Deb Kinkar Ghose vs Bimalabala Sinha

Ross, J.—This is an appeal against the decree of the District Judge of Bhagalpur, confirming the decision of the Munsif in a suit brought by the plaintiff for a declaration that he was the sole trustee of a religious endowment created by his grandfather. The donor was Govind Charan Ghose who had one son Madhusudan Ghose. He had two sons Chaitanya and Debkinkar. The plaintiff Chaitanya died in 1920 leaving three daughters two of whom were then married and the third, the defendant, unmarried. She has since married. The Courts below have found on a construction of the deed of endowment, which was in favour of the family, that the plaintiff is not the sole trustee.

The question turns on the effect to be given to the words "Pesran, Warisan, Kaymokamian" which occur repeatedly in the deed of endowment, these words meaning sons, heirs and representatives. It was contended on behalf of the respondent that the use of these words merely limits an estate of inheritance. This argument in my opinion is meaningless in the context in which these words are used. There is no question of an estate of inheritance so far as the descendants of the donors are concerned It was a gift out and out to the deity, and the heirs and representatives of the donor were specific duties the payment of the Government revenue, the application of the income as shebaits, and the management and supervision of the trust property. It is therefore in my opinion meaningless to say that these words limit an estate of inheritance in the heirs and representatives of the donor.

Then reference was made to the conduct of the plaintiffs as evidenced in a plaint (Ex. A) and a lease (Ex. D). He had therein acknowledged the position of the defendant as a co trustee. And the khewat was also referred to where the plaintiff and his brother are recorded as owners with eight annas share each. The learned District Judge has made much of this and also the fact that the family is governed by the Dayabhaga law. But the fact that the plaintiff may have misunderstood his rights and misconstrued the deed of endowment cannot affect his right now, and the khewat overlooks the essential fact which governs the relation of trustees, viz., that they are joint tenants. It is perfectly immaterial whether the family is governed by Dayabhaga law or not. The heirs and representatives of the donor are trustees admittedly, and as trustees they take as joint tenants.

The question then is what is the proper construction to be placed on the language used in this document. I should observe generally that this document was executed by a Bengali Hindu and was written apparently by a Bihari Hindu who was not a Kayastha and cannot be presumed to have had a great knowledge of the Urdu language; and the evidence is that the Urdu is not good Urdu. The first word used is "Pesran" which means sons. Some meaning must be given to this especially as it was strictly inapplicable to the circumstances of the donor''s family inasmuch as he had only one son. Consequently he must be taken to have looked further ahead than his own immediate descendant; and what was in his mind apparently was the male line of descent as if the word used had been "Putra Putradi." It is true that this is not correct Urdu; but haying regard to the apparent intention of the donor and the language which as a Bengali Hindu he would naturally use, it seems to me that this is not an unreasonable construction to put upon this Persian word. And it is reasonable to suppose that he had in his mind a limitation to the male line, because this was an endowment of the family deity and, if the management went into the hands of the daughter who might live any where (and in the present instance the defendant is married in Birbhum District while the property is in Bhagalpur), it would become practically impossible.

But if the word "Pesran" is not used in this sense then we have to look to the word "heirs." The three words used represent gradually widening classes. Every son is an heir and also a legal representative, An heir is a legal representative and may not be a son, and a legal representative may be neither the one nor the other. Consequently it seems to me that these classes have to be exhausted in succession. If "Pesran" is not used in the sense that I have considered most probable, then there is no representative of that class in existence and we have now to turn to the next wider class "Warisan." Admittedly Debkinkar the plaintiff is an heir and admittedly the defendant is not an heir.

Consequently on the strict construction of the language, the daughter has no right. The plaintiff''s right is admitted. The fallacy in the judgment of the Courts below seems to lie in this: that because the defendant''s father was a joint trustee with the plaintiff therefore on his death the defendant has succeeded to his interest. But this overlooks the fact that we are dealing with trust property and not with a beneficial interest; and also it overlooks the fact that Chaitanya there was nothing in the trust that could go to his heirs.

I would therefore allow this appeal, set aside the decree of the Court below and decree the plaintiff''s suit with costs throughout. There will be a decree that the plaintiff is the sole present shebait of the deity, and that the name of the defendants be removed from the Collectorate registers as joint shebaits, and there will be an injunction permanently restraining the defendant from interfering with the management of the trust properties.