Calcutta High Court
Sisir Chakraborty vs Shib Krishna Goswami & Ors on 11 September, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER
CSOS No. 10 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
SISIR CHAKRABORTY
Versus
SHIB KRISHNA GOSWAMI & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 11th September 2015.
Appearance:
Mr. Amitava Das, Advocate Mr. Rupak Ghosh, Advocate ...for the plaintiff.
Mr. A. C. Kar, Advocate Mr. Jiban Ratan Chatterjee, Advocate Mr. Tarun Aich, Advocate ...for the defendant No.1.
The Court:- The plaintiff is the son of Smt. Mira Charaborty.
The deceased was the daughter of Gour Kishore and the granddaughter of Late Balabhadra Goswami who had created the debuttar estate under a Will. The plaintiff filed this originating summons, which is treated as a suit, for the following questions to be answered by this court with regard to the interpretation of the Will creating the debuttar estate:
a) Whether the rule for succession to the office of sebait are rendered invalid by reason that the Will provided for the office to be held by the senior male heir upon the death of Hari Gobinda Goswami and Golap Sundari Debi to the exclusion of others in a succession differing from the line of Hindu inheritance?2
b) Was the founder of debattar competent to create a line of succession unknown or repugnant to the Hindu Law?
c) Are the plaintiff and the defendants jointly entitled to be sebaits?
d) Whether Shri Shib Krishna Goswami, the defendant No.1 has any right, title, interest or authority as sole sebait to enter into any development agreement and to transfer the devattar property?
e) Any further or other question and/or answer and/or direction may be given as this Hon'ble Court may deem fit and proper.
One Balabhadra Goswami, since deceased, executed a Will on 29th June 1900. In the said Will, the testator bequeathed Premises No. 4, Bosepara Lane (now known as Premises No.4, Ma Saradamani Sarani), Kolkata 700 003 to his family deity Ishwar Gopi Nath Jew absolutely and appointed his youngest son, Hari Gobinda Goswami and eldest daughter in law Smt. Golap Sundar Debi (wife of Late Khagendra Nath Goswami, the eldest son of Balabhadra Goswami) as sebaits of the said deity for the purpose of seva and puja of the said deity. It was provided in the the said Will that after the death of the said sebaits whoever will be the senior (in age) among his descendants in the male line will be appointed as sebait and he will perform the seva of the said deity Ishwar Gopi Nath Jew. After demise of Balabhadra Goswami, the said Will was duly 3 probated on 21st December 1900. The said Hari Gobinda Goswami and Golap Sundari Debi acted as sebaits, in terms of the provisions of the said Will, during their lifetime. After the death of the said Hari Gobinda Goswami and Golap Sundari Debi, Gour Kishore Goswami acted as the sebait of the said deity and the said Gour Kishore Goswami passed away in May 1975. Thereafter, Jugal Kishore Goswami acted as sebait till his death on 24th August 1989 and after his death the defendant No.1 Shib Krishna Goswami was controlling the entire affairs of the estate and after the death of Jugal Kishore Goswami, the defendant No.1 Shib Krishna Goswami is claiming to be the sole sebait of the deity under the Will of Balabhadra Goswami, since deceased.
The plaintiff submitted that Shib Krishna Goswami is denying the plaintiff's right, title and interest to act as a sebait on a specious plea that the Will lays down a line of succession which is only restricted to the male line. It is submitted on behalf of the plaintiff that the appointment of the eldest mail descendent in the male line as sebait on the death of Hari Gobinda Goswami and Golap Sundari Debi is contrary to and/or unknown to Hindu Law and as such void. It is submitted that it is well established that the sebaitship in Hindu Law is a property and it was not competent for the said testator to create a line of suceession unknown to Hindu Law. The testator was not competent to appoint or nominate a person in an order of succession which has the 4 effect of creating a new form of state or altering the line of succession allowed by law for the purpose of carrying out his own wishes. The plaintiff further submits that the rule of succession to the office of sebaitship is rendered invalid by reason of the fact that the founder has provided for the office to be held by some among his heirs to the exclusion of others in a succession differing from the line of Hindu inheritance. It is submitted that the law did not permit to the testator to create a line of succession unknown to the Hindu Law to the appointment of sebait of a family idol. The plaintiff submits that by virtue of the provisions of the said Will, the daughters of the family will have no right to become sebait and they will be excluded from discharging any duty as sebait.
Under such facts and circumstances, the aforesaid questions have arisen for determination.
Mr. A.C. Kar, learned counsel appearing on behalf of the defendant no.1 in the suit, submits that this application is barred by law in view of the fact that the mother of the present plaintiff had filed a suit before the City Civil Court being Title Suit No.1600 of 1993 in which the plaintiff therein prayed, inter alia, for a decree appointing the plaintiff as the sebait trustee in place of the defendant. The said suit was dismissed for default on 12th June 2003. It is submitted that the issues raised in the said suit are substantially in issue in this proceeding and 5 in view of Order 9 Rule 9 read with Order 22 Rule 9 of the Code of Civil Procedure, this Court may not exercise its jurisdiction to answer the question raised in this proceeding.
It is no more res integra that the settlor while creating a trust cannot create a line of succession to the office of sebait unknown to Hindu Law. From the days of Tagore versus Tagore culminating in the Full Bench decision of our Court in Monohar Mukherjee Vs. Bhupendra Nath Mukherjee & Ors. reported at AIR 1932 Cal 791, it has now been well-settled that rules for successions to the office should be rendered invalid by reason that they provide for office to be held by some among the heirs of the founder to the exclusion of others differing from the line of Hindu inheritance. In this case the settler gave a direction in the endowment creating a debuttor to the effect "that after the death of all of his son the eldest male in the family should be sole shebait and that no daughters son or daughter should hold the office."
The gradual development of the Hindu Law giving more and more emancipation to the females in the matter of creating or making endowment for charitable purposes took place from the early part of the 20th century. The right of female to be shebait was also taking place culminating in the well-known decision in Monohar Mukherjee (supra) and subsequent decisions. The rights of female was gradually recognized and enlarged in course from the early 6 part of the 20th century. The interpretation of Smriti Chandrika and of those progressive and liberal Smritikars culminated in the formation of Hindu Law Committee which was appointed in 1941 to examine Hindu Law and codification thereto particularly with regard to intestate succession and marriage.
In this regard reference may be made to Principles of Hindu Law by Mulla, 21st Edition, by Satyajeet A Desai where the development of Hindu Law over the ages have been lucidly explained. The Smritikars were great jurists. The smriti texts evince profound acute thinking of sages. The logical acumen of Smritikars helps them to harmonize rules not easily reconcilable. In their desire to adapt the more ancient law to progressive conditions, they sometimes resorted to progressive contrivance of the jurist by evolving a number of beneficent and elegant fictions. The Hindu law was not static or staid but was empiric and progressive. The slow and steady process of development of Hindu law was the result of innovations, often imperceptible, as happens when old and obsolete rules become gradually displaced by growing usages and customs. The leading commentators and nibandhakars did not permit themselves to be fettered by Orthodox prejudices and showed liberal readiness to move with the times. The purpose of referring to the passages from Mulla was to impress upon this Court that the Courts of law should exercise the same freedom of interpretation in moulding the law as did the ancient 7 commentators even when the interpretation was not deductible from the earliest authority. Dry traditionalist view should be replaced by progressive approach and thoughts so as to keep the law in harmony with their environments and in general respond to changing ideas, customs and the march of time.
Prior thereto the Hindu Woman Rights to Property Act of 1937 introduced important changes in the law of succession to confer new rights on certain categories of females. The gender bias was tilted in favour of female on introduction of several statutes in 1950s e.g. Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956. In this manner the right of the female to take property as security instead of limited estate in the property was gradually removed culminating in Section 14 of the Hindu Succession Act, 1956. (See Mulla Principles of Hindu Law, 21st Edition, Pages 16 to 88 and Pages 1076 to 1077) Post-independent India has witnessed legislations where the disparity and the gender bias to a large extent was removed. Late Jogendra Chandra Ghose an eminent pleader in his book The Law of Hindu Endowments and Religious Institution, Tagore Law Lecture, 1904 by referring to the decision of the Privy Council said that widows and daughters should be allowed to make valid alienation with the consent of reversioners irrespective of the question of necessity. So far as making endowments for religious and 8 charitable purposes are concerned to deny such power to the widow and the daughter, jointly with the reversioners, seems unreasonable. The learned Author refers to the Smriti Chandrika which on the authority of Vrihaspati says that the wife has a right to the husband's property of a dependent character, which becomes independent ownership on his death and she can, therefore, perform religious and charitable works, like digging of tanks, not only for the spiritual benefit of her husband but also of her own self. It refers to the observation of the Privy Council which says that a widow has to lead the life of ascetic privation and hence the law gives her a power of disposition for religious or charitable purposes, which is denied to her for other purposes. In dealing with the nature of office of the shebait at page 301, the learned Author said that the shebait is strictly a trustee for carrying on the worship of a deity. Literally, the word means a person in whom the service of a deity is vested. Sheba means service. Shebait means an officer to whom the service of a deity and the management of his property are vested. There are no doubt certain features which distinguish the position of a shebait from that of an ordinary trustee. But there is an essential similarity. A Hindu, however, superstitious knows that the land is to be held in reality by the shebait in trust for the worship of the deity. It will serve no good purpose to base rules of law on fictitious ideas. But inasmuch as very frequently the Shebait 9 or Mohunt has a personal interest, that is, can spend and does spend a large portion of the profits for his own pleasure he cannot be considered strictly a trustee. But when there is a bare trust carrying no beneficial and heritable interest he may be considered as a trustee but not a trustee for a specific purpose, as the purpose very often has no specific character. The simple rule is that the shebait is an ordinary trustee for the purpose of keeping up worship for all time. The law recognizes such a trust and makes the rule of perpetuities inapplicable to it, so far as it is necessary for giving effect to the trust. The Privy Council in Ramanathan Chetty Vs. Muragappa Chetty reported at ILR 29 Mad 288 have rightly laid down that both in respect to public and private religious endowments, the Shebait, Mohunt or, Manager "is by virtue of his office the administrator of the property" but "as regards the service of a temple and the duties that appertain to it, is rather in the position of a holder of an office or dignity and "as regards the property is in the position of a trustee." (J.C. Ghose on The Law of Hindu Endowments and Religious Institutions, 2nd Edition, Pages 301,302) In this connection, reference was made to the recent pronouncement of this Court in Thakurani Shree Shree Durga Mata New Trust Vs. Sibani Dutta reported at 2014 (2) CLJ 112 where the settler in the deed of settlement held that shebait to be appointed only from the male lineal descendents and those clauses 10 have been struck down. The court has long ceased to recognize that the rights of woman are not at par with the rights of male as succession or performance of any religious obligation. Females have been given full freedom in exercise of such right at par with male and gender bias has been eroded by judicial decision. The right of a female to be a shebait as has been noticed earlier is now well-recognized. In this modern world when we speak about gender justice the vice of inequality and discrimination should go and the time has come to recognize the right of a female to participate in all matters and to give them their rightful place in the society. Initially, there were inhibitions and orthodox dogmatism negativing and disowning the right of a female either in respect of the property or any other matters concerning the right of a female in the society. India has seen pre-independence legislation concerning women's right to property and other significant legislations largely due to the social reforms initiated by social reformers and advent of Western Education which helped the nation to look back to its glorious past. The celebrated decisions of Privy Council in Tagore Vs. Tagore and the subsequent decisions recognize the females to act as shebait.
The office of shebait may be gifted or devised subject to the rules of Hindu law regarding the persons who may take and the estates that may be created by a deed or will.
11
The well-known Tagore case [(1872) IA Supp.47(PC)] laid down two separate principles: (1) that a person capable of taking under a Will should be such a person as would take a gift inter vivos and therefore must either in fact or in contemplation of law be in existence at the death of the testator, and (2) that all estates of inheritance created by gift or Will so far as they are inconsistent with the general law of inheritance are void.
In Gnanasambanda v. Velu [(1899) 27 IA 69 (PC)] it was held by the Privy Council that the second ruling in the Tagore case was applicable to a hereditary office and endowment as well as to other immoveable property. This decision was followed in Monohar Mukherji (supra) where it was held that (1) the founder of a Hindu debutter is competent to lay down rules to govern succession to the office of shebait, subject to the restriction that he cannot create any estate unknown or repugnant to Hindu law, (2) a person succeeding to to the shebaiti is a grantee or donee of property and his right to succeed to the office is subject to the rule that a gift cannot be made by a Hindu to a person not in existence at the time of the gift, and (3) rules for succession to the office of shebait may be rendered invalid where they provide for the office to be held by some among the heirs of the founder to the exclusion of others in a succession differing from the line of Hindu inheritance. In Ganesh Chunder v. Lal Behary; AIR 1936 PC 318, the Privy Council considered the law on the point well 12 settled and held on the construction of the clause in the will before them that (in so far as it related to the holding of the office of shebait), it constituted an invalid attempt on the part of the testator to law down a line of succession which was not permissible under Hindu law and consequently the succession to the office must go by the ordinary law of succession. All estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance, are void as such, and that by Hindu Law no person can succeed thereunder as heir to the estates described in the terms, which in English Law would designate estates tail and the rule is applicable to a hereditary office and endowment as well as to other immovable property.
In Anath Bandhu De Vs. Krishna Lal Das & Ors. reported at AIR 1979 Cal 168 a Division Bench of this Court held that prescribing a line of succession to the office of the shebait in tail male being opposed to Hindu Law would be void.
The views expressed the Full Bench in Monohar Mukherjee (supra) was approved by the Hon'ble Supreme Court in Angurbala Mullick Vs. Debabrata Mullick reported at AIR 1951 SC 293. In dealing with the nature and character of the office of a shebait Mujherjea, J. observed:-
"11. The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the 13 pronouncement of the Judicial Committee in Vidya Varuti v. Balusami [48 I.A. 302] that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not he correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta 14 High Court in Manohar Mukherji v. Bhupendra Nath Mukherji [I.L.R. 60 Cal. 452] and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary [63 I.A. 448] and again in Bhabatarini v. Ashalata [70 I.A. 57]. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law,"
observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee [16 I.A. 137]:
"when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution."
Unless, therefore, the founder has disposed of the shebaitship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder."
There have been two other decisions, namely, Kandarpa Mohan Gossain vs. Akhoy Chandra Bose & Anr. reported at AIR 1934 Cal 379 and Raikishori Dassi Vs. Official Trustee of West Bengal & Ors. reported at AIR 1960 Cal 325, holding as a matter of construction 15 that there was an invalid attempt to lay down a line of succession which is not permissible. (Commentary on Hindu Law by J.V. Gupta Volume I, AIR Publication, 4th Edn.) A suit in the nature of originating summons is a special suit which is almost akin to the power the Court exercises under Section 34 of the Indian Trust Act. It is a special summary jurisdiction conferred upon this Court under the Letters Patent. In a proceeding under Chapter 13 of the Original Side Rules, the Court is not deciding any right, title and interest of the parties and its jurisdiction is confined to the determination of the questions enumerated in clauses 1(a) to 1(g) thereof. The present plaintiff is the son of Mira Chakraborty. In this proceeding, I feel that it would not be proper for this Court, having regard to the orders in the City Civil Court, to adjudicate the right, title and interest of any of the parties, although under Clause 1(a) the Court may determine any question affecting the rights or interests of the person claiming to be a legatee, heir or legal representative or beneficiary.
I, accordingly, answer the questions raised in the originating summons as follows:-
The question No. A is answered in the affirmative.
The question No. B is answered in the negative.
The rest of the questions are not answered in view of the objections raised by Mr. Kar which, I find, has some substance.16
This order, however, shall not be construed to mean that the right of Sisir, if any, with regard to the office of sebait is decided.
This originating summons, accordingly, disposed of. There shall be no order as to costs.
Urgent certified photocopy of this judgment, if applied for, be given to the parties on usual undertaking.
( SOUMEN SEN, J. ) S. Kumar A.R.(CR)