Shambhu Charan Shukla Vs. Thakur Ladli
Radha Chandra Bmadan Gopalji Maharaj & ANR [1985] INSC 61 (19 March 1985)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
MUKHARJI, SABYASACHI (J)
CITATION: 1985 AIR 905 1985 SCR (3) 372 1985
SCC (2) 524 1985 SCALE (1)503
ACT:
Hindu Law Religious endowment-Founder by will
making his wife shebait-No disposition in will regarding the shebaiti right- On
death of founder widow succeeding to the shebaiti right- Whether widow could
transfer the shebaiti right by her will.
Hindu Succession Act 1956-Section 14(1).
Shebaitship-Right to- Limited right of Hindu
female whether enlarged to the absolute right of the holder.
HEADNOTE:
The idol of Gopalji was installed by one
Purshottam Lal in his house at Vrindavan, which later became the temple of the
deity. The founder who had no issue, performed Seva Puja of the deity so long
as he was alive and thereafter it was performed by his wife. By his will Ex.
A-2, he dedicated his entire property to the deity, and made his wife the
Mohatmim/ Shebait without any power to transfer any property. In accordance
with the directions of her husband, the wife adopted the second respondent by a
registered deed after performing the necessary religious ceremonies. After the
death of the wife, the appellant in the appeal worked as Pujari in the temple
with the consent of the second respondent's guardian and natural father. Later
he denied the rights of the second respondent and contended that the founder's
wife executed her last will and testament Ex. A-6 bequeathing her bank
deposits, government bonds, household articles, utensils etc. to the appellant
to be kept by him in his custody, so long as the second respondent was a minor
and to be responsible for the seva puja and raj bhog of the deity and the management
of the deity's properties.
A suit was filed by the respondents, for
recovery of possession of the idol and temple of Gopalji and for the money
lying in deposit with the bank, the zamindari abolition compensation etc.
373 The trial court held the adoption of the
second respondent to be duly authorised and valid and found that the founder's
wife had validly executed the will Ex. A-6, but could not transfer the shebaiti
rights to the second respondent thereby and that the second respondent had, however
become the Mohatmim/Shebait by reason of the adoption, and found that the
movable properties and the cash claimed by the appellant under the will were
the personal properties of the wife and that the appellant had become entitled
to them as a legatee under the will and that the other properties belong to the
first respondent-Gopal Ji, and decreed the suit in part.
In the appeal by the appellant, and the
cross- objections filed by the second respondent, the additional district judge
found that as the adoption was without the authority of the husband to adopt,
it was invalid in law and following this Courts' decision in K.K. Ganguli v
Pama- Banerjee, AIR 1974 S.C R. 1932 held that the second respondent had not
become shebait under the will and allowed the appeal and dismissed the
corss-objections and the suit in full.
In the second appeal, the High Court
following this Courts' decision in Angurbala Mullick v. Debabrata Mullick,
[1951] 2 S.C R. 1125 that shebaiti is heritabal property, held shebaiti is property
& found that no restriction had been placed in the will of the founder in
regard to the shebaiti, and therefore the wife had succeeded to the limited
right of shebait as the heir of her husband and it became enlarged into an
absolute right under section 14(1) of the Hindu Succession Act, 1956 and that
as there was on other heir or successor to the founder, the wife's appointment
of the second respondent as the shebait under her will Ex. A-6 was valid in
law. The second appeal was accordingly allowed in part except in respect of
certain items enumerated in the plaint, and cash in - fixed deposit with a
bank.
Dismissing the appeal, to this Court., ^
HELD: (Per Varadarajan J.)
1. The text of Hindu Law and the two
decisions of this Court in Profulla Choronl Requittee v. Salya Chornal
Requittee [1979] 3 S.C.R. 431 and Ram Rattan v. Bajrang Lal
Angurbala Mullick v.Debabrata Mullick, [1951]
2 S,C R 1125 show that shebait ship is in the nature of immovable property
heritable by the widow of the last male holder unless there is an usage or
custom of a different nature in cases where the founder had not disposed of the
shebaiti right in the endowment created by him. [382B-C] In the instant case,
the founder (Purshottam Lal) had not made any disposition regarding shebaiti
right in his will, Ex. A-2 dated 14-4-1944 where-by he created the endowment.
No custom or usage to the contrary had been pleaded. Therefore, the widow
(Asharfi Devi) had succeeded to the shebaiti 374 right held by him on his death
as a limited owner and that right had become enlarged into an absolute right by
the provisions of Section 14(1) of the Hindu Succession Act, 1956 and she could
transfer that right by a will in favour of a person who is not a non-Hindu and
who could get the duties of shebait per formed either by himself or by any other
suitable person. [382C-D]
2. The second respondent has acquired the
shebaiti right under the will Ex. A-6. No interference is called for with the
judgment of the Single Judge of the High Court in the Second appeal. [382E]
(Per Sabyasachi Mukharji J. 'concurring)' 1. It is well settled that
shebaitship is heritable.
This Court in Angurbale Mullick v. Debabrata
Mullick, 119511 2 S.C.R. 1125 recognised the right of a female to succeed to
the religious office of shebaitship in view of the Hindu Women's Right to
Property Act 1937. Section 14(1) of the Hindu Succession Act 1956 enlarged the
limited right of a Hindu female to the absolute right of the holder. [382H;
383A] In the instant case, the property in
the nature of shebaitship devolved on Smt. Asharfi Devi under the will of her
husband, Shri Purushottam Lal dated April 14, 1944. This will had not
restricted the property in any manner in shebaitship bequeathed to Smt. Asharfi
Devi could therefore make a will in respect of shebaitship. [383B-C]
2. It is not necessary, to express any
opinion on the correctness or otherwise of the views expressed in K.K. Ganguli
v. Panna Banerjee, [1975] 1 S.C.R. 728. [383D] & CIVIL APPELATE JURISDICTION:
Civil Appeal No. 1372 of 1979.
From the judgment and decree of the Allahabad
High Court dated March 2,1979 in Second Appeal No. 626/76.
P.K. Chatterjee and P.K Mukherjee for the
Appellant, G. ViswanathaIyer and M.V. Goswami him for the Respon- dents.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is by the defendant-respondent in
Second Appeal No. 626 Of 1976 on the file of the Allahabad High Court and
directed against judgement of the learned Single Judge of that High Court in so
far as it relates to the 375 appointment of the second respondent/second
plaintiff Man Mohan as the Mohatmim/Shebait of the first respondent Shri Thakur
Ladli Radhachandra Madan Gopalji Maharaj (for short "Gopalji") and the
properties belonging to that idol.
The second appeal was filed by the
respondents Gopalji and Man Mohan, plaintiffs 1 and 2 respectively. The second
respondent who is the son of one Shyam Sundar claimed to have been adopted by
Asharfi Devi, widow of one Purushottam Lal by the document A-24 dated
20-11-1956. The High Court has not gone into the question of this adoption in
its judgment. Therefore, it is not necessary to refer to the case of the
parties and the judgment of the courts below in detail in regard to the question
of the adoption. The suit was filed by both the respondents for recovery of
possession of the idol and temple of Gopalji described in the plaint and the
money lying in deposit with the Punjab National Bank at Vrindavan, the
zamindari abolition compensation and the rehabilitation grant bonds specified
in the plaint. The trial court decreed the suit except as regards items 1 to 25
and 37 to 41 of list I of Schedule "Ba" and the sum of Rs. 1004.97.
The appellant filed an appeal in the District Court and the respondents filed a
cross-objection in that appeal in regard to the money claim disallowed by the
trial court.
The learned Second Additional District Judge,
Mathura allowed the appeal and dismissed the cross objection and the suit.
Therefore, both the respondents filed the second appeal.
The respondents' case was that the idol of
Gopalji was installed by Purushottam Lal in his house at Vrindavan which later
became the temple of the deity. Purushottam Lal, who had no issue, performed
seva puja of the deity so long as he was alive and it was performed thereafter
by his wife Asharfi Devi. By his will Ex. A-2 dated 14-4-1944 he dedicated his
entire property to the deity and made his wife the Mohatmim/Shebait without any
power to transfer any property. In accordance with the directions of her
husband, Asharfi Devi adopted the second respondent by a registered deed dated
21-11-1956 by performing the necessary religious ceremonies. After the death of
Asharfi Devi the appellant worked as Pujari in the temple of Gopalji with the
consent of the second respondent's guardian and natural father Shyam Sunder.
Later, he denied the rights of the second respondent contending that Asharfi
Devi executed her last will Ex. A-6 dated 21-12-1957 bequeathing her bank deposits,
government bonds, household articles etc. to the appel- 376 lant Shambhu Charan
and all her jewellery including those kept by her in the custody of Shyam
Sunder to the second respondent and declaring that so long as the second
respondent was a minor the appellant shall act as Mohatmim of Gopal ji and be
responsible for the sewa puja and raj bhog of the deity and the management of
the deity's properties. They will further declare that the appellant shall
continue to live in the house at Bengal Bindala, Vrindavan and act as the
guardian of the second respondent in view of his natural father Shyam Sunder's
refusal to do so and that on the second respondent attaining majority the
appellant shall hand over the sewa puja and raj bhog and he shall have all the
rights of Mohatmim which Asharfi Devi held, without any right to alienate any
of the properties.
But this will was not duly executed by
Asharfi Devi and she had no right to execute such a will and it does not confer
any right on the appellant.
Besides denying the adoption of the second
respondent the appellant contended in his written statement that Asharfi Devi
validly executed the will dated 21-12-1957 inter alia bequeathing items 1 to 25
and 37 to 41 of Schedule "Ba" and items 3 and 4 of the plaint Schedule,
namely, the fixed deposit in Punjab National Bank, Vrindavan, the zamindari
abolition compensation bonds and the rehabilitation grant bonds which were all
her personal properties, i- and not endowed properties, to the appellant and he
has thereby become the absolute owner of those properties. In that will Shyam
Sunder had got certain provisions alleged to confer certain rights on the
second respondent inserted by exercising undue influence on Asharfi Devi, and
they are not binding on the appellant.
The trial court held the adoption of the
second respondent by the Asharfi Devi to be duly authorised and valid and found
that she had validly executed the will Ex.
A-6 dated 21-12-1957 but could not transfer
the shebaiti rights to the second respondent thereby and that the second
respondent has, however, become the Mohatmim/ Shebait by reason of the adoption
and that the appellant had spent the sum of Rs. 1004.97 towards sewa puja and
raj bhog of Gopal Ji. The trial court further found that the movable properties
and the cash claimed by the appellant under the will were the personal
properties of Asharfi Devi and that the appellant has become entitled to them
as a legatee under the will and that the other properties belong to the first
respondent Gopal Ji and thus decreed the suit in part.
377 In the appeal by the appellant and the
cross-objections filed by the respondents the learned Second Additional
District Judge. Mathura found that the adoption made in November 1956 was
without the authority of Asharfi Devi s husband to adopt and, therefore,
invalid in law. In the event of the adoption not being upheld the respondents
wanted to fall back on the will to support the second respondent's claim to
shebaitship. That was naturally opposed by the appellant as the respondents did
not raly upon the will in the plaint and based the second respondent's claim to
shebaitship only on the adoption. The learned Second additional District Judge
rejected that contention as also the contention of the respondents that Asharfi
Devi as the heir of her husband could appoint her successor shebait by her will
on the ground that it could not be done by will following this Court's decision
in KK Ganguli v. Panna Banerjee(l) and he held that the second respondent has
not become shebait under the will. In this view the learned Additional District
Judge allowed the appeal and dismissed the cross-objection and the suit in
full.
In the second appeal also the question
whether the appointment of the second respondent as shebait of the first
respondent deity by Asharfi Devi's will was valid in law was the only question
considered by the Single Judge. The learned Judge expressed the view that it
cannot be disputed that prior to the commencement of the Hindu Succession Act a
successor to shebaitship could not be appointed by will unless it be that the
will was executed by the founder who had created the endowment by dedicating
his own absolute properties to the deify. In the light of this Court's decision
Angurbala Mullick v. Debvbrata Mullick (2) in which it has been held that if a
shebait dies leaving behind him a widow and no son she would succeed to the
shebaiti right - under the ordinary law but her rights in the shebaiti would be
restricted in the same manner as they would have been if the successor was the
son, which view reiterates the view expressed by the Privy Council in Bhabe
Foririe Devi v. Ashalata Devi (3) that shebaiti is heritable property, the
learned Single judge held that shebaiti is property and found that no
restriction had been placed in the will of Asharfi Devi's husband Purushottam
Lal in regard to the shebaiti and, therefore, Asharfi Devi had (1 ) AIR .1974
SC 1932 (2)(1951) S. C.R. 1125 (3) AIR 1943 PC 89 378 succeeded to the limited
right of shebait as the heir of her husband and it became enlarged into an
absolute right by s. 14(1) of the Hindu Succession Act, 1956 and that as there
was no other heir or successor to Purushottam Lal, Asharfi Devi's appointment
of the second respondent as the shebait under her will Ex. A-6 dated 21-12-57
is valid in law. The learned Judge found that the zamindari abolition
compensation and rehabilitation grant bonds go with the shebaiti and could not
be claimed by the appellant. Thus he allowed the second appeal in part except
as regards items l.to 25 and 37 to 41 and the cash of Rs. 1004.97 and the fixed
deposit lying with the Punjab National Bank at Vrindavan.
In this Court, the only question to which the
arguments were confined by the learned counsel for the parties is whether the
shebaiti right could be bequeathed by Asharfi Devi by her will Ex. A-6.
It has to be noticed at the outset that the
respontents had based their claim to the . properties and the shebaiti right
only on Purushottam Lal's last will and testimony Ex. A-2 dated 14A 1944
whereby he created the endowment constituting himself as the shebait and on the
adoption deed Ex. A-24 dated 10-11-1956. That adoption which has been held to
be valid by the trial court has been found by the first appellate court to be
invalid in law for want of authority of the husband to make the adoption prior
to the commencement of the Hindu Succession Act, 1956, and the High Court has
not gone into that question. The respondents attacked the genuineness of the
will Ex. A-6 in toto in their plaint while the appellant had relied upon it in
part to the extent that it purports to confer on him absolute right in regard
to certain properties including items 1 to 25 and 37 to 41 of list 1 of
Schedule "Ba". He contended that the remaining position of that will
which purports to confer shebaiti rights on the second respondent had been
fraudulently introduced by the second respondent's natural father Shyam Sunder
by the exercise of undue influence on Asharfi Devi and that portion of the will
is not, therefore, binding on him. However, the learned Judge of the High Court
has allowed the second appeal in part stated above only on the basis of that
will. It may be stated that it was not contended by Mr. P.K. Chattrjee, learned
Senior Advocate appearing for the appellant that it was not open to tho High Court
to grant relief to the second respondent on the basis of the will on which no
reliance had been placed in the plaint. A8 379 stated earlier the only question
regrading which Mr. Chatterjee appearing for the appellant and Mr. G. Viswanath
Iyer, learned Senior Advocate appealing for the respondent advanced their
arguments was as regards the validity of the appointment of the second
respondent as shebait by Asharfi Devi's will, Ex. A-6.
Mr. Chatterjee conceded in the course of his
arguments that shebaitship is heritable property but submitted that heriditary
succession to shebait is not mentioned in Purushottam Lal's will, Ex. A-2 and,
therefore, after the death of Asharfi Devi shebaitship right will revert to the
heirs of the founder Purushottam Lal and that the second respondent could not,
therefore, claim to be shebait of the first respondent-temple. In this
connection, Mr. Chattarjee invited our attention to the judgment of A.N. Ray,
J., and K.K. Mathew, J. Of this Court in K.K. Ganguli v. Panna Banerjee (Supra)
where at page 737, Chief Justice Ray speaking for the Bench has observed that
the transfer of shebaitiship by will is not permitted because nothing which the
shebait has can pass by his will which operates only after his death. Earlier
at page 733 the learned Chief Justice has observed:
"The rule against alienation of shebait
right has been relaxed by reason of certain special circumstances.
These are classified by Dr. B.K. Mukherjee at
page 231 in his Tagore Law Lectures on the Hindu Law of Religious and
Charitable Trust, First Edition under three heads. The first case is where
transfer is not for any pecuniary benefit and the transferee is the next heir
of the transferor or stands in the line of succession of shebaits and suffers
from no disqualification regarding the performance of the duties. Second, when
the transfer is made in the interests of the deity itself and to meet some
pressing necessity. Third, when a valid custom is proved sanctioning alienation
of shebaiti right within a limited circle of purchasers, who are actual or
potential shebaits of the deity or otherwise connected with the family."
This decision rendered in a case of sale of shebaitiright for pecuniary
consideration appears to support the stand taken by Mr. Chatterjee. But later
decisions of this Court have taken a different view which appears to be
consistent with the principles of Hindu Law. We find the following passage in
para 419A of Mulla's Hindu Law, Fifteenth Edition:
380 "Though a female is personally
disqualified from officiating as a Pujari for the shastraically installed and
consecrated idols in the temples, the usage or a female succeeding to a
priestly office and getting the same performed through a competent deputy has
been well recognised and it is not contrary to textual Hindu Law nor opposed to
public policy.
In Raj Kali Kuer v. Ram Ratan Pandey(1) the
Supreme Court upheld such usage.' In the next para 420 we find the following
passage:
"A sale by a shebait or mohunt of his
right to manage debutter property is void, even though the transfer may be
coupled With an obligation to manage the property in confirmity with the trust
attached thereto. Nor can the -right be sold in execution of a decree against
him".
At page 158 of Mukherjee's Hindu Law of
Religious and Charitable Trusts, Third Edition, it is stated thus:
"Unless therefore the founder has
disposed of the shebait ship in any particular way and except when an 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.
Where the founder of a temple had died without having appointed a shebait, it
was held that his widow on whom the right to appoint had developed was entitled
to appoint a shebait for the temple, and such appointment was not open to
attack as an alienation of the office of a trustee. And the rule that
shebaitship devolves like and other species of pro. party has been applied to
the office of archaka, as well, where emoluments were attached to it." In
the decision in Profulla Choronl Requittee v. Satya Choronl Requittee(2),
Sarkaria, J, speaking for himself and Tulzapurkar, J. has observed at page 440
thus:
(1) [1955] 2 S.C.R. 186.
(2) [1979] 3 S.C.R. 431.
381 "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 heritable property. It follows that, where the founder does not
dispose of the shebaiti rights-in the endowment created by him, the shebaitship
develves on the heirs of the founder according to Hindu Law, if no usage or
custom of a different nature is shown to exist." A similar view has been
expressed in an earlier decision of Chandrachud, C.J. and Desai and Pathak, JJ.
in Ram Rattan v. Bajrang Lal & Ors.(1) where Desai, J. speaking for the
Bench has observed thus:
"This hereditary office of shebait is
traceable to old Hindu texts and is a recognised concept of traditional Hindu
Law. It appears to be heritable and partible in the strict sense that it is
enjoyed by heirs of equal degree by turn and transferable by gift subject to
the limitation that it may not pass to a non-Hindu. On principles of morality
and propriety sale of the office of shebait is not favoured ... Both the
elements of office and property, of duties and personal interest are blended
together in - the conception of shebaitship and neither can be detached from
the other ..A full Bench of the Calcutta High Court in Manohar Mukherjee v.
Bhupendra Nath Mukherjee and Ors. held that the office of shebait is ,
hereditary and is regarded in Hindu Law as immovable property. This court took
note of this decision with approval in Angurbala Mullick's case (supra)..
Office of shebait is hereditary unless provision to the contrary is made in the
deed creating the endowment. 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.. It is,
therefore, safe to conclude that the hereditary office of shebait which (1) (1979)
3 S.C.R. 963.
382 " would be enjoyed by the person by
turn would be immovable property. The gift of such immovable property must of
course be by registered instrument." The text of Hindu Law and the
aforesaid two decisions of this Court and the earlier decision in Angurbala
Mullick's case (supra) show that shebaitship is in the nature of immovable
property heritable by the widow of the last male holder unless there is an
usage or custom of a different nature in cases There the founder has not disposed
of the shebaiti right in the endowment created by him. In the present case
Purushottam Lal has not made any disposition regarding shebaiti right in his
will, Ex. A-2 dated 14.4.1944 whereby he created the endowment. No custom or
usage to the contrary has been pleaded. Therefore, the widow Asharfi Devi had
succeeded to the shebaiti right held by him on his death as a limited owner and
that right has become enlarged into an absolute right by the provisions of s. 4
(l) of the Hindu Succession Act, 1956 and she could transfer that right by a
will in favour of a person who is not a non-Hindu and who could get the duties
of shebait performed either by himself or by any other suitable person.
In these circumstances I hold that the second
respondent has acquired the shebaiti right under the will Ex.A-6 executed by
Asharfi Devi on her death on 7.3.1963. No interference is called for in this
appeal with the judgment of the learned Single Judge of the High Court. The
appeal is accordingly dismissed with costs.
SABYASACHI MUKHARJI, J. I agree that the
appeal should be dismissed with costs. I would, however, like to explain the
reasons why I come to that conclusion. In my opinion it is well-settled by the
authorities that shebaitship is a property which is heritable. The devolution
of the office of Shebait depends on the terms of the deed or the will or on the
endowment or the act by which the Deity was installed and property consecrated
or given to the Deity, where there is no provision in the endowment or in the
deed or will made by the founder as to the succession or There the mode of 6
succession in the deed or the will or endowment comes to an end, the title to
the property or to the management and control of the property as the case may
be, follows the ordinary rules of inheritance according to Hindu Law- As
Shebaitship is property, this Court in the case of Angurbala Mullick v.
Debabrata Mullick(1) recognised (1)- [1951] 2 S.C.R. 1125.
383 the right of a female to succeed to the
religious office of shebaitship in view of the Hindu Women's Rights to Property
Act, 1937.
Section 14 (1) of the Hindu Succession Act,
1956 enlarged the limited right of a Hindu female to the absolute right of the
holder. As in this case there was no bar against alienation imposed by the
founder, the property in the nature of shebaitship in this case was devolved on
Smt. Asharfi Devi under the will of her husband Shri Purushottam Lal dated 14th
April, 1944. This will, the wordings of which have been set out in the judgment
in the Second Appeal of the High Court, has not restricted the property in any
manner in shebaitship bequeathed to Smt. Asharfi Devi. The High Court found and
I respectfully agree with the High Court that the first sentence of the will
makes an absolute bequest of shebaitship to Smt. Asharfi Devi. The subsequent
words only describe the rights and duties. In the premises, in view of the law
as laid down in Angurbala's case (supra), she could make a will in respect of
shebaitship- On the aforesaid reason, in my opinion, the appeal should fail. It
is not necessary, therefore, to express any opinion on the correctness or
otherwise of the views expressed by this Court in K K. Ganguli v. Panna
Banerjee(1). Appeal dismissed with costs.
N.V.K. Appeal dismissed (1) [1975] 1 S.C.R.
728.
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