Calcutta High Court
Thakurani Shree Shree Durga vs Unknown on 20 January, 2014
Author: I.P. Mukerji
Bench: I.P. Mukerji
C.S.O.S. No. 01 of 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
In the matter of :
THAKURANI SHREE SHREE DURGA
MATA NEW TRUST;
And
In the matter of:
ASIS MITRA
............ Plaintiff
Vs.
SIBANI DUTTA & ORS.
......... Defandants
For Plaintiff : Mr. S.B. Mookerjee, Advocate with
Mr. H. K. Mitra
Mrs. Suchismita Chatterjee (Ghosh)
Mr. Siddhartha Chatterjee, Advocates
For Defendants : Mr. Reetobroto Kr. Mitra, Advocate with
Mr. Arindam Ghuha
Mr. R. Dev, Advocates
Heard on : 06.12.2013 & 20.12.2013
Judgment on : 20th January, 2014
I.P. MUKERJI, J.
Questions are asked to this Court on this Originating Summons, under Chapter XIII of the Original Side Rules. The questions are posed by one of the Shebaits of the estate of the deity Thakurani Shree Shree Durga Mata Jew. The questions concern the last Will and Testament of Baikuntha Nath Dutta, a very wealthy citizen of Calcutta, made on 30th July, 1916. He was profoundly religious too. In 1900, he had founded a "thakurbari". He installed this deity there and started worship. By this Will various properties of the testator were dedicated to the above deity housed at the Thakurbari at No. 32, Jugernath Dutta Lane (27, Raja Dinendra Narayan Roy Street, Kolkata). Shebaits were appointed.
Clause 5 of the Will dealt with the devolution of Shebaitship. It is set out hereunder:
"5. To pay out of the said income as remuneration to the said Shebait or Shebaits as hereinafter provided for acting in the sheba and trust and I direct that after the defraying of the various expenses above directed if there shall be any surplus the same shall not in any ways become payable or divisible amongst my heirs or Shebaits who shall have no claim to any portion thereof but to be invested in the purchase of landed property or Government promissory notes to be held by him or her or them as the case may be upon the trusts hereinbefore declared and on the same conditions herein contained I hereby declare that my wife Srimati Khaganbala Dasi should she survive me will be the First Shebait of the Thakuranee Sree Sree Durgamata Jue and Trustee of the properties which I have hereby dedicated and made Debuttor and as I have no son I declare that after the death of my wife Srimati Khagen Bala Dasi my four daughter Srimati Prabhabati Dasi, Srimati Indumati Dasi, Srimati Pankajini Dasi and Srimati Bibhabait Dasi (the first two named daughter are being childless widows) or such of them as will survive me and my wife shall be the shebaits and Trustees of the Thakurannee Sree Sree Durgamata Jue and of the said Debuttor property. And I declare that on the death of my said daughters Srimati Prabhabait Dasi and Srimati Indumati Dasi or either of them her or their shares of shebait rights and reminerations shall lapse and pass on equally to my two other dauthers Srimati Pankajini Dasi and Srimati Bibhabati Dasi only and in the event of the demise of both or either of the latter namely Srimati Pankajini Dasi and Srimati Bibhabati Dasi the said rights and remunarations of Srimati Prabhabati Dasi and Srimati Indumati Dasi or of either of them should pass on respectively to the sons of the said Srimati Pankajini Dasi and Srimati Bibhabati Dasi irrespective of whichever of them predeceases the other. And I further declare that if my said daughters Srimati Pankajini Dasi and Srimati Bibhabati Dasi shall die at any time before or after acceptance of shebaitship their respective sons will be entitled to become shebaits in the place of their respective mothers the said Srimati Pankajini Dasi and Srimati Bibhabati Dasi. And I also declare that after the death of my last surviving daughter such of the sons of my said daughters Srimati Pankajini Dasi and Srimati Bibhabati Dasi as will follow the Hindu religious shall be the Shebaits and Trustees of the Thakuranee Sree Sree Durgamata Jue and of the said Debuttor property and on the death of any or all my grandsons their respective Shebait rights shall pass on to their respective sons and their sons in perpetuity as the heirs of their respective fathers. And I hereby declare that it shall be lawful for the shebait or shebaits ............ (Illegible) being to act in the Trust by his her or their duly constituted attorney's whenever it shall appear to the said Shebait or Shebaits just and convenient.................. ."
The Will was altered by a Codicil dated 15th July, 1919. The alteration with regard to succession was as follows:
"I hereby declare that my wife Sreemutty Khagan Bala Dassi, should she survive me, my third daughter Sreemutty Pankojini Dassi and my son-in-law- Arindom Mitter, the husband of my said third, daughter Sreemutty Pankojini Dassi, will be the first Shebaits after my death of the Thakoorani Sree Sree Doorga Mata Jue and Trustees of the properties which I, by my said Will dated 30th July 1916, have dedicated and as also hereby dedicate and make Debutter and after them my legal heirs, Viz. all the sons of my said third daughter Sreemutty Pankojini Dassi will be Shebaits and Trustees of the Thakoorani Sree Sree Doorga Mata Jue and of the said Debutter property but only such of them as will follow the Hindu Religion and on the death of all or any of grand-sons their respective Shebait rights or Shebaits' rights shall pass on their respective sons and their sons and their son's sons in perpetuity as heirs of their respective fathers even if any of my grandsons predecease their mother the said Sreemutty Pankajini Dassi leaving male issue and I hereby declare it shall be lawful for the Shebait or Shebaits for the time being to act, in the Trust by her his or their constituted attorneys whenever it shall appear to the said Shebait or Shebaits just and convenient."
Many years have passed since the making of this dedication. The main question that is posed is whether the stipulation in the Will and in the Codicil that Shebaitship would vest only in sons of the Shebaits is valid or not.
The problem in this case concerns the rule against perpetuity. The rule applies equally to transfer of property inter vivos as it does to transmission of property by succession. In this case those rules regarding transmission of property by succession are relevant. It is a very ancient English rule. It arose out of policy considerations. The owner of a property, while bequeathing it, could not postpone the vesting of the absolute legal and beneficial ownership thereof indefinitely. He could not fetter the powers of alienation, indefinitely.
As Lord Nothingham LC observed in 1681 in the Duke of Norfolk's case (1681) 2 Swans 454 at 460:
"the law hath so long laboured to defeat perpetuities, that now it is become a sufficient reason of itself against any settlement to say it tends to a perpetuity ... such perpetuities fight against God, by affecting a stability which human providence can never attain to, and are utterly against the reason and policy of the common law."
Hence, if A is disposing of his property by Will or by creation of a trust, he cannot hold up its absolute vesting in some other person, for an uncertain period. Neither can he tie this person's hands regarding alienation for an uncertain time. For example, by inserting clauses that after the death of the testator or settlor the property would be enjoyed by his son for life, then the son's son for his life and then by his son's son's son, for life, and so on. At one point of time this kind of limited grant of property has to end. The property has to vest in a person, legally and beneficially, absolutely. This time period beyond which property cannot be tied up is the lifetime of one or more persons living at the time of the testator's death and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the property bequeathed is to belong. Therefore, if A, B, C and D are all living at the time of X's death, a property could be devised by X to each of them for his lifetime. Thereafter, the property may be given to E,_who had to be born during the lifetime of the above persons,_on his attaining majority. Vesting of the property in E could not be held up beyond his attaining majority. In other words vesting of property could not be postponed beyond a lifetime and 21 years.
If there was any further postponing of absolute legal and beneficial ownership of the property, the bequest or settlement was void as offending the rule against perpetuity. The law against perpetuity did not favour, as I have said before, tying up of property without its vesting, for an indefinite period of time.
This was engrafted into our law by the Indian Succession Act, 1925. S. 114 enacts as follows:
"114. Rule against perpetuity. - No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong."
Some minor changes have been made to the English Law by statute in 1964 which does not concern our case.
D. A. Desai J. speaking for the Supreme Court in the case of Ram Rattan (dead) by L.Rs. Vs. Bajrang Lal And Others reported in (1978) 3 SCC 236 declared shebaitship rights as immovable property in paragraph 13 of the judgment:
"13. The definition of immovable property in Section 3 of the Transfer of Property Act is couched in negative form in that it does not include standing timber, growing crops, or grass. The statute avoids positively defining what is immovable property but merely excludes certain types of property from being treated as immovable property. Section 2 (6) of the Registration Act defines immovable property to include lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass. Section 2 (26) of the General Clauses Act defines immovable property to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. It may be mentioned that the definition of immovable property in Registration Act lends assurance to treating Shebait's hereditary office as immovable property because the definition includes hereditary allowances. 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. 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. The gift of such immovable property must of course be by registered instrument. Exhibit I being not registered, the High Court was justified in excluding it from evidence. On this conclusion the plaintiff's suit has been rightly dismissed."
R.S. Sarkaria J. in the case of Profulla Chorone Requitte and others Vs. Satya Choron Requitte reported in AIR 1979 SC 1682, referred to shebaitship rights as the blending of office and property rights. Paragraphs 21 and 22 of this judgment are inserted below:
"21. 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.
22. 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 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 Sree Greendharreejee v.
Rumanlolljee, ibid)."
Furthermore, the rule against perpetuity which was discussed in Tagore Vs. Tagore reported in BLR 377 (1872) applied to the devolution of shebaitship rights, as held by a full bench of this Court in Monohar Mukherjee Vs. Bhupendra Nath Mukherjee reported in 37 CWN 29.
G.K. Mitter J. in the case of Sm. Raikishori Dassi Vs. Official Trustee West Bengal & Others reported in AIR 1960 Cal 235 opined that since the rule against perpetuity was part of Hindu Law, any disposition of property against the perpetuity rule would be against law and invalid. In most lucid language his lordship summarised the law in paragraphs 34, 39 and 40 of the report:
"34. From the above it appears clear that shebaiti is not merely an office but partakes of the nature of property descendible according to the ordinary rules of Hindu law. Even if by the inter-position of a trust the management of the endowed properties is confided to a set of trustees shebaiti does not lose altogether the characteristics of property. Indeed the shebait has been said to have a right of property in his office. The owner of the endowed property is the idol and indeed by the will in this case all the properties movable and immovable, have been made the subject matter of absolute gift to the deity, the trustees having no more than a mere right of management. The shebait is only denuded of his right to the extent the same is carved out in favour of the trustees but he does not lose altogether his beneficial interest in the property. It is he who can assert the right of the deity if the trustees are negligent or delinquent. It is for him to protect the Thakur if there be any threat of injury to it. As I have already said if all the trustees died without appointing fresh trustees or refused to act the full rights of the shebait would again come into play. Even when the trustees are functioning it is the shebait alone who can spend the income directed to be made over to him for the purpose of the daily sheba and the periodical worship. He is not accountable to the trustees. Even if he is deprived of the right to manage the properties on behalf of the deity he has an interest in some part of the income of the debutter property. In my view therefore the rules in Tagore v. Tagore (I.A. Sup. Vol. 47) (P.C.) will apply to the office of the shebait in this case.
39. An argument was advanced by Mr. Mukharji, counsel for Gora Chand Dutta that the rule in Tagore v. Tagore (I A Sup Vol. 47) (PC) ought not to be made applicable to this case because the shebait really had no personal or beneficial interest in the debutter properties and his interest cannot be said to be property. Reference was made to the case of Gokul Chand Dey v. Gopinath Dey, 89 Cal. LJ 162: (AIR 1952 Cal
705); in this case Das J. who delivered the judgment of the appeal bench of this Court sitting with Harries, C.J. observed that the principle in Tagore v. Tagore (Ind App Sup Vol. 47) (P.C.) and the rule in Monohar Mukherjee's case, 37 Cal WN 29: (AIR 1932 Cal 791), would not be applicable where the shebaits have not even a qualified right to the endowed property and the legal title was in the trustees who had full powers of management or disposal, the shebaits having merely a right to receive a fixed sum for carrying on the worship of the deity with a liability to account. Although all his judgments command great respect I find myself unable to concur in the above views expressed by Das, J.
which are to be found at page 180 (of Cal LJ): (at p. 711 of AIR) of the above report. From the judgments from which I have quoted rather copiously it is established beyond question that a shebait has some kind of property in the office and some beneficial interest in the debutter property even if there are no emoluments attaching to the office. Further, shebaiti itself has been described as property descendible according to the ordinary rules of Hindu Law. The highest trinbunals have held that it is not possible to separate the two elements of office and property.
Mere curtailment of the right to manage the property which a shebait would otherwise have, would not in my opinion, make shebait a right or property of a kind to which the ordinary rules of succession in Hindu Law are inapplicable.
40. In the result I hold that the attempt by the testator to confine the shebait to the lineal male descendants of the persons named in Clause 4 of the Will is repugnant to the Hindu Law and as such void.
There is no independent gift in favour of any of the male descendants of the said named persons."
The same principles were affirmed in the case of Sankar Nath Mullick & Anr. Vs. Lakshmi Sona Datta reported in 2004 (4) CHN 435. It was a Division Bench judgment of our Court delivered by D.K. Seth J. The facts were similar to our case. His lordship remarked in paragraph 7.2 as follows:
"7.2. Though the founder has the right to lay down rule governing succession to the office of shebait or manager, he cannot crate any estate unknown or repugnant to Hindu Law, such as an estate fail Gannnasambanda vs. Velu, ILR 23 Mad 271 (PC); Monohar Mukherjee vs. Bhupendra Nath, ILR 60 Cal 452; Ganesh Chandra Dhur vs. Lal Behary Dhur, AIR 1936 PC 3187; 63 IA 448; Gangaram vs. Dooboo Mania, AIR 1936 Nag 223. Tagore's case (supra) will apply to shebaits - shebaitship, partaking of the nature of property descendible according to the rules of Hindu Law. The rule in Tagore vs. Tagore, Bengal Law Reports 377 PC, will apply to the office, Ganasambanda vs. Velu, ILR 23 Mad 271; 27 IA 69; Ganesh Chandra vs. Lal Behary, AIR 1936 PC 318;
Manohar Mukherjee vs. Bhupendranath Mukherjee, AIR 1932 Cal. 791 (FB); Kandarpa Mohan vs. Akshaya Chandra, AIR 1933 Cal.
529. Therefore, the direction in a will that after the death of the named shebait, the lineal male descendant or the rule of succession in Hindu law inasmuch as the obvious intention is to exclude the female descendants, Rai Kishori Dessi vs. Official Trustee, AIR 1960 Cal 235; 60CWN 645. In Ganesh Chandra vs. Lal Behary, AIR 1936 PC 318, a testator executed a will under which he appointed two of his sons, Kartick and Ram, as shebaits. He further directed that upon the death, retirement or refusal to act of nay of them or any of the future shebaits the then next male lineal descendant of Kartick or Ram shall act as shebait in place of the deceased or retiring shebait. The intention was that the eldest for the time being in the male line of Kartick and Ram shall always remain as joint shebaits. It was held that on the death of Kartick and Ram respectively, the succession to the office of shebait and the income of the estate must be according to the ordinary Hindu law of succession and the provision of the Will, insofar as it related to the holding of the office of the shebait after the respective deaths of Kartick and Ram, by their eldest male lineal descendants only constituted an invalid attempt to law down a line of succession which is not permissible under the Hindu Law."
Mr. R. Mitra, learned Advocate opposing this application, relying on a sentence in the case of Ram Rattan (dead) by L.Rs. Vs. Bajrang Lal And Others reported in (1978) 3 SCC 236 (Supra) tried to argue that devolution of interest had to be according to the terms of the Deed of Trust, Deed of Settlement or Will. This is absolutely true but true only if the devolution of interest mentioned in the deed is in accordance with law.
A similar question arose in the case of Sri Sri Iswar Gopal Gobinda Jew Thakur & Ors. Vs. Rupa Mukherjee & Ors. reported in 2005 (4) CHN 720 which was answered by Kalyan Jyoti Sengupta J. in the negative which meant the right of Shebaitship could not be confined to male heirs only.
Therefore, the questions mentioned in paragraph 24 of the affidavit in support of the Originating Summons are answered by stating that the provision in the will of the testator dated 30th July, 1916 read with the Codicil dated 15th July, 1919 that on the death of the grandsons of the testator as mentioned therein only their sons would be entitled to Shebaitship is invalid as offending the rule against perpetuity, discussed above. Question (b) of paragraph 24 is answered in the affirmative. Let the Shebaitship of Thakurani Shree Shree Durga Mata Jew Trust be constituted and continued in terms of this Judgment and Order and the provisions of the Will and Codicil, not declared invalid herein.
The Originating Summons Suit is decreed accordingly.
Urgent certified photocopy of this judgment/decree, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(I.P. MUKERJI, J.)