Document Fragment View

Matching Fragments

"That the said Sm. Nitto Sundari Dassi doth hereby constitute and appoint herself the shebait of the said Thakur for the during the term of her natural life and doth hereby declare that after her death her son the said Mrityunjoy Mullick shall become the shebait of the said Thakur and after his death his wife Sm. Kiranbala Dassi and after her death the heirs of the said Mrityunjoy Mullick shall be and act as the shebait or shebaits of the said Thakur and she doth hereby declare him or them such shebait or shebaits accordingly and doth hereby direct and declare that the daily worship and other periodical festivals and ceremonies of the said Thakur should be performed by such shebait or shebaits. Provided however that in case the said Mrityunjoy Mullick shall happen to die without any issue or without giving any authority to his wife him surviving, to adopt, then in such case it shall be competent for the said Mrityunjoy Mullick to appoint by will or otherwise a shebait who would act as such after the death of his said wife as aforesaid but in case the said Mrityunjoy Mullick shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law."

10. The substantial contention raised by Mr. Tek Chand, who appeared on behalf of the plaintiff-appellant, is that under the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to Kiranbala after the death of Mrityunjoy and after her death it is to vest in the heirs of Mrityunjoy. As Kiranbala died during the life-time of Mrityunjoy, the grant of the shebaiti right in her favour lapsed and the heirs of Mrityunjoy are, therefore, entitled to come in as the next shebaits after Mrityunjoy's death. Who these heirs are has got to be determined according to the law in force at the time when the succession opened and under the Hindu Women's Rights to Property Act, which came into force in the year 1937, the widow of a propositus, who dies intestate, would rank as an heir along with the son and would be entitled to the same share as a son gets in the property of the deceased. It is said that as shebaitship is property, it would devolve under section 3 of the Hindu Women's Rights to Property Act upon both the plaintiff and the defendant jointly. Assuming, however, for argument's sake, that the expression "property", as used in the Hindu Women's Rights to Property Act, does not include shebaiti right, it is argued by the learned counsel that it is a well-established proposition of law that succession to shebaitship is governed by the ordinary rules of inheritance in respect to secular property under the Hindu law, and as the Hindu Women's Rights to Property Act has amended the general law of inheritance in certain matters, the same alterations must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. Tek Chand - though it was not pressed seriously - that the language of the indenture would go to suggest that in the matter of succession to shebaitship the wife of Mrityunjoy would have priority over other heirs. It is true that the document speaks only of Kiranbala, the wife of Mrityunjoy who is to come as shebait after his death; but it is argued that the word "Kiranbala" is merely descriptive of the word "wife" and whoever would happen to be the wife of Mrityunjoy at the date of his death, would be entitled to succeed to his shebaiti rights.

"Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate............."

17. Section 4 lays down that the Act is not to operate retrospectively. The only other section in the Act which has been referred to in the course of arguments is section 5 which runs as follows :-

"For the purposes of this Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect."

20. Mr. Banerjee next invokes in support of his contention the provisions of sub-section (3) of section 3, which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the "Hindu woman's estate". It is argued that this distinction between the Hindu woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular property, but this distinction is unmeaning when applies to shebaiti right, for the nature of the interest enjoyed by a male or a female shebait is exactly the same. This argument does not appear to us to be at all convincing. Precisely the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect of the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself and they exist irrespective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female shebaits may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu woman's estate. When Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shebaiti right would not pass to her stridhana heirs but would go to heirs of the last shebait [Anuragi Kuer v. Paramanand, A.I.R. 1939 Pat. 1]. Sub-section (3) of section 3, therefore, is of no assistance to Mr. Banerjee's client.