This is an appeal by the first Defendant in a suit for declaration that the Plaintiff has a four annas share in the shebaitship of a deity Shyamsunder established by his paternal grandfather and for confirmation or recovery of possession of the corresponding share of the properties of the endowment. The claim was contested by the widow of the step-brother of the father of the Plaintiff. The Subordinate Judge held that the title of the Plaintiff to the shebaitship was established and made a decree accordingly. On the present appeal, that decision has been assailed as founded on an erroneous construction of the Will of the founder. The relationship between the parties may be elucidated by the annexed Geneological Table.

Jasmant Das died on the 25th September 1882 and the question in controversy turns upon the true construction of the Will he executed on the 22nd July 1882. The testator provided that all his properties would devolve on his family deity Shyamsundar and his Widow Bhagirathi would be executrix in respect of the same. He further laid down that on the death of his widow, his youngest son Jagadananda, and on the death of the latter, his son Brojendra would be successively installed in the office of executor, and all acts would be done under their management. The Will concluded that his sons by his first wife were disobedient and accordingly would not be appointed executors. On the death of the testator, Bhagirathi proved his Will, but died before she could take out probate. Meanwhile, Jagadananda also died. Probate was accordingly granted to Brojendra, who himself died not many years later on the 30th August 1887. Jogendra then took cut letters of administration with copy of the Will annexed, but he died on the 12th January 1897, leaving a widow Kunjamani, the first Defendant in the present suit, as also two daughters by her. Saroda died on the 10th February 1898, unmarried, like his brothers Jagadananda and Brojendra. Pyarimohun died in June 1890, leaving., an infant son. Nikunjabihari, who is Plaintiff in this suit. Saroda had applied for letters of administration after the death of Jogendra, but he died before orders were passed. After this, applications were made for the same purpose by Raimohun, Kunjamani and others, but on the 3rd September 1902 this Court held that no letters of administration could be issued as the estate had been completely administered, and the only object of the rival applicants was to secure indirectly a decision upon the question of title to the shebaitship. In 1906, a suit was instituted by Kunjamani against Raimohun and some of the kinsmen of his father for declaration that she was shebait of the deity Syamsundar. The Court held that she was shebait to the extent of an eight annas share and made a decree accordingly. Nikunjabihari had not been made a party in that suit and he consequently instituted the present litigation on the 26th September 1910 for declaration that he himself was interested to the extent of a four annas share in the shebaitship. This claim was unsuccessfully contested by Kunjamani in the Court below and the substantial question in controversy now is, whether the Plaintiff has the title claimed.

We are of opinion that the effect of the Will was to constitute Bhagirathi, Jagadananda and Brojendra successive shebaits of the endowment, though they are described as executors in respect of the endowed property, the testator did not prescribe how the shebaitship would devolve after the death of Brojendra. In these circumstances, the devolution of the office of shebait follows the line of inheritance from the founder, in other words, it passes to his heirs unless there has been some usage or course of dealing which points to a different mode of devolution. Rajah Muttu v. Periyana(1), Rajah Varma v. Ravi Varma(2), Janoki v. Sri Gopal(3), Goswami Giridhari v. Raman Lalji(4), Gnanasamadha v. Velu(5), Jagadindra v. Hemanta Kumari(6), Mohan Lalji v. Gordhan Lalji(7), Sitaldas v. Pratap Ghundra(8), Seoprosad v. Ayaram(9) and Mohan v. Madhsudan(10). In this connection, we must bear in mind the observation of Sir Richard Couch in Gnanamadha v. Velu that the rule in Tagore v. Tagore is applicable to an hereditary office and endowment quite as much as to other immovable property and that the Hindu Law of inheritance does not permit the creation of successive life-estates in an endowment [see also Monoroma v. Kalicharan(12), and Gopal Chundra v. Kartick Chundra(13)]. What then is the result of the application of these principles to the case before us? The founder had nominated Bhagirathi, Jogadananda and Brojendra as successive shebaits and had given no further directions as to the devolution of the office thereafter. Consequently, upon the death of Brojendra the shebaitship vested in Raimohun, Pyarimohun, Jogendra and Saroda who were the heirs of the founder at the time. On the death of Pyarimohun the interest in the shebaitship vested in him passed to his son Mkunjabehari. Upon the death of Jogendra his interest devolved upon his widow Kunjamani. Upon the death of Saroda his interest in the office passed to his step-brother Raimohun. Consequently, at the date of the institution of the suit, Raimohun had a half share in the office, while Nikunjabihari and Kunjamani had one-fourth share each. But it has been argued for the Appellant that Bhagirathi, Jagada-nanda and Brojendra took successive life-estates in the office, with the result that the remainder at the death of the founder constituted a vested interest in the hands of his six sons. In this view, Nikunjabihari would get through his father Pyarimohun one-sixth share, while Jogendra would ultimately receive a half share by transmission to him of the interests vested in Jogadananda and Brojendra; Raimohun would thus have a third share by absorption of the interest of Saroda. We are of opinion that this contention is unsound and that the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life-estate, as expounded by their Lordships of the Judicial Committee in Rewan Prosad v. Radha Bibi(14) has no application to cases of the description now before us. No doubt, a shebait holds his office for life [Rajeswar v. Gopeswar(15)] but this does not signify that he has a life-interest in the office with the remainder presently vested in the next taker. The entire office is vested in him, though his powers of alienation are qualified and restricted. [Cf. Vidyapurna v. Bidyanidhi(16) where Ayyar, J., describes the spiritual head of a Mutt as a “corporation sole.”] The position of a shebait is analogous to that of a Hindu female (widow, daughter or mother) in possession of the estate of the last full owner rather than to that of the holder of a life-estate. When a Hindu female is thus in possession she represents the estate completely and though her powers of disposition may be of a restricted character, no one else has a vested interest in the estate during her life-time. Similarly, when a founder has given valid directions as to the devolution of the shebaitship, as in the present case upon the death of the last shebait, the office vests in persons who at the time constitute the heirs of the founder; provided the last shebait has not taken it absolutely; when the office has so vested in them, upon the death of each member of the group, it passes by succession to his heir, subject to the important qualification formulated by the Judicial Committee in Mohan Lalji v. Gordhan Lalji, namely, that the rule that when a worship of a thakoor has been founded, the shebaitship is vested in the heirs of the founder in default of evidence that he has disposed of it otherwise or there being some evidence of usage, course of dealing or some circumstances to show a different mode of devolution cannot be applied so as to vest the shebaitship in persons, who according to the usages of the worship, cannot perform the rights of the office. We hold accordingly that on the death of Brojendra, the last shebait named by the founder, the office vested in the four sons of the founder then alive; and this, notwithstanding the fact that the founder intended to exclude his sons by his first wife for as Willes, J., said in Tagore v. Tagore, the heir-at-law, though in terms excluded from benefit under the Will cannot be excluded from his general right of inheritance without a valid devise to some other person. We may add that precisely the same result follows, if we hold, on the authority of the decision of the Judicial Committee in Tripurari v. Jagat Tarini(17) that the shebaitship vested absolutely in Brojendra, and on his death, devolved on his heirs, namely, his four surviving brothers, Raimohun, Pyarimohun, Jogendra and Saroda. The decree made by the Subordinate Judge correctly determines the rights of the parties and as no question of limitation really arises on the evidence, that decree must be affirmed.

The result is that the appeal is dismissed with costs. We assess the hearing-fee at ten gold mohurs.

Appeal dismissed.