Sital Das Babaji And Anr. vs Pertap Chunder Sarma And Ors. on 23 August, 1909
2. As we have already stated, the founders omitted to provide for the contingency which has happened and might easily have been foreseen. There is no provision in the arpannama of the 5th December 1900 for the devolution of the office of shebait, and, in circumstances like these, the Court will not read into the deed of endowment a provision for appointment to the office of shebait which is not to be found therein. It was faintly suggested at one stage of the argument that the clause, which provides that the rules regarding the office of shebait shall apply to the then shebait as well as to the shebait who might succeed to that office in future, was wide enough to meet the present contingency. It was fully realised, by the appellant, however, that this provision was of no avail, because the rule for the appointment of a successor to the office of shebait, could not possibly apply to the then shebait who had been appointed as such twelve years previously. The position, therefore, is that the shebait is dead, and there is no provision in the deed of endowment about the mode in which the office is to be filled up. The principles applicable to a case of this description were formulated in the case of Sital Das Babaji v. Pertap Chandra Sarma 11 C.L.J. 2; 3 Ind. Cas. 408. These principles are three-fold; first, the devolution of the trust upon the death or default of each trustee depends upon the terms on which it was created or the usage of the particular institution where no express trust-deed exists; secondly, when the worship of an idol is founded, the office of shebait is vested in the heirs of the founders in default of evidence to show that he has disposed of it otherwise; thirdly, where a shebait appointed by the founder fails to nominate a successor in accordance with the conditions or usage of the endowment, the management reverts to the representatives of the founder, even though the endowment has assumed a public character. In the case before us, therefore, upon the death of the original shebait, it became incumbent upon the representatives of the founders to make an appointment to the office of shebait. This they have failed to do, because they are not unanimous as to the person to be appointed. It cannot be held that an appointment by the majority is valid in the absence of a provision in the deed of endowment to that effect. Consequently, the Court is called upon to appoint a shebait. It cannot be disputed that the power of a Court to appoint a new trustee is very wide; it exists and will be exercised whenever there is a failure of suitable person to perform the trust either from original or supervenient disability to act. It is an elementary principle that trusts will not be allowed to fail for want of a trustee, and, consequently, if the nominee dies, before qualifying or afterwards, the Court will appoint a trustee.