Profulla Chorone Requitte & Ors Vs.
Satya Chorone Requitte  INSC 57 (2 March 1979)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1979 AIR 1682 1979 SCC (3) 409
F 1985 SC 905 (13)
Interpretation of Wills-Common ancestor of
plaintiffs and defendants created absolute debutter of his house in favour of
family deity-By two wills devised and bequeathed the house to the trustees for
service and worship of the deity-Shebaiti rights-Whether vested in trustees or
descendants of the testator.
The common ancestor of the plaintiffs and the
defendant owned a big residential house (the suit property) in which he had his
family deity. By two wills-one dated June 4, 1898 in respect of his properties
in British India and another, dated June 6, 1898 in respect of the house
property in Chandrangore-he appointed his wife, two sons and nephews as
trustees of the estate. By these wills he provided that in the event of vacancy
occurring in the office of trustees the continuing trustees might appoint any
other person or persons to be a trustee or trustees. By his will of June 6,
1898 the testator created an absolute debutter in favour of the family deity.
This will also stated that he "devised and bequeathed" the Chandranagore
house to the trustees named therein as a dwelling house "upon trust to
stand possessed of" and "to hold, retain and use the premises as an
endowed or debutter property for the service and worship of" the family
In 1934 rival claims of the sons and
grandsons of the testator to their residence in the debutter property were
referred to an arbitrator. The arbitrator allotted rooms nos. 72 and 82 which
had been in his use and occupation from before to the defendant (respondent)
and allotted certain other rooms to the other sons and grandsons of the
The then trustees (plaintiffs) filed a suit
in 1959 claiming that the dwelling house at Chandranagore being absolute
debutter property belonging to the deity none other than the trustees had any
legal right in it, and since the award of the arbitrator was not binding on the
deity the defendant should be ejected from the rooms forcibly occupied by him.
The defendant on the other hand claimed that
he was in occupation of the rooms in dispute in his own right as a shebait and
that the plaintiffs had no right to represent the deity and so had no locus
standi to maintain the suit as trustees.
Dismissing the suit the trial court held that
on the death of the testator it was not the trustees but the descendants of the
testator who became shebaits and who had the shebaiti rights in the endowed
property and that the defendant being the descendant (grandson) of the
testator, had a right, as a co-shebait, to occupy the rooms in the suit
The District Judge, on appeal, affirmed the
decision of the trial court.
432 On second appeal the High Court decreed
possession of certain rooms to the plaintiffs but not in respect of the rooms
under the occupation of the defendant.
On further appeal to this Court it was
contended on behalf of the plaintiffs that from the language used in the will
dated June 6, 1898 the intention of the testator was clearly to constitute the
trustees as shebaits of the property with exclusive right to manage the debutter.
On the other hand on behalf of the defendant
it was contended that the two wills should be read as complementary to each
other, and so read, they made it clear that the testator did not wish to part
with his shebaiti rights, which were heritable property, in favour of the
trustees to the exclusion of his natural heirs under the Hindu Law.
Allowing the defendant's appeal and
dismissing the plaintiffs' appeal.
HELD: 1. A conspectus of the various
provisions of the two wills makes it clear that the testator left the
shebaitship undisposed of with the presumed intention that it devolved on his
natural heirs who would have the right to use the suit house as their family
dwelling house. The rights conferred on the trustees may amount to curtailment
of the right to manage the endowed property which a shebait would otherwise
have; but such curtailment by itself would not make the ordinary rules of Hindu
Law of succession inapplicable in regard to the devolution of shebaitship.
Therefore, the defendant and other
descendants of the testator became co-shebaits of the deity by the operation of
the ordinary rules of Hindu Law. [445 A-B] 2(a) It is well established that
property dedicated to an idol vests in it in an ideal sense only. The shebait
is the human ministrant and custodian of the idol, its authorised
representative entitled to deal with all its temporal affairs and to manage its
property. Under Hindu Law, property absolutely dedicated to an idol, vests in
the idol and not in the shebait. Yet almost in every case a shebait has a right
to a part of the usufruct, the mode of its enjoyment and the amount of the
usufruct, depending on usage and custom, if not devised by the founder. [439
F-G] (b) In the conception of shebaitship both office and property are blended.
A shebait has, to some extent, the rights of a limited owner. Shebaitship being
property, it devolves like any other species of heritable property. Where the
founder does not dispose of shebaiti rights in the endowment created by him,
the shebaitship devolves on the heirs of the founder according to Hindu Law, if
no usage or custom of a different nature is shown to exist. [440 D-E] Gossamee
Shree Greedhareejee v. Rumanlaljee, 19 I.A.
137; Doorganath Roy v. Ram Chander Sen L.R. 4
Pramatha Nath Mullick v. Pradyumna Kumar
Mullick, 52 I.A. 245; referred to.
3(a) The words "to hold, retain and use
the premises endowed or debutter property for the service and worship of my
family thakur or idol" used in the will, merely create a trust or endowment
and indicate the nature and purpose of the endowment. They do not touch or deal
with shebaiti rights. [442 G] (b) The two wills are complementary to each
other. The will of June 4, refers the family house as having been endowed to
the family deity and 433 would be used by the testator's heirs for their
By using the words "wife and sons and
sons' wives and other relatives of mine" who shall reside in my
residential house in Chandranagore the testator meant that all the descendants
and heirs of his should reside in the house. In other words although the entire
family house was formally endowed to the family idol, his intention was that
his heirs and descendants would also be entitled to use this house as their
family dwelling house, apart from the room where the idol was enshrined. [443
A; H 444 A] (c) The will also provided that although the trustees were provided
with funds for the Sewa-puja of the family deity and for other festivals out of
the estate of the testator, they were not expressly constituted as shebaits of
the deity. The intention of the testator apparently was that these funds would
be expended for the purpose indicated by him through the shebaits. [444 E] (d)
Even assuming that originally the trustees were regarded as having been constituted
as shebaits, then, too, those among them who were not family members or
descendants of the founder had renounced and relinquished their shebaiti right,
if any, in favour of the descendants of the founder.
Such a relinquishment in favour of the co-shebaits
will be valid. [446 E] (e) The shebaitship of the family deity remained solely
with the descendants of the founder and the defendant being the grandson of the
founder, had been regarded as one of the shebaits and therefore was entitled to
reside in the disputed rooms. [446 F-G] (f) Moreover in this case the trustees
accepted the award of the arbitrator allotting the disputed rooms to the
defendant and the plaintiffs described the defendant as a shebait of the deity.
[446 D] (g) The trustees by themselves have no right to maintain the suit in
respect of the debutter property. The legal title to the debutter property
vests in the idol and not in the trustees. The right to sue on behalf of the
deity vests in the shebaits. All the shebaits having not been made parties, the
suit was not properly constituted and was liable to be dismissed. [446 G]
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 1873- 1874 of 1970.
From the Judgment and Decree dated 21-7-1969
of the Calcutta High Court in Appeal from Appellate Decree No. 30/67.
Lal Narain Sinha and Sukumar Ghosh for the
Appellant in C.A. 1873/70 and Respondent in C.A. 1874/70.
A. K. Sen (In C.A. 1874/70) and D. N.
Mukherjee for the Respondent in C.A. 1873/70 and Appellant in C.A. 1874/70.
The Judgment of the Court was delivered by
SARKARIA, J. These two appeals on certificate arise out of the appellate
judgment and decree, dated July 21, 1969, of the High Court at Calcutta. The
facts of the case are as follows:- Late Babu Durga Charan Requitte was the
grandfather of Satya Charan Requitte, defendant, and plaintiffs 1 and 2. He
owned consi- 434 derable immoveable property. He was an inhabitant of
Chandernagore (then a French territory). The suit property is situated in
Chandernagore. Among others, it included a big residential house containing
about 84 or 85 rooms with extensive grounds, gardens and tanks. In this house,
which he was occupying for his residence, he had his family Deity Sree Sree
Iswar Sridhar Jiew.
Durga Charan made and published two Wills,
one dated June 4, 1898 with regard to his properties in the then British India,
and the other dated June 6, 1898 with regard to his properties situated in the
French territory of Chandernagore. By these two Wills, Durga Charan appointed
his wife, Saraswati Dassi, his two sons, Shyama Chorone Requitte and Tarini
Chorone Requitte and his nephews, Ashutosh Das and Bhola Nath Das, executrix
and excutors and trustees of the estate left by him. The Wills provided that
the trustees would hold the bequeathed properties left by the testator
according to the terms of the Wills for the legatees and the beneficiaries
mentioned therein. The Wills also provided that in case of death or retirement
or refusal or incapacity to act of any of the trustees, the continuing trustees
of trustee for the time being, or the executors or administrators of the last
acting trustee might appoint any other person or persons to be a trustee or
trustees in place of the trustee or trustees so dying or desiring to retire
from or refuse etc. But, in no case, the number of the trustees should be less
By his Will, dated June 6, 1898, Durga
Chorone created an absolute Debutter in favour of the said family Deity and
devised and bequeathed to his executors and trustees named therein, his
dwelling house with gardens and tanks appertaining thereto situated in
Chandernagore, "upon Trust to stand possessed of and to hold, retain and
use the premises and endowed or Debutter property for the service and worship
of" his said family Deity. By that Will, he further directed that this
family idol "shall be located in my said house in Chandernagore which said
house and premises shall be appropriated and devoted solely and exclusively to
the Thakur or Idol." The testator died on August 27, 1898. Thereafter, the
Will, dated June 6, 1898, was duly probated and the trustees came into
possession of the Debutter properties and carried on the administration of the
estate and the Sewa and Puja, as directed in the Will.
Smt. Saraswati, widow of Babu Durga Chorone,
who was one of the trustees named in the Will, died on October 30, 1913, while
herson, Shyama Chorone, another trustee, died on December 21, 1925.
435 Thereupon, Tulsi Chorone son of Shyama
Chorone was appointed a new trustee in place of his father, Bhola, the other
co- trustee, refused to act as such. Therefore, his son, Devindra was appointed
as trustee by the continuing trustees. Tarani Chorone died on or about May 29,
1939 and the continuing trustees appointed his son, Profulla Chorone as a trustee.
Tulsi Chorone died on August 17, 1952 and the continuing trustees similarly
appointed Bhagwati, son of late Shyama Chorone as a new trustee. Debendranath
Das died on or about March 7, 1956, and the continuing trustees appointed
Satish Chandra Das, a son-in-law of late Shyama Chorone as a new trustee in his
In or about the year 1934, the descendants of
the settlor, Durga Chorone, some of whom were the then trustees, referred
certain disputes with regard to the endowed property to the arbitration of one
Bhringeswar Sreemany. The disputes referred to the arbitrator included rival
claims by the sons and grandsons of Durga Chorone, to their residence in the
Debuttor property belonging to the family Deity. The Arbitrator made an Award
on September 6, 1934, whereby he allotted rooms Nos. 72 and 82 to Satya
Chorone, respondent, who had been in use and occupation from before. The
Arbitrator made similar allotments of other rooms in the said house in favour
of the other sons and grandsons of the settlor.
On April 20, 1959, Profulla Chorone Requitte,
Bhagwati Chorone Requitte and Satish Chorone Das, the then trustees instituted
Title Suit No. 28 of 1959 in the Court of the Subordinate Judge, Ist Court,
Hooghly. The plaintiffs prayed for two reliefs in the plaint: (i) Possession by
ejectment of the defendant, Satya Chorone Requitte, primarily from all the six
rooms, alleging that the defendant had been occupying the same as licensee
under the plaintiffs and the said licence had been revoked: (ii) in the alternative,
for possession of the four rooms mentioned in Item No. 1 of Schedule 'B' of the
Plaint, which had not been allotted to him under the award.
The plaintiffs' case, as laid in the plaint,
was that since the dwelling house belonging to the Deity, had a large number of
rooms the trustees allowed temporarily the sons and grandsons of Durga Chorone
to occupy and use for their families some of the rooms in the said dwelling
house as licensees. It was further alleged that in the year 1966, the defendant
illegally and forcibly occupied Room Nos. 63, 35, 46 and 57 in the aforesaid
house without the knowledge and consent of the trustees causing serious
inconvenience in the due performance of the religious ceremonies of the Deity
according to the terms 436 of the Will. It was further contended somewhat
inconsistently that the dwelling house at Chandernagore being absolute Debutter
belonging to the Deity, no person, except the trustees, has any legal right in
the said house which can only be used for the Sewa Puja of the family Deity
located in the house; that the arbitration award of 1934 is not binding on the
Deity and/or the trustees who were not parties to the arbitration; that the
award was beyond the scope of the reference and was adverse to the Trust, itself.
In his written statement, the defendant
traversed the material allegatious in the plaint and asserted that he was in
use and occupation of the rooms in dispute in his own right as a Shebait. He
further pleaded that the plaintiffs had no right to represent the Deity and had
no locus standi to maintain the suit as trustees; that since all the Shebaits
had not been joined as parties the suit was incompetent.
The subordinate Judge dismissed the suit
holding, inter alia, that:
(i) By his Will, Babu Durga Chorone had
absolutely dedicated the property in dispute to the family Deity, Sree Sree
Iswar Sridhar Jiew, but he had not under that Will made any testamentary
disposition of his Shebaiti rights in respect of this Debutter property which,
on the death of the testator, devolved under Hindu Law upon his descendants,
who in consequence, were entitled to reside in the house as Shebaits.
(ii) The Trustees were not Shebaits. Only the
descendants of Babu Durga Chorone had become Shebaits and had Shebaiti right in
the endowed property.
(iii) The award made by the arbitrator,
Bhringeswar Sreemany, was valid and binding upon the plaintiffs.
(iv) The plaintiffs could not recover
possession from the defendant as trustees.
(v) The plaintiffs were not entitled to represent
the Deity and had no locus standi as trustees to maintain the suit on behalf of
(vi) The defendant had a right to occupy the
rooms in suit as co-shebaits.
(vii) The plaintiffs having not claimed any
relief in terms of the arbitration award, were not entitled to any relief in
respect of Room Nos. 35, 46, 57 and 63.
Aggrieved, the plaintiffs preferred an appeal
to the District Judge, who dismissed the same and affirmed the decision of the
Against the appellate decree of the District
Judge, the plaintiffs carried a Second Appeal to the High Court at Calcutta.
The Division Bench of the High Court, by its judgment dated July 21, 1969, 437
allowed the appeal, in part, and granted the plaintiffs' a decree for Khas
possession of Room Nos. 35, 46, 57 and 63 in the said dwelling house; but not
in respect of Room Nos. 72 and 82 mentioned as Item No. 1 of Schedule 'B' to
After obtaining the certificate under Article
133(1)(b) of the Constitution, as it then stood, the plaintiffs have filed
Civil Appeal 1873 of 1970 against the partial dismissal of their claim in
respect of Room Nos. 72 and 82;
while the defendant has filed Civil Appeal
1874 of 1970, praying that the plaintiffs' suit ought to have been dismissed in
respect of Room Nos. 35, 46, 57 and 63 also.
Both the appeals will be disposed of by this
The following pedigree table which has been
compiled from the material on record by the learned counsel for the appellant,
will be helpful in understanding the relationship of the parties and other
connected facts:- Durga Chorone died on 27-8-1898
_____________________________|______________________________ | | | Saraswati
(Widow). Shyama Chorone Tarani Chorone Executrix died (Son) (Son).
on 30-10-1913. Executor, died Executor died
on 21-12-25 on 29-5-39.
_____________________________|_________ | | |
| | | Hari Tulsi Satya Bhagwati | | Wife Chorone Chorone | | Two sons &
(Defdt.) (Plff.2) | | their fami- | | | | lies & one | | | | unmarried | |
| | daughter. | | | Three Wife,six Wife,five | sons & sons and sons &
two | their families daughters | families. and five (one un- | daughters
married). | (one un- | married). | _______________________________|___ | |
Profulla Chorone Amulya (Plff. 1). (not a party) | | | | Wife 4 Wife, 2 sons
daughters. & 6 daugh- ters (3 un- married.) The principal question that
falls to be determined in these appeals is, whether the settlor had constituted
the same set of persons as Shebait as well as Trustees. This question turns on
a construction of the Will.
438 Mr. Lal Narain Sinha, learned Counsel for
the appellant in Civil Appeal No. 1873 of 1970 submits that the answer to this
question must be in the affirmative because the Settlor, Durga Chorone Requitte
had by express words in the Will, (Ex. 6/6A), dated June 6, 1898, imposed an
obligation on the trustees to hold, manage and use the suit property which he
had thereby absolutely dedicated to the family idol, for the service and
worship of the idol. It is maintained that although the word 'Shebait' is not
used in the Will, yet the said obligation cast on the Trustees by inevitable
implication clothed them with the character of Shebaits, also.
As against this, Mr. Ashok Sen contends that
the answer to the question posed must be in the negative. It is urged that the
words "to hold, retain and use the premises... for the service and worship
of my family deity", on which Mr. Sinha's argument rests, do not
necessarily mean that the Testator had disposed of his Shebaitship rights, also,
and vested them in the Trustees. It is stressed that there are no words in the
Will which, expressly or necessary implication, constituted the Trustees as
Shebaits; that the testator has not used the word 'Shebait' anywhere in the
Will; nor did he employ the word 'manage' or 'manager' anywhere in the Will
while charging the Trustees to hold and use the premises as Debutter property
of the idol. According to the learned counsel, if the Will is construed as a
whole in the light of the surrounding circumstances, it would be clear that the
trust created was not a continuing trust but one which would terminate as soon
as the Executor-Trustees handed over the bequeathed properties to the
It is pointed out that the two Wills, one
dated June 4, 1898, and the other dated June 6, 1898, should be read as
complementary to each other. The necessity of executing two separate Wills
arose, because the properties bequeathed by the Will (Ex. 6) were situated in
the then French territories, while those covered by the Will dated June 4,
1898, were situated in the British India. There were several beneficiaries
under these Wills, and the family idol was one of them. The recitals in these
Wills- according to the counsel-particularly in the Will dated June 4, 1898,
show that the testator had kept, intact, the right of residence of his widow
and daughters-in-law and other heirs in the property dedicated to the idol.
This, says Mr. Ashok Sen, is a sure indication of the fact that the founder did
not want to part with his Shebaiti rights, which were heritable property, in
favour of the Trustees, to the exclusion of his natural heirs under Hindu Law.
Mr. D. B. Mukherjee, appearing for the
appellants in Civil Appeal No. 1874 of 1970, further submitted that the words "to
hold, retain 439 and use the premises as endowed or debutter property for the
service and worship of my family deity", if properly construed in the
context of the Will as a whole and surrounding circumstances, mean that the
Executors and Trustees would hold the property in trust for the benefit of the
deity and the shebaits. In the alternative, counsel submitted that even if it
is assumed arguendo that they were so appointed, the line of succession set out
in the Will would be hit by the principles laid down in Tagore v. Tagore(1),
Ganesh Chandra v. Lalit Behary(2); Jagadindra v. Rani Hemanta Kumari(3) and by
the Rule against perpetuities (Manohar v. Bhupendra) (4). It is further
contended that since the founder did not dispose of the Shebaitship but only
founded the worship of the Thakur, Shebaitship would vest in the heirs of the
founder. For this proposition, reliance has been placed on Gossamee Shree
Greedhareejee v. Rumanlaljee(5).
In reply to this, Mr. Sinha submits that
trusteeship with power to nominate successor is an estate recognised by law,
and in such a case the founder does not create an estate of inheritance
contrary to Hindu Law of Succession, nor does the question of the rule of
perpetuity arise because the founder does not determine the choice of the
succeeding Trustees. Reference has been made in this behalf to I.L.R. 24 Madras
219, and Underhill's treatise on "Trusts", 12th Ed. pp. 534-35 at
23-31. It is maintained that the Trust in question is a continuing trust; it
did not come to an end when the Trustees had fully performed their duties and
obligations as executors of the Will, that the general principle underlying
Section 77 of the Trust Act is applicable to the case in hand. It is further
submitted that of the two Wills, the later must prevail and reference to the
earlier Will, for the purpose of determining whether the heirs of the Settlor
had been given a right of residence in the suit property, is irrelevant.
Before dealing with these contentions, it
will be appropriate to have a clear idea of the concept, the legal character
and incidents of Shebaitship. Property dedicated to an idol vests in it in an
ideal sense only; ex- necessitas, the possession and management has to be
entrusted to some human agent. Such an agent of the idol is known as Shebait in
Northern India. The legal character of a Shebait cannot be defined with
precision and exactitude.
Broadly described, he is the human ministrant
and custodian of the idol, its earthly spokesman, its authorised representative
entitled to deal with all its temporal 440 affairs and to manage its property.
As regards the administration of the debutter, his position is analogous to
that of a Trustee, yet, he is not precisely in the position of a Trustee in the
English sense, because under Hindu Law, property absolutely dedicated to an
idol, vests in the idol, and not in the Shebait. Although the debutter never
vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait
has a right to a part of the usufruct, the mode of enjoyment, and the amount of
the usufruct depending again on usage and custom, if not devised by the
As regards the service of the temple and the
duties that appertain to it, he is rather in the position of the holder of an
office; but even so, it will not be quite correct to describe Shebaitship as a
mere office. "Office and property are both blended in the conception of
Shebaitship". Apart from the obligations and duties resting on him in
connection with the endowment, the Shebait has a personal interest in the
endowed property. He has, to some extent, the rights of a limited owner.
Shebaitship being property, it devolves like
any other species of he able property. It follows that, where the founder does
not dispose of the shebaiti rights in the endowment created by him, the
Shebaitship devolves on the heirs of the founder according to Hindu Law, if no
usage or custom of a different nature is shown to exist [Gossamee Shree
Greedharejee v. Rumanlaljee, (ibid.)] Then, there is a distinction between a
public and private debutter. In a public debutter or endowment, the dedication
is for the use or benefit of the public. But in a private endowment, when
property is set apart for the worship of a family idol, the public are not
interested. The present case is one of a private debutter. The distinction is
important, because the results logically following therefrom have been given
effect to by Courts, differently.
According to English Law, the beneficiaries
in a private Trust, if sui juris and of one mind, have the power or authority
to put an end to the trust or use the trust fund for any purpose and divest it
from its original object.
Whether this principle applies to a private
endowment or debutter created under Hindu Law, is a question on which authorities
are not agreed. In Doorganath Roy v. Ram Chunder Sen(1), it was observed that
while the dedication is to a public temple, the family of the founder could not
put an end to it, but "in the case of a family idol, the consensus of the
whole family 441 might give the (Debutter) estate another direction" and
turn it into a secular estate.
Subsequently, in Pramatha Nath Mullick v.
Pradyumna Kumar Mullick(1), the Judicial Committee clarified that the property
cannot be taken away from the idol and diverted to other purposes without the
consent of the idol through its earthly agents who, as guardians of the deity,
cannot in law consent to anything which may amount to an extinction of the
Although, Shebaitship is heritable property,
yet, it cannot be freely transferred by the Shebait. But there are exceptions
to this general rule. Some of such exceptions recognised in several decisions,
are: alienation in favour of next shebait, or one in favour of the heir of the
transferor, or in his line of succession, or in favour of a coshebait,
particularly when it is not against the presumed intention of the founder. (See
Nirod Mohini v. Shibdas(2) and Mancharan v. Pranshankar (2).
The Bombay High Court has also pointed out in
Radhu Nath v. Purnanand (4), that if any one of the Shebaits intends to get rid
of his duties, the proper thing for him to do would be to surrender his office
in favour of the remaining Shebaits. In the case of such a transfer in favour
of co-shebait, no policy of Hindu Law is likely to be affected, much less the
persumed intentions of the founder.
Now, let us deal with the problem in hand in
the light of the principles cited above.
The first question that falls for
Whether the founder's intention was to confer
rights of Shebaitship on the persons designated by him as 'trustees' in his Will?
In other words, did he by the Will, dated June 6, 1898 (Ex. 6/6A), dispose of
the Shebaitship of the deity, also ? If the answer to this question is found in
the negative, shebaiti rights in this endowed property will devolve, according
to Hindu Law, on all the heirs of the founder, including the defendant. In that
situation, the defendant with his family, like the other co-Shebaits, will be
taken as residing in the debutter property, in his own right. If, however, the
answer to the said question is found in the affirmative, the further question
to be considered would be with regard to the effect of the Award dated June 29,
1934 (Ex. C) on the respective claims of the parties.
442 We will now take up the first question.
Mr. Sinha, learned counsel for the
appellants, submits that since by his Will, dated June 6, 1898, the founder had
"devised and bequeathed" the Chandernagore house to the
plaintiffs-trustees 'upon Trust to stand possessed of" and "to hold,
retain and use the premises as endowed or debutter property for the worship of
the family Thakur", his intention was to constitute the trustees as
Shebaits of the property having the exclusive right to manage the debutter, to
serve the idol and to preserve its property. It is submitted that the founder
had by these express words, invested the trustees both with the legal title and
Shebaitship, although the beneficial title (in an ideal sense) was vested in
The passage in the Will on which Mr. Sinha
relies for the construction propounded by him, runs as under:
"I desire, devise and bequeath to my
Executors and Executrix and Trustees hereinafter named... my dwelling house
with garden and tanks appertaining thereto situate in Lal Bagan in
Chandernagore. Upon trust to stand possessed of and to hold, retain and use the
premises an endowed or Debutter property for the service and worship of my
family Thakur or idol Sreedhar Jew, which I hereby direct shall be located in my
said house in Chandernagore which said house and premises shall be appropriated
and devoted solely and exclusively to the Thakur or Idol." (Emphasis
supplied) The crucial words are those that have been underlined.
It may be observed that this Will, in English,
appears to have been drafted in pursuance of legal advice by an expert
draftsman. The omission of the words "management",
"manager", "custodian of the idol" or "ministrant of
the idol" from the Will, therefore, cannot but be intentional.
It seems clear to us that the underlined
words in the above extract, by themselves, merely create a trust/or endowment
and indicate the nature and purpose of the endowment. These words do not touch
or deal with Shebaiti rights. This inference receives support from the
Further, in arriving at the true import of
the words "to hold, retain and use the premises an endowed or Debutter
property for the service and worship of my family Thakur', it will not be
improper to look to the conduct of the Trustees and the members of the family
of the founder.
443 There is no antagonism between the two
Wills, one dated June 4, 1898 and the other dated June 6, 1898, of the founder.
Indeed, in a sense they are complementary to each other. There is a reference
in the Will, dated June 4, 1898, to the Testator's dwelling house at
Chandernagore, which under the Will (Ex. 6) was endowed to the family deity.
From the following provisions in the Will, dated June, 4, 1898, it is clear
that the testator intended that the dwelling house at Chandernagore would be
used by his heirs for their residence:
"(a). I further direct my said Executors
and Trustees out of the said rents and profits of the said premises number 39,
Chowringhee Road to pay monthly a sum of Rupees Fifty for the maintenance to
each of my daughter-in law Smt. Gopeswari Dassee wife of my eldest son Shyama
Chorone Requitte and Nagendra Moni Dassee wife of youngest son Tarine Chorone
Requitte during their lives respectively and provided they reside with their
respective husbands at my dwelling house in Chandernagore.
(b). The Trustees shall pay monthly a sum not
exceed in Rupees Two hundred in addition to the interest of Government
securities of the nominal value of Rupees Twenty thousand hereinafter mentioned
and directed to be applied for the purpose of household and other monthly
expenses of my family, namely wife and sons and sons' wives and other relatives
of mine who shall reside in my dwelling house at Chandernagore.
(c). To pay and apply the net interest of
Government securities on the nominal value of Rupees Twenty thousand for the
house-hold and other monthly expenses of my family, namely, wife and sons and
also sons' wives and other and other relatives of mine who shall reside in my
dwelling house at Chandernagore and also to pay and apply the net interest of
Government securities of the nominal value of Rupees six thousand for the costs
and expenses of keeping and maintaining my said family dwelling house at
Chandernagore in proper repair and in payment of all taxes and assessments in
respect thereof." (Emphasis supplied) Looking to the general tenor of the
document, it will not be inappropriate to interpret the words "wife, and
sons, and sons' wives, and other relatives of mine" in the above- quoted
portions of the Will, as including all the descendants and heirs of the
444 Thus construed conjointly, the two Wills
make it clear that although the entire family house, comprising 84 or 85 rooms,
at Chandernagore was formally endowed to the family idol, yet the testator's
intention was that his heirs and descendants would also be entitled to use this
house as their family dwelling house, apart from the room wherein the idol was
It may be further noted that in the Will,
dated June 4, 1898, the testator made the following provisions for the Sewa
puja of the idol at Chandernagore and for other religious festivals:
(i) The trustees shall set apart interests of
Government securities for the daily expenses of worship of the idol.
(ii) The Trustees shall pay and apply the net
interest of Government securities of the nominal value of Rs. 25,000/- for the
yearly expenses of the Durga Puja festival at Chandernagore.
(iii) The Trustees shall pay and apply the
net interest of Government securities of the nominal value of Rs. 15,000/- for
the yearly expenses of the Dolejatra of the family idol, Thakur Sreedhar Jew at
The aforesaid provisions furiner show that
although the trustees were provided with the funds for the Sewa-puja of the
family deity and for other festivals out of the estate left by the testator,
but they were not expressly constituted as Shebaits of the deity. It will,
therefore, be not unreasonable to infer that the intention of the testator was
that these funds would be expended for the purposes indicated by him, through
Another telling circumstance appearing in
evidence is that after the death of the widow and the two sons of the testator,
their heirs, also, continued to live in this family dwelling house at
It may be further noted that by the Will,
dated June 6, 1898, no legal title in the endowed property was vested in the
trustees. The title was expressly vested in the family idol to whom the
property was absolutely dedicated. The testator did not create a trust estate
in the sense in which it is understood in English Law.
The above-quoted provisions from the Wills
further show that no rights to act as ministrant of the idol were conferred
upon the Trustees. On the other hand, a mere obligation to hold and use the
property for the endowment indicated was imposed upon the persons designated as
445 Reading the two Wills together, with
particular focus on the provisions extracted in this judgment, it is clear that
the testator, Durga Chand Requitte, did leave Shebaitship undisposed of; his
presumed intention being that Shebaitship should devolve on his natural heirs
who would have a right to use the suit house as their family dwelling house.
The rights conferred on the Trustees under the Will may, at the most, amount to
a curtailment of the right to manage the endowed property which a Shebait would
otherwise have. But, such curtailment by itself would not make the ordinary
rules of succession in Hindu Law inapplicable in regard to the devolution of
Shebaitship, which is heritable property.
The upshot of the above discussion is that in
spite of the interposition of the Trust for management of the endowed property,
the Shebaitship remained undisposed of and, as such, the defendant and other
descendants of Durga Chand Requitte became co-shebaits of the deity by the
operation of the ordinary rules of Hindu Law.
In arriving at the conclusion that in spite
of the interposition of the Trust, the founder by his Will left the Shebaitship
undisposed of, and as such, the defendant also, under Hindu Law, became one of
the Shebaits, we are fortified by the inference arising out of the facts
admitted by no less a witness than Plaintiff No. 3, Satish Chandra Dass,
himself, who alone deposed for the plaintiffs. Though he claimed that there
were no Shebaits of the deities and the trustees were managing the Shebaits. he
categorically admitted the following facts:
(a) "The disputed house is a big
house", having 84-85 rooms. "It is the only family dwelling
house" of the sons and grandsons of Durga Chorone Requitte, who live in
it, while "the deity is installed in room No. 66 in the first floor".
(b) "The inmates of the disputed house,
as far as practicable, look after the bath of the deity as also the preparation
of Naibedya (tray containing the offerings) and Bhog (food) of the deity".
Thus even according to the
plaintiffs-appellants, only the descendants and heirs of the founder, who live
in the endowed house, have throughout been acting as ministrants of the family
idol, which, as already noticed, is one of the vital characteristics of a
Shebait. In other words, the sons and the descendants of Durga Chorone
Requitte, alone, have throughout been acting as co-shebaits of the family
deity, to the exclusion of the 'trustees' who were not his descendants.
The first two courts were, therefore, right
in holding that the Shebaiti rights remained with the heirs of the founder.
446 Assuming for the sake of argument, that
the 'trustees' were also vested with the rights and obligations of a Shebait,
then also, the evidence on the record shows that those trustees who were not
descendants of the founder, Durga Choron Requitte, never acted as such. They
went out of the picture long ago and must be presumed to have renounced their
Shebaiti rights in favour of their co-shebaits who were descendants of the
founder. It is in evidence that in 1934, a dispute arose among the descendants
of the founder with regard to the accommodation in their residential occupation.
Thereupon, the trustees agreed with the descendants of the founder by means of
the Agreement (Ex. E) to refer the dispute to the sole arbitration of Shri
Shringerwar Shrimani. The arbitrator, inter alia, held that the heirs of late
Durga Choron Requitte and his descendants alone had the rights to act as
Shebaits. There is documentary evidence on the record to show that this award
(Ex. G) given by the arbitrator was accepted by the 'trustees'. The present
plaintiffs-appellants, by their letter dated June 18, 1950 (Ex. A/7), asserted
their right on the basis of this award and described the defendant- respondent
as a shebait of the deity. The letters (Ex. A-8 and A-10) also point to the
Thus, even if it is assumed that originally,
the trustees were regarded as having been constituted as Shebaits, then also,
those among them who were not family members or descendants of the founder,
renounced and relinquished their shebaiti rights, if any, in favour of the
descendants of the founder. Such a relinquishment made in favour of the
co-shebaits, will be valid.
From whatever angle the matter may be looked
at, the conclusion is inescapable that Shebaitship of the family deity remained
solely with the descendants of the founder;
and the defendant-respondent, who is
admittedly a grandson of the founder, had been regarded as one of the Shebaits,
and as such, entitled to reside in the disputed rooms. All the Shebaits were
therefore, necessary parties; but all of them have not been impleaded. The Trustees
by themselves have no right to maintain the suit in respect of the debutter
property, the legal title to which vests in the idol, and not in the Trustees.
The right to sue on behalf of the deity vests in the Shebaits. All the Shebaits
of the deity not having been made parties, the suit was not properly
constituted, and was liable to be dismissed on this score alone.
In the view we take, it is not necessary to
decide, whether the 'trust' created by the Will of Durga Chorone Requitte was a
continuing trust or not, or whether the mode of devolution of the office of 447
Trustees indicated by the founder in his Will was or was not hit by the rule in
Tagore v. Tagore (supra).
For the foregoing reasons, we allow the
defendant's appeal (Civil Appeal No. 1874 of 1970), set aside the judgment of
the High Court, and dismiss the plaintiffs' suit. In the result, Civil Appeal
No. 1873 of 1970 filed by the Plaintiffs, ipso facto fails, and is dismissed.
In the circumstances of the case, there will be no order as to costs.
C.A. 1873/70 dismissed.
P.B.R. C.A. 1874/70 allowed.