Case: Shyam Sundar Pramanick Vs. Moni Mohan Sadhukhan &amp; Others

act as the sole shebait as Krishna Chandra Sadhukhan predeceased Chamatkarini. Counsel further submitted that even if it be not so the compromise decree in the earlier suit was binding on respondent No. 1 as it was entered into on his behalf also. Under the terms of the compromise the appellant alone was entitled to act as shebait during his lifetime. Mr. A. K. Sen, learned Counsel for respondent No. 1 submitted that the judgment of the High Court on both the points was correct and ought to be interfered with.4. The High Court in its appellate judgment has quoted the relevant clauses of the will in question. It has rightly held that giving of the properties to the deity and laying down the line of shebaitship was done by Clause 3 of the will. The matter of succession to shebaitship was clearly provided in Clause 10. Clause 9 of the will on which great reliance was placed on behalf of the appellant was not laying down any different line of shebaitship from the one mentioned in Clauses 3 and 10. Reading the will as a whole the High Court in our opinion has rightly come to the conclusion that so long Smt. Chamatkarini Dasi was alive she was to be the sole shebait and after her death the appellant and Krishna Chandra Sadhukhan were to be the joint shebaits. On the death of either of them his male heirs were to succeed the deceased.5. We shall read Clause 3 of the will in full and portions of Clauses 9 and 10. They are as follows :Whatever immovable (movable) properties I have or whatever movable and immovable properties shall have at the time of death shall be regarded as the estate of my family deity established by me Sree Sree Iswar Sridhar Jieu Thakur or in other words, the entire estate of mine shall belong to the said deity. My said wife and after her demise my said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) shall remain down to their male heirs succession as the shebait or trustees of the said Thakur and his estate and shall look after and preserve the said estate according to the directions noted below.After the death of my said wife the said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) shall jointly or one of them on the demise of the other as the joint or the sole shebait and trustee of the said estate make expenses etc.My said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) also shall remain the trustees of the said estate during their lifetime and shall act as stated above. Upon their demise all their male heirs such as son and sons son etc. shall be the shebait and trustees in their places manage the said estate.6. It is clear on reading the relevant words of the three clauses of the will extracted above the intention of the testator was after bequeathing the properties to the deity, to appoint his wife as the sole shebait during her lifetime and to treat his fosterson Shyam Sundar and his daughters son Krishna Chandra on equal footing so that so long both were alive they may act as joint shebaits and after the death of either his male heirs may step into his shoes. It was not the intention of the testator to make either of the survivors, the fosterson or the daughters son, to be the sole shebait for his life. It it not correct to say as was argued on behalf of the appellant, that the heirs were to come in the picture only after the death of both. In Clause 9 a direction was given to the shebait or the shebaits whether one was the sole shebait or a joint shebait to do certain things according to the will of the testator. In the event of one of the two dying without leaving any male heir, the surviving one could have become the sole shebait. But he would be a joint shebait with the male heirs of the deceased shebait in case he left such heirs. It is on that account that in Clause 9 it was said "one of them on the demise of the other as the joint or the sole shebait", to meet both the eventualities.7. The High Court has read in full the terms of the compromise decree. According to Clause 3 Smt. Chamatkarini will continue to act as such shebait during the time of her natural life. On her death the plaintiff Shyam Sundar Paramanick will act as the shebait of the said deity.The High Court has rightly pointed out that although the compromise was entered into also on behalf of respondent No. 1 who was then a minor, but the declaration in the various clauses of the compromise was confined to as between two persons namely Smt. Chamatkarini Dasi and the appellant. The High Court has also pointed out that even in accordance with Clause 3 the appellant was not to act as the sole shebait and that any different construction did not fit in with what was recited in Clause 4 of the compromise. We do not find any reason to persuade us to take a view different from the one taken by the High Court as respects the effect of the compromise decree. Since the previous suit was an administration suit one may at best say in favour of the appellant that according to the compromise (and this is on the footing that the compromise was binding on respondent No. 1 also) the appellant was to act as the sole shebait so long respondent No. 1 was a minor. On his attaining majority, there was nothing to prevent him from becoming a joint shebait with the appellant. Respondent No. 1 filed the suit in the year 1958 indisputably after attaining majority. In any view of the mater the appellant cannot succeed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. It is clear on reading the relevant words of the three clauses of the will extracted above the intention of the testator was after bequeathing the properties to the deity, to appoint his wife as the sole shebait during her lifetime and to treat his fosterson Shyam Sundar and his daughters son Krishna Chandra on equal footing so that so long both were alive they may act as joint shebaits and after the death of either his male heirs may step into his shoes. It was not the intention of the testator to make either of the survivors, the fosterson or the daughters son, to be the sole shebait for his life. It it not correct to say as was argued on behalf of the appellant, that the heirs were to come in the picture only after the death of both. In Clause 9 a direction was given to the shebait or the shebaits whether one was the sole shebait or a joint shebait to do certain things according to the will of the testator. In the event of one of the two dying without leaving any male heir, the surviving one could have become the sole shebait. But he would be a joint shebait with the male heirs of the deceased shebait in case he left such heirs. It is on that account that in Clause 9 it was said "one of them on the demise of the other as the joint or the sole shebait", to meet both the eventualities.7. The High Court has read in full the terms of the compromise decree. According to Clause 3 Smt. Chamatkarini will continue to act as such shebait during the time of her natural life. On her death the plaintiff Shyam Sundar Paramanick will act as the shebait of the said deity.The High Court has rightly pointed out that although the compromise was entered into also on behalf of respondent No. 1 who was then a minor, but the declaration in the various clauses of the compromise was confined to as between two persons namely Smt. Chamatkarini Dasi and the appellant. The High Court has also pointed out that even in accordance with Clause 3 the appellant was not to act as the sole shebait and that any different construction did not fit in with what was recited in Clause 4 of the compromise. We do not find any reason to persuade us to take a view different from the one taken by the High Court as respects the effect of the compromise decree. Since the previous suit was an administration suit one may at best say in favour of the appellant that according to the compromise (and this is on the footing that the compromise was binding on respondent No. 1 also) the appellant was to act as the sole shebait so long respondent No. 1 was a minor. On his attaining majority, there was nothing to prevent him from becoming a joint shebait with the appellant. Respondent No. 1 filed the suit in the year 1958 indisputably after attaining majority. In any view of the mater the appellant cannot succeed.