9911796707
TMI Blog1918 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ard of as stated in paragraph No. 2 of the plaint and as alleged before us. The Will, after appointing these four persons as Shebaits, provided that if Gopeswar Das was unable or unwilling to carry on the Sheba, then Sri Jogneswar Goasain would act as Shebait in his place; and it is stated that this man Jogneswar has not been found also. Nothing, however, turns upon the facts that are stated here in the view that I take of this case. The other two, Gopeswar Das and Gobinda Das, by deeds of transfer made over their Shebaitship to the 1st and 2nd defendants. It is stated, though this is disputed, that the fourth defendant took a document from his transferee, the defendant No. 1, under which the former was to act as Shebait during his life. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght only to appoint their successors upon their death. 3. By the appellants, it is contended that there is no such limitation and we have, therefore, had that clause translated by a translator of this Court who says that it was as follows: The two aforesaid Shebaits shall be competent to appoint succeeding Shebaits in respect of their respective shares of Shebaitship by a Will or any other deed, and to make over his (their) Shebait share to whomsoever they like. 4. Therefore, the contention of the learned Counsel for the respondents on this point fails. It may be observed, that the compromise took place so far back as fourteen years before suit. On the 5th January 1909, that is four years before suit a deed of transfer of the Shebaitshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of the compromise. 6. Here, however, another case is made before us by the learned Counsel for the respondents, to the effect that the compromise was an improper document and that the executors had improperly--perhaps it may be said fraudulently--entered into an arrangement by which, in order to escape from the liability to render an account, they had consented that the transferors, the Shebaits, should do something which the Will did not allow; and on this ground he contended that the compromise could not stand. 7. We must, however, deal with the case as it is made in the plaint, though I proceed to deal with the question whether or not this compromise does, as the appellants contend, form a bar to the plaintiffs' suit. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere to do everything according to their advice, and, it was, by this compromise, determined that the rights and duties of the executors in this respect should be confined to the two clauses which are set out in paragraphs Nos. 5 and 11 of the petition of compromise. The 7th paragraph provided for succession to the Shebaitship which the Will had omitted to do. 8. Now, if as would appear from these deeds of transfer, these Shebaits were short of funds for carrying on the Sheba, and if, as appears to be the case, the Sheba was by this transfer placed in the hands of persons who were in a position to carry on the Sheba, it is clear that the transfers were transfers for the benefit of the idol, the beneficiary. Even if these recitals were not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee years after the date of the deed. It is not, however, necessary to rest my judgment entirely upon this ground of limitation, as, apart from that, for the reasons I have stated, I hold that the compromise is a bar to the suit. Further, the plaintiffs, it is contended, do not establish their right to sue at all for the reliefs which they claim. 11. It appears from the Will that the Debutter which is mentioned in it must have been created before the date of the Will, for the preamble to the Will says that the deity had been established, and paragraph 4 says that the testator had been carrying on the Sheba and Puja during his lifetime. There is, however, a provision in the Will that if any property were subsequently acquired after the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trust, or it was contended that the legal title was in the executors alone who were the trustees proper and that the Shebaits were appointed merely to carry on the Puja and the Sheba under the advice and directions of the executors. In this way it is contended that there was a title in the executors to maintain the suit, and that, in fact, the executors had had such title from the date of the death of the testator until the institution of the suit. I think, however, this construction of the Will does not hold good. In the 14th paragraph of the Will which appointed the executors, it is said that "these four persons are appointed advising executors of the Shebaits. Everything will be done with their advice". It is said everythin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
