equally to a provision for succession by certain heirs or descendants of a shebait who has been validly appointed, to the exclusion of others among his heirs or descendants, who, but for the provision, would have rights of inheritance. Subject to certain statutory exceptions, which are immaterial in the present case a gift cannot be made to a person who is not in existence at the time of the gift. On the other hand, a document ought to be construed in such a way that the intention of the maker shall be given effect to, so far as his meaning can be ascertained from the document, and so far as his intention is in accordance with law. If therefore a gift is made to a certain person and his heirs according to a line of succession, not in accordance with the law of inheritance, the gift may be valid so far as those persons are concerned who are qualified to take as a gift, though not by way of inheritance.

7. Applying these principles to the facts of this case, it is clear that the settlors attempted to provide for succession to the office of shebait, partly by way of gift and partly by way of inheritance, and that the latter part is invalid because it is contrary to law. The former part is valid, because it provided that at the death of Sarojabala, and in default of appointment by her by deed or will, her successor in office should be Harimohan Goswami, with a like power to appoint, and Harimohan Goswami was alive at the time of her death and accepted the gift. Similarly, in my opinion, defendant 2, A.C Chatterji, was validly appointed. The deed provided that at the death of Surabala, Maneendranath Chatterji, or, in case of his death, his eldest male heir, should be her successor. This, in my opinion, means, that if Maneendranath Chatterji is dead at the time of Surabala's death then his eldest male heir is to take by way of gift. Maneendranath Chatterji was dead at that time, and A.C Chatterji, was his eldest male heir, and was then alive, and accepted the gift, and acted as shebait, so far as he was allowed to do so by the plaintiff. The only question therefore which remains is whether the plaintiff can be said to have taken by way of gift over upon the death of his father Harimohan Goswami, or whether he could only take by way of inheritance, under a provision which was and is invalid. That depends upon whether an intention that he should take by way of gift over can be ascertained from the document. He was alive, and was the eldest male heir of Harimohan Goswami at the time when the settlement was made, and therefore may have been within the contemplation of the settlors as an individual apart from his heirship. In my opinion the deed does not provide for a gift over to the plaintiff upon the death of Harimohan Goswami. It means only, as I have already stated, that if Harimohan Goswami happens to be dead at the time when Sarojabala dies, without having made any appointment, then his eldest male heir is to take by way of gift, but not otherwise. If Harimohan Goswami happens to be alive, then he is to take by way of gift, and after his death his eldest male heir is to take by way of inheritance. This distinguishes the present case from Madhavrao Ganpatrao v. Balabhai Raghunath . AIR 1928 PC 33.

8. It is just possible to argue, though this argument was not raised by counsel on behalf of the plaintiff that although the gift vested in Harimohan Goswami, at the death of Sarojabala, and upon his death, without having made any appointment, the right of appointment then vested in the trustees as provided in the deed; yet the deed further provided that, after the death of both the settlors, and in default of appointment by them, the two spiritual guides or their or his eldest male heir should act as shebaits, and therefore the shebaitship vested in the plaintiff by way of gift upon the death of Surabala. Such a gift would be of an uncertain and shifting character, somewhat similar to that which was described in Tagore v. Tagore, and in my opinion, was never intended by the settlors. The result is that the plaintiff has not been appointed validly as shebait, and is not a shebait under this settlement. Consequently, he cannot bring this suit, and there must be judgment in favour of the defendants with costs.

R.K

9. Suit dismissed.