Patna High Court
Bansidhar vs Upendra Mohan And Ors. on 17 March, 1952
Equivalent citations: AIR1953PAT151, AIR 1953 PATNA 151
JUDGMENT Sarjoo Prosad, J.
1. This appeal raises an interesting question of law which has been argued at great length by learned Counsel for the parties.
2. The dispute relates to certain properties specified in Schedules 1 & 2 of the plaint which are admittedly endowed properties being dedicated to deities Radha Krishnajee and Sri Ganeshji. The plaintiff, who has preferred this appeal, sued for a declaration that he was the shebait of the deities and also claimed recovery of possession of these properties.
3. The facts are that the Said deities had been installed in a temple in village Lao by one Kunjbihari Missir. On 18-2-1911, the properties in Schedule 1 of the plaint were dedicated to the deities in question by Baldeo Missir, the son of Kunjbihari, under a registered deed. On the very same day Baldeo also executed a deed of gift in respect of Schedule 2 properties of the plaint in favour of one Mt. Parkala Kuer alleged to be a concubine of the donor. There was a direction in the deed that on the demise of the donee, the gifted properties would go to the deities as endowed properties. The plaintiff is the nephew of Baldeo, being the grandson of his father's brother. The deed of 1911 refers to certain other properties having been endowed by one Meghu Koeri in favour of the deities, and it further recites that the plaintiff was to be the mutawalli and the shebait of the deities. There is some dispute about the interpretation of this document. The contention of the appellant is that on the terms of the recital, he was to become a mutwalli on the death of Baldeo Missir who was to act as mutawalli and look after the worship of the deities during his lifetime. The defendant-respondent, on the other hand, contends that the plaintiff had been appointed mutawalli straightway under the document, and Baldeo Missir was not the mutawalli at all. I shall deal with this question at a later stage of this judgment. At any rate, the allegations in the plaint show that the plaintiff had been managing the endowed properties even during the lifetime of Baldeo Missir and under his directions.
Baldeo Missir, however, executed another deed on 10-1-1917, in favour of one Narain Missir, the father of defendant 1. Under this deed he purported to make Narain Missir shebait of the deities with effect from the date of execution of the document. The plaintiff's case is that this document had not been acted upon, and that he continued to manage the affairs and perform the worship of the deities under the directions of his uncle Baldeo, the first mutawalli under the deed of endowment of 1911. Baldeo Missir died in Bhadeo 1349 Fs. corresponding to August, 1942, and thereafter on 21-1-1943, the defendant 1 executed a deed of settlement in favour of defendant 6 in respect of the properties described in Schedule 1 of the plaint. The plaintiff contends that defendant 1 had no right to make any such settlement of the endowed properties, but defendant 6 taking advantage of this settlement interfered With plaintiff's possession over the properties resulting in criminal proceedings and subsequent dispossession. In regard to Schedule 2 properties, the plaintiff states that on the death of Mt. Parkala Kuer, Baldeo executed a deed of gift in favour of defendants 4 and 5 who were her daughters. The plaintiff challenges this deed as illegal and invalid since Baldeo had no right to make gift of these properties which, on the death of Mt. Parkala Kuer, had passed on to the deities as endowed properties under the terms of the original deed of gift executed on the same day as the deed of endowment.
4. The suit was contested by defendant 1 as also by defendants 4 to 6. The main contention of defendant 1 is that his father, Narain Missir, had been validly constituted shebait under the deed of January, 1917, which was duly acted upon; and since the date of the deed, Narain had been managing the endowed properties and working as shebait of the deities. In assertion of his right as a shebait, Narain removed the deities from the thakurbari in village Lao and installed them in a temple in village Bidhipur where the deities are still residing; and on the death of Narain Miasir, defendant 1 has been acting as shebait and performing the worship oi' the idols. He also contends that the settlement with defendant 6 had been made in due course of management by virtue of his right as a mutwalli of the endowed properties, and because he experienced difficulties in cultivating the lauds from Bidhipur. He also contended that the plaintiff's suit was barred by limitation inasmuch as his father Narain Missir and after him defendant 1 himself had been asserting rights of shebaitship to the knowledge of the plaintiff openly and without any opposition, and that the right to sue for declaration of his rights as a shebait accrued immediately on the execution of the document in favour of Narain Missir in January, 1917, under which Baldeo Missir completely gave up his rights to act as a shebait of the deities, if at all, in favour of defendant 1. Defendant 6 has supported pleas of defendant 1. Defendants 4 and 5, the daughters of Mt. Parbala Kuer pleaded in their written statement that they had acquired a good title to the properties described in Schedule 2 of the plaint by virtue of the deed of gift executed in their favour by Baldeo Missir in September, 1942, and they contended that the stipulation in the earlier deed of gift regarding the properties becoming endowed in favour of the deities after the demise of their mother had not been given effect to, and Baldeo continued to enjoy full rights in the properties which he eventually gifted to these defendants.
5. The learned Munsif held that Baldeo Missir had no right to appoint Narain Missir as shebait of the endowed properties under the deed of January, 1917, in derogation of the rights of the plaintiff who was appointed shebait under the deed of endowment executed in February 1911, there being no reservation of any such right of nomination by Baldeo on the terms of the earlier deed of endowment. The learned Munsif further found that Narain actually became shebait of the deities after his appointment as such in 1917, removed the deities to Bidhipur in his thakurbari situate in that village and performed the 'Rag Bhog' and 'Puja Pat' of the deities all along in that village and had been managing the endowed 'properties in his capacity of a shebait; and that on the demise of Narain Missir, defendant 1 had been performing all the duties of the office of she-bait. On these findings he held that ever since 1917 Narain Missir and defendant 1 have been in adverse possession of the office of shebait, and the plaintiff's suit, which was instituted in November, 1943, was barred by limitation, as the right to sue, if any, accrued to the plaintiff on the execution of the document of January, 1917, when defendant 1 was illegally constituted shebait of the deities. In regard to Schedule 2 properties he held that they became endowed properties on the death of Mt. Parkala Kuer, and hence no valid title could be conferred on defendants 4 and 5 under the subsequent deed of gift executed by Baldeo in 1942. So far as defendants 4 and 5 are concerned, the finding was not challenged in appeal before the Court below, and, therefore, that decision is new final. The dispute is now confined only to the claim of defendant 1. The decision of the learned Munsif dismissing the plaintiff's suit has been affirmed on appeal by Mr. R. P. Sinha, Additional Subordinate Judge, 3rd Court, Gaya.
6. The main question which arises in this appeal is whether the plaintiff's suit is barred by limitation and whether the right to sue accrued on the death of Baldeo in August, 1942, or it accrued to the plaintiff in January, 1917, when the document was executed in favour of Narain Missir appointing him shebait of the deities and the endowed properties. If the plaintiff's right to sue accrued in January, 1917, as it has been held by the two Courts below, then the suit is clearly barred by limitation irrespective of the point whether Article 120 or Article 144, Limitation Act, applies to the case. If, on the other hand, the right to sue accrued on the death of Baldeo in August, 1942, then the plaintiff's suit is clearly within time. The question, therefore, as to which Article of the Limitation Act applies to the present case becomes rather academic. The plaintiff's contention is that Article 144 applies to the case, whereas the defendants assert that Article 120 would apply. There are undoubtedly some authorities which support the claim of the defendants in regard to the application of Article 120, Limitation. Act; but, as I have said, in either view of the matter the decision of the case turns not upon the application of the particular article relied upon by the parties, but, upon determination of the point as to when the right to sue accrued to the plaintiff. The point, in my opinion, is not free from difficulty.
Mr. B. N. Mitter for the appellant contended that the plaintiff's right to sue for recovery of the endowed properties or for declaration of his rights as a shebait did not arise until after the death of Baldeo Missir who, according to his contention, was the first shebait under the original deed of endowment of February, 1911. He contends that so long as Baldeo Missir was alive, he could not assert his rights as a shebait or claim to take possession of the properties, because he would have been met with the plea that he had no 'locus standi' to institute the suit. If Narain Missir or defendant 1 assumed charge of the management of the endowed properties during the lifetime of Baldeo, this assumption of shebaitship on their part could not affect in any manner the shebaiti interest of the plaintiff which came into being on the death of Baldeo, and as the plaintiff did not claim through Baldeo but had an independent interest of his own, any assertion of adverse possession by Narain Missir or defendant 1 against Baldeo would be of no avail against the plaintiff.
In support of his submission Mr. Mitter has referred to a large body of authorities. The most important of them is a decision in -- 'Abdul Ghafoor v. Altaf Hosain', AIR 1916 Cal. 712 (A). In the case in question a waqf deed was executed jointly by one Mt. Atibunissa and her husband Hossain Ali. Under this deed Hossain Ali was to be mutawalli for his life & Atibunissa after him for her life, and after their death without children, the nearest relative who was honest and a person of integrity was to succeed as a mutwalli, and thereafter the succession was to go not necessarily to the nearest heir at law but to any one of the near relatives of the dedicator who was honest and a person of integrity. Hossain Ali, one of the founders of the waqf, died, and thereafter Atibunissa continued to act as a mutawalli until 1894 when she executed in favour of one Abdul Ghafoor, the father of defendant 1 in that action, various documents assigning the mutawalliship to him. On the death of Atibunissa, a suit was filed for declaration of title to the waqf properties and recovery of possession against the son of Abdul Ghafoor who pleaded, 'inter alia', that the suit was barred by limitation. The claim was that Abdul Ghafoor having been put in possession under the 'tawliatnama of 1894, his possession became adverse from that time, or at all events from July 1898 when Atibunissa sought to avoid the document. It was held in that case that.
where the founder is herself the mutawalli a renouncement by her of the office of mutawalli and appointing another to that office would be valid at least during the lifetime of the founder, and limitation would not begin to run against the person next entitled to succeed to the office under the original endowment until after the death of the founder.
This decision is very significant and makes an exception in the case of renouncement made by the founder himself of the office of mutawalli which is for the time being vested in him. Such a renouncement or relinquishment of the office of the mutawalli by the founder is not held to be void 'ab initio' but is held to be valid during the lifetime of the founder. That being so, Baldeo who was the founder in the present case could make a valid relinquishment of the office in favour of Narsin Missir or defendant 1 so long as he was alive, and the relinquishment in question would enure till the lifetime of Baldeo. In that view of the law it would be difficult to hold that the right to sue accrued to the plaintiff in 1917 when the document assigning the shebaitship was executed and not in 1942 when Baldeo died. It is also important to notice that this decision distinguishes the decision in -- 'Salimullah v. Abdul Khayer M. Mustafa', 37 Cal 263 (B) on which the learned Subordinate Judge has very strongly relied incoming to his decision; the ground of distinction being that where the mutawalli is also the founder, and as a founder he assigns the mutawalliship to some party against the terms of the document creating the endowment, then such an assignment is not altogether a void assignment but is valid and operative till the lifetime of the founder and terminates with his life. The distinction cannot be ignored. In -- 'Salimullah's case', (B) aforesaid a waqf was created by the founder appointing himself the first mutawalli. After the death of the founder, his widow was to remain in possession of the endowed properties and give directions to the mutawalli who was to act under her. But the document itself provided for the appointment of a successor to the mutawalliship. It appears that on the death of the founder the widow undertook the performance of the duties of mutawalli and continued to do so for some time until she executed a 'tawliatnama' surrendering the office of mutawalli and assigning it to a third party as successor in that office who accordingly took possession of the endowed properties. It was held that inasmuch as the widow of the founder was in no sense a general trustee, and that she had no authority, express or implied, to modify in any way the terms of the trust deed and to renounce the office and to appoint a successor her acts were illegal, and that under Article 120 of Schedule II, Limitation Act, the plaintiff's suit was barred by limitation which began to run not from the death of the widow but from the date of execution of the 'tawliatnama'.
7. The other case to which the learned Subordinate Judge refers in support of his finding is the decision in -- 'Pydigantam Jagannatha Row v. Rama Doss', 28 Mad. 197 (C). In that case ib appears that the founder left no writing evidencing the dedication or laying down rules as to the devolution of the office of the trustee. During his lifetime he himself acted as a trustee, and the evidence proved that he contemplated that the office of trustee should devolve after him on his heir according to the ordinary rules of inheritance under the Hindu law. He died childless and his widow succeeded him and continued to manage the affairs of the institution until 1885 when she executed a document purporting to transfer to the first defendant the right of trusteeships, the possession of the temple and the properties belonging to it including the alienated endowments. The first defendant entered into possession and held it ever since. It was held that the transfer was altogether invalid an the defendant's possession from its inception was adverse to the transferor. This was again a case where the founder himself had not assigned the office of mutawalli to a third party. Their Lordships applied Article 124, Limitation Act, to the case, the claim being one for recovery of a hereditary office, and they held that the possession of the defendant having been adverse for more than 12 years, the plaintiffs' suit was barred by limitation, and they further pointed out that this adverse possession would be so, it the plaintiffs can be rightly held to be persons deriving their right to sue "from or through" the widow. In the present case the plaintiff does not derive his right to sue "from or through" Baldeo but independently in his own right as trustee or shebait under the terms of the original deed of endowment of February 1911. The case in question is clearly different from the facts of the present case.
8. I need not refer to some other cases to which reference has been made by the learned Counsel for the appellant in course of his argument; for instance:-- 'Mahomed v. Ganapati', 13 Mad. 277 (D) and -- 'Sathianama Bharati v. Saravanabagi Ammal', 18 Mad 266 (E) which were evidence cases relating to alienation of a part of the endowed properties which were held to be illegal and in those cases it was pointed out that time began to run not from the date of the alienation but from the date of the death of the trustee or shebait who made the alienation in question. Those cases undoubtedly stand on a different principle altogether and there can be no doubt that in such a case where the office itself has not been alienated, different considerations arise.
9. The case which is most significant on that point and fully brings out the distinction in the two class of cases is a decision of the Judicial Committee in -- 'Ram Charan Das v. Naurangi Lal', AIR 1933 PC 75 (F) where the Judicial Committee held that although assignment or disposition of a math and its properties by the mahanth is void, either a sale or permanent lease by him of an item of property appertaining to the math even if not for necessity, is valid during the tenure of office of the mahanth; consequently upon an alienation of that nature the possession of the purchaser or lessee does not become adverse so as to cause time to run under the Limitation Act. 1908, Schedule I, Article 144 until the alienating mahanth ceases to be mahanth, either by death or otherwise. Mr. Lalit Kishore Sinha on behalf of the respondent who has argued the case with clarity and resourcefulness has sought to support his contention by certain observations of the Judicial Committee in the aforesaid decision. The relevant observations are: "Their Lordships do not think that it is necessary to follow the learned Judges of the High Court in their examination of the older authorities, but they must point out that -- 'Gnqoasambanada pandara v. Velu Panderam', 23 Mad 271 (P C) (G) and -- 'Damodar Das v. 'Lakhan Das', 37 Cal 885 (P C) (H) were both of them cases in which the assignment or disposition consisted of an assignment or disposition of the math and its properties. Such an assignment was void and would in law pass no title, with the result that the posses-
sion of the assignee was perforce adverse from the moment of the attempted assignment. --
Vidya Varuthi v. Baluswami Ayyar', AIR 1922 P C 123 (I) however, was the case (as here) of a disposition by the mahanth of an item of property appertaining to the math, the disposition being in the form of a grant of a permanent lease. The disposition was one not made for necessity and so was beyond the powers of the mahanth to grant." On the strength of these observations it is argued that the possession of Narain Missir and defendant 1 became adverse from the moment of the attempted assignment in January 1917. Apparently the argument is not without substance, and it has, therefore, become essential to examine the "older . authorities" referred to in the quotation aforesaid to see whether or not they do in any manner affect the principle of the decision in 'AIR 1915 Cal 712 (A)' already discussed by me above.
10. Before I refer to the "older authorities", I may as well consider an earlier decision of the Judicial Committee on which the decisions in question seem to be founded. I have in mind the case of --'Rajah Vurmah Valia v. Ravi Vurmah', l Mad 235 (P C) (J). There the facts were that the plaintiff Raja claimed to be an assignee of the 'uraima' or right of management of the Tracharamana Pagoda and its subordinate che-froms under an assignment from persons known as the 'urallers' of that religious foundation. Having obtained the assignment, the Raja succeeded in getting into possession of the whole or greater portion of the landed property; but his right to the custody of certain valuable jewels was disputed by the defendants. The broad question which arose for consideration by the Judicial Committee was whether the 'urallers' were competent to transfer their 'uraima' right to the plaintiff Raja. It was admitted that according to the constitution of the institution the 'urallers' for the time being were to be the 'tarwads' or chief members of four different families. It was, therefore, presumably the intention of the founder that the 'uraima' right should be exercised by four persons representing four distinct families. On these important facts the Judicial Committee held thus:
"The first question is, whether, independently of custom, persons holding such a trust are capable of transferring it at their own will. No authority has been laid before their Lordships to establish this proposition; principle and reason seem to be strongly opposed to such a power and particularly to such an exercise of it as has taken place in this instance. The unknown founder may be supposed to have established this species of corporation with the distinct object of securing the due performance of the worship and the due administration of the property by the instrumentality and at the discretion of four persons capable of deliberating and bound to deliberate together; he may also have considered it essential that those four persons should be the heads of particular families resident in a particular district, open to the public opinion of that district, and having that sort of family interest in maintenance oi this religious worship which would insure its due performance. It seems very unreasonable to suppose that the founder of such a corporation ever intended to empower the four trustees of his creation at their mere will to transfer their office and its duties, with all the property of the trust, to a single individual who might act according to his sole discretion, and might have no connection with the families from which the trustees were to be taken. Such a transferee might be a powerful man, as probably this Sherakal Rajah is, and therefore the less amenable to public opinion, the less capable of being reached by the Courts, and the more likely to deal with the institution with a high hand, Mr. Mayne almost admitted that the broad principle 'delegatus non potest delegare' would 'prima facie' apply to such a case."
It is obvious from what has been stated by the Judicial Committee that their Lordships held the assignment to be invalid because it was clearly against the wishes of the founder. Indeed the fulfilment of the founder's intentions is the crux of the whole decision in invalidating the assignment -- a factor which appears to have also weighed prominently in deciding the case of 'Abdul Gafoor Mian (A)' (supra).
11. The Judicial Committee reiterated the same principle in '23 Mad 271 (PC) (G)', where the hereditary managers of the property with which a religious foundation was endowed had purported to sell & assign the managment & the lands of the endowment to the representative of another institution. The assignment was held invalid. There was no evidence of the origin of the endowment in that case, and it was assumed that the endowment was by a gift from the founder. Under those circumstances, their Lordships relying on the earlier decision in 'Rajah Vurmah's case (J)' aforesaid held that the assignment by the hereditary managers was void and did not convey any title to the purchaser who, therefore, started prescribing from the date he got possession of the endowed properties. It was also held that it was a case of hereditary office where the plaintiff could claim as an heir to the last holder of the endowment and consequently the suit was barred under Article 124, Limitation Act. Here again the point to be noticed is that the assignment or relinquishment of the management of the endowment was not by the founder thereof but by the hereditary managers of the endowed property.
12. The decision in 37 Cal 885 (PC) (H)' is still more distinguishable. In that case some dispute arose between the two chelas of the mahanth of a Hindu temple, who was in possession of two maths, on the death of the said mahanth. The controversy between the chelas was settled by an arrangement embodied in an ekrarnama executed by the senior chela in favour of the junior chela by which one of the maths was allotted in perpetuity to the senior chela and his successors, while the other math and the properties annexed to it were allotted to the junior chela and his successors for the purposes connected with his math. Less than 12 years after the death of the senior chela but considerably more than that period after the date of the ekrarnama, a successor of the senior chela brought a suit against the junior chela to recover possession of the properties annexed to the latter's math on the allegation that they were debottar properties and asserting that the math in question was subordinate to his own math. The Privy Council held in the circumstances of that case that the suit was barred by adverse possession of the junior chela who got into possession under the terms of the ekrarnama. This case, therefore, is of no assistance to us in deciding the question with which we are faced at present. It is not necessary for me to refer to AIR 1922 PC 123(1), which, as the judgment of the Privy Council in AIR 1933 PC 75 (F) itself shows, related to disposition of an item of property only.
13. In its ultimate analysis, therefore, the position is that the principle of law laid down in AIR 1916 Cal 712CA), with which I respectfully agree, is not in any way affected or impaired by any of the decisions referred to above on which the learned Subordinate Judge relied or on which the learned Counsel for the respondent based his contentions. I, therefore, hold that where the founder also happens to be the first mutawalli of the endowment, then in his case the law recognises an exception if he relinquishes his office of shebait in favour of a person not named in the original deed of endowment. Such a relinquishment of office and appointment of a third party, though contrary to the terms of the original endowment, is not void 'ab initio' but is held good until the lifetime of the founder. It apparently proceeds on the footing that the founder has double capacities. He is not merely a shebait or trustee for the time being, but he is also the founder of the endowment; and although qua trustee, an assignment made by him would be invalid, but qua founder of the endowment he can exercise his choice in favour of a third party and completely assign the management to the former which for the time being is vested in him. Such an assignment, though not legal, if contrary to the terms of the original endowment will be valid until the lifetime of the founder. As I have already observed, if the assignment were by a mere shebait or manager for the time being whose authority to manage is controlled by the terms of the grant creating the endowment or by the custom or usage controlling the management, then the assignment or the relinquishment of the office would be completely void. The analogy of a limited owner entirely effacing himself or herself with a view to accelerate the succession of a person next in the line of inheritance may well apply to the case of such a manager or trustee of the endowment whose powers are controlled by the terms or conditions of the grant; but this analogy cannot be extended to cover the case of a person who is the founder of the endowment as also the first trustee of the endowment. In this view of the law, it is obvious that the plaintiff in the present action had no right to sue for declaration of his title as shebait or for recovery of possession during the lifetime of Baldeo Missir because the assignment made , by him in January 1917 could be valid and operative during the lifetime of Baldeo though it could not operate beyond his lifetime when under the terms of the original deed of the endowment the shebaitship vested in the plaintiff. The right to sue having accrued to the plaintiff on the death of Baldeo, the plaintiff's suit is evidently within time and the Courts below are in error in holding that the suit is barred by limitation.
14. I consider it, therefore, unnecessary to examine the other contention of the learned Counsel for the appellant that the finding of the learned Subordinate Judge that Narain Missir or defendant 1 actually took possession of the endowed properties of the deities by virtue of the deed of assignment executed in January 1917 was erroneous. The complaint is that the Court below assumed that the plaintiff derived his right to the trusteeship through Baldeo and that illegal observation was likely to have affected its finding on the point. If I had acceded to the argument of the learned Counsel for the respondent that the right to sue accrued in January 1917, I might have thought it necessary to direct a remand for a proper finding on that question, but that contingency does not now arise.
15. I must, however, deal with another very important argument of the learned Counsel for the respondent which is based upon the interpretation of the endowment deed of February 1911. The learned Counsel contends that on the terms of the endowment there was nothing to show that Baldeo Missir had constituted himself the first shebait of the endowment. On the contrary, it showed that the plaintiff was the shebait of the endowment from the very beginning and consequently the plaintiff's right to sue accrued immediately on the execution of the deed of assignment in favour of Narain Missir in January 1917. In this connection he further refers to the recital in the plaint that even during the lifetime of Baldeo the plaintiff had been carrying on the management of the endowed properties. The learned Counsel also disputes the finding of the courts below upon the point and as it involves interpretation of a document of title, he is justified in urging that it amounts to a question, of law which we could consider in second appeal. If the contention of the learned Counsel is a sound contention supported by the true interpretation of the document then of course the suit would be barred because the possession of Narain Missir or that of defendant 1 would become adverse to the plaintiff from the date of execution of the deed of assignment; but having examined the deed of endowment of February 1911 and the other relevant documents, I see no reason to differ from the finding of the learned Subordinate Judge on the point.
Reading the document as a whole, it is quite clear that the intention was that the plaintiff should perform the 'pujapath' of Thakurji with respect and devotion after the death of the founder. In other words, during his lifetime apparently the founder was to act as shebait, and then after the death of the founder the plaintiff was to assume that office. The contention of the learned Counsel that the recital merely embodied a pious wish of the founder, that after his death the mutawalli should properly carry out the duties of worship in an appropriate manner, does not appear to me to be supported by a true construction of the document; and if any ambiguity was there in the deed of endowment itself as to the real intentions of the donor, that ambiguity was clarified by the specific recital in the document executed on the same day by the donor in favour of Mt. Parkala Kuer as also by the recitals in the document of January 1917. These documents very clearly show, as pointed out by the learned Subordinate Judge, that the plaintiff was to become shebait after the death of the founder and not during his lifetime. This is what the defendants themselves understood to be the actual position as it appears from the written statement of defendants 1 to 6. The recital in the plaint is no more than this that during the lifetime of Baldeo & under his direction the plaintiff also looked after the management of the endowed properties. That does not mean that the plaintiff was acting as the shebait of the idols in derogation of the rights of the founder: nor does it support the contention put forward by the learned Counsel for the respondent as to the correct construction of the deed of endowment. In my opinion, therefore, the finding on that point that Bansidhar Missir, the plaintiff, had not been appointed shebait 'in praesenti' by means of the deed of endowment but that he was to act as shebait only after the death of Baldeo is a correct finding.
16. For these reasons, I have no option but to allow the appeal, set aside the decision of the learned Subordinate Judge and decree the suit. In the circumstances of this case, I think that each party should bear his own costs throughout.
Ramaswami, J.
17. I entirely agree.