Badri Nath & ANR Vs. Mst. Punna
& Ors [1979] INSC 39 (15 February 1979)
KOSHAL, A.D.
KOSHAL, A.D.
KRISHNAIYER, V.R.
DESAI, D.A.
CITATION: 1979 AIR 1314 1979 SCR (3) 209 1979
SCC (3) 71
ACT:
Hindu Succession Act, 1956-S. 4-Scope
of-Share of a baridar (turnholder) in the offerings of a temple-if a heritage
right nature of office of baridar-Custom that offerings should go to specified
sub-castes-if valid.
HEADNOTE:
The plaintiff's (respondent's) father and the
defendants (appellants) were entitled to receive a defined share in the
offerings made at a holy shrine. On her father's death the plaintiff claimed
his share in the offerings alleging that both under the law of inheritance and
by virtue of her father's will executed in her favour, she was entitled to his
share; but the defendants interfered with her right to collect that share.
In the plaintiff's suit the defendants
contended that only members belonging to four specified sub-castes were
entitled to receive the offerings and the plaintiff having lost her sub-caste
by reason of her marriage outside those sub-castes she was not entitled to her
father's share. But this argument was rejected by the trial court which held
that on the death of the baridar (turnholder) his heirs inherited his right to
receive offerings just as they inherited his other property and that therefore,
the plaintiff was entitled to the offerings both under the Hindu Succession Act
and the will executed by her father.
On appeal a Division Bench of the High Court
held that where offerings were received by persons independently of any
obligation to render services, they were alienable and attachable and that the
custom which restricted the right to a share in the offerings only to members
of the four specified subcastes, could not be given effect to in view of the
provisions of the Hindu Succession Act and that therefore, the plaintiff was
entitled to succeed to the right though she did not belong to any of the
sub-castes.
On further appeal to this Court it was
contended on behalf of the appellant that (1) the right of the baridar was not
a transferable right and (2) the right to a share in the offerings and the
duties attached to it must be regarded as an office like that of a shebait and
cannot be regarded as heritable property.
Dismissing the appeal,
HELD: The right of the baridar was a
transferable right.
1. To begin with, the right to a share in the
offerings, according to the settlement record prepared for the village and a
resolution passed by the Dharmarth Committee, was restricted to the four
sub-castes, and similarly the baridars did not perform any duties in return.
Sometime later, however, certain obligations,
such as to provide permanent servants, to look after visitors and the like,
were superimposed on that right. Though the right to receive a share in the
offerings was subject to the performance of those duties none of them 210 was
in nature priestly or required a personal qualification.
All of them were of a non-religious or
secular character which could be performed by the baridar's agents or servants
incurring expense on his account. When the right to receive the offerings made
at a temple is independent of an obligation to render services involving
qualifications of personal nature, (such as officiating the worship) such a
right is heritable as well as alienable. [217 B-H] Balmukand & ors. v. Tula
Ram & ors., AIR 1928 All. 721 approved.
2. (a) The right of the baridars cannot be
equated with the right and duties of a shebait. The baridars were not managers
of the shrine in the sense that a shebait is in relation to a temple in his
charge. The overall management of the temple vested in the Board of Trustees
known as Dharmarth Committee. [218 E] (b) It is not correct to say that
shebaitship is neither more nor less than an office and is not heritable
property. Shebaitship cannot be described as a mere office.
In addition to certain responsibilities it
carries with it a definite right to property. It is well-established that in
the concept of Shebait, both the elements of office and property, duties and
personal interest are mixed up and one element cannot be detached from the
other. Old texts as courts have recognised heriditary office of shebaitship as
immovable property. [218 F; 220 A-B] Angurbala Mullick v. Debabrata Mullick,
[1951] SCR 1125; Ram Rattan v. Bajrang Lal & ors. [1978] 3 SCR 963
followed.
3. The right to share the offerings being a
right coupled with duties other than those involving personal qualifications
and being heritable property, it will descend in accordance with the dictates
of the Hindu Succession Act in supersession of all customs to the contrary in
view of s.
4 of that Act. [220 H] In the instant case,
in the light of s. 4 of the Hindu Succession Act the requirement that the right
could not be exercised by a person not belonging to any of the four sub- castes
becomes ineffective. [220 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1118 of 1972 (Appeal by Special Leave from the Judgment and Order dated
18-1-72 of the Jammu and Kashmir High Court in L.P.A.
No. 6 of 1969.) L.N. Sinha, Satish Gupta,
K.J. John and P.P. Singh, for the appellant R.K. Bhat and D.C. Anand for
respondent 1B-1K.
The Judgment of the Court was delivered by
KOSHAL, J.-This appeal by special leave has arisen out of a suit brought by
Smt. Punna, respondent No. 1, against the two appellants and respondent No. 2
for the issuance of a perpetual injunction restraining the three defendants
from interfering with her right to recover her father's share of six annas in a
rupee in the offerings made 211 at the sacred shrine of Shri Vaishno Devi Ji
which is situated on the Trikutta Hills. The suit was decreed by the trial
court whose judgment was upheld in first appeal by the District Judge, in a
second appeal by a learned Single Judge of the High Court of Jammu &
Kashmir and in a Letters Patent Appeal by a Full Bench of that Court. It is the
judgment of the Full Bench (which is dated the 18th of January, 1972) that is
impugned before us.
2. The averments made in the plaint may be
summarised thus. The plaintiff is the daughter of one Bagu who died in or about
the year 1959. During his life time Bagu and the three defendants were entitled
to receive the offerings made at the shrine of Shri Vaishno Devi Ji on certain
days falling within every seventh Bikrami year so that Bagu would have 6/16th
share therein and the defendants collectively a similar share. After the death
of the plaintiff's father the parties were entitled to receive the offerings in
the shares abovementioned on every eighth day in the Bikrami year 2019, the
plaintiff having succeeded to the share of her father both under the law of
inheritance and by virtue of a will executed by him in her favour. The
plaintiff had to resort to the suit as the defendants had started interfering
with her right to collect her share of the offerings.
3. The defendants contested the suit. They
challenged the will set up by the plaintiff as a forged one and further pleaded
that only members of four sub-castes namely, Khas Thakars, Darora Thakars,
Manotra Thakars and Samnotra Brahmins were entitled to receive the offerings
and that while Bagu was entitled to a share in the same, the plaintiff was not
as she had lost her original sub-caste by marriage outside the four sub-castes
mentioned above. The offerings, according to the defendants, were also not
liable to devolve by inheritance or demise.
4. The findings arrived at by the trial court
were these:
(i) On the death of a baridar (which
expression, when literally translated, means turn-holder) belonging to any of
the aforementioned sub-castes, his heirs inherited his right to receive
offerings just as they inherited his other property.
(ii) Under section 4 of the Hindu Succession
Act, any custom or usage inconsistent with the provisions of that Act becomes
ineffective.
(iii)Even under section 6 of the Hindu
Succession Act read with the Schedule appended there to the property of Bagu
would devolve on the plaintiff in case Bagu died intestate.
(iv) Gagu executed a valid will in favour of
the plaintiff devising to her the right to receive the offerings, apart from
other properties.
(v) The plaintiff was entitled, in view of
the above four findings to inherit the right to receive offerings not only by
reason of the provision of sections 4 and 6 of the Hindu Succession Act, but
also because of the will.
(5) At the hearing of the Letters Patent
Appeal by the Full Bench, the following four contentions were raised on behalf
of the defendants:
(i) The chance of future worshippers making
offerings to the deity is a mere possibility of the nature referred to in
clause (a) of section 6 of the Transfer of Property Act and is not property
which can be transferred or inherited.
(ii) The right to receive offerings is not a
transferable or heritable right.
(iii)The provisions of the Hindu Succession
Act do not apply to the case in hand.
(iv) According to the custom governing the
shrine of Shri Vaishno Devi Ji, only the abovementioned four subcastes were
entitled to share the offerings.
All these contentious were rejected by the
Full Bench as untenable. In regard to the first of them the Full Bench followed
Balmukand and Others v. Tula Ram and Others in which it was held that the right
to receive offerings when made is a definite and fixed right and does not
depend on any possibility of the nature referred to in clause (a) of section 6
of the Transfer of Property Act, because the fact that offerings whether large
or small are bound to be made is a certainty.
In relation to the second contention, the
Full Bench noted the contents of paragraph 422 of "Principles of Hindu
Law" by Mulla which states, inter alia, that where offerings, though made
to idols, are received by persons independently of any obligation to render
ser- 213 vices, they are alienable and attachable. Reference in this connection
was also made to Balmukand and Others v. Tulla Ram and Others (supra) wherein
the following passage occurs:
"but when the right to receive the
offerings made at a temple is independent of an obligation to render services
involving qualifications of a personal nature, such as officiating at the
worship we are unable to discover any justification for holding that such a
right is not transferable. That the right to receive the offerings when made is
a valuable right and is property, admits of no doubt and, therefore, that right
must, in view of the provisions of section 6 of Transfer of Property Act, be
held to be transferable, unless its transfer is prohibited by the Transfer of
Property Act or any other law for the time being in force." In view of
these observations which were adopted and followed in Nand Kumar Dutt v. Ganesh
Dass, the Full Bench, being in agreement therewith, proceeded to determine
whether the right to receive the offerings in the present case was or was not
independent of services of a priestly or personal nature. The following
translation of an extract from the Wajib-ul-Arz relating to village Purana
Daiur wherein the holy shrine is situated, was then taken up for consideration
:
"Leaving aside cash, whatever is the
'Charatth' at the temples of 'Ad Kanwari' and 'Sri Trikutta Devi' the entire
Darora community distributes that among itself and of (?) other attached areas
of Pangal, Sarron, Batan, Kotli, Gran, Parhtal etc. according to hereditary
shares. And the castes 'Thakar Khas' and 'Minotra' are included in it. Darora
caste take two shares and Manotra and Khas castes also take one equal share of
Charatth'. That is divided as per hereditary shares. There is no service in
lieu thereof. Only it is described as the blessings of Goddess. Rupees twenty
one hundred (two thousand one hundred rupees) go to the Government. Every
baridar keeps his man present in the temple who receives the 'Charatth'.
Pujaries get pay from us." and it was interpreted to mean that the right
to share in the offerings made at the holy shrine had no connection with any
priestly functions or with other services involving qualifications of a
personal nature and therefore was a heritable as well as allenable right. This
very con- 214 clusion was reached by the Full Bench on a consideration of the
deposition of the Patwari of the concerned circle and the Ain-i-Dharamarth
which purports to be the constitution of a Board of Trustees appointed by the
State to manage the shrine.
In relation to the third contention, the Full
Bench noted that the properties to which the Hindu Succession Act does not
apply are only those which find enumeration in section 5 thereof, that the
right to share the offerings is not one of those properties and that,
therefore, such a right could not but be governed by the provisions of the Act.
In repelling the last contention the Full
Bench relied upon the provisions of the Hindu Succession Act which over- rides
all customs or usage being part of the Hindu Law as in force immediately prior
to the commencement of the Act and concluded that the custom of the right to
share in the offerings being restricted to members of the four sub-castes
abovementioned could not be given effect to and that the plaintiff was fully
entitled to succeed to that right in spite of the fact that she did not belong
to any of those sub-castes.
It was in these premises that the Letters
Patent Appeal was dismissed by the Full Bench.
6. At the very outset Mr. L.N. Sinha, learned
counsel for the appellant, has drawn our attention to the fact that the extract
from the Wajib-ul-Arz taken note of by the Full Bench of the High Court relates
not to the temple of Shri Vaishno Devi Ji but to a couple of other temples
situated in its vicinity, namely, the temples of 'Ad Kanwari' and 'Sri Trikutta
Devi' and has urged that the extract could not possibly relate to the temple of
Shri Vaishno Devi Ji which was the main temple in the complex and a reference
to which could not have been omitted from the extract in case it was intended
to apply to that temple also. A careful perusal of the extract shows that Mr.
Sinha's contention is well- founded because there is not so much as a hint to
the main temple in the extract. According to Mr. Sinha, the duties to which the
right to share the offerings is subject are detailed in the settlement record
prepared for village Daiur (Shri Vaishno Devi Ji) for the year 1965-66 Bikrami
and a resolution passed by the Dharamarth Committee on Sawan 27, 1983 Bikrami.
These documents may be set out in extenso:
Settlement Record "In the column of
ownership, the State is entered as owner; in the column of possession-Dharmarth
Trust entered as in possession. 'Mandir Gupha' situate on land compris- 215 ing
7 marlas bearing Khasra No. 166 and 'Bhawan' situate on land comprising 4
marlas bearing Khasra No. 167. The sub-caste Thakar Darora, Manotra, Khas, and
Brahmin Samnotra have been sharing the offerings according to the shares
mentioned below from the very beginning. Thakar Daroras and Brahmin Samnotra
are entitled to three shares and one share respectively out of 2/3 of the total
offerings whereas Thakar Manotras and Khas are entitled to share equally in the
rest 1/3 of the total offerings.
"Darora Thakars are sub-divided into further
four subcastes namely; (i) Darora Sunk (ii) Darora Jaga (iii) Darora Pai and
(iv) Darora Deoch and each one of them has one equal share. Similarly Brahmin
(Samnotra) have also divided their share into four shares which are received as
under:
Samnotra Brahmins from the branch of 'Darya'
one share, Brahmins from the branch of 'Bairaj' one share;
Brahmins from the branch of 'Gobind' one
share; and Brahmins from the branch of 'Ganesh' one share.
Therefore 'Darora Sunk' and Samnotras from
the branch of 'Bairaj' have their turn together in the one year and they divide
the offerings for that in the proportion of 3.1 (i.e. 3 shares of Darora Sunk
and 1 share to Samnotras from the branch of Bairaj).
Similarly Brahmins from the branch of 'Darya'
have their turn with 'Darora Jaga' Brahmins from the branch of 'Ganesh' with
'Darora Parath' and Brahmins from the branch of 'Ganesh' with 'Darora Deoch'
and Brahmins in each case receive 1/4th share and Darora Thakars have 3/4th
share.
"In the beginning nothing was taken from
these persons (baridaran) in consideration of their receiving the offering. But
because the Sadhus would often go to the shrine and due to the mismanagement of
their stay and meals over there, there were always riots at the shrine.
Therefore, in the year 1907 Bikrami during the regime of Maharaja Gulab Singh
an amount of Rs. 1150/- was fixed as 'Aian' to be paid by the baridars for the
management of stay and meals for Sadhus at the shrine.
The said amount was to be deposited in the
State Treasury. Thereafter in 1920 Bikrami another hundred rupees were added to
the above said amount and thenceforth Rs. 1250/- were fixed per annum which was
being deposited in the State Treasury. After 1940 Bikrami the said 216 amount
of Rs. 1250/- was being deposited with the Dharmarth Trust and this continues
till today. The said amount is recovered from Thakar sub-castes. Besides this,
so many other things (such as silk chunis etc.) are received from the said
Thakar baridars. Thakar baridars are also liable to provide three permanent
servants and six more peons during the season and will be liable to pay them.
The said Thakars are liable to arrange the carriage and pay for the 'Parshad',
etc., from Katra to Vaishno Devi temple. With regard to the cattle kept by the Dharmarth
Trustees, the said Thakars are liable to arrange for taking them from one place
to another. If any Government servant visits the shrine the said Thakars will
be liable to arrange for the carriage of his luggage, etc. The said Thakars are
also liable to perform the following duties:
(1) Cleanliness of the Gupha (Vaishno Devi
temple) and the compound appurtenant thereto.
(2) To carry Puja material inside the Gupha
(temple along with the Pujari.
(3) If during mela season there is any
trouble to any pilgrim or he becomes, sick, etc, the said Thakars are liable to
make proper arrangements for the removal of any such trouble." RESOLUTION
OF THE DHARMARTH COMMITTEE "(a) Dharmarth Trust shall charge its usual
Aian (rent) from the baridaran which shall be paid by them before they
distribute their share of the offering. The baridar who refuses or avoids the
payment of rent to Dharmarth shall not be entitled to receive his share of the
offering and the same shall be attached and deposited with the manager, Dharmarth
Trust. The baridar whose share has been thus attached can receive his share on
payment of the rent due to the Dharmarth Trust." "(b) Unanimously it
is passed that the strangers or persons other than baridars (i.e. four
sub-castes) shall have no right to get the Puja performed in the shrine."
"(c) In case any baridar or his legal representative, due to any reason,
cannot attend in person then it will be the duty of other co-sharer to deposit
the absentee's share with 217 the Manager, Dharmarth Trust and when that
baridar comes present, the Manager, Dharmarth Trust shall, after deducting the
due, if any, from him to the Dharmarth, pay his share to him. The baridaran
shall be bound to perform the duties (such as Kah, Kunda, Argi etc. as being
performed by them previously)." According to these documents the right to
share the offerings is restricted to members of the four sub castes
abovementioned, and although to begin with baridars did not perform any duties
in return, certain obligations were superimposed on the right from the year
1907 Bikarmi onwards. Those obligations are:
(a) A duty to deposit a fixed annual sum with
the Dharmarth Trust to be spent on arrangements for lodging and boarding of
Sadhus visiting the shrine.
(b) To provide three permanent servants, in
addition to six peons, during the "season".
(c) To pay for the 'prasad' and to arrange
its transport from Katra to Vaishno Devi temple.
(d) To arrange for the cattle owned by the
Dharmarth Trust being taken from one place to another.
(e) To arrange for the carriage of the
luggage of Government servants visiting the shrine.
(f) To keep the temple and the compound
appurtenant thereto in a state of cleanliness.
(g) To carry inside the temple the material
required for worship by the priest.
(h) To look after visitors to the shrine who
fall ill and to make proper arrangements for the restoration or their health.
There is thus no doubt that the right to
receive a share in the offerings is subject to the performance of onerous
duties. But then it is apparent that none of those duties is in nature priestly
or requiring a personal qualification. On the other hand all of them are of a
non- religious or secular character and may be performed not necessarily by the
baridar personally but by his agents or servants so that their performance
boils down to mere incurring of expense. If the baridar chooses to perform
those duties personally he is at liberty to do so. But then the obligation
extends merely to the making of necessary arrangements which may be secured on
payment 218 of money to others, the actual physical or mental effort involved
being undertaken by those others. The right is, therefore, a transferable right
as envisaged in the passage above extracted from Balmukand and other v. Tula Ram
and others (supra) which has not been challenged before us as erroneous and
which we regard as laying down the law correctly. The contentions raised by Mr.
Sinha to the contrary is thus repelled.
7. Another challenge made by Mr. Sinha to the
impugned judgment is that the right to share offerings coupled with the duties
to which it was subject must in its totality be regarded as an office (like
that of a shebait) only and not as property and that therefore no question of
its heritability could arise. In this connection reference was made to the
following observations made by Mukherjea, J., who delivered the judgment of the
majority of this Court in Angurbala Mullick v. Debabrata Mullick.
"In a Hindu religious endowment on the
other hand the entire ownership of the dedicated property is transferred to the
deity or the institution itself as a juristic person and the shebait or mahant
is a mere manager." There is nothing to indicate that baridars in the
present case are the managers of the shrine in the sense that a shebait is in
relation to the temple in his charge.
On the other hand it appears that the overall
management of the shrine vests in the Board of Trustees known as Dharmarth
Committee and it would not be correct therefore to look at the right of the baridars
in the light of the rights and duties of a shebait. However, it may be pointed
out that shebaitship cannot be described as a mere office because apart from
certain responsibilities, it carries with it a definite right to property. This
is a proposition on which emphasis was laid by this Court in Angurbala's case
(supra) itself. Mukherjea, J., observed in this connection:
"But though a shebait is a manager and
not a trustee in the technical sense, it would not be correct to describe the
shebtaitship as a mere office. The shebait has not only duties to discharge in
connection with the endowment, but he has a beneficial interest in the debutter
property. As the Judicial Committee observed in the above case, in almost all
such endowments the shebait has a share in the usufruct of the debutter
property which depends upon the terms of the grant or upon custom or usage.
Even 219 where no emoluments are attached to the office of the shebait, he
enjoys some sort of right or interest in the endowed property which partially
at least has the character of a proprietary right. Thus, in the conception of
shebaiti both the elements of office and property, of duties and personal
interest, are mixed up and blended together; and one of the elements cannot be
detached from the other. It is the presence of this personal or beneficial
interest in the endowed property which invests shebaitship with the character
of proprietary rights and attaches to it the legal incidents of property. This
was elaborately discussed by a Full Bench of the Calcutta High Court in Monohar
Mukherji v. Bhupendra Nath Mukherji and this decision of the Full Bench was
approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary, and
again in Bhabatarini v. Ashalata. The effect of the first two decisions, as the
Privy Council pointed out in the last case, was to emphasise the proprietary
element in the shebaiti right, and to show that though in some respects
anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law
from an early date. "According to Hindu law," observed Lord Hobhouse
in Gossamee Sree Greedharreejee v. Rumanlollji Gossammee "when the worship
of a Thakoor has been founded, the shebaitship is held to be vested in the
heirs of the founder, in default of evidence that he has disposed of it
otherwise, or there has been some usase, course of dealing, or some
circumstances to show a different dealing, or some circumstances to show a
different mode of devolution." Unless, therefore, the founder has disposed
of the shebaitship in any particular manner-and this right of disposition is
inherent in the founder or except when usage or custom of a different nature is
proved to exist, shebaitship like any other species of heritable property
follows the line of inheritance from the founder." Angurbala's case was
followed by this Court in a recent decision reported as Ram Rattan v. Bajrang
Lal & Others wherein Desai, J., who delivered the judgment of the Court
observed:
220 "In the conception of shebait both
the elements of office and property, duties and personal interest are mixed up
and blended together and one of the elements cannot be detached from the other.
Old texts, one of the principal sources of Hindu law and the commentaries
thereon, and over a century the Courts with very few exceptions have recognised
hereditary office of shebait as immovable, property, and it has all along been
treated as immovable property almost uniformly. While examining the nature and
character of an office as envisaged by Hindu law it would be correct to accept
and designate it in the same manner as has been done by the Hindu law text
writers and accepted by courts over a long period. It is, therefore, safe to
conclude that the hereditary office of shebait which would be enjoyed by the
person by turn would be immovable property." These observations as also
those made in Angurbala's case and extracted above demolish the contention of
Mr. Sinha that shebaitship is nothing more or less than an office and is not
heritable property.
8. The right to share the offerings being a
right coupled with duties other than those involving personal qualifications
and, therefore, being heritable property, it will descend in accordance with
the dictates of the Hindu Succession Act and in supersession of all customs to
the contrary in view of the provisions of section 4 of that Act, Sub-section
(1) of which state:
(a) Save as otherwise expressly provided in
this Act-any text, rule or interpretation of Hindu law or any custom or usage
as part of that law in force immediately before the commencement of this Act
shall cease to have effect with respect to any matter for which provision is
made in this Act:
(b) any other law in force immediately before
the commencement of this Act shall cease to apply to Hindus in so far as it is
inconsistent with any of the provisions contained in this Act." The
requirements of the custom relied upon by the appellants to the effect that the
right could not be exercised by a person who is not a member of any of the four
sub-castes mentioned above becomes wholly ineffective in view of these
provisions, being contrary to the 221 order of succession laid down in Chapter
II of the Hindu Succession Act under which the right devolves on the
plaintiff-respondent.
7. The only contention raised by Mr. Sinha is
that the plaintiff had not stated in any part of the pleadings that she was
prepared to carry out the services to the performance of which the right to
share the offerings is subject and that therefore she was not entitled to a decree.
This contention must be repelled for the
simple reason that it was not raised before the High Court. Besides, there
being no repudiation on her part of the obligations to render the services
abovementioned, her claim must be regarded for the enforcement of that right
coupled with those services and the decree construed accordingly even though it
may be silent on the point.
9. In the result the appeal fails and is
dismissed, but the parties are left to bear their own costs throughout.
P.B.R. Appeal dismissed.
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