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

2. Nandalal Paramanick was the owner of considerable properties. By his last will dated August 23, 1930 he gave and bequeathed his properties to his family deity Sree Sree Iswar Sridhar Jieu. He also laid down a line of succession of shebaits in the will. Probate of the will was granted by the High Court to Nandalals widow Smt. Chamatkarini Dasi on July 9, 1936. Shyam Sundar Paramanickthe sole appellant in this appeal filed Suit No. 1539 in the High Court on August 26, 1936 for self and as the next friend of the deity. The suit was an administration suit. In this suit apart from Smt. Chamatkarini Dasi, Krishna Chandra Sadhukhan, father of respondent No. 1 was also impleaded as the defendant. Krishna Chandra Sadhukhan was the daughters son of Nandalal Paramanick. Krishna Chandra died during the pendency of Suit No. 1539. Respondent No. 1 then a minor, was substituted in his place and was put under the guardianship of Smt. Chamatkarini Dasi. The said suit was disposed of by a compromise between the appellant and Chamatkarini Dasi apparently acting for self and also as guardian of respondent No. 1. Smt. Chamatkarini Dasi died on October 12, 1947 and it appears thereafter the appellant acted as a shebait of the properties of the deity. Respondent No. 1 along with plaintiff respondent No. 2 filed a suit on April 12, 1958 impleading the appellant as defendant No. 1, Shree Shree Iswar Sridhar Jieu, the deity respondent No. 3 as defendant No. 2 for construction of the will and for a declaration that respondent No. 1 was entitled to be the shebait of the deity and trustee in respect of the debutar estate in any event to act as a joint shebait with the appellant. Certain other reliefs were also claimed in the suit which was contested by the appellant. The trial Judge decreed the suit on April 2, 1971 and declared that respondent No. 1 was entitled to be the shebait of the deity along with the appellant in accordance with the terms of the will. Certain other reliefs were also granted with which we are not concerned in this appeal. The appellants appeal has been dismissed by a Bench of the High Court.

Reasoning: 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.