Calcutta High Court
Sankar Nath Mullick And Anr. vs Smt. Lakshmi Sona Datta on 15 June, 2004
Equivalent citations: (2004)2CALLT535(HC), 2004(4)CHN435
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. This appeal arises out of a Judgment and decree dated 16th of September, 2003 passed by the learned single Judge in C.S. No. 406 of 2001, upon an application under Chapter XIII of the Original Side Rules of the High Court at Calcutta relating to originating summons.
1.1. The plaintiffs/respondents sought for the determination of the following questions and reliefs:
"a. Whether the restriction imposed by the said Deed of Ekrarnama dated 25th May, 1820 and the Post-Script thereto dated 27th February, 1822 debarring the descendants of the said Sm. Chitra Dassi not belonging to the same Gotra (Clan) as that of the settlor from becoming shebaits of the said deity Sri Sri Iswar Radha Gobinda Jew is illegal, void and not binding on the plaintiffs, being contrary to Hindu Law of Succession and or the general principles of the law of the land applicable thereto?
b. Whether or not the plaintiffs as the only heiresses and legal representatives of the said Baladeb Chandra Mullick have become and are entitled to act as shebaits of the said deity Sri Sri Iswar Radha Gobinda Jew in place and stead of their said predecessor-in-interest and are entitled to perform seva puja of the said deity as such shebaits and according to the provisions of the Hindu Law and the General Law of the land?
c. It be declared that the plaintiffs are lawfully entitled to act as shebaits of the said deity and to perform debseva and or puja in place and stead of their father the said Baladeb Chandra Mullick and the objections raised by the Official Trustee of West Bengal are invalid, inoperative and not binding on the plaintiffs and further that the rule laid down as to the succession to shebaiti right in the decree order of this Hon'ble Court dated 4th December, 1879 passed by the Hon'ble Mr. Justice Macpherson is bad in law and not binding on the plaintiffs.
d. If the answers to the questions framed in Clauses (a) and (b) above are in the affirmative and in the plaintiffs' favour then directions be given to the Official Trustee of West Bengal to accept the plaintiffs as such Shebaits and to allow and make payments to the plaintiffs for performing the seva puja and all other periodical festivals of the said deity during their turn or pala of worship being turn or pala which was enjoyed by the said Baladeb Chandra Mullick."
1.2. By or under the judgment and decree dated 16th of September, 2003 questions No. a, b and c above were answered in the affirmative. The appellants sought for leave to prefer the present appeal which having been granted and upon notice being served upon the plaintiffs/ respondents, on the question of interim order, the matter was heard by this Court. In course of hearing on the question of interim order it appeared that a decision would virtually affect the rights of the parties and that the learned counsel for both the parties had addressed the Court on the merit. We, therefore, proposed to hear out the appeal. By consent of parties, all formalities were dispensed with. The matter was directed to appear in the list when the parties had addressed the Court on merit. The appeal was treated as on day's list for hearing.
Issues:
2. After having heard the learned counsel for the parties on the respective questions, it appears that the fundamental questions involved in this case can be divided into two broad points. (1) The first point that was urged by the appellant was with regard to the maintainability of the originating summons on the ground that the dispute involved cannot be answered in exercise of jurisdiction conferred upon this Court by the rules prescribed in Chapter XIII of the Original Side Rules. (2) The second point that was urged that the line of succession specified by the settlor being followed over a long period of time, it had taken the shape of a custom and usage which cannot be deviated from even by reason of subsequent change in law of succession.
2.1. The second point can be sub divided in seven heads.
(a) Whether the line of succession determined in the deed of dedication had already been established by virtue of different decision of the Court and litigation between the parties.
(b) Whether by reason of following the same practice right from the dedication till date excluding female heirs transferred to other Gotras has become and assumed the shape of custom and usage recognised in Hindu Law;
(c) If such custom and usage has developed and had taken shape, whether the same can be deviated from in any of the situation, particularly when the line determined by the settlor having come to an end the right of shebaitship would revert to the Other shebaits;
(d) Whether the change in law would affect the determination of line of succession by the settlor and Gotrantar (change of Gotra/Clan) would be superseded;
(e) Whether the terms and condition in the deed could deviate from the general law of succession;
(f) Whether the right to the office of shebaitship a right to property is heritable under the general law of succession;
(g) Whether the shebaits who would be affected having not opposed the plaintiffs' prayer could the appellants, who has no interest in the pala (turn) of the deceased shebait through whom the plaintiffs are claiming and if the plaintiffs' claim is denied the other shebaits who are not before the Court would be benefited to the exclusion of the appellants, have any locus standi to oppose the claim and maintain the appeal.Facts:
3. Before we answer these questions we may briefly refer to the facts of this case in order to appreciate the situation and the context in which we are supposed to answer the questions so raised and examine the corrections of the decision of the learned single Judge appealed against.
3.1. One Smt. Chitra Dassi since deceased (settlor) by or under a deed of Ekrarnama in he early part of 19th Century i.e. 25th May 1820 corresponding to the Bengali year 13th Jaistha 1227 followed by another post-script document by the same settlor executed in the following year i.e. 27th February 1822 dedicated the properties to the deity consecrated, alleged to be the family deity. It is not in dispute that the said Ekrarnama and the post-script document created a private religious endowment, the management whereof was directed to be followed by the five sons of the settlor surviving her. It is also not in dispute that all the five sons died some time in the 19th Century. Thereafter, the shebaitship followed the line of succession as determined in the deed of dedication.
3.2. The deed provided that the property dedicated to the deity shall not be subjected to partition by the sons of the settlers or their heirs. ".....Only when I am no more all of you being engaged in the performance of the sheva service of worship of Sree Sree Ishwar Jew shall remain in possession in relation to the deb sheba. Further those of your heirs who may be of another gotra shall not be able/competent to perform the Sree Sree Ishwar sheva. After my death should any of your heirs at any time be separate or go and live elsewhere he shall still not be able (competent) to take the Sree Sree Ishwar Jew Thakur elsewhere and perform his sheva and jatra mahutsab (there)....but none of you shall be able (competent) to make a gift sale of the said charitable lands to any other persons and whoever from amongst my children or whoever from amongst their heirs may purchase or receive in gift the right and interest in the said buildings he shall hold possession of the said land and house agreeable to the stipulations of the deed of gift to this no one has (shall make) any objection whatever he shall not be able competent to act otherwise and the heirs of your Bungsho son's so on the succession shall have right to possess and enjoy all these lands and houses save and except as (abovementioned) a gift or sale of the abovementioned property may not be made nor any possession be given to any other person or to the heirs of a different gotra and no person belonging to another gotra by reason of his being an heir or in any other way has (shall have) any concern whatever with the abovementioned lands and houses. For this purpose I have given in writing (this) Ikrar of debutter and gift."
3.3. Ultimately, the line of succession devolved upon the heirs of Taranath and Hurronath. After the death of Taranath, his widow, who succeeded to the shebaitship adopted Dinendra one of the heirs of Shambhunath, through whom the shebaitship devolve upon Manik and Moni and then to Baladeb through Manik and Kalachand and Lalchand through Moni on the branch of Taranath and upon those of Hurronath respectively. It is alleged that the other heirs of Smt. Chitra Dassi, the settlor, did not participate in the seva puja and did not claim the office of the shebaitship. Thus it appears that the shebaitship if does not pass on to the heirs namely the plaintiffs from Baladeb, in that event, this right would vest in Kalachand and Lalchand namely to the branch of Shambhunath. The appellants, who are claiming to be in the branch of Hurronath, would not be benefited by this. As such they cannot have any interest in the turn of Baladeb.
3.4. Baladeb died on 24th November 2000 leaving behind his two daughters who are married. These two daughters are the plaintiffs claiming the right in the office of shebaitship through succession on the death of Baladeb. The plaintiffs requested the official trustee, who is admittedly in control of the endowment, to allow them to perform the seva puja and to act as shebait on the death of their father. The official trustee, who came to the possession and or occupation of the debutter property in terms of Court's judgment and decree, turned down the request of the plaintiffs on the ground that the plaintiffs were not entitled to act because of a Judgment passed by this Court that no descendant of different Gotra can perform the seva puja. The plaintiffs therefore claimed that this deviation disregarding line of succession is illegal and invalid in view of the law now prevailing.
3.5. However, the official trustee was unable to produce the copy of the judgment and the decree. At the same time it appears that on 12th July 1876 a suit was filed by one Balai Chand Mullick one of the settlor's son namely Sankar Nath Mullick since deceased against other shebaits for construction of the aforesaid deed of dedication and the post-script thereafter and the Will of the said settlor Smt. Chitra Dassi, since deceased. This suit was decreed on 4th of September 1879. In the said decree the document was held to be valid and that the descendants of the settlor would perform shebaitship by pala (turn) of one year each by rotation by the said decree. The official receiver was appointed as receiver of the debutter property for management as directed by the said decree. The official receiver managed the property until 9th September 1929, when an applicant was made for removal of the official receiver. Ultimately, the official receiver was removed and in his place the official trustee was appointed for collection of rents, issues and profits and to possess and manage the estate. In accordance with the turn and/or pala the seva puja was being performed.
3.6. The learned single Judge added Kalachand and Lalchand in this proceeding as party-defendants as being necessary parties from amongst the group of Taranath to which the father of the plaintiffs belonged. The other persons the descendants of the other four groups were added as proforma defendants.
3.7. The official trustee referred to the Judgment of Justice Macpherson delivered in 1877 in Suit No. 442 of 1876. We had also occasioned to go through the said Judgment copy whereof was produced before us. The learned single Judge, in our view, rightly found that the questions now required to be decided as raised herein were not answered in the said judgment.
4. In this background, we may now examine the questions raised. We would like to answer the first point first.
The First Point: Maintainability: Chapter XIII Original side Rules:
5. After having examined the prayers as quoted above it appears that the questions do fall within chapter XIII Rule (1)(a), as rightly contended by Mr. P.K. Das appearing for the respondents. A scheme of Chapter XIII prescribes that ".....any person claiming to be interested in the relief sought as....heir or legal representative, or as beneficiary under the trustees of any instrument...may take out, as of course, an originating summons,....for such relief of the nature or kind following, as may by the summons be specified, and the circumstances of the case may require (that is to say), the determination without an administration of the estate or trust of any of the following questions or matters: (a) any questions affecting the rights or interests of the person claiming to be....heir or legal representative or beneficiary...." Chapter XIII also provides in Rule 9 that any "person claiming to be interested under a Will or other written instrument, may apply in Chambers by originating summons, for determination of any question of construction arising under the instrument, and for a declaration of the rights of the person interested."
5.1. Thus, we find from the scheme of Chapter XIII as quoted above, the originating summons, out of which the present appeal arises, appears to be maintainable and it was competent for the Court to give the answers and grant or refuse the reliefs on merit of the case. Admittedly, in this case it is the construction of the Ekrarnama and the post-script document executed by the settlor, which is being claimed by the plaintiffs who claim to be the heirs or representative or beneficiaries of the office of shebaitship on the death of Baladeb their father who succeeded to the office and held the same till his death. It is also apparent from the prayers made that the relief was not related to administration of the estate but only with regard to the determination of the rights and the construction of the document. Therefore, the contention raised contrary to this by Mr. P.K. Dutta, learned counsel appearing for the appellants, does not seem to be of any substance and is hereby overruled.
5.2. Reference to the decision in Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. in this context is wholly misplaced. The said decision has no manner of application in the facts and circumstances of this case.
5.3. However, Mr. P.K. Dutta did not raise the question of res judicata as was raised and decided by the learned single Judge in view of the judgment of Mr. Justice Macphershon referred to above having regard to the context of the order passed which on comparison clearly indicates that the questions involved in this proceeding was neither raised nor answered in the earlier proceedings.
The Second Point: Status of the office of Shebaitship:
6. In order to answer this question, before we answer the subheads, we may refer to the settled proposition of law on the question of the status of the office of the shebaitship. Though a shebaitship is a manager and not a trustee in the technical sense it would not be correct to describe shebaitship as a mere office. Admittedly, the office of shebaitship has an element of trust. But the saving clause of the Indian Trust Act excludes religious endowment from the operation of the Indian Trust Act. The office of Shebaitship is something distinct from a trust alone. The reason is that this office may also carry some interest in the property, which is unknown within the concept of trust. In a religious endowment the shebait has not only the duties to discharge in connection with the endowment, he has also personal interest in it. The Judicial Committee pointed out in Vidyavarathi v. Balusami (LR 48 IA 302) that almost in all debutter endowments, the shebait has a share in the usufruct of the debutter property, depending either on the terms of the grant or upon custom or usage. Even when no emoluments are attached to the office of a shebait, he enjoys some sort of right or interest in the endowed property, which has partially the characteristics of a proprietary right. In Monohar v. Bhupendra (ILR 60 Calcutta 432) a Full Bench of the Calcutta. High Court, after an elaborate review of all authorities, held that shebaitship is a property, with regard to the disposition of which the rule in Tagore v. Tagore (9 BLR 377) is applicable. This decision in Monohar (supra) was approved by the Privy Council in Ganesh Chandra v. Lal Behary (LR 63 IA 448) and again in Bhabatarinl v. Asnalata (LR 70 IA 57 : ILR (1943)2 Calcutta 137). Thus, in the concept of shebaitship both the elements of office and property, of duties and personal interest are mixed up and blended together. Undoubtedly, the duties of a shebait are to be regarded as the primary thing whereas the emoluments or beneficial interest enjoyed by him are only appurtenant to the said duties [Nagendra Nath v. Rabindra (30 CWN 389)]. Neither of these elements can be detached from the other and while dealing with such questions of law both these elements are to be kept in view.
6.1. Thus, the office of shebaitship being a property is subject to devolution, unless otherwise directed by the settlor. The right vested in the shebaitship passes on to the heirs of the shebaitship in accordance with the law of succession. This is being followed from the observation made by Lord Hobhouse in Gossamee Sree Greedhareejee v. Ruman Lalljee (LR 16 IA 137). The office and the property devlove like any other space of inheritable property.
6.2. However, the founder's powers of disposal over shebait right are subject to the same limitations, which exist in Hindu Law in respect of disposal of any other property. The rule laid down in Tagore v. Tagore (9 BLR 377) prevents a Hindu from disposing of his property in such a way as to create any interest in favour of an unborn person. It is not also permissible for a Hindu to create a line of succession unknown to Hindu Law. For a time it was the subject matter of some controversy in the Court of law, whether the principle of Tagore v. Tagore (9 BLR 377) applies to the provisions made by the founder of a Hindu Debutter regarding succession to the office of a shebait. In Gnanasambanda v. Velu Pandaram (LR 27 IA 69), the Judicial Committee observed that the ruling in Tagore v. Tagore (9 BLR 377) is applicable to hereditary office and endowment as well as to other immovable property. But different views were expressed by different Judges in India regarding the interpretation put upon the observation in Gnanasambanda (supra). One view was that any devise in contravention with the rule of Tagore v. Tagore (9 BLR 377) is bad in law and cannot be enforced. Promotho Nath v. Anukul Chandra (29 CWN 17) is one such case.
6.3. The concept is based on the principle that the dedication is made to the idol or the deity conferring right on some person to perform the seva puja of the deity and the idol as shebait therein and the property is vested in the deity primarily and absolutely and then to the shebait only for the purpose of management and it passes on to the heirs of the shebait unless otherwise decided by the settlor.
6.4. On the other hand, In Mathura Nath v. Lakhi Narain (ILR 50 Calcutta 426), Richardson J. expressed the view that the rule in Tagore's case is only a general rule to which there are several exceptions and the nomination of a shebait might be taken as one of the exceptions. The observation in Gnanasambanda's case (supra) was held to be a mere obiter, which had little or no bearing on the particular question decided in that case. In Sreepatt v. Krishna, Chakravarty, J. definitely held that as the shebait has no right to property, and is a mere holder of an office with the rights and limitations applicable to the guardian of a minor, the rule in Tagore's case (supra) could not properly be extended to the appointment of Shebait.
6.5. However, this divergence or controversy was set at rest in Monohar v. Bhupendra (37 CWN 29) by a Full Bench of the Calcutta High Court, where it was held that the shebait is not merely an office, it is a property as well and the principle laid down in Tagore v. Tagore (supra) is applicable to the disposition of the shebait right. The Judicial Committee had taken the same view in Ganesh Chandra v. Lall Behary .
6.6. The position now is that the founder of a debutter is competent to lay down any rules to govern the succession to the office of the shebait subject to the restriction that he cannot create any estate unknown or repugnant to Hindu Law. As shebaitship is a property, it devolves like any other property according to the ordinary Hindu Law of Succession. If it remains in the founder, it follows the line of founder's heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether the shebaitship reverts to the family of the founder. (Ashutosh v. Binod, 34 CWN 177). In the appointment of a shebait, the discretion of the founder is unfettered. But once the shebait is appointed and so long the shebait survives or his heirs survive the settlor the office is inherited by the heirs of the shebait. Barring exceptional cases arising out of special customs and usages, it is now a settled proposition of law that right to the office of shebaitship follows the same line of succession as any other private property. As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship. In Angurbala Mullick v. Debabrata Mullick , the Apex Court has held that a shebaitship is a property within the meaning of the Hindu Women's Right to Property Act, 1937. In the said case it was held had the shebaitship follows the secession in the same manner as the succession follows the ordinary secular property relating to the general law of succession under the Hindu Law to the extent, it is modified by the Hindu Women's Right to Property Act, 1927. This principle was followed and reiterated in Badri Nath and Anr. v. Mst. Punna .
6.7. It is only a religious endowment that will be exempt from the rule against perpetuities and not a secular estate even if created with a religious motive. In Anantha v. Nagamuthu (ILR 4 Mad 2000), a grant of land to Brahmins with a condition prohibiting them from alienating the properties was considered and it was held that the condition restraining alienation was void as offending the rule against perpetuities. It might have been created with a religious motive, but the grant does not stand on the same footing with a religious endowment. In Promotho Dossee v. Rakhika Persand Dutt (14 BLR 175), it was held that where the beneficial interest was given to the donee subject to a religious trust, it will be governed by the ordinary Hindu Law and any provision restraining the alienation will be void, though the alliance will take the property subject to the religious trust.
6.8. Since the rule against perpetuities does not apply to a religious endowment, a condition in the deed that the manager or shebait or trustee, acting for the idol, in whose favour the endowment is made, shall not be able to dispose of or part with the property is valid and does not offend Section 10 of the Transfer of Property Act. The Allahabad High Court in Mukundji Maharaj v. Persotam Lalji had held that the general rule of Hindu Law as laid down by the Privy Council in Prosunno Kumari Debya v. Gola (2 IA 145), it that property devoted to religious purposes is generally inalienable.
Founder's right to lay down rules of succession:
7. A founder has right to prescribe a line of succession to the office of shebait. When once he has laid down the lime of succession, he is not entitled to alter the same or to interfere in the management, unless he has, by the deed of endowment, reserved the right to do so. (Bindtrabum v. Shri Ramji Maharaj ; Gowri Kumar v. Rama Nimoyee ILR 50 Cal 197 : AIR 1923 Cal 30; Sidhan Lal v. Gowri Shankar, 40 IC 165 : AIR 1917 All 264; Ramaswami v. Madras H.R.E. Board, ; Sankatha v. Brij Mohan AIR 1958 All 271). The conditions relating to the rule of succession of shebaitship form and integral part of the dedication itself. A dedication of property to a deity being irrevocable, the rules, if any, laid down by the founder at the time of dedication regulating succession to the office of shebait should also be deemed to be irrevocable (Ramaswami Thevar v. Mad H.R.E., ; Radhika Mohan v. Amruta Lal .
7.1. Where the course of succession laid down by the founder fails or where the dispositions are invalid after a certain period, the shebaitship would revert to the founder or his heirs, but that would not give the founder a right to make fresh disposition of shebaitship, unless he has reserved such powers to himself (Radhika Mohan v. Amruta Lal ; Mohanlalji v. Madusudhan Lal, ILR 32 All 461 : 6 IC 77; Radha Nath v. Shakti Pado ; Vaidyantha Ayyar v. Swaminatha Ayyar, ILR 47 M 884 (PC); Chandranath v. Tadabendra, ILR 28 All 689). A majority of the Full Bench of the Madras High Court in Gauranga Sahu v. Sudevi Mata (ILR 40 Mad 612) held that it is competent for the heirs of the founder of the shrine, to create a new line of trustees, on the failure of the line of original trustees. But Sreenivasa Ayyanagar, J. disagreed with the majority and was of the view that in the absence of any such power in the deed of trust, the founder's heirs will not have any such power and the Court alone will have the power to appoint trustees.
7.2. Though the founder has the right to lay down rules governing succession to the office of shebait or manager, he cannot create any estate unknown or repugnant to Hindu Law, such as an estate fail (Gananasambanda v. Velu, ILR 23 Mad 271 (PC); Manohar Mukherjee v. Bhupendra Nath, ILR 60 Cal 452; Ganesh Chandra Dhur v. Lal Behary Dhur ; Gongaram v. Dooboo Mania, AIR 1936 Nag 223). Tagore's case (supra) will apply to shebaits, shebaltship, partaking of the nature of property descendible according to the rules of Hindu Law. The rule in Tagore v. Tagore (Bengal Law Reports 377 PC) will apply to the office (Gnana Sambanda v. Velu, ILR 23 Mad 271 : 27 IA 69, Ganesh Chandra v. Lal Behary ; Manohar Mukherjee v. Bhupendranath Mukherjee AIR 1932 Cal 791 (FB); Kandarpa Mohan v. Akshaya Chandra . Therefore, the direction in a will that after the death of the named shebait, the lineal male descendant or descendants of the said shebait shall be the shebait of the said deity infringes the rule of succession in Hindu law inasmuch as the obvious intention is to exclude the female descendants (Rai Kishori Dessi v. Official Trustee, . In Ganesh Chandra v. Lal Behary 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 any 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, in so far 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 lay down a line of succession which is not permissible under the Hindu Law.
Change of Gotra: How far a disqualification or excludible:
8. In the aforesaid context now let us examine whether the change of Gotra as in the present case would debar the present plaintiffs from claiming the office on the death of their father. The essence of Ekrarnama shows that the settlor had wanted the seva puja to remain confined within the family of the shebaits. But if anyone changes his Gotra he or she would not be entitled to the office of the Shebait/ perform the seva puja.
8.1. What is Gotra? The Hindu concept of Gotra is derived from the founders of the Gotras namely eight rishis (sages). The Gotra is transmitted from one generation to other. It is handed down from generations to generations. A woman on marriage acquires the Gotra of her husband. Therefore, change of Gotra means that the daughters on their marriage would not be entitled to perform seva puja. Before the Hindu Succession Act, 1956 had come into operation the order of succession was governed by the principles of oblation (pinda). The succession was first open amongst the sapindas. Amongst the sapindas the succession took the following order:
1. Son,
2. Grandson,
3. Great-grandson,
4. Widow,
5. Daughter.8.2. This order of succession was available to the exclusion of the categories following the heirs of one category. The heir of the other category would be excluded. Thus, when the settlor had propounded the debutter estate, the daughter could not come as heir and as such the determination of line of succession excluding those who have changed Gotra, it was not in conflict with the general law of succession under the Hindu Law.
8.3. The intention of the settlor was that this right should be confined within the family itself viz. among the families of the male descendants except the daughters who on account of marriage became members of a different family.
8.4. But once the line of succession comes to an end, the office reverts to the heirs of the settlor. This reversion to the heirs of the settlor is to be decided not from the line of the settlor, but from the point of time when a particular shebait died. It is in his line of succession the heirs of the settlers are to be found out. It cannot be reverted to the heirs of the settlor excluding the heirs of the deceased shebait under the Hindu Law of Succession, if there be any such heirs excluding the other heirs of the settlor on the line of the deceased shebaits. Thus, after it was held by the Supreme Court in Angurbala v. Debabrata (supra) that under the Hindu Women's right to Property Act, 1937, the woman had took the same right which became absolute by reason of Section 14 of the Hindu Succession Act, 1956. After the 1956 Act had come into operation and with the enactment of Hindu Succession Act, the woman's right to property has been recognised and female has been included in respect of certain categories in the group of Class-I heirs all of whom succeed together according to the shares either per capita or per stripe as the case may be excluding Class-II heirs. In the absence of Class-I heirs the Class-II heirs in one entry excluding the entries following would succeed.
Succession to the office of Shebait by female:
9. This question was answered by V.K. Varadachari in his Law of Hindu Religious and Charitable Endowments, second edition revised by Vepa P. Sarathi in the following terms at page 169 "Female shebait.--Shebaitship is property within the meaning of Hindu Women's Right to Property Act (Act XVIII of 1937), and succession to it will follow the line for the ordinary or secular property. It is the general law of succession that governs shebaitship (Angur Bala v. Deba Bratha, ). Hence a female is entitled to succeed to the office of a shebait (Angur Bala v. Deba Bratha, ), "both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other."
The duties are primary and the rights and emoluments are appurtenant to the duties. Hence when a female succeeds to a priestly office, where she cannot discharge her duties personally, it is competent for her to get the duties performed by a deputy. It is not opposed to any rule of Hindu Law or Public Policy (Raja Kali Kuer v. Ram Rattan Pandey, ."
9.1. It was dealt with in the Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by B.K. Mukherjea, 5th edition by A.C. Sen at page 220 in his immediate expression "5.21. Devolution of shebaitship. Disability of successor by reason of caste, sex, age or other disqualification.--
In Southern India, Sudras are managers of several public temples and it seems that there is no restriction regarding the appointment of a female. The question whether a person is incompetent to succeed to shebaitship by reason of sex, age or any other disqualification has come up for consideration before our Courts on more occasions than one. So long as shebaitship was regarded as an office pure and simple, divergent opinions seem to have been expressed by the Courts on these points. Now that shebaitship has been definitely held to be property, much of there discussions would have no more than academic value at present; and barring exceptional cases arising out of special customs or usages, we may take it that the right of management of an idol follows the same line of succession as any other private property.
5.22. Woman's right to succeed to shebaitship.--As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship. The Supreme Court of India has held that shebaitship is 'property' within the meaning of the Hindu Women's Right to Property Act; consequently, in a case to which the Act applies, the widow and the son of the last shebait would succeed jointly to the shebait rights held by the latter. It has been held further that even if the expression 'property' in the Hindu Women's Right to Property Act is to be interpreted as meaning property in its common or accepted sense and is not to be extended to any special type of property which 'shebaitship' admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent that it has been modified by the Hindu Women's Right to Property Act would also be attracted to devolution of shebait right (Angurbala v. Debabrata, )."Whether the plaintiffs are entitled to succeed to the office of shebaitship:
10. The answer to this question in this case can be found in the decision in a suit between the shebaits of this debutter Rajeswar Mullick v. Gopeswar Mullick (ILR 34 Cal 828). In the said case, it was held that "the intention of the foundress was that all her lineal descendants should hold the debutter property and jointly perform the sheba. The only alienation which she contemplated was the gift or sale by one of her sons to one or more of the others, the property being in any event retained in the same gotra. So whether by the foundress express direction or by the ordinary rule of Hindu Law the property and right of worship may be regarded as being in the first place hereditary. The question then arises whether there has been any modification of that principle by the usage of the family. This is not pleaded and no evidence has been given of any such usage. Many members of the family have purported to deal with their right of worship by Will, but the effect of that has certainly not been to establish any uniform usage or practice. Indeed in only one case, that of Cassi Nath, was an attempt made to divert the right of worship from the persons who would be entitled to it in ordinary succession. In that case the attempt failed, and his 3 nephews as his heirs were by the decree of this Court dated 26th August, 1882 declared to be entitled to the right.
10.1. In Lokenath's case his widow Chandan Coomari Dasi was preferred to his son Kali Coomar. There was in this case also a suit and the matter was settled by arrangement. This I think is clear from the decree of 7th July, 1865. Some question may arise in respect of the disposition under Kali Coomer's Will, but that cannot happen until the death of his stepmother Chandan Coomari Dasi.
10.2. Hurronath Bequeathed his right of worship to his sons Lal Mohan and Lolit Mohan, who would in any case have succeeded him. Taranath's Will was to the same effect as he purported to appoint his widow joymoni Dassi. She was then his next kin as his son Dinendra was not adopted till after Taranath's death.
10.3. Lal Mohan, again directed that his 3 sons should put over his share of the worship jointly. It is only in Lolit Mohan's Will that we find a desire to exclude altogether some of those who would be the heirs in the ordinary course, and favour one individual at the expense of the rest.
Under these circumstances it appears (1) that this disposition in Lolit Mohan's is not in accordance with the wishes and intentions of the foundress and (2) that there is no established usage or practice in the family which could justify it. The initial presumption in the case was against the plaintiff and the burden of proving such a usage as I have mentioned was upon him. It is evident that he has neither rebutted the one nor discharged the other...."
10.4. The decision in the case of Rqjeswar Mullick v. Gopeswar Mullick was affirmed in appeal by a Bench of three Judges reported in ILR 35 Cal 226. In the said decision it was held that a person enjoys the right of property and office of shebaitship during his lifetime. On his death nothing remains to be bequeathed by Will, since a Will takes effect only upon death. It was further held that no such usage could be established that the right of shebaitship could be bequeathed by Will. This was the view taken by Maclean, CJ., Mitra, CJ. supporting him was pleased to hold that the position of the shebait is that of a guardian of an infant heir. He had no power to alienate except for necessity or for the benefit of the Thakoor. The right to manage as shebait ceases with the death of the shebait and there remains nothing to bequeath after the death. Woodrooffe, J. supported the views taken by the other two learned Judges that the office was not alienable by Will and no usage was established. However, he expressed no opinion on the question of alienation inter-viros.
10.5. Thus, it appears that it is already established that the succession will follow the line of succession by lineal descendants. At the point of time when the dedication was made this lineal succession was the law of succession. The persons going out of the Gotra or undergoing change in Gotra were excluded. Inasmuch as a Gotra is changed only of a female by virtue of marriage to some other Gotra. Since upon being married a female becomes the member of the family of her husband and is supposed to adopt the Gotra of her husband, this brings a change in Gotra, which excludes such female from lineal succession. There seems to be no attempt on the part of the settlor to deviate from the natural line of succession as the law stood then. Thus with the change in the law of succession, if the succession follows the natural line of succession, the same would not amount to a departure from the line decided by the settlor. Then again once the settlor appoints shebait and the office passes on to the heirs of the shebait, it would follow the natural line of succession. Until the 1956 Act came into force, the natural line of succession was followed and it was never permitted to be deviated from. With the change in law of succession, the law applicable on the date of opening of succession shall be the law that will apply. Therefore, when Baladeb died the office of Shebaitship held by him would open to succession to his heirs under the provisions of the Hindu Succession Act, 1956.
10.6. In the present case Baladeb died leaving these two daughters who are his Class-I heirs. Whereas Kalachand and Lalchand are Class-II heirs of Baladeb. Therefore, under the Hindu Law of Succession viz. Hindu Succession Act, 1956, these two daughters would be entitled to succeed Baladeb to the exclusion of the others to the office of shebait.
10.7. As discussed above, the law of perpetuity is against the principle of Hindu Law except with regard to the dedication itself. This is on the principle that the dedication is to the deity, even if the deity is mutilated or destroyed, a new idol is installed; it is the same deity once consecrated continues. Therefore, the principle of perpetuity will not be attracted in the case of deity. Inasmuch as under the Hindu concept of religion the idol or the deity is not the person to whom the property is dedicated and vested. It is the God that the deity or the idol represents and to whom the property is dedicated or vested. It is the omnipotent to whom the deity or idol represents as a replica or an image or a symbol of Him to whom the property vest. But this law of perpetuity could not hit the holding of the property by the deity or the idol but would not be attracted to the property in the office of the shebait, which is held by a human being. When the shebait is appointed it follows the succession of the shebait. Any disposition with regard to the devolution of the office, which hits the rule of perpetuity or the general principle of succession, would be bad as has been held by the decisions cited above.
Locus standi of the appellants:
11. The other point which was raised by Mr. P.K. Das that the appellants could not said to be interested can be answered within the scope of originating summons, with regard to the rights of the plaintiffs. Having regard to the facts and circumstances of the case we cannot exclude the interest of the appellants in the construction of the document or the succession to the office of the shebaitship so far as their part is concerned. But whether they can claim any right with regard to the interest claimed by the plaintiffs or not, even if the plaintiffs right as denied and no benefit could be derived by the appellants on account of its devolution to Kalachand and Lalchand being the Class-II heirs of Baladeb, need not be answered, though, however, in our view, within the scope and ambit of Chapter XII, the reliefs are confined only to the persons interested in the property. However, we do not express any view with regard thereto, simply on the reason that in view of our findings on the other point, this question is not required to be answered.
Answer to the seven sub-heads of the second point:
12. From the above discussion, it appears that (a) the line of succession determined in the Deed of Dedication had already been established by virtue of different decisions of the Courts and litigations between the parties to the extent that it will follow the line of succession and can be alienated only by way of gift or sale among the heirs in the line of succession and not otherwise; (b) by following the same practice right from the dedication till date excluding female heirs transferred to other Gotras did not seem to have assumed any shape of custom and usage recognised in Hindu Law since the exclusion of female heirs transferred to other Gotras were not entitled to inherit absolutely in the line of succession till the Hindu Succession Act, 1956 was enacted and, therefore, there was no scope for the said practice to assume the shape of custom and usage recognised in Hindu Law; (e) since there was no custom and usage so developed or had taken shape there is no question of deviation from the situation and there was no scope of the line of succession determined by the settlor to have come to an end and reversal of right of shebaits to the other shebaits; (d) the line of succession has to follow the general law of Succession after the settlor grants the right of shebaitship to the shebait surviving the settlor and the line of succession being open to general succession to the heirs of the shebait, the question of Gotrantar (change of gotra) looses its significance since the Law of Succession governing the field would apply unless recognised by such law of succession operating in the field at the relevant point of time when the succession became open and as such (e) there is no question of deviation of the terms and conditions in the Deed or there is no scope of deviation from the general law of succession; (f) the right to the office of shebaitship being a right to property is heritable under the general law of succession; (g) and we need not express any opinion on this question in view of our observation in paragraph 11 hereinabove.
Conclusion:
13. In the circumstances, after the enactment of the Hindu Succession Act, 1956 the disposition made by Chitra Dassi had become subject to the provisions of the 1956 Act as it had become subject to the 1937 Act as was held by the Apex Court in Angurbala (supra).
13.1. Thus, in our view, though on a little added reasons the view taken by the learned single Judge was in consonance with the law governing the field in relation to the succession to the office of the shebait and we do not find any reason to cherish a different view, apart from affirming the answers given by the learned single Judge on principle as designed hereafter.
13.2. The answers to the questions raised as quoted in paragraph 1.1. are designed as follows:
(a) The exclusion of heirs changing their Gotras in terms of the law then existing was valid and was not contrary to Hindu Law of Succession since following the ordinary course of succession in law and it continued to remain valid until succession was opened after the commencement of the Hindu Succession Act, 1956 and on the commencement whereof the line as determined became subject to the provisions contained in the Hindu Succession Act, 1956 and the disqualification of Gotrantar within the scope of the line of succession under the 1956 Act became insignificant and shall stand eclipsed only to that extent in view of the settled principle of law.
(b) The plaintiffs being the Class-I heirs and legal representatives of the deceased shebait Baladeb Chandra Mullick have become and are entitled to act as shebait of the said deity Sri Sri Iswar Radha Gobinda Jew in place and stead of the deceased predecessor-in-interest and are entitled to perform seva puja of the deity during their turn as such shebait and according to the provisions of the Hindu Law and the General Law of the land.
(c) It be declared that the plaintiffs are lawfully declared to act as shebaits of the said deity and to perform debseva and/or puja in place and stead of their deceased father Baladeb Chandra Mullick and the objections raided by the Official Trustee of West Bengal are invalid, inoperative and not binding on the plaintiffs and that no right contrary to the above was declared or decreed by order dated 4th of December 1879 passed by the Hon'ble Mr. Justice Macpherson and was right in law and binding but the same had no manner of application in the present situation and would not preclude the right of the plaintiffs.
(d) The Official Trustee shall allow the plaintiffs to perform seva puja as joint shebaits in the place and stead of deceased Baladeb Chandra Mullick in accordance with the turn/pala hitherto exercised by the deceased Baladeb Chandra Mullick either jointly or simultaneously or separately as may be agreed by the plaintiffs and decided by the Official Trustee upon being so intimated.13.3. With the above modification, we hereby affirm the judgment and order of the learned single Judge.
Order:
14. For the foregoing reasons we do not find, any merit in this appeal. The appeal therefore fails and is accordingly dismissed. The judgment and decree appealed against is hereby affirmed as indicated above.
14.1. There will, however, be no order as to costs in this appeal. The Official Trustee may retain the cost incurred by him in defending the proceedings and this appeal out of the trust fund.
R.N. Sinha, J.
I agree.