This is a suit by Rajessur Mullik against his brother Gopessur Mullik and his nephew Gora Chand Mullik to have the rights of the Plaintiff under the Will of his uncle Lalit Mohun Mullik ascertained and declared. The second Defendant, Gorachand, has not appeared to defend the suit, and the contest has therefore been between the two brothers, Rajessur and Gopessur. The sole question in the case is as to the validity of cl. 5 of the Will of Lalit Mohan Mullik, whereby he directed as follows:—My wife Srimati Sudevi Moni Dassi shall on my demise take the money which I have been receiving for the expenses of services, according to any turn,…… to Sri Sri Ishwar Radha Gobind Jew established by my grandmother, the late Chitra Dassi, and perform the said services during her lifetime and I confer on my wife Srimati Sudevi Moni Dassi the same right that I now have to the Ishwar Jew's jewellery, plate, & c., and on her demise I confer on my nephew Sriman Rajessur Mullik Babaji the rigftit, & c., in respect of the expenses, jewellery, & c., of the said service. He, and his son, and sons' son, & c., in succession shall enjoy by performing this service.”
The endowment, the shebaitship of which is now in question, is a private endowment, founded by Chitra Dassi, widow of Ram Lochan Mullik by an Ikrar, dated 25th May 1820, a postscript, dated 27th February 1822, and her Will, dated 8th December 1842.
The following pedigree table shows the family and descendants of Chitra Dassi:—
I do not propose to set out in detail the facts, as to which there is no dispute, for they appear sufficiently from the plaint and from the various documents which have by the consent of parties been laid before the Court. The Will of Lalit Mohun was made as far back as 1891 but his widow Sudevi Moni Dassi did not the until May 1906. The question as to the validity of the bequest in Plaintiff's favour has therefore only recently arisen. The simple question is whether Lalit Mohun had power to dispose of his own right of worship and the turn (or pala) which he had enjoyed, in favour of the Plaintiff to the exclusion of the Defendants, who would in ordinary course have succeeded to such right of worship and pala by inheritance along with the Plaintiff. There are no longer any emoluments attached to the office, and it is therefore only the bare right of service which is in dispute. A large number of cases are cited by Counsel relating to religious endowments, but it was frankly conceded that there was no direct authority for or against the proposition which the Plaintiff lays before the Court. It would therefore serve no good purpose to discuss these authorities in detail. The law on the subject will be found in Chap. XII of Mr. Mayne's Work on Hindu Law, and in the introduction to Mr. Ganapathi Iyer's Work on Religious Endowments at pp clxi—clxxiii and ccxi seq, where all the cases are given. The general conclusion I draw from the authorities may be stated in a few words—Originally both partition and alienation of both the property devoted to a religious purpose like the present and also of the shebaitship or right of worship were alike forbidden. Custom however and convenience intervened, and the right to partition of a shebaitship came to be recognised. I may point out that it has been accepted by the family with respect to the present endowment, and has been recognised by this Court in the several judgments and decrees which are now before me. The worship has for a long time past (since the days of Chitra Dassi's sons), and still is carried on by the various shebaits in palas. It is in respect of one only of such palas that the present suit is brought.
Turning to alienations it was pointed out by Ranade, J., in Rajaram v. Ganesh(1) that a distinction has always been drawn between alienations to strangers and those to members of the family, also between compulsory and private alienation. The learned Judge also indicated that as to private alienations no general rule prohibiting them can be laid down. It must depend in each case, first, on the expressed intentions of the founder (if any) and secondly, and failing that, on any custom or usage of the family substantiated by evidence. The two cases most relied upon by Plaintiff's Counsel were Sitaram Bhat v. Sitaram Singh and Mancharam v. Pransankar. In the first an alienation of a temple office by a grantfather to his grandchildren by way of relinquishment was upheld. In the second the alienation was by Will to a sister's son, the widow of the testator, who was his next heir, expressing her acquiescence in the bequest. It is obvious that cases of relinquishment stand on a different footing, for there, there is no exclusion of some third person. In the second case cited, it is not stated what were the terms of that particular endowment, and the learned Judges expressed their opinion in somewhat qualified terms. Neither case exactly meets the present. In the case of Khetra Chunder Ghose v. Hari Das, an alienation of a private idol with its endowed land was upheld by this Court: but in that case the alienation was made by the consent of the whole family of shebaits to another family, the object being for the benefit of the idol, to secure a continuance of the worship in accordance with the wishes of the founder, which the alienors through poverty were unable to maintain.
In the present case intention of the foundress was that all her lineal descendants should hold the debutter property and jointly perform the sheba. The only alienation which she contemplated was the gift or sale by one of her sons to one or more of the others, the property being in any event retained in the same gotra. So whether by the foundress' express direction or by the ordinary rule of Hindu law the property and right of worship may be regarded as being in the first place hereditary. The question then arises whether there has been any modification of that principle by the usage of the family. This is not pleaded and no evidence has been given of any such usage. Many members of the family have purported to deal with their right of worship by Will, but the effect of that has certainly not been to establish any uniform usage or practice. Indeed in only one case, that of Cassi Nath, was an attempt made to divert the right of worship from the persons who would be entitled to it in ordinary succession. In that case the attempt failed, and his 5 nephews as his heirs were by the decree of this Court, dated 26th August 1882, declared to be entitled to the right.
In Lokenath's case his widow Chundan Coomaree Dassi was preferred to his son, Kali Kumar. There was in this case also a suit and the matter was settled by arrangement. This I think is clear from the decree of 7th July 1865. Some question may arise in respect of the disposition under Kali Kumar's Will, but that cannot happen until the death of his step-mother, Chundan Coomaree Dassi.
Haronath bequeathed his right of worship to his sons Lall Mohun and Lalit Mohun, who would in any case have succeeded him. Taranath's Will was to the same effect as he purported to appoint his widow Joymoni Dassi. She was then his next heir, as his son Denendra was not adopted till after Taranath's death.
Lalit Mohun, again, directed that his 3 sons should perform his share of the worship jointly. It is only in Lalit Mohun's Will that we find a desire to exclude altogether some of those who would be the heirs in the ordinary course, and favour one individual at the expense of the rest.
Under these circumstances it appears: (1) that this disposition in Lalit Mohun's Will is not in accordance with the wishes and intentions of the foundress and (2) that there is no established usage or practice in the family which could justify it. The initial presumption in the case was against the Plaintiff and the burden of proving such a usage as I have mentioned was upon him. It is evident that he has neither rebutted the one nor discharged the other. The suit therefore fails and is dismissed. The 1st Defendant must have his costs, of suit on scale 2.
Messrs G.C Chunder & Co., Attorneys for the Plaintiff.
Messrs Rutter & Co. and N.L Mullick, Attorneys for the Defendants.
A.N.C
Suit dismissed.