Orissa High Court
Biswanath Chowdhury And Ors. vs Shyam Sundar Chowdhury And After Him ... on 29 September, 1992
Equivalent citations: 1993(I)OLR249
JUDGMENT P.C. Misra, J.
1. Facts : Widow of one branch whose husband died in 1912 (prior to 1937 Act) executed a Sevasamarpanpatra in favour of 3 persons of other branches in respect of her share of properties and also properties belonging to the deity-After describing the facts and findings of Courts below, it is held :
The true notion of an undivided mitakshara family is that no individual member thereof can predict his share in the joint family properties while the family remains undivided as the shares of the cosharers are liable to fluctuation, depending upon the births and deaths of the family. Once the joint status is disrupted the share of the coparceners get defined, no matter whether actual division of the properties by metes and bounds is made pursuant thereto. Once the shares are defined either by agreement between the parties or otherwise the joint status gets severed. The parties may divide the properties by metes and bounds or they may continue to live together and enjoy the properties as before after the severance of status. Whether they divided the properties by metes and bounds or continued to enjoy the same jointly, it reflects only the mode of enjoyment, but the property thereafter ceases to be joint family property, and the parties so long as they do not divide the property by metes and bounds and remain in joint enjoyment they become tenants in common. No evidence has been adduced by the contesting defendants that after ascertainment of their individual shares, the corpus of the properties was divided by metes and bounds. Thus what the learned trial Court held was that there was a severance of joint status amongst the parties though there was no partition of the properties by metes and bounds. The said finding of the learned trial Court is hereby confirmed.
7. In the last settlement, the record of rights mentioned the share of Gouri to be 1/6th. That Gouri had 1 /6th share in the family properties has not been disputed by either of the parties. Even though Gouri could not be an absolute owner of the properties left behind by her husband, she could inherit her husband's share if her husband was separate from others, as his heir. Her husband is said to have died in the year 1912, and her husband's brother, in all probabilities was separate from her husband. He and his wife (Uma) both are said to have died in the year 1936. Thus even if Gouri was a pre-1937 widow, she could inherit the properties of her separated husband as his only surviving heir, though she would be a limited owner as commonly understood under the Hindu Law. Thus the argument that was advanced for the first time in this Court in the First Appeal that Gouri being a pre-1937 widow, the mere mention of share against her name in the record of rights would not clothe her with title cannot be accepted in the facts and circumstances of the case. It is true in law that the settlement entries by itself neither create nor extinguish title and in that sense it cannot be regarded as a document of title. But Courts attach importance to the entries in the record of rights and at times such entries taken to be the basis of title, in the absence of any title deed specially when the record of rights is allowed to stand for a pretty long time and has been acted upon by the parties who are adversely affected by such entries. In the present case neither of the parties has challenged the settlement entries made in respect of Gouri as incorrect. On the other hand, the Sevasamarpana Patra executed by Gouri has been relied upon by the contesting defendants by virtue of which they claim to be entitled to the share of Gouri. The plaintiffs did not challenge the Sevasamarpana Patra on the ground that Gouri had no interest at all in the family properties though the said document was challenged on various other grounds which we shall deal with later on. We would, therefore, proceed on the basis that Gouri had six annas interest in the family properties and worked out right of the parties after her death which occurred in the year 1949.
8. It cannot be said that the six annas interest which Gouri got in the family properties and stood recorded in the record of rights was an absolute-estate held by her. In other words. she had only limited interest called "widow's estate"and on her death the estate must go not to her heirs, but to the next heirs of her husband technically called "reversioners". The incidence of a "widow's estate" is well known and does not require any explanation. It may, however be noted that one of the incidents of limited ownership is that she had no power to dispose of the corpus of the properties barring some exceptions though she was entitled to appropriate the income therefrom. Some of the exceptions to uphold the alienation by a widow or a limited heir of the corpus of the immovable property inherited by her are (i) that the same was for legal necessity and (ii) that the alienation was necessitated for the benefit of the estate. In case of such alienation the corpus of the estate passes to the alienee who holds the property as a full owner. Unless the case comes under any of the exceptions, the alienation by a limited owner remains valid till her life-time and reverts back to the heirs of her husband on her death. This is so because the widow has a limited interest in the estate and an alienee from her cannot get better interest in the property than what her aliener possessed. Thus in order to trace out the line of successors, who inherited the property on her death, it is necessary to find out as to who were then the reversioners. This aspect of the matter has not been kept in view either by the consolidation authorities or by the Civil Court.
9. In this respect one more question is necessary to be considered. Gouri the limited owner executed a Savasamarpan Patra exhibited in the suit as Ext. B which is dated 12-2-1937. It purports to transfer her six annas interest in 36 items of property in favour of Shyam Sundar, S/o Baidyanath, Dasarathi, S/o Shaba and Damodar, S/o Bholanath. They are the contesting opp. parties in the consolidation proceedings. The validity of the deed of Sevasamarpana Patra has been seriously challenged by the learned counsel appearing for the petitioners in the writ applications and that was also the main question to be decided in the suit. At the outset it is worth mentioning that the deed of Sevasamarpana Patra will have no effect whatsoever with respect to the properties which does not belong to the deity Radhakanta Jew as it cannot be said to be a transfer under any of the modes recognised by the Transfer of Property Act.
10. In order to find out the effect of the deed of Sevasamarpana Patra (Ext-B) with respect to the properties of the deity Radhakanta Jew, it is necessary to analyse the right of a shebait in relation to the said properties. When a religious institution is founded, the founder becomes the shsbait of the deity and the shebaitship vests in him until the same is disposed of by any arrangement made by the founder by which a different mode of devolution of the said right is possible. If the shebaitship remains undisposed of, it is heritable like any other property and descends to his heirs and successors in due course. The right of appointing shebaits or directing a different mode of devolution of the shebaitship is limited to founder only and is not available to be exercised either by the shebaits or their successors.
11. The primary duty of a shebait is performance of services to the deity. But for doing so, he may be entitled to enjoy certain beneficial interest in the properties belonging to the deity. In respect of the properties of the deity, a shebait or a marfatdar is a trustee of the religious institution but unlike the English law, the properties belonging to the institution vests in the deity who is a jurisdic person and not on the marfatdar or shebait. In the conception of shebaitship both the elements of office and property and all duties to be performed by him and the personal interest which he is entitled to enjoy are mixed up and blended together. Neither of these elements can be detached from the other. Thus the properties of the deity in respect of which the shebait might be enjoying some beneficial interest cannot be dissociated from the duties he is required to perform and is, therefore, not alienable. The further reason is that the beneficial interest which the shebait enjoys in the properties of the deity is ancillary to and inseparable from his duties, the latter being primary and the former being secondary. Transfer of shebaitship would, therefore, amount to delegation of duties of the transferor which would not only be contrary to the express intention of the founder but also contravene the fundamental conception underlying the creation of the office. Thus generally speaking, shebait right is not alienable in law though it is heritable like any other properties. The sate of shebaitship being a transfer of an office for consideration is void ab initio.
12. There are, however, some exceptions to the aforesaid general rule. Where the transfer of shebait right is not for any pecuniary benefit and the transferee is the next heir of the transferor and suffers from no disqualification regarding the performance of duties attached to the office, Courts have upheld such transfer. Such transfer can be looked upon as a surrender in favour of the next heir and does not offend the presumed intention of the founder or the general policy of Hindu Law, This is so because a shebait like a trustee cannot delegate his duties to another person but he is not bound to accept his offfce or having once accepted is not found to hold it till his death. The renunciation of the office may be by way of transfer in favour of the next heir which, in other words, can be termed as accelerating the succession. Keeping these principles which are well established by several decisions and the Hindu Law in view, we may proceed to examine Ext.B, the Sevasamarpana Patra, and its effect so far as the deity's properties are concerned.
13. Out of 36 lots of properties covered by the deed of Sevasamarpana Patra, Plot Nos, 4, 9 10 and 31 stand recorded in the name of the deity represented through its marfatdars. In Ext.B Gouri Dibya describing herself as the shebait of the deity Radhakanta Jew has transferred her shebaiti right in favour of Dasarathi, Shyamsundar and Damodar also describing them as shebaits of the same deity. Though the interest purported to be conveyed thereunder has been valued at Rs. 1,000/- the document does not recite about payment of any consideration thereunder. The recital of the document is to the effect that the transferor having been old is unable to perform the sebapuja of the deity properly and transferred her interest she was enjoying as a shebait in the properties in favour of the transferees finding the latters to be devotees of the deity with a view to ensure due continuance and performance of the daily sebapuja and the festivals of the deity which the transferees had willingly accepted. Though the transferees are not the sole successors of the shebaiti right they are evidently persons who are capable of performing the duties attached to the office. In a decision reported in 30 (1964) C. L. T. 289 (Shri Biswanath Deb, represented by Shebait Marfatdar Dhuli Dikshit v. Bairagi Panda and Ors.) his Lordship quoting from the book "B.K. Mukherjee on the Hindu Law of Religious and Charitable Trusts" expressed the view that alienation of shebaiti right is void ab initio unless firstly, the transferee is not for any pecuniary benefit and the transferee is the next heir of transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties and secondly, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, they are actual potential shebaits of the deity or otherwise connected with the family. The scope of the second exception is limited in the sense that the custom sanctioning alienation of shebaiti right should be proved to be immemorial, reasonable end not opposed to public policy. There are, however, authorities who have taken the view that the alienation of shebaiti right for consideration amounts to traffic to religious office and, therefore, against the public policy and cannot be sustained even if several such instances are proved. Similarly there is some old Calcutta views in support of the doctrine that transfer of shebaiti right if made in the interest of the deity itself and to meet some pressing necessity, the same may be upheld, but they are doubtful authorities in view of the latter development of the law as discussed in the aforesaid treaties of the law of endowments by Justice B. K. Mukherjee. A Division Bench of this Court expressed similar view in the decision reported in 31 (1965) CLT 533 (Bairagi Das (defendant) v. Sri Dandas Mohapurs and Ors. (plaintiffs) Sri Uday Chandra Mahatab (defendant). The apex Court of the country in the decision reported in AIR 1974 SC 1932 (Kali Kinkor Ganguly v. Panna Banerjee and Ors.) also expressed the view that a deed of sale by co-shebait in favour of a stranger purporting to transfer her half share in the shebaiti right along with the temple and the properties attached thereto was held void and illegal, because neither the temple nor the deities nor the shebaiti right can be transferred for pecuniary consideration.
14. Mr. Mishra, appearing for the petitioners in the writ applications and for the appellants in the First Appeal contended that even if the deed of Sevasamarpana Patra (Ext.B) satisfies the requirements of the first exception it would still be invalid as the transfer surrender of shebaiti right in this case was not in favour of the entire body of co-sharer-shebaits, but in favour of a selected few which is not permissible in law. If the transfer of shebaiti right is looked upon as a surrender it would naturally devolve upon all the successors 3nd in that view of the matter, it would be beyond the authority of the persons surrendering such right to create a different mode of succession contrary to the rule of inheritance recognised by Hindu Law. His Lordship in the above noted case reported in 30 (1964) CLT-239 (supra) has approached the matter from another angle by saying that the shebaiti as trustee must act jointly and the office Vests on the shebaits collectively though some sort of division amongst the shebaits inter sejs permissible for doing sevapuja by turn which fs allowed only on the ground of convenience. In the eye of law, the shebaits remain one body, and the deity is represented by all of them acting together and no one shebait represents the idol in part or possesses any interest in fractional shares in respect of the idol's property. Thus, the ultimate conclusion is irresistible that Ext.B, the Sevasamarpana Patra, was incapable of conveying any title in favour of the transferees, so far as the shebaiti right of the transferor is concerned. It may, however, at best be looked upon as a permission by. Gouri for performance of her turn of sevapuja of the deity and enjoyment of her beneficial interest attached thereto till her life-time. Enjoyment of such right, therefore, came to an end on the death of Gouri in the year 1949 whereafter the heirs of her husband who were then the co-share shabaits of the deity became entitled to succeed to such interest.
15. The conclusion would also be the same had we decided that the Sevasamarpana Patra effected a valid conveyance. It is because shebaitship being a property it would, as already stated, devolve like any other property according to the ordinary Hindu Law of inheritance. Gouri did hold a limited right being a female, according to the law then in force and on her death it would have devolved upon the heirs of her husband, just as the other family properties which position of law we have already discussed in the earlier part or this judgment. Thus, our ultimate conclusion would be that the validity or otherwise of Ext. 'B' would not be of much relevance in the facts and circumstances of this case as in either event on the death of Gouri all the properties she held including the beneficial interest attached to the office of her shebaitship would follow the normal rule of succession then in force. We find that the aforesaid approach has not been made either by the Civil Court in the suit the judgment of which has been impugned in the First Appeal nor by the consolidation authorities whose orders are the subject matter of the writ application. We, therefore, set aside the judgment impugned in the First Appeal as well as the orders of the consolidation authorities challenged in the writ applications and remit the matter back to the respective forums for disposal of the cases afresh keeping in view the law indicated by us. As the very same question is required to be decided both by the consolidation authorities and the Civil Court, there is likelihood of conflicting decisions to avoid which we further direct that the Commissioner of Consolidation to whom the matter shall be remitted back shall await the decision of the Civil Court and the decision so arrived by the Civil Court will operate as res judicata so far as the consolidation proceedings are concerned. We have so directed even though both the Courts are equally efficacious to decide the question, but there being there consolidation cases it is more convenient for the Civil Court to decide the question by permitting the evidence to be adduced if the parties so want on the aforesaid limited question. The consolidation revisions shall remain stayed till the Civil Court decides these points mentioned above.
16. The First Appeal as well as the writ applications are allowed subject to the aforesaid observations. No costs.
A.K. Padhi, J.
17. I agree.