Calcutta High Court
Sri Sri Iswar Gopal Gobinda Jew Thakur ... vs Rupa Mukherjee And Ors. on 29 April, 2005
Equivalent citations: 2005(4)CHN720
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalyan Jyoti Sengupta, J.
1. This summons was taken out originally by one Debabrata Bose, since deceased being the son of the settler of the subject trust posing a number of questions for opinion of this Court, the questions are as follows:
(a) Was the settler entitled to confine the right of shebaitship only to his lineal male descendants?
(b) Whether all heirs (male or female) of sisters of the plaintiffs No. 2 are entitled to become beneficiaries of the Estate?
(c) Whether the female heirs of the deceased brothers of the plaintiff No. 2 can claim to be beneficiaries of the Estate?
(d) Whether female heirs of the settler can be excluded from shebaitship by virtue of Clause 2 (iii) (b) of the said Deed? If not, what is the effect of Clause 2 (iii) (b) of the Deed Trust?
(e) Whether Clauses 11 of the said Deed is valid, binding and enforceable on the heirs of the settler and if so to what extent?
(f) At present, who, amongst the plaintiff No. 2 and the defendants are eligible to represent in the process of election of the Board of Trustees?
(g) Whether the female heirs of the settler or any of them are/ is entitled to be Trustees/Trustee of the said Estate?
(h) Whether in the absence of a provision to that effect in the said Deed, the Trustees or the Shebaits are entitled to perform Seba Puja of the plaintiff No. 1 by way of Pala system of worship? If, so, whether a scheme should be framed to that effect?
2. On death of the original plaintiff No. 2 on 7th April, 2001 Mrs. Roma Bose, Mrs. Ratna Guha and Mrs. Devipriya Guha Biswas were substituted in place and instead of original plaintiff No. 2. The defendants are quite large in number but only the defendant Nos. 3 & 4 have come forward to oppose this summons.
3. The said Motilal Bose, since deceased, the father of the original plaintiff No. 2 is a pious Hindu gentleman by and under an indenture of trust dated 21st July, 1949 created a trust of his property consisting of four cottahs three chittaks and thirteen square feet wide brick built pucca building commonly known as 'pala house'. By this trust the settler granted, transferred and conveyed the trust property unto himself as the first trustee and two other trustees named therein. The object of the trust and the beneficiaries thereof are mentioned in the trust deed specifically. One of the beneficiaries is the plaintiff No. 1 deity. Several directions have been given upon the trustees to perform their duty. For the purpose of proper and effective seba puja of the plaintiff/deity the office of the shebait has also been created. In this summons the parties are concerned with the right, title and interest in this shebaitship. So it is appropriate to set out the relevant provision for creating office of shebait and the mode of succession of the same.
4. By and under Clause 2 (iii) (b) of the said trust deed the following provision regarding appointment of shebait and mode of succession is provided:
"(iii) ...
(a) ...
(b) The settlor appoints himself and his wife the said Srimati Hiron Bala Bose to be the shebait of the said deity Sri Sri Iswar Gopal Gobinda Jew Thakur for their respective life and after their death the shebaitship shall devolve upon the beneficiaries and their male heirs according to seniority and in succession and each shebait will hold his office for one year provided however, if any person or persons entitled to be the shebait and trustee renounces the Hindu religion then he or they shall for the purpose of these presents be considered as dead and the person or persons next entitled to succeed as shebait and trustee or as a beneficiary shall succeed and it is hereby declared that the trustees or shebaits for the time being shall not have power to sell or mortgage or otherwise encumber the said hereditaments and premises which will vest only upon trustees who will hold the property in trust for the deity and the shebaits shall have a claim on share of the income only as indicated above and if any shebait or trustee shall sell or mortgage the same such sale or mortgage shall be null and void, inoperative and unenforceable in law and the shebaitship or the trusteeship of the person or persons so offending shall become void and shall thereupon absolutely cease and the person who under these presents shall be entitled to succeed as shebait or trustee shall immediately thereupon succeed in the manner indicated above which will govern the successorship either as a trustee or as shebait and the offending shebait shall not be entitled to any benefit even as a beneficiary and shall be regarded as dead for the purpose of these presents. If, however, all the beneficiaries should agree in writing to raise the loan by mortgage charge or hypothecation of the said trustee estate or a part thereof for immediate necessities or under unavoidable circumstances. The trustees can incur the said loan by mortgage charge of lien but from the date of incurring such loan, 1/2(half) of the legacies hereby assigned to the beneficiaries in the shape of their personal income shall go to liquidate the aforesaid loan, until it be paid off in full. The quotas, however, for charity will remain uncurtailed and ineffected thereby. A shebait can choose among the beneficiaries any one to work as his substitute if so desired. Besides deva seva the shebait from this income will pay subscription to season time Barowari Puja affairs, such as Durga Puja, Kali Puja, Saraswati Puja etc., as well as periodic subscription to other religious and charitable societies as circumstances would permit. If it so happen that due to some unforeseen causes (such as political changes as happened in division of India by Pakistan and India itself)...."
5. Mr. J.K. Mitra, Senior Advocate appearing for the plaintiffs submits that on proper interpretation of the said deed and the said clause it will appear that the aforesaid shebaitship is not merely an office but is a property as well. He has drawn my attention to Clauses 1, 2, (iii)(b), (c) and 11(i) of the said deed and submits that the shebaits have not only duty to discharge but is enjoined with certain rights in relation to the trust property. According to him heritability character in the aforesaid interest is absolutely satisfied. He submits it has now become well-settled principle of law that the shebaitship is property and the same is heritable in accordance with Hindu Law. The founder of debuttor or the settler of a trust is not entitled to lay down above Rule to govern the succession as any Rule of succession contrary or repugnant to Hindu Law or other laws is void. In support of his contention he has relied on the following decisions 70 IA Page 57, 37 CWN 29, , , . He has also cited the treaties of Hindu Law of Religious and Charitable Trusts (Dr. Bijan K. Mukherjee) (4th Edn.) para 5.5 at page 204.
6. The learned Lawyers for the other defendants support Mr. Mitra. They all say that aforesaid provisions laid down by the settler relating to succession of the office of the trust excluding the female heirs should be struck down and be held the same is repugnant to Hindu Law of inheritance.
7. Mr. S. N. Mitra learned Lawyer appearing for the defendant Nos. 3 and 4 submits that the proposition of law propounded by the plaintiffs is not disputed. According to him having regard to the provision made in the said instrument no proprietary interest has been created and/or transferred to the shebaits rather the same has been given to the trustees. The office of the trust is not heritable unlike the office of shebait. He contends further that though expression "shebait" has been used by the settler but this office is saddled with obligation and duties to perform seba puja and no proprietary interest or right has been created to any of the shebaits. Therefore, this bundle of duties and obligation cast on the shebaits in the instant case cannot be termed to be and/or be defined as property. He contends that all the rights and obligation in relation to the property has been vested upon the trustees and the said deity is merely a beneficiary. The shebaits were appointed merely to look after due and proper performance of seba puja. In this connection he has referred to a decision of the Madras High Court's Full Bench reported in AIR 1971 Mad 1.
8. Having considered the contention and rival contention of the learned Counsels I find there is no difference and disputes with regard to the fundamental proposition of law as argued by Mr. Mitra. However, for recapitulation of the law relating to the shebaits as propounded in the decisions of the Judicial Committee reported in 70 IA 57 and of this Court reported in AIR 1960 SC 325 are to be considered. The Judicial Committee in the said case reported in 70 IA 57 at page 65 (sixth line from bottom) has expressed views as follows:
"The shebait has certainly a right of property in his office; and it may be correct to say that he has some sort of beneficial interest in the debuttor property, but the idol is the owner of the property, and the limit set to the shebait's power of disposition is set not to preserve the interest of the next shebait but to maintain and preserve by proper management the endowment of religious institution."
9. It has been observed further at page 66 amongst other that:
"It must now be taken that the shebait is property, that it is not a catena of successive life estates (3) but is heritable-heritable property which in the first instance is vested in the founder. It must further be accepted that the founder may direct that a designated person should hold the office during that person's life, either immediately or on the death of a previous holder; and that such direction subject to the relevant conditions as to perpetuity, whatever these may be will be good although it carried no right to the heirs of the grantee and does not amount to a complete disposal of the shebaiti.
If, then, on the death of the grantee the shebaiti goes to the founder or his heirs, this is because the right of the founder is heritable and he has not completely disposed of the interest, which he has therein. It is impossible to represent this as a spes succession is. It is a right in the founder and his heirs. It is the same estate of inheritance as the founder held at the date of the grant. The grant did not exhaust it or terminate the founder's interest. If then on death of the grantee the shebaiti goes to the founder or his heirs, this is because the right of the founder heritable and he has not completely disposed of the interest which he has therein. It is impossible to represent this as spes successionis. It is a right in the founder and his heirs. It is the same estate of inheritance as the founder held at the date of grant. He did not exhaust it or terminate founder's interest. On the death of interest of the founder has ceased to be qualified by the grant."
10. In the case of Monohar Mukherjee v. Bhupendra Nath Mukherjee reported in 37 CWN 29, the Full Bench of this Court held amongst others that:
"Founder of Hindu debuttor is competent to lay down rules to govern the succession to the office of shebait, subject to the restriction that he cannot create any estate unknown or repugnant to Hindu Law. A person succeeding to the shebaitship under such rules is a grantee or donee of the property and his right to succeed to the office is subject to the rule that gift cannot be made by Hindu to a person not in existence at the time of the gift. Rule for the succession to the office of shebait are rendered invalid by reason that they provide for the office to be held by some one among the heirs of the founder to the exclusion of others in succession differing from the line of Hindu inheritance."
11. The learned Single Judge of this Court relying on a large number of decisions on this subject in case of Raikishori Dassi v. Official Trustee of West Bengal and Ors., has held amongst others in Paragraph 42 as follows:
"It was argued that the Will could not be considered so as to give right to somebody whom the testator wanted to exclude. It is true that the testator evidently did not intend his second daughter, the plaintiff, to be a shebait of the deity and it may be because he had, in Clause 18 of the Will which I have not set forth above, purported to appoint her along with another sister to be the shebaits of the family deities of his maternal grandfather. However, that it may be, the rules of succession must be given effect to and if the testator had intended to lay down a line of succession not allowed by law the fact that a person, not intended by the testator to receive the same benefit, gets it, cannot be helped."
12. In the case Gakul Chand De and Ors. v. Gopi Nath Dey and Ors. in paragraphs 68 and 69 the Division Bench of this Court has held amongst others that:
'68. In the present case, as I have already indicated, the words used indicate that a new line of succession to each son, as regards the shebait's right, was intended by the settler Srimati Chuni Mohon Das.
"69. The line of succession thus laid down contravened the rule of Hindu Law of succession to property and was void."
13. The decision cited by Mr. S. N. Mitra of Madras High Court reported in AIR 1971 Mad. 1 is also very appropriate in this case. The Full Bench of the Madras High Court makes distinction between the religious office having only duties and obligation for management and an office with the duty and obligation for management coupled with proprietary right in the office. In the first category of case it is held by Their Lordships the character of heritability is misplaced, wherein in the second category of cases the character of heritability is inherent in the nature of disposition. In paragraph 9 Their Lordships had made a distinction as follows:
"We shall take up for consideration the character of the office of Dharmakartha of a temple with which this case is concerned. There is considerable difference between the position and functions of the Dharmakartha whose duties are secular on the one hand and poojaries, archakas, mahants, head of Mutts and shebaits of North India on the other. The Dharmakartha is a mere manager; his liability will be that of a trustee; but he holds an office. The office may be held by a single member, or by a number of persons, or by a number of families. At places the superintendence of the village temple is found vested in the entire village community. In Vidyapurna Tirthaswami v. Vidyanidhi Tirthaswami 1904 ILR (27) Mad. 435 at pp. 442,454 Subramania Aiyar, O.C. J. adverting to the legal position of Dharmakartha of a temple observed:
In the case of temples, the ideal person being the idol itself, the natural custodian of the property, who has no beneficial interest whatsoever in the endowment, but occupies the fiduciary position or a mere manager may not improperly be looked upon as subject strictly to the liabilities of a trustee."
14. In the books of B. K. Mukherjee on the Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures (4th Edition) it has been opined that:
"5.21. Devolution of shebaitship, disability of successor by reason of casts, sex, age or other disqualification.--As shebaitship is property, it devolves like any other property according to the ordinary Hindu Law of inheritance. 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, shebaitship reverts to the family of the founder. In the matter of appointment of a shebait, the discretion of the founder is unfettered. No Hindu would indeed think of appointing a person as manager of a temple who is a follower of different, religious, but there is nothing in law which prevents him from appointing as a shebait a person of different or inferior caste."
15. Again in Paragraph 5.22 it is opined that:
"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 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 attract devolution of shebaiti rights."
16. From the aforesaid established principle of law laid down by the several judicial pronouncements it appears that two things have to be examined before it is held that a particular right of shebait is a heritable one. Firstly, whether office created irrespective of the expression in the instrument or otherwise is having any duty and/or obligation to perform sheba puja to look after the interest of the deity and secondly any proprietary right in this office has been created with this obligation. I am of the view that mere expression of words shebait' is not to hold that the same being a heritable character. Keeping in view of the aforesaid observation now this present instrument has to be examined whether any proprietary right with deity created by the settler or not.
17. Mr. J. K. Mitra has appropriately drawn my attention to the nature of the right created in favour of the shebaits by the trust instrument. In Clause 2(iii)(b)(c) of the said Trust Deed the shebaits have right to receive income earmarked for the purpose of seba puja. The trustees have been directed handover 30 per cent of the 1/8th share of the income of the property to these shebaits month by month for the purpose of carrying out deb sheba and other duties imposed upon them. So the payment of the aforesaid income really forms a charge in the property in favour of the shebait. Under Clause 6 it has been specifically directed that no beneficiary except a shebait or a substitute shebait of the said family will have right of incurring expenses for such purpose and with further stipulation that in case the shebaits lives elsewhere, half of the income which may come out from that flat will be paid to the shebait for living elsewhere. Therefore, the shebait has got right of residence in a particular flat, failing which shebait has right to receive half of the income from the flat.
18. By the trust instrument the settler created different class of bodies namely trustees, beneficiaries, which includes the aforesaid deity. Again the office of the shebaitship has been created to represent the aforesaid deity. I have already discussed the position of the shebaits in the trust deed vis-a-vis law on the subject. The settler appointed himself as the first trustee along with his sons. The settler defined the beneficiaries who were, at the first instance, his wife Hiran Bala Bose and his sons Robindra Nath Bose, Animesh Chandra Bose, Pankoj Kumar Bose, Nilmoni Bose, Dulal Chandra Bose (idot and dumb), Debabrata Bose and his daughter Sm. Prava Ghosh. These beneficiaries are defined and included their heirs, administrators and legal assigns, except in case of Dulal Chandra Bose (idot and dumb) his wife Sm. Hiran Bala Bose and daughter Prava Ghosh. So it is clear that the right of the beneficiaries is heritable. However, Smt. Prava Ghosh and/or his wife Hiran Bala were given at that time life estate. If these two ladies had died after commencement of Hindu Succession Act, 1956 or remaining alive, then this limited interest must have been matured into absolute interest under Section 14 of the Hindu Succession Act, 1956. Therefore by operation of the law this beneficial interest in terms of the Trust Deed would be heritable one. In view of these findings I therefore, opine that the beneficial interest is heritable one and heirs of all the beneficiaries are entitled to claim their interest in accordance with the provision of the Hindu Succession Act, 1956. From the instrument I find the office of the trust is not heritable, rather the mode of filling up of the vacancy of any trustee has been provided. It will be clear from the trust instrument itself that definition of trustee has been provided to include the successor not the heirs or heiresses. Clause 8 of the trust instrument makes it clear as to duration of the board of trustees and formation of successive board of trustees on expiry of the stipulated time namely 5 years. It has been provided in the said clause that on expiry of the terms of the trustees new Board shall be constituted by election by votes among the beneficiaries. In Clause 11 of the said Trust Deed specifically provides that in future trustee shall be elected by vote, each line of the beneficiaries will have one vote only which will be exercised by a representative of the line who may be elected by the beneficiaries concerned for the purpose. The deity will also exercise his right of franchise through his shebait.
19. Thus it is clear the beneficiaries are only instrumental to appoint trustees by way of election. However, all the beneficiaries by themselves have no right, but one of them may be chosen as representatives of each group of beneficiaries and he/she is entitled to exercise this franchise.
20. From the averments and statement in the affidavit it appears to me that the settler died on 9th February, 1971 leaving him surviving his widow, his six sons and four daughters. Therefore, on death of this settler by virtue of the provision of the aforesaid Trust Deed his wife, all daughters and sons have got their absolute right of beneficial interest in the properties and the same have become heritable under the provision of the Hindu Succession Act, 1956. In view of the aforesaid findings and discussion, I answer the questions formulated in the summons in the manner as follows:
Q (A): Answered in negative.
Q. (B): Answered in affirmative.
Q. (C): Answered in affirmative.
Q. (D): Answered in negative, because this Clause 2(iii) (b) of the said Trust Deed is repugnant .to the Law of Succession.
Q. (E): Answered in affirmative, absolutely binding and enforceable.
Q. (F): The representative has to be elected in terms of Clause 11 by the group of plaintiff No. 2 and the defendants.
Q. (G): Answered in affirmative.
Q. (H): A scheme has to be formulated upon the meeting of the trustees and beneficiaries and the shebaits, by consensus, if not possible, to approach the competent Civil Court for the relief of framing of scheme.