The Judgment of the Court was as follows:—
Woodroffe, J.:— These are three appeals Nos. 1416, 1514 and 1515 of 1920 which are analogous though a question arises in the second and the third appeal as to whether an appeal lies, a question which does not arise in the first appeal.
The first appeal arises out of a suit brought by the second wife of one Umacharan Dey for recovery of rent. An objection was taken by the Defendants in that suit that the Plaintiff-Appellant had no title to sue as the shebait and that the title of shebait was in the elder widow of Uma Charan Dey. Uma Charan Dey executed a deed of gift in respect of his movable and immovable properties, constituting the same debutter in the year 1915 and making himself the first shebait. That document provided for the devolution of the office of shebaitship as follows: “After my demise my eldest wife Srimati Raman Kumari Dasi shall he the shebait of the deities and after her my youngest wife Srimati Gouri Kumari Dasi shall be the shebait. After the death of my both wives if there be any son born from the womb of my said wives then that son will be the shebait and for want of that if I take any son as dattak the said dattak son shall be shebait. If through misfortune there be no son born of me and in case I could not take a son as dattak, then the shebait or shebaits selected by me, by a Will or any other document, of my properties, he or they shall be shebaits. The debutter properties will he managed by the shebaits after me.” Now it is clear law that Uma Charan Dey could not make any change in the order of succession of shebaits unless lie had made a reservation to that effect in the deed and the question before us in this appeal is whether upon a true construction of this document there had or had not been such a reservation as entitled him to appoint, as he subsequently did, his second wife as shebait. In my opinion he had no authority to appoint the second wife as shebait as he did in the year 1917. Upon the construction of this document I think that after the death of Uma Charan Dey his eldest wife was to be the shebait and after her his younger wife and after the death of both of them either the natural son or the adopted son of the creator of the trust and it is only after the two wives had taken in the order mentioned in the document and in the absence of any natural or adopted son that provision was made in the deed for selection of a shebait. In my view therefore Uma Charan Dey was not competent to pass over the eldest wife who was the shebait under the deed of 1915 and to make an appointment in favour of the younger wife by the deed of 1917.
But then it is said that for 19 months of the period for which rent is claimed the rent accrued due during the life-time of Uma Charan Dey. It is then argued that even if Uma Charan Dey could not validly appoint his second wife to succeed him after his death he might have appointed his second wife to act during his life-time. Assuming that he could have done this and assuming that the Plaintiff-Appellant could have during the life-time of Uma Charan sued to recover on behalf of the deity the rent accruing due during the life-time of Uma Charan Dey we have it as a fact that no such suit was brought. Now there is an arrear of rent for the period as mentioned. The question arises who is entitled to sue for recovery of such arrears which involves the discussion of the question with which I have already dealt and the answer to which is that only the senior widow can sue to recover such rent on behalf of the deity.
Therefore in my opinion this appeal fails and must be dismissed with costs.
As regards the two other appeals a further objection is taken on the ground that no second appeal lies and I am disposed to think that there are some grounds for this, contention. But it is not necessary to decide this question because on the merits the two appeals must fail for the reasons which I have given in dealing with the construction of the deed of dedication in the first appeal. The second and third appeals are also dismissed with costs.
The connected Rules are discharged. No order is made as regards the costs of the Rules.
Cuming, J.:— I agree.
N.G