Calcutta High Court
Satya Charan Chaunder & Ors. vs Sm. Kamala Dey & Ors. on 19 May, 2000
Equivalent citations: (2000)3CALLT539(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. The plaintiffs are the appellants. They filed a suit for administration and partition claiming inter alia, the following reliefs;
(a) Administration of the Trust Estate created by the Registered indenture dated 18th April, 1934 as mentioned in the plaint:
(b) Scheme be framed for carrying out the objects and purposes of the said Trust and proper management of the Trust estate including the turn of worship of the plaintiff deities to be performed by the shebaits under the said indenture dated April 28, 1934:
(c) Accounts be taken of the debts and/or liabilities of the said Narayani Dassi deceased to the said Trust Estate and decree for such sum as may be found due thereupon in favour of such the parties herein as may be entitled to;
(d) Perpetual injunction restraining the defendants Nos. 1 to 7 and each of them, their servants agents and/or assigns from realising rents, issues and profits from the premises No. 224, Cornwallis Street, Calcutta now know as 224, Bidhan Sarani, Calcutta or any portion thereof;
(e) A declaration if necessary that the defendants No.9 to 16 are not the shebaits of the plaintiff deities and the plaintiffs Nos. 1 to 5 are the only shebaits of the plaintiffs Nos. 1 to 5 are the only shebaits of the plaintiffs deities representing the branch of Girindra Nath Chunder;
(f) Determination of shebaits representating the branch of Sm. Narayani Dassi and/or her husband;
(g) A declaration that none of the defendants has any right of residence at the said premises No. 224, Cornwallis Street, Calcutta at present No. 224. Bidhan Sarani, Calcutta."
The fact of the matter is as follows;
2. By agreement in writing dated 4th and 6th June, 1925 Brojonath Chunder and Girindra Nath Chunder, sons of Gopinath Chunder, agreed to settle in trust for and/or dedicate to the Thakurs Sree Sree Gopinath and Karunamoy Mahadeb (which deities have been added as plaintiff Nos. 6 and 7), various immovable properties including premises No. 224, Cornwallis Street. Brojonath Chunder died on 24th September, 1925 without any male issue leaving behind a widow, Smt. Narayani Dassi as his sole heir.
3. A suit was instituted in this Court by Girindra Nath Chunder which was marked as Suit No. 2182 of 1932 against the aforementioned Smt. Narayani Dassi, inter alia, for declaration that the various properties mentioned in the aforementioned agreements stood dedicated to the Sheba and worship of the plaintiff deities as also specific performance there of by Smt. Narayani Dassi. The suit was compromised. The terms of the said compromise have been stated in paragraph 5 of the plaint
4. Pursuant to or fn furtherance of the said compromise a deed was executed on 28th April. 1934 stating:
"1. In pursuance of the said agreement and in consideration of the premises and for diverse other good considerations they the said Sm. Narayani Dassi as the sole widow and heiress of the said Brojonath Chunder and the said Girindra Nath Chunder do and each of them do thereby grant transfer give away dedicated unto and to the use and service of the said Thakurs Sree Sree Gopinath and Karunamoy Mahadeb All and Singular all those measuages land hereditaments and premises described in the said Schedule her to which are estimated to be of the aggregate approxmate value of Rs.1,83, 150/- for the purpose of stamp duly payable on these presents). To the End and intent that the whole of the nett rents issues profits and income of all the said several hereditaments and premises described in the said Schedule hereto after deducting therefrom all outgoings payable inrespect thereof and the costs of repairs and collection charges shall be used and applied in meeting the expenses at;
(i) The daily puja of the said Thakurs Sri Sri Gopinath and Karunamoy Mahadeb;
(ii) The annual Durga Puja;
2. The official Trustee of Bengal shall hold all the said several messuages lands hereditaments and premises described in the said schedule hereto together with their appurtenances (hereinafter referred to as "the Debuttar properties") upon the Trusts and for the purposes herein contained and expressed that is to say;
(i) The said Thakurs Sri Gopinath and Karunamoy Mahadeb shall be housed and located in the portion of the said messuage and premises No. 224, Cornwallis Street wherein they are now housed and located and the celebration of the Durga Puja and other Pujas and festivals will take place in the Puja dalan and in the Court Yard infront thereof and the remaining portion of the said messuage and premises shall be used for the residence of the shebaits and other respective families;
(ii) .....
(iii) The official Trustee shall manage and let out the Debutter properties except the said premises No. 224 Cornwallis Street and relise the rents profits and income thereof and may accept surrenders from and make allowances to any arrangements with tenants and others and do all such things as to him may seem expedient for the due management of the said Debutter properties and after deducting and paying all rates taxes assessments impositions expenses of management insurance his commision and other outgoings.
(a) shall accumulate one fifth part of share of the nett rents and profits of the said debutter properties for maintaining a reserve fund. He will invest the said one-fifth part or share of the nett rents and profits in Government securities and after the reserve fund reaches the sum of Rs.25,000/- (Twenty five thousand) only the interest on the said sum of Rs.25,000/-(Twenty five thousand) only shall be paid to the shebait for the time being of the said Thakurs hereinafter mentioned when the said Reserve Fund shall reach Rupees one lakh the Official Trustee shall not accumulate such one-fifth part or share of the nett rents and profits but shall also pay the same to the paladar Shebait for the time being and shall hold the said sum of Rupees one lakh and the growing interest thereon as reserve, and
(b).....
(iv) The Official Trustee shall pay the said 4/5th share of the said nett rents profits and income hereinbefore directed to be paid to the shebaits by monthly payments on or before the 20th day of each and every Bengali month to which the said payment shall relate to the said Srimati Narayani Dassi and the heirs of the said Brojonath Chunder or the said Girindra Nath Chunder and his heirs as the case may be during their respective pal as or turns of worship of te said Thakurs as hereinbefore set out.
3. The said Grindra Nath Chunder and his heirs and the said Smt. Narayani Dassi and the heirs of her husband the said Brojo Nath .Chunder deceased shall be the shebaits of the said Thakurs and shall perform and celebrate the said Pujas, festivals, religious ceremonies worship and charities hereinbefore mentioned by palas or turn of worship each of two years' duration each except as hereinafter mentioned. The first pala or turn of worship shall devolve on the said Smt. Narayani Dassi for the period of one year and eleven months commencing from 1st Pous 1340 B.S. and the said Girindranath Chunder will have his turn of worship for two years to be computed from 1st day of Agrahayan 1342 B.S. upto and including the last day of Kartick 1344 B.S. and so on."
5. In view of the terms of the afermentioned deed of trust the administration of the trust property vested in the official trustee. The official trustee sold two items of properties. Allegedly, Narayani Dassi during her life time wrongful! let out different portion of properties described in Lot-13 of the plaint and defendants Nos.1 to 7 Jointly and/or severally realised the rents, issues and profits from the tenants or the occupiers to the total execution of defendant No. 8 adn allegedly misappropriate the same to her own use. The official trustee, therefore, filed a suit which was marked as .Suit No. 875 of 1961 against the said Smt Narayani Dassi, for a decree for a sum of Rs. 79.200/- as also for decrees of grant of permanent injunction and mandatory injunction.
6. The plaintiff contends that Sm. Narayani Dassi died on 26th March, 1976 and after her death her heirs who were her daughters did not inherite her estate of Shebaitship having already been married. It was, how-ever, conceded that the son of the deceased daughter can be a shebait. The relationship between the parties would appear from the following genealogical table :--
Late Brajo Nath Chunde- Part-I | (Died in 1925) Late (Smt. Narayani Dassi) (Died in 1976) Window of Late Brajo Nath Chunder |
----------------------------------------------------------------------------
| |
Married Daughter Married Daughter
Late Lajyabati Dey Sm.Lilabati Mullick
(Died in 1989) (Died in 1968.)
| |
----------------------------------------------- |
| | | | |
Late Gour Smt. Rebati Sil Sri Balai Smt. Padma Dey |
Charan Dey (Son) (Married Daughter) Ch. Dey (Son) (Married daughter) |
(Died in 1956) Died 1998 Def. 1-B Def. 1-D |
| Def. 1 C |
Sm. Kamala Dey ------------------------------------------------------------------
Window of Late | | | | | |
Gour Chandra Sk. Biswanath Kedar Nath Sibnath Sm. Sankari Sm. Kalyani Late Apsara Mullick
Dey (No Issue) Mallick (Son) Mullick (son) Mullick Das (Married Dhar (Married Married daughter) Def. - 1A (Died) Died (son) Daughter daughter Died Def.-2 Def.3 Def.4 Def.5 Def.7 |
---------------------------------------
| | |
Sri Pradip Mullick Sri Manindra Mallick Smt. Arati Dhar
(Son). died. def. 6A (Son). Def. 6B (Married daughter)
Def. 6C
LATE GIRINDRA NATH CHUNDER-PART-II
DIED IN 1962
|
--------------------------------------------------------------------------------------------
| | | | | | | | |
Satya Ch. Biswanath Kashinath Madhusudan Sankarnath Adwitnath Late Mayarani Late Gourl |
Chunder Chunder Chunder Chunder Chunder Chunder (Married Boral |
(Son) (Son) (Son) (Son) (Son) (Son) Daughter (Married Daughter |
Plff. 1 Plff. 2 Def. 16 Plff. 3 Plff. 4 Plff. 5 Died Died) |
| | |
---------------------------- | |
| | | | |
Janannath Balaram Mullick Sm. Subadhara Dutta | |
Mullick (Son (Son) Married daughter | |
Def. 13 Def. 14 Def. 15 | |
------------------------------------------------------------------ |
| ---------------------------------------------------
| | | |
| Sm. Dirga Aiddu Sm. Uma Dutta Sm. Parbati S?
| (Married Daughter) (Married daughter) (Married Daughter)
| Def. 10 Def. 11 Def. 12
----------------------------------------------------------
| | | |
Ajit Boral Asit Boral Parul Chunder Late Moni Boral
(Son) (Son) (Married daughter) (Unmarried daughter) died
Def. 9A Def. 9B Def. 9D Def. 9C
7. The defendants respondents in their written statement, however. contended that the limited estate of Sin. Narayai Dassi became her absolute property in terms of section 14(1) of the Hindu Succession Act, and, thus her daughters as also sons of the pre-deceased daughter would be her heirs in terms of the provision of the Hindu Succession Act.
8. The learned trial Judge in view of the rival contention framed the following issues;
"1. Are the defendant Nos. 1 to 7 or any of them entitled to claim shebaitship of plaintiff deities?
2. Is the Trust created by registered indenture of Trust dated 28th April, 1934 binding upon the defendants?
3. Can the portions being Lot 'A' and 'B' of premises No. 224, Cornwallis Street, Calcutta be used other than residential purpose of shebaits and their respective families?
4. Are the defendant Nos. 1A to 7 liable to render accounts Jointly and severally of all realisations made by Narayani Dassi from the debutter or trust properties and by the defendant Nos. 1 to 7 since the death of Narayani Dassi as alleged by the plaintiffs in paragraph 22 of the Plaint?
The learned trial Judge in his Judgment, infer al(a, took note of the concession made on behalf of the plaintiffs to the effect that defendant No. 16 is to be recognised as one of the Shebaits of the family group of Girindra Chunder as also defendant No. IB, Balal Charan Dey, the only surviving son of Lajyabati Dey.
9. Upon taking into consideration the terms of settlement as also the conduct of the parties, it was held that the limited right of Narayani Dassi in respect of the immoveable property has become her absolute property. It was further held that as Narayani Dassi became absolute owner in respect of the property, she had the requisite right to induct tenant. It was directed:
"The conduct of the Official Trustees in the present circumstances I find was less than honourable. In its written-settlement, the Official Trustee has identified itself with the parties and has purported to make comments quite unwarranted against the parties, as though the Official Trustee had an axe to grind. The defendants Nos. 1 to 7 have alleged that in terms of the Trust, the Official-Trustee has not paid inspite of demands either to Narayani Dassi or to them, since her death, any money towards their share of the income of the Debutter estate. The plaintiff No. 4 in his evidence in Court has stated that he did now know whether the Official-Trustee made any payment to the defendants Nos. 1 to 7 though admitted payment of large sums of money to his branch of the shebaits. At no point of time was the Official-Trustee represented before this Court during the hearing of the suit, though hearing of the suit continued for a few days. For those reasons, I direct that the Official Trustee shall pay costs of a sum of Rs. 10,000.00 Such costs will be paid in equal shares by the person occupying the post of Official-Trustee at present and the person who had affirmed the written-statement when he had occupied the post, out of their respective personal funds, and such costs shall be deposited in the funds of the Debutter-estate.
I, therefore, hold, that the defendant No. 16 a shebait in the family branch of Girindra Nath and shall be entitled to exercise and enjoy all the rights and benefits as has been conferred on shcbalts in the Trust. I further hold that the defendants Nos. 1 to 7 are in lawful possession of the 'Lot B' in premises No. 224, Bidhan Sarani, Calcutta, and they are not bound in law to render accounts as prayed for by the plaintiffs No. 1 to 5. The defendants Nos. 1 to 7 and the defendant No. 16 with full and upto date accounts of investments made, expenditures incurred, and payments made to the shebaits by the Official Trustee and specify in such accounts the exact funds lying in the hands of the Official Trustee. The Official Trustee is further directed to disburse among the plaintiffs Nos.1 to 5, defendant No. 16 and the defendants Nos. 1 to 7 such payment as the shebaits are entitled to receive in accordance with the provisions contained in the Trust including arrears, which may be found to be due and payable to the shebaits upon rendering of accounts by the Official-Trustee as directed earlier. The shebaits shall be entitled to and the Official-Trustee shall allow inspection of Accounts, henceforth, at such time and date to be fixed mutually. The Official Trustee shall not embark on any work in relation to the administration of the Trust which would involve expenditure of a sum exceeding Rs.10,000.00 without the prior permission of the Court. The defendants No. 1 to 7 shall be entitled to and carry out sheba puja in accordance with the provisions contained in the Trust and the plaintiffs Nos. 1 to 5 shall continue also in accordance with those provisions. The Official Trustee shall insure that the shebaits are afforded every facility to carry out sheba puja, religious ceremonies and other pujas as envisaged in the Trust. It is made clear that neither the shebaits nor the Official Trustee shall deal with dispose of or encumber any of the Trust properties in any manner without obtaining appropriate direction from the Court, upon notice to all other parties concerned."
10. The Official Trustee did not prefer any appeal against the said Judgment and decree.
11. Mr. Sarkar, the learned counsel appearing on behalf of the appellant, inter alia, submitted that the learned trial Judge erred in holding that Narayani Dassi had become the absolute owner of the property. According to the learned counsel, the trust deed having specified that on Narayani Dassi's death, the heirs of Brojonath would inheritate the property, the succession shall open for the purpose of determination as to who would be the heirs of her husband in the year 1925 when he died. In support of the said contention strong reliance has been placed on B.K. Mukherjee's Hindu Religions & Charitable Trust, paragraph 5.12 at page 210 which reads thus;
"Heirs of founder succeed after the death of a shebait for life. How to ascertain the heirs of the founder at that time?--A difficulty arises sometimes regarding the method of ascertaining as to who the heirs of the founder are; ordinarily the expression 'heirs of the founder' would mean those persons who would be the nearest heirs of the founder if he had died at the moment when the question of succession to shebaitship arose. If this method is applied, the position would be that a shebait appointed for his life time would be deemed to hold his office in the same way as a Hindu widow holds her husband's estate. No other person would have anything like a remainderman's interest so tong as the shebait is alive, and the next shebait would be the nearest heir of the founder existing at the date of his death."
12. However, the said view was founded upon a decision of this Court in Kunjamoni Dasi v. Ntkunja Behart Das, reported in 22 CLJ 404, wherein Asutosh Mukherjee. J. held;--
"We are of opinion that this contention is unsound and that the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life estate, as expounded by their Lordships of the Judicial Committee in Rewan Pershad v. Radha Beeby (4 M1A 137) has no application to cases of the description now before us. No doubt a shebait holds his office for life......but this does not signify that he has a life interest in the office with the remainder presently vested in the next taker. The entire office is vested in him.......The position of a shebait is analogous to that of a Hindu female......in possession of the estate of the last full owner, rather than to the holder of a life estate."
13. As it appears from paragraph 5.13 of the said treatise that part of the judgments was doubted by B.K. Mukherjee, J. in Bhabatarini v. Ashalata 'ILR (1943)2 Cal. 137) and it was finally upset by the Judicial Committee in the appeal taken to it against the judgment of the High Court in that case.
14. In Bhabatarini v. Ashalata reported in Law Reports 70 IA 57, the law has succinctly been stated thus;
"It must be taken to be settled by the decision of the Privy Council that when the founder makes only a limited grant of shebaitship, the residue still remains in him and his heirs as an estate of inheritance. When the limited shebaitship ends, the next shebait would be the person in whom this residuary estate of the founder was vested at the date of the termination of the limited shebaitship."
15. It is therefore, clear that succession would open on Narayani's death. However, this aspect of the matter shall be elaborately discussed at a later stage.
16. Mr. Sarkar would contend that a married daughter cannot be shebaits and in support thereof reliance has been place on Sri Sankareswar Mahadeb DC & Ors. v. Bhagabati Dibya, reported in AIR 1949 Patna 193. Alternatively, it was submitted that the defendants having not exercised their right for a tong time, they have waived their rights shebaitship and in support of the said contention reliance has been placed on Bhuban Mohan Koley v. Narendra Nath Konwar, reported in 35 CWN 478. In any event, contends Mr. Sarkar that section 14 of the Hindu Succession Act will have no application in the instant case. Reliance has been placed on Kothi Salyanaryana v. Galla Sithayya & Ors.. .
17. Mr. Ghosh, learned counsel appearing on behalf of the respondents, on the other hand, submitted that Smt. Narayani Dassi herself had dedicated the property which, at the relevant point of time, was her limited estate and, thus, the said limited estate would fructify into an absolute estate in terms of section 14(1) of the Hindu Succession Act. The learned counsel alternatively submits that in any event succession opened only upon the death of Narayani Dassi her date of death in material with a view to find out as to who were her reverstoners. Reliance in this connection has been placed on Moniram Kolita v. Kerry Kolitany, reported in (1880) L.R. 7 I.A. 115, Mayne's Hindu Law. 12th Edition, paragraph 674 at page 866, Lala Dunl Chand & Ors., v. Musammat Amar Kal( & Ors., reported in L.R 73 LA. 187 and Kalishankar Das & Ors. Anr. v. Dhirendra Nath & Ors., . As regards right of shebaitship the learned cousel had drawn this Court's attention to B. Mukherjee's Hindu Religious and Charitable Trust, 5th Edition, page 220, As regard the allegation relating to letting out of a portion of the property it was submitted that Narayani Dassi did not receive any amount from the official trustee whereas sumsof Rs. 15.00O/- Rs. 16,000/- and Rs. 20.000/- per year had been paid to the plaintiffs. It was urged that no accountant has been submitted by the official trustee. The learned counsel placed strong reliance upon a decision of this Court in Monohar Mukherjee v. Bhupendra Nath Mukherjee, reported in AIR 1932 Cal. 791. The learned counsel also has drawn our attention to the provision of section 7 of the Official Trust Act. Mr. Ghosh would submit that keeping in view the stand taken by the plain tiff-appellant herein that the defendants were not entitled to shebaitship, the question of waiver of the said interest does not arise.
18. Ms. Debjani Sengupta, the learned counsel appearing on behalf of the official trustee, submitted that two properties had to be sold with a view to meet the costs of seba puja. It has been submitted that the certain amount had been paid to the plaintiffs for doing pala puja by them as after the death of Narayani Dassi, her heirs and legal representatives refused to perform 'pala puja' and as such question of making any payment for that purose did not arise. Ms. Sengupta submitted that Municipal Tax payable in respect of the properties was Rs. 19,802/- per quarter but now supplementary tax has also been levied there upon.
19. In view of the rival contentions of the parties, the following questions arises for consideration in this appeal;
1. Whether the daughter of Narayani Dassi and/or her grand daughters could inherited the property of Narayani Dassi?
2. Whether Narayani Dassi could let out any part of the premises situated at 224, Cornwall is Street, Calcutta?
3. Whether the defendants-respondents and/or official trustee are bound to render accounts?
20. Re. Question No.1.
As the genealogical table is not disputed, the questions which would arise for consideration under this head would be; (1) whether section 14(1) of the Hindu Succession Act, 1956 will have any application in the instant case, and (2) whether for the purpose of determining the heirs and legal representatives, succession would open in 1925 when Brojonath Chunder died or in 1976 when Narayani Dassi died?
21. Shebaitship is a property which can be inherited. In Shambhu Charan Shukla v. Shri Thakur Ladli Radha Chandra Madart Gopalji Maharaj & Anr., . the apex Court following its earlier decisions in Angurbala Mullick v. Debabrata Mullick' , Profulla Choroni Requittee v. Satya Choronl Requittee, and flam Rattan v. Bajrang Lal, and held;
"The next of Hindu Law and the aforesaid two decisions of this Court and the earlier decisions of this Court and the earlier decision in Angurbala Mullick's case (supra) show that shebaitship is in the nature of immovable property heritable by the widow of the last male holder unless there is an usage or custom of a different nature in cases where the founder has not disposed of the shebaiti right in the endowment created by him."
22. Sabyasachi Mukherji, J. (As His Lordship then was) concurring with the aforementioned view in his separate judgment held;
"In my opinion it is well settled by the authorities that shebaitship is property which is heritable. The devolution of the office of Shebait depends on the terms of the deed or the will or on the endowment of the act by which the deity was installed and property consecrated or given to the deity, where there is no provision in the endowment or in the deed or will made by the founder as to the succession or where the mode of succession in the deed or the will or endowment comes to an end, the title to the property or to the management and control of the property as the case may be, follows the ordinary rules of inheritance according to Hindu Law."
23. When Narayani Dassi executed the aforementioned deed dated 28.4.1934 she did so as a limited owner. Her right to act as shebait as also the persons who would succeed to the said estate after her death. is. thus, specified in the deed. She, thus, being a limited owner, by reason of the aforementioned deed or otherwise, will become the absolute owner in terms of section 14(1) of the Hindu Succession Act as she was possessed of the properties. Section 14 of the Hindu Succession Act reads thus;
"Section 14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section [1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
24. Even if she had inherited the shebaitship, she would have done so as a limited owner but in the instant case, she has herself executed the deed and taken the shebaitship in terms thereof, thus, in the instant case section 14(1) of the Hindu Succession Act will apply.
25. However, there cannot be any doubt whatsoever that upon her death, the succession shall open in 1976 and not in 1925.
26. In Moniram Kolita v. Kery Lolitany, reported in 7 Indian Appeals 115 at 154, Sir Barnes Peacock, J. held;
"According to the Hindu Law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship as to which see the Shivagunga case (1) does not take a mere life estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest. Her estate is an anomalous one, and has been compared to that of a tenant in tall. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that until the termination if it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband (2). The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death (3)."
27. In Mayne's Hindu Law, the law has been stated in the following terms;
"With the exception hereafter mentioned, a woman who succeeds as heir, whether to a male or to a female, has not complete dominion over the property inherited by her, so as to be able to alienate it otherwise than in case of necessity. She does not become a fresh stock of descent, and on her death it passes to the then heir of the last full owner, i.e. to the person who would have been the heir of the last full owner, if such full owner has died simultaneously with the limited owner."
28. In Lola Duni Chand & Ors. v, Musammat Anar Kali & Ors., reported in Law Reports 73 Indian Appeals 187, it has been held that under the Hindu Law the death of the female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her life time, however, the reversionary right is a more possibility or spes successions.
29. Thus, the question as to who would succeed to estate of Brojonath Chunder is neither in doubt nor in dispute as in the year 1976 Hindu Succession Act having come into force, all persons who were heirs of Brojonath Chunder would become the shebaits.
30. In terms of Dayabhaga Hindu Law, the sapindas succeeds in the following manner;
"Widow, daughters, in absence of any son and grand son, mother, paternal grand mother, paternal grand uncle, brother's daughter's son."
31. However, it will not be correct to say that shebaits had become the absolute owner of the properties and, thus, they had a right to alienate the same. In terms of the aforementioned deed of trust dated 28.4.1934 the idols or the deities became the owner of the property. Idols or deities being a juristic person can hold properties and in that view of the matter the right of shebaitship having been created under the deed, the same can be hedged by conditions. Although the right of shebaitship is heritable, all appendages thereof must be allowed to have full application. In terms of deed of trust, the premises No. 224, Cornwallis Street, where the idols were situated, Narayani Dassi or for that matter any other persons including the official trustee could not have alienated the property. The submission of Mr. Ghosh to the effect that induction of tanant would not amount to transfer of property cannot be accepted as in view of the provisions of Transfer of Property Act, lease is also a transfer albeit not an absolute one.
32. In Kalishankar Dos and Anr. v. Dhirendra Nath & Ors., , the law is stated in the following terms;
"The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stronger who has 'bona fide' purchased the property for good consideration after making due enquiries and on proper legal advice and he cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity.
In our opinion ther contention formulated in this form really involves a misconception of the legal position of an alienee of a Hindu widow's property. The interest of a Hindu widow in the properties inherited by her bears no analogy or able estate in English law and which cannot be followed in the hands of a 'bona fide' purchaser for value without notice. From very early limes the Hindu widow's estate has been described as quail lied proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate: vide "Collector of Masulipatam v. Cavaly Vencata', 8 Moors' Ind. App. 529 (PC) (D). For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal necessity, the transferee gets only the widow's estate which is not even an idefeasible life estate for it can come to an end not merely on her death but on the happening of other contigencies like re-marriage, adoption, etc. If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself. Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making "bona fide' enquiries satisfied himself as best as he could that such necessity existed, then as the Privy Council pointed out in 'Hunooma Pershad v. Aft. Babooee Mundraj", 6 Moor Ind App 393 (PC) (E), the actual existence of a legal necessity is not a condition precedent to the validity of the sale.
The position therefore, is that if there is no necessity in fact or if the alienee could not prove that he made 'bona fide' enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widow's estate in the property which does not affect in any way the interest of the reversioner. In this case, the alienation was by way below is that there was no legal necessity which Justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by 'bona fide' enquiries that such necessity did exist.
On this point the finding recorded by the High Court is as follows:
"In the present case there is no scope for an arguement that there was such representation of legal necessity or that on 'bona fide' enquiry the alienee satisfie herself that there was such a necessity, for as I have already pointed out the security bond itself states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini, that the bond was being executed. There is no representation on in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity. Whatever enquiries the appellants may have made would be of no avail to them when the alienation is not binding on the whole estate but only on the woman's estate of Rashmoni".
In our opinion, the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widow's estate of Rashmoni and it was that interest atone which passed to the purchaser at the mortgage sale. The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he 'bonafide' paid the purchase money or took proper legal advice. The result is that in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs."
33. For the aforementioned reasons, the questions must be answered in favour of Respondents and against the Appellants.
34. Re. Question No. 2.
It, in our opinion, is not correct to contend that when the family is governed by Dayabhaga School of Hindu Law, married daughters cannot be shebaits. Shebaitship as noticed hereinbefore, being a right of property which is heritable, the provision of Hindu Succession Act, will apply.
Section 8 of the Hindu Succession Act reads thus;
"Section 8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :--
(a) Firstly upon the heirs, being the relatives specified in class I of the schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in Class II of the Schedule:
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
35. Sri Sankareswar v. Bhagabati, reported in AIR 1949 Patna 193, in our opinion, cannot be said to have any application in the instant case and in any event, cannot be said to be a good law after the coming into force of the Hindu Succession Act, 1956.
36. In B.K. Mukherjee's Hindu Law of Religious & Charitable Trusts, 5th Edn. paragraph 5.22, page 220, it is stated that succession to shebaitship is governed by the ordinary law of inheritance. Reference in this connection may also be made to Angurbala v. Debabrata, wherein it has been held that shebaitship is a property within the meaning of the Hindu Women's right to Property Act
37. In view of the aforementioned proposition of law there cannot be any doubt whatsoever that daughters and daughter's daughter of Narayani Dassi would also inherite the right of shebaitship.
38. It is true that in the evidence the plaintiffs witness stated:
Q, How many properties were given to the Trust under this Deed?
A. Seven properties were given to the Trust, Q. From the Official Trustee how much are you getting in your turn?
A. Sometimes were are getting Rs. 15.000/-. Sometimes Rs. 16.000/-and previously we got Rs. 20.000/- per year also.
Q. Why was the property sold?
A. I do not know who official trustees sold it.
Q. Can you contradiction that since 1942 nothing has been paid to Narayani Dassi for her turn in pala as shebaitship?
A. I have no knowledge.
39. But the said evidence has no reliance as shebaitship if any, also cannot alter the right of the parties in view of the embargo specified in the trust deed.
40. In Monohar Mukherjee v. Bhupendra Nath Mukherjee & Ors., reported in AIR 1932 Cal. 791, it is stated:
"With the utmost respect I venture to think that the distinction is unauthorized and I also confess that I do not follow what the last portion of the observation quoted above exactly means. In the case of Sripati Chatterjee v. Khudiram Chandra (4), Chakrabortry and Greaves, JJ. concurring, expressed the view that the shebait has no right to the property but is merely an officer with the rights and limitation applicable to the guardian of a minor and that the rule in Tagore's case (2) does not apply to the appointment of shebait of a family Thakur. The learned Judge was to a considerable extent pressed by a text which he referred to in support of the proposition that a gift to a Thakur cannot be misappropriated. In Colebrooke's Digest Vol. 2 Ch. 4, section 2, Article 1-37 the text appears thus :
"But he who seizes the subsistence of priests, whether given by himself or by another, is born of a reptile in order for fifty thousand years."
Colebrooke's comment on it is as follows :
'It is shown by texts cited in the Ekadasitatwa (38 and 39) that a man seizing holy property is guilty of crime equal to the murder of a priest; and seizing the property of a kshatriya and the rest he is guilty of a crime equal to the murder of a soldier and so forth.' The text in my Judgment has no application to the case of a shebait who falls not to perform the duties attached to his office but who after performing the worship of the deity with gifts made in his favour takes such temporal benefits out of them as is not forbidden by law but is sanctioned by usage or custom. The text as already stated, was referred to in the case of Kesnanund v. Nursing(4), As observed by the Judicial Committee in the case of Vidya Varuthi v. Balusami(14), there are two systems of law in force in India, both self-contained and both wholly independent of each other and wholly independent of foreign and outside legal conceptions and it would be a serious inroad into their rights if the rules of Hindu and Mahomedan laws were to be construed with the light of legal conceptions borrowed from abroad, unless where they are absolutely, so to speak parl materia. The necessity of keeping a part the provisions of Hindu law as regard gifts has also been emphasized by the Judicial Committee in various other cases, amongst which may be referred Tegore v. Tagore (2) and also the case of the very debutter in Ferry Mohun v. Monohar(81). And in the case of Muhammad Rustam Ali v. Mushtag Hussain(87), Lord Buckmaster was very careful to point all that arguments based upon a supposed position that heads of religious endowments in that case a muttawali makes a strong appeal to those who are accustomed to administer the English law with regard to the trustees. The questions raised therefore have to be decided on notions of Hindu law."
41. Section 7 of the Official Trustee Act reads thus;
"7. General powers and duties of Official Trustee.--(1) Subject to, and in accordance with the provisions of this Act and the rules made thereunder, the Official Trustee may, if he thinks fit--
(a) act as an ordinary trustee;
(b) be appointed trustee by a Court of competent jurisdiction.
(2) Save as hereinafter expressly provided, the Official Trustee shall have the same powers, duties and liabilities and be entitled to the same rights and privileges and be subject to the same control and orders of the Court as any other trustee acting in the same capacity.
(3) The Official Trustee may decline, either absolutely or except on such conditions as he may impose, to accept any trust.
(4) The Official Trustee shall not accept any trust under any composition or shceme of arrangement for the benefit of creditors, nor of any estate known or believed by him to be insolvent.
(5) The Official Trustee shall not, save as provided by any rules made under this Act, accept any trust for a religious purpose or any trust which involves the management or carrying on of any business.
(6) The Official Trustee shall not administer the estate of a deceased person, unless he is expressly appointed sole executor of, and sole trustee-under, the will of such person.
(7) The Official Trustee shall always be sole trustee, and it shall not be lawful to appoint the Official Trustee to be trustee along with any other person."
42. The sebaits and the official trustee, thus, beeig trustees must fulfil their obligation in terms of the deed of trust
43. If by reason of deed of trust a trustee is prohibited from transferring the property, the same being an absolute one, hardship or any other ground would not confer any right upon the trustee to transfer a part of the endowed property. It will, therefore, be open to the official trustee to take such steps for recovery of possession as he may deem fit and proper. However, the argument of Mr. Sarkar to the effect that the defendants have waived their right cannot be accepted.
44. The decision in Bhuban Mohan Koley v. Narendra Nath Konwar, reported in 35 CWN 478 was rendered in a different fact situation. In the instant case, no plea of waiver has been raised. No issue to that effect had been framed. In any event, the plaintiffs--appellants' definite case being that the defendants are not entitled to shebaitship, question of waiver does not arise. The plaintiff in his evidence stated;
Q. So your evidence before My Lord has been that since the death of Narayani Dassi you have not permitted any of the heirs of Narayani Dassi to perform Seba Puja or act as Shebait?
A. After the death of Narayani Dassi we are continuing to perform the seba puja of the deity and they have not claimed anything of the sort. We are continuing to perform the seba puja since the last twenty years.
Q. Kindly see Clause 2 once again. Do you find it is mentioned specifically that 'Narayani Dassi and the heirs of her husband Brojonath Chunder'?
A. Yes.
45. In view of the aforementioned stand taken by the plaintiffs-appellants, we are of the opinion that question of waiver does not arise in the instant case.
46. The stand taken by the official trustee cannot also be appreciated. It is stated at the Bar that even the suit filed by the official trustee has been dismissed for default. The official trustee, in terms of the provision of the official Trustee Act, has statutory duties to perform. The Court, thus, must ensure that the official trustee and all concerned who are involved in management of the trust property must perform their respective duties. In this situation, we are of the opinion that both the official trustee and the defendants are bound la render accounts. They are directed accordingly.
As the said aspect of the matter had not been considered by the learned trial Judge that part of the suit should be remitted to the learned trial Judge for consideration of aforementioned contention and pass an appropriate decree on submission of account The learned trial Judge would also be at liberty, keeping in view the accounts which may be submitted by the parties, to issue such other direction /directions as he may deem fit and proper in the matter in exercise of his power conferred upon him under Order 7 Rule 7 of the Code of Civil Procedure apart from considering the prayers made by the plaintiffs in their plaint.
This appeal is allowed in part and to the extent mentioned hereinbefore. In the facts and circumstances of the case, the parties shall pay and bear their respective costs of the appeal.
M.H.S. Ansari. J.
47. I agree.
48. Appeal allowed in part