Indian Kanoon - Search engine for Indian Law

15. Now, "sheba" means "service," and when-ever an image or idol is setup and consecrated, there must, needs be a shebait to serve and sustain the deity whose tabernacle the image is. The duties and the privileges of a shebait primarily are those of one who fills a sacred office. He must take the image into his charge and custody; he must see that it is washed and fed and clothed and tended, and that due provision for its worship is made: "We need not describe here in detail the normal type of continued worship of a consecrated image,--the sweeping of the temple, the process of smearing, the removed of the previous day's offerings of flowers, the presentation of fresh flowers, the respectful oblation of rice with flowers and water, and other like practices. It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest." [Per Mookerjee, J., in Rambrama Chatterjee v. Kedar Nath Banerjee 72 Ind. Cas. 1026 : 36 C.L.J. 478 at p. 483 : A.I.R. 1923 Cal. 60.] The main concern of a shebait, therefore, is duly to carry out the sacred duties of his office. He may perform his spiritual functions personally or he may--indeed, if he does not possess the necessary qualifications to enable him to celebrate the worship of the deity he must,--appoint a qualified deputy to officiate in his stead. [Annaya Tantri v. Ammaka Hengsu 47 Ind. Cas. 341 : 41 M. 886 : 35 M.L.J. 196 : 8 L.W. 301 : 24 M.L.T. 163 : (1918) M.W.N. 569.]

23. In the present case it is conceded that no usage obtains in the family which would render valid the indenture of arpannama, if otherwise it is void under the Common Law of India. I need not, therefore, embark upon the still unsettled question as to whether, and if so, in what circumstances, the Courts would sanction an usage under which rights of worship have been alienated by a shebait. Again, there is authority for the proposition that the consensus of all the persons interested in the worship may "give the estate another direction," [Raja Vurmah Valia v. Ravi Vurmah Kunhi Kutty 4 I.A. 76 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar.P.C.J. 687 : 3 Suth.P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C)., Khetter Chunder Ghose v. Hari Das Bundopadbya 17 C. 557 : 8 Ind. Dec. (N.S.) 911 and Pramatha Nath Mullick v. Pradyumna Kumar Mullick : but so far as I know the Judicial Committee in no case have determined that such a consensus of opinion would justify a transfer of the spiritual rights and duties of the office of a shebait : Sethuramaswamiar v. Meruswamiar 43 Ind. Cas. 806 : 41 M. 296 : 7 L.W. 22 : 4 P.L.W. 91 : 34 M.L.J. 130 : 16 A.L.J. 113 : 27 C.L.J. 231 : 22 C.W.N. 457 : 20 Bom.L.R. 514 : 45 I.A. 1. (P.C.). In this case, however, it is admitted that Girindra executed the arpannama entirely at his own will, and upon his own initiative, and that he neither invited nor obtained a consensus of opinion among those interested in the worship of the deities in favour of the course which he pursued. It is further urged that Girindra as shebait was competent and entitled to execute the indenture of arpannama provided that either of the following conditions was fulfilled : (1) that the assignment of the pala was to a member of the founder's family qualified to perform the duties of shebait, or (2) that the assignment was "for the benefit of the deities." As regards (1) it is well-settled that "according to Hindu Law, when the worship of a thakur has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution" [Gossamee Sri Gridhariji v. Ramanlalji Gossami 16 I.A. 137 at p. 144 : 17 C. 3 : 13 Ind. Jur. 211 : 5 Sar.P.C.J. 350 : 8 Ind. Dec. (N.S.) 541 (P.C.).]

26. The contention which learned Counsel has urged upon the Court, in my opinion, is founded upon a heresy which has crept into the Hindu Law, and ought to be exposed and eradicated. This is not the only branch of law in which the words "for the benefit" have caused error and confusion [see Barwick v. English Joint Stock Bank (1867) 2 Ex. 259 : 36 L.J. Ex. 147 : 16 L.T. 461: 14 W.R. 877, Lloyd v. Grace, Smith. & Co. (1912) A.C. 716 : 81 L.J.K.B. 1140 : 107 L.T. 531 : 56 S.J. 723 : 28 T.L.R. 547.] Who is to determine whether any particular alienation is "for the benefit of the deity?" Is it the founder? Is it the persons interested in the worship? Is it the shebaits, or one or more of them? Is it the Court? I do not pause to hazard a conjecture, for, in my opinion, the doctrine contravenes the Hindu Law, and in any event cannot be extended to an alienation of the spiritual rights and duties of a shebait. The genesis of the heresy may be found, I think, in a misapprehension of certain observations of Sir Montague Smith in Prosunno Kumar's case 2 I.A. 145 at p. 150 : 14 B.L.R. 450: "The authority of the shebait of an idol's estate would appear to be in this respect analogous to that of the manager for an infant heir which was thus defined in a judgment of this Committee delivered by Lord Justice Knight Bruce: The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law a limited and qualified power; it can only be exercised rightly in a case of need or for the benefit of the estate, but where in the particular instance the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance is the thing to be regarded." Hunoomanpersaud Pandey v. Babooee Munraj Koonweree 6 M.I.A. 393 at. p. 423 : 18 W.R. 81n : Sevestre 53n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 From the above passage the doctrine has been evolved that although there might be no necessity for any particular alienation of debutter property, yet, if the transfer was "for the benefit" or "for the clear benefit" of the endowment, it could be upheld according to the Hindu Law. It is incumbent upon me, therefore, to examine more closely the rule propounded in Prosunno Kumari's case 2 I.A. 145 at p. 150 : 14 B.L.R. 450. It is to be observed that while Sir Montague Smith laid down that a shebait " may incur debts or borrow money for necessary purposes," his Lordship added: "The power, however, to incur such debts must be measured by the existing necessity for incurring them" Since 1875, the Judicial Committee have more fully defined the circumstances in which a shebait is empowered to alienate debutter property. In 1876 Sir Montague Smith, delivering the opinion of the Board in Konwar Doorganath Roy v. Ram Chunder Sen 4 I.A. 52 : 2 C. 341 : 3 Sar.P.C.J. 681 : 1 Ind. Dec. (N.S.) 508 (P.C.) stated that the Rani Rashmoni, who had effected the alienation of the property then in suit "had, as the manager of the estate, power, if it were debutter dedicated to the idol, to alienate so much of it as was necessary to keep up the temple and worship of the idol; and if it were secular to alienate it if it became necessary to do so to preserve the rest of the family estate." And later in his judgment his Lordship, referring to Prosunno Kumari's case 2 I.A. 145 at p. 150 : 14 B.L.R. 450 observed that "in that case a shebait had incurred debts, and mortgaged the property of the idol for the purpose of the necessary sustentation of the worship of the idol; and this tribunal held that the position of the shebait was analogous to that of a manager of an infant, and that he had the same authority, which in both cases arises from the necessity of the case, to raise money for the benefit of the estate." In that case their Lordships held that the "sale of part of the land was justified by the imperious necessity of finishing the temple which had been commenced." In Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 C. 1003 : 14 C.W.N. 1 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 36 I.A. 148 (P.C.), Sir Andrew Scoble, delivering the judgment of the Board, observed that "it is well-settled law that the power of the mohunt to alienate debutter property is, like the power of the manager for an infant heir, limited to cases of unavoidable necessity." Again, in Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 44 I.A. 147 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom.L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 222 (P.C.), Lord Atkinson laid down that "if for the reasons above mentioned the grant of a lease in perpetuity of debutter lands at a fixed rent requires to be justified by unavoidable necessity, it is difficult to see why an absolute alienation in perpetuity of the same kind of land in consideration of a premium, should not equally require to be justified by the same kind of necessity, since it brings about quite as completely the same prejudicial results." His Lordship also observed that "the only specific point touching the present case actually decided in these three authorities was this: that a debutter estate may be mortgaged to secure the re-payment of money borrowed and applied to prevent its own extinction by sequestration. No indication is to be found in any of them as to what is, in this connection, the precise nature of the things to be included under the description 'benefit of the estate.' It is impossible, their Lordships think, to give a precise definition of it applicable to all cases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it from injury or deterioration by inundation, this and such like things would obviously be benefits. The difficulty is to draw the line as to what are, in this connection, to be taken as benefits, and what not." An examination of these authorities leads to the conclusion that the power of a shebait to alienate the corpus of debutter property is to be measured by the exigencies of the occasion. An alienation of such property, in my opinion, cannot, be justified unless it is impracticable duly to carry out the service and worship of the deity, and matters incidental thereto, or to preserve the dedicated property without incurring the expenditure, to defray which it is proposed to effect the alienation; and further, unless the required expenditure cannot be met out of the income of the endowment, and without alienating the corpus of the estate. In short, the shebait's power of alienation must be exercised for purposes of defence and not of aggrandisement, as a shield and not as a sword. Occasions which would justify the alienation of the corpus will not frequently arise, for "even in cases where, owing to causes beyond the control of the managers, such as famine, etc., the income falls off, the uniform and approved practice of the country has been to regulate the scale of the services with reference to the diminished income until the income returns to its normal condition, and not to keep up the services on a scale rendering the incurring of debts necessary. Nor is money ever borrowed, even for the purpose of repairs. One reason why a manager never thinks of mortgaging or setting the corpus for such a purpose is that he will ordinarily not be able to find a mortgagee or purchaser among the members of the community since the principle that property dedicated to God ought never to be diverted for other purposes, operates so strongly on the mind of the community that even innocent participation in such diversion is understood to be sinful, and to forbode evil to the participator.... Nor should it be forgotten that, as shown by the formula with which grants and donations to charities usually conclude, the people take that to renovate is even more meritorious than to found. In such circumstances it is obvious that the manager's powers are quite limited. He can only do what is necessary for the services of the idol...and he need only preserve and duly manage what property may belong thereto. It is no part of his duty to effect improvements with reference to existing endowments when the funds in his hands do not admit of it; nor is he called upon to enter into transactions for the purpose of augmenting the funds of the institution. He cannot in any manner subject the institution in his charge to duties, obligations and burdens to which, with reference to the nature of the foundation or otherwise, the institution is not inherently or necessarily subject" [per Subramania Iyer, A. C.J.) in Nallayappa Pillian v. Ambalavana Pandara Sannadhi 27 M. 465 at p. 473 : 14 M.L.J. 81.]

28. I desire to add that, in my opinion, the rule of necessity extends only to an alienation of the temporalities of the idol. It does not, and, in my opinion, it cannot be made to apply to an alienation of the spiritual rights and duties, the fulfilment of which is the primary function of a she-bait. To apply such a rule to the spiritual duties of a shebait would be to contravene the fundamental principle of the Hindu Law, and to violate the religious instincts of all orthodox Hindus. Indeed, in the nature of things there can be no necessity for a voluntary transfer of the spiritual duties of a shebait [Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami 27 M. 435 : 14 M.L.J. 105] and the doctrine that a shebait at his own will and pleasure is at liberty to alter the line of shebaits on the ground that to do so will be "for the benefit of the deity" offends against the Common Law of India and is in conflict with the uniform rulings of the Judicial Committee of the Privy Council. For these reasons, in my opinion, the indenture of arpannama of the 13th September 1918 must be declared void and inoperative and there will be a decree in favour of the plaintiff.