Sree Sree Ishwar Sridhar Jew Vs.
Sushila Bala Dasi & Ors [1953] INSC 68 (16 November 1953)
BHAGWATI, NATWARLAL H.
MUKHERJEA, B.K.
BOSE, VIVIAN
CITATION: 1954 AIR 69 1954 SCR 407
CITATOR INFO :
R 1965 SC1874 (17) R 1974 SC 740 (10)
ACT:
Hindu law-Religious endowments-Dedication of
properties Dedication to idol subject to charge in favour of heirs or bequest
to heirs subject to charge in favour of idol- Construction of will-Adverse
possession-Possession of shebait, whether can be adverse to idol.
HEADNOTE:
The question whether the idol itself is the
true beneficiary subject to a charge in favour of the heirs of the testator, or
the heirs are the true beneficiaries subject to a charge for the upkeep,
worship and expenses of the idol, has to be determined by a conspectus of the
entire provisions of the deed or will by which the properties are dedicated. Pande
Har Narayan v. Surja, Kunwari (I.L.R. 47 I.A. 143) referred to.
A provision giving a right to the sevayats to
reside in the premises dedicated to the idol for the purpose of carrying on the
daily and periodical worship and festivals does not detract from the absolute
character of a dedication to the idol.
Gnanendra Nath Das v. Surendra Nath Das (24
C.W.N. 1026) referred to.
No shebait can, so long as he continues to be
the shebait, ever claim adverse possession against the idol.
Surendrakrishna Ray v. Shree Shree Ishwar
Bhubaneshwari Thakurani (I.L.R. 60 Cal. 54) approved.
Judgment of the Calcutta High Court affirmed.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
201 of 1952.
Appeal from the Judgment and Decree dated the
5th March, 1951, of the High Court of judicature at Calcutta (Harries C.J. and
Banerjee J.) in Appeal from Original Decree No. 118 of 1950, arising out of the
Judgment and Decree dated the 15th June, 1950, of the said High Court in its
Ordinary Original Civil jurisdiction in Suit No. 2379 of 1948.
N.C. Chatterjee (S. N. Mukherjee, with him)
for the appellant.
N.N. Bose (A. K. Dutt, with him) for the
respondent in Civil Appeal No. 201 of 1952 and petitioner for special leave.
408 M.C. Setalvad, Attorney-General for
India, (B. Sen, with him) for respondents Nos. 1, 2 and 3 in the petition for
special leave.
1953. November 16. The Judgment of the Court
was delivered by BHAGWATI J.-This is an appeal on a certificate under article
133(1) of the Constitution from a judgment and decree passed by the Appellate
Bench of the High Court of Calcutta, modifying on appeal the judgment and
decree passed by Mr. Justice Bose on the original side of that court.
One Dwarka Nath Ghose was the owner of
considerable moveable and immoveable properties. On the 10th June, 1891, he
made and published his last will and testament whereby he dedicated to this
family idol Shree Shree Iswar Sridhar Jew his two immoveable properties, to
wit, premises No. 41 and No. 40/1. Grey Street in the city of Calcutta. He
appointed his two sons Rajendra and Jogendra executors of Ms will and provided
that his second wife Golap Sundari and the two sons Rajendra and jogendra
should perform the seva of the deity and on their death their heirs and
successors would be entitled to perform the seva.
Dwarka Nath died on the 16th March, 1892,
leaving him surviving his widow Golap Sundari and his two sons Rajendra and
Jogendra. On the 19th July, 1899, Rajendra made and published his last will
and, testament whereby he confirmed the dedication made by Dwarka Nath with
regard to premises Nos. 41 and 40/1 Grey Street and appointed his brother
Jogendra the sole executor thereof. He died on the 31st January,1900, and
Jogendra obtained on the 24th April, 1900,. probate of his said will. Probate
of the will of Dwarka Nath was also obtained by jogendra on the 31st August,
1909.
On the 4th September 1909, Bhupendra,
Jnanendra. and Nagendra, then a minor, the three sons of Rajendra filed a suit,
being Suit No. 969 of 1909,on the original side of the High Court at Calcutta
against Jogendra, Golap Sundari and Padma Dassi, the widow of Sidheswar,
another son of Rajendra, for the 409 construction of the wills of Dwarka Nath
and Rajendra, for partition and other reliefs. The idol was not made a party to
this suit. The said suit was compromised and on the 24th November, 1910, a
consent decree was passed, whereby jogendra and Golap Sundari gave up their
rights to the sevayatship and Bhupendra, Jnanendra and Nagendra became the
sevaits of the idol, a portion of the premises No. 41 Grey Street was ;allotted
to the branch of Rajendra and the remaining portion was allotted to jogendra
absolutely and in consideration of a sum of Rs. 6,500 to be paid to the
plaintiffs, jogendra was declared entitled absolutely to the premises No. 40/1
Grey Street. The portions allotted to Jogendra were subsequently numbered
40/2-A Grey Street and the portion of the premises No. 41 Grey Street allotted
to the branch of Rajendra was subsequently numbered 41-A Grey Street.
Jogendra died on the 5th August, 1911,
leaving a will whereby he appointed his widow Sushilabala the executrix
thereof. She obtained probate of the will on the 6th August, 1912.
Disputes arose between Bhupendra, jnanendra
and Nagendra, the sons of Rajendra, and one Kedar Nath Ghosh was appointed
arbitrator to settle those disputes. The arbitrator made his award dated the
12th October, 1920, whereby he allotted premises No. 41-A Grey Street,
exclusively to Nagendra as his share of the family properties. Nagendra
thereafter executed several mortgages of the said premises. The first mortgage
was created by him in favour of Snehalata Dutt on the 19th May, 1926. The
second mortgage was executed on the 4th June, 1926, and the third mortgage on
the 22nd February, 1927. On the 23rd February, 1927, Nagendra executed a deed
of settlement of the said premises by which he appointed his wife Labanyalata
and his wife's brother Samarendra Nath Mitter trustees to carry out the
directions therein contained and in pursuance of the deed of settlement he gave
up possession of the said premises in favour of the trustees.
Snehalata Dutt filed in the year 1929 a suit,
being Suit No. 1042 of 1929, against Nagendra, the trustees 410 under the said
deed of settlement and the puisne mortgagees, for realisation of the mortgage
security,. A consent decree was passed in the said suit on the 9th September, 1929.
Nagendra died in June, 1931, and the said
premises were ultimately put up for sale in execution of the mortgage decree
and were purchased on the 9th December, 1936, by Hari Charan Dutt, Hari Pada
Dutt and Durga Charan Dutt for a sum of Rs. 19,000. A petition made by the
purchasers on the 12th January, 1937, for setting aside the sale was rejected
by the court on the 15th March, 1937. Haripada Dutt -died on the 3rd June,
1941, leaving him surviving his three sons, Pashupati Nath Dutt, Shambhunath
Dutt and Kashinath Dutt, the appellants before us. Haricharan Dutt conveyed Ms
one third share in the premises to them on the 4th March,1944, and Durga Charan
Dutt conveyed his one-third share to them on the 3rd May, 1946. They thus
became entitled to the whole of the premises which had been purchased at the
auction sale held on the 9th December, 1936.
On the 19th July, 1948, the family idol of
Dwarka Nath, Sree Sree Iswar Sridhar Jew, by its next friend Debabrata Ghosh,
the son of Nagendra, filed the suit, out of which the present appeal arises,
against the appellants as, also against Susilabala and the two sons of Jogendra
by her, amongst others, for a declaration that the premises Nos. 41- A and
40/2-A Grey Street, were its absolute properties and for possession thereof,
for a declaration that the consent decree dated the 24th November, 1910, in
Suit No. 969 of 1909 and the award dated the 12th October, 1920, and the
dealings made by the heirs of jogendra and/or Rajendra relating to the said
premises or any of them purporting to affect its rights in the said premises
were invalid and inoperative in law and not binding on it, for an account of
the dealings with the said premises, for a scheme of management of the debutter
properties and for its worship, for discovery, receiver, injunction and costs.
411 Written statements were filed by the
appellants and by Susilabala and the two sons of Jogendra denying the claims of
the idol and contending inter alia that there was no valid or absolute
dedication of the suit properties I to the idol and that the said premises had
been respectively acquired by them by adverse possession and that the title of
the idol thereto had been extinguished.
The said suit was heard by Mr. Justice Bose
who declared the premises No. 41-A Grey Street to be the absolute property of
the idol and made the other declarations in favour of the idol as prayed for.
The idol was declared entitled to possession of the said premises with mesne
profits for three years prior to the institution of the suit till delivery of
possession, but was ordered to pay as a condition for recovery of possession of
the said premises a sum of Rs. 19,000 to the appellants with interest thereon
at the rate of 6 per cent. per annum from the 19th July, 1945, till payment or till
the said sum was deposited in court to the credit of the suit. The learned
judge however dismissed the suit of the idol in regard to the premises No.
40/2-A Grey Street as, in his opinion, Sushilabala as executrix to her
husband's estate and her two sons had acquired title to the said premises by
adverse possession and the title of the idol thereto had been extinguished.
The appellants filed on the 18th August,
1950, an appeal against this judgment being Appeal No. 118 of 1950. The idol
filed on the 20th November, 1950, cross-objections against the decree for Rs.
19,000 and interest thereon as also the dismissal of the suit in regard to the
premises No. 40/2-A Grey Street. The appeal, and the cross-objections came on
for hearing before Harries C. J. and S. N. Banerjee J., who delivered judgment
on the 5th March, 1951, dismissing the said appeal and allowing the
cross-objection in regard to Rs. 19,000 filed by the idol against the
appellants. In regard however to the cross-objection relating to premises No.
40/2-A Grey Street which was directed against Sushilabala and the two sons of
jogendra the 412 learned judges held- that the cross-objection against the
co-respondents was not maintainable and dismissed the same with costs.
The appellants filed on the 31st May, 1951,
an appli- cation for leave to prefer an appeal to this court against the said
judgment and decree of the High Court at Calcutta.
A certificate under article 133(1) of the
Constitution was granted on the 4th June, 1951, and the High Court admitted the
appeal finally on the 6th August, 1951. On the 22nd November, 1951, the idol
applied to the High Court for leave to file cross-objections against that part
of the judgment and decree of the High Court,which dismissed its claims with
regard to the premises No.40/2-A Grey Street. The High Court rejected the said
application stating that there was no rule allowing cross-objections in the
Supreme Court.The said cross-objections were however printed as additional
record, By an order made by this court on the 24th May, 1953, the petition of
the idol for filing cross-objections in this court was allowed to be treated as
a petition for special leave to appeal against that part of the decree which
was against it, subject to any question as to limitation. The appeal as also
the petition for special leave to appeal mentioned above came on for hearing
and final disposal before us. The appeal was argued but so far as the petition
for special leave to appeal was concerned the parties came to an agreement whereby
the idol asked for leave to withdraw the petition on certain terms recorded
between the parties.
The petition for special leave was therefore
allowed to be withdrawn and no objection now survives in regard to the decree
passed by the trial court dismissing the idol's claim to the premises, No.
40/2-A Grey Street. The appeal is concerned only with the premises No. 41-A
Grey Street.
It was contended on behalf of the appellants
that the, dedication of the premises NO. 41 Grey Street made by Dwarka Nath under
the terms of his will was a. partial dedication, and that his sons Rajendra and
jogendra and his widow Golap Sundari, who were 413 appointed sevayats of the
idol were competent to deal with premises No. 41 Grey Street after making the
due provision for the idol as they purported to do by the terms of settlement,
dated the 24th November, 1910. It was further contended that Nagendra, by
-virtue of the award dated the 12th October, 1920, claimed to be absolutely
entitled to the premises No. 41-A Grey Street and that his possession of the
said premises thereafter became adverse which adverse possession continued for
upwards of 12 years extinguishing the right of the idol to the said premises.
The first contention of the appellants is
clearly un- tenable on the very language of the will of Dwarka Nath.
Clause 3 of the said will provided "With
a view to provide a permanent habitation for the said deity, I do by means of
this will, dedicate the aforesaid immovable property the said house No. 41 Grey
Street together with land thereunder to the said Sri Sri Issur Sridhar Jew.
With a view to provide for the expenses of his daily (and) periodical Sheba and
festivals, etc. The 3 1/2 Cattahs (three and half Cattahs) of rent free land
more or less that I have -on that very Grey Street No.
40/1.......his also I dedicate to the Sheba
of the said Sri Sri Sridhar Jew Salagram Sila Thakur. On my demise none of my
heirs and representatives shall ever be competent to take the income of the
said land No. 40/1 and spend (the same)for household expenses. If there be any
surplus left after defraying the Debsheba expenses the same shall be credited
to the said Sridhar Jew Thakur's fund and with the amount so deposited repairs,
etc; from time to time will be effected to the said house No. 41 with a view to
preserve it and the taxes etc., in respect of the said two properties will be
paid. . . ...... For the purpose of the carrying on the daily (and) periodical
sheba and the festivals, etc. of the said Sri Issur Sridhar Jew Salagram Sila
Thakur my said ,second wife Srimati Golap Moni Dasi, and 1st Sriman Rajendara
Nath and 2nd, Sriman Jogendra Nath Ghose born of the womb of my first wife on
living in the said house No. 41 Grey Street dedicated by me shall 414 properly
and agreeably to each other perform the sheba.
etc., of the said Sri Sri Issur Sridhar Jew
Salagram Sila Thakur and on the death of my said two sons their
representatives, successors and heirs shall successively perform the sheba in
the aforesaid manner and the executors appointed by this will of mine having
got the said two properties registered in the Calcutta Municipality in the name
of the said Sri Sri Issur Sridhar Jew Thakur shall pay the municipal taxes,
etc.' and shall take the municipal bills in his name. None of my
representatives heirs, successors, executors, administrators or assigns shall
have any manner of interest in or right to the said two debutter properties and
no one shall ever be competent to give away or effect sale, mortgage or in
respect of the said two properties nor shall the said two properties, be sold
on account of the debts of any one." It is quite true,that a dedication
may be either absolute or partial. The property may be given out and out to the
idol, or it may be subjected to a charge in favour of the idol. "The
question whether the idol itself shall be considered the true beneficiary,
subject to a charge in favour of the heirs or specified relatives of the
testator for their upkeep, or that, on the other hand, these heirs shall be considered
the true beneficiaries of the property, subject to a charge for the upkeep,
worship and expenses of the idol, is a question which can only be settled by a
conspectus of the entire provisions of the will": Pande Har Narayan v.
Surja Kunwari(1).
What we find here in clause 3 of the will is
an absolute dedication of the premises No. 41 Grey Street to the idol as its
permanent habitation with only the right given to the sevayats to reside in the
said premises for the purposes of carrying on the daily and periodical seva and
the festivals, etc., of the deity. The said premises are expressly declared as
dedicated to the deity. They are to be registered in the municipal records in
the name of the deity, the municipal bills have got to be taken also in his
name and none of the (1) [1921] L. R. 48 I. A. 143, 145, 146., 415 testator's
representatives, heirs, successors, executors, administrators or assigns is to
have any manner of interest in or right to the said premises or is to be
competent to give away or effect sale, mortgage, etc., of the said premises.
There is thus a clear indication of the intention of the testator to absolutely
dedicate the said premises to the deity and it is impossible to urge that there
was a partial dedication of the premises to the deity. The only thing which was
urged by Shri N. C. Chatterjee in support of his contention was that the right
to reside in the premises was given to the sevayats and that according to him
detracted from the absolute character of the dedication.
This argument however cannot avail the
appellants. It was observed by Lord Buckmaster in delivering the judgment of
the Privy Council in Gnanendra Nath Das v. Surendra Nath Das (1):
"In that case it is provided that the
shebait for the time being shall be entitled to reside with his family in the
said dwelling-house, but the dwelling-house itself is the place specially set
apart for the family idols to which specific reference is made in the will, and
in their Lordships' opinion the gift is only a perfectly reasonable arrangement
to secure that the man in whose hands the supervision of the whole estate is
vested should have associated with his duties the right to reside in this named
dwelling place." The first contention of the appellants therefore fails
and we hold that the dedication of the premises No. 41 Grey, Street to the idol
was an absolute dedication.
As regards the second contention, viz., the
adverse possession of Nagendra, it is to be noted that under the terms of
clause 3 of the will of Dwarka Nath the representatives, successors and heirs
of his two sons Rajendra and Jogendra were successively to perform the seva in
the manner therein mentioned and Nagendra was one of the heirs and legal
representatives Of Rajendra. He was no doubt a minor on the 24th November,
1910, when the terms of settlement were arrived at between the parties to the
suit No. 969 of (1) (1920) 24 C.W.N. 1926 at p. 1030.
416 1909. His two elder brothers Jnanendra
and Bhupendra were declared to be the then sevayats, but a right was reserved
to Nagendra to join with them as a sevayat on, his attaining majority. So far
as Nagendra is concerned there is a clear finding of fact recorded by Mr.
Justice Bose on a specific issue raised in that behalf, viz, "Did Nagendra
act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and
Rajendra Nath Ghosh ?" that he did act as such shebait and that his
possession of the premises No. 41A Grey Street was referable to possession on
behalf of the idol, This finding was not challenged in the appeal court and it
is too late to challenge the same before us. If Nagendra was thus a sevayat of
the idol it could not be urged that his possession could in any manner whatever
be adverse to the idol and his dealings with the said premises in the manner he
purported to do after the 12th October, 1920, could not be evidence of any
adverse possession against the idol. The position of the sevayat and the effect
of his dealings with the property dedicated to the idol has been expounded by
Rankin C.J. in Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari
Thakurani (1) :- "But, in the present case, we have to see whether the
possession of two joint shebaits becomes adverse to the idol when they openly
claim to divide the property between them.
The fact of their possession is in accordance
with the idol's title, and the question is whether the change made by them, in
the intention with which they hold, evidenced by an application of the rents
and profits to their own purposes and other acts, extinguishes the idol's
right. I am quite unable to hold that it does, because such a change of inten-
tion can only be brought home to the idol by means of the shebait's knowledge
and the idol can only react to it by the shebait. Adverse possession,in such
circumstances is a notion almost void of content. True, any heir or perhaps any
descendant of the founder can bring a suit. against the shebaits on the idol's
behalf and, in the present case, it may be said that the acts of the she baits
must have I been notorious in the family.
(1) (I 933) 60 Cal 54 at 7 7 417 But such
persons have no legal duty to protect the endowment and, until the shebait is
removed or controlled by the court, he alone can act for the idol." We are
in perfect accord with the observations made by Rankin C.J. If a shebait by
acting contrary to the terms of his appointment or in breach of his duty as
such shebait could claim adverse possession of the dedicated property against
the idol it would be putting a premium on dishonesty and breach of duty on his
part and no property which is dedicated to an idol would ever be safe. The she bait
for the time being is the only person competent to safeguard the interests of
the idol, his possession of the dedicated property is the possession of the
idol whose sevait he is, and no dealing -of his with the property dedicated to
the idol could afford the basis of a claim by him for adverse possession of the
property against the idol. No shebait can, so long as he continues to be the
sevait, ever claim adverse possession against the idol. Neither Nagendra nor
the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the
premises No. 41-A Grey Street by adverse possession. The second contention of
the appellants also therefore fails.
The further contention urged on behalf of the
appellants in regard to the disallowance of the sum of Rs. 19,000 by the appeal
court could not be and was not seriously pressed before us and does not require
any consideration.
The result therefore is that the appeal fails
and must stand dismissed with costs.
Appeal dismissed.
Agent for the appellant : P. K. Chatterice.
Agent for the respondent No. 1 in the appeal
and the petitioner, in the petition for special leave :
Sukumar Ghose.
Agent, for the respondents Nos. 1, 2 & 3
in the petition for special leave : P. K. Ghose.
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