Full Judgment Text
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PETITIONER:
SHAMBHU CHARAN SHUKLA
Vs.
RESPONDENT:
THAKUR LADLI RADHA CHANDRA BMADAN GOPALJI MAHARAJ & ANR
DATE OF JUDGMENT19/03/1985
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1985 AIR 905 1985 SCR (3) 372
1985 SCC (2) 524 1985 SCALE (1)503
ACT:
Hindu Law
Religious endowment-Founder by will making his wife
shebait-No disposition in will regarding the shebaiti right-
On death of founder widow succeeding to the shebaiti right-
Whether widow could transfer the shebaiti right by her will.
Hindu Succession Act 1956-Section 14(1).
Shebaitship-Right to- Limited right of Hindu female
whether enlarged to the absolute right of the holder.
HEADNOTE:
The idol of Gopalji was installed by one Purshottam Lal
in his house at Vrindavan, which later became the temple of
the deity. The founder who had no issue, performed Seva Puja
of the deity so long as he was alive and thereafter it was
performed by his wife. By his will Ex. A-2, he dedicated his
entire property to the deity, and made his wife the
Mohatmim/ Shebait without any power to transfer any
property. In accordance with the directions of her husband,
the wife adopted the second respondent by a registered deed
after performing the necessary religious ceremonies. After
the death of the wife, the appellant in the appeal worked as
Pujari in the temple with the consent of the second
respondent’s guardian and natural father. Later he denied
the rights of the second respondent and contended that the
founder’s wife executed her last will and testament Ex. A-6
bequeathing her bank deposits, government bonds, household
articles, utensils etc. to the appellant to be kept by him
in his custody, so long as the second respondent was a minor
and to be responsible for the seva puja and raj bhog of the
deity and the management of the deity’s properties.
A suit was filed by the respondents, for recovery of
possession of the idol and temple of Gopalji and for the
money lying in deposit with the bank, the zamindari
abolition compensation etc.
373
The trial court held the adoption of the second
respondent to be duly authorised and valid and found that
the founder’s wife had validly executed the will Ex. A-6,
but could not transfer the shebaiti rights to the second
respondent thereby and that the second respondent had,
however become the Mohatmim/Shebait by reason of the
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adoption, and found that the movable properties and the cash
claimed by the appellant under the will were the personal
properties of the wife and that the appellant had become
entitled to them as a legatee under the will and that the
other properties belong to the first respondent-Gopal Ji,
and decreed the suit in part.
In the appeal by the appellant, and the cross-
objections filed by the second respondent, the additional
district judge found that as the adoption was without the
authority of the husband to adopt, it was invalid in law and
following this Courts’ decision in K.K. Ganguli v Pama-
Banerjee, AIR 1974 S.C R. 1932 held that the second
respondent had not become shebait under the will and allowed
the appeal and dismissed the corss-objections and the suit
in full.
In the second appeal, the High Court following this
Courts’ decision in Angurbala Mullick v. Debabrata Mullick,
[1951] 2 S.C R. 1125 that shebaiti is heritabal property,
held shebaiti is property & found that no restriction had
been placed in the will of the founder in regard to the
shebaiti, and therefore the wife had succeeded to the
limited right of shebait as the heir of her husband and it
became enlarged into an absolute right under section 14(1)
of the Hindu Succession Act, 1956 and that as there was on
other heir or successor to the founder, the wife’s
appointment of the second respondent as the shebait under
her will Ex. A-6 was valid in law. The second appeal was
accordingly allowed in part except in respect of certain
items enumerated in the plaint, and cash in - fixed deposit
with a bank.
Dismissing the appeal, to this Court.,
^
HELD: (Per Varadarajan J.)
1. The text of Hindu Law and the two decisions of this
Court in Profulla Choronl Requittee v. Salya Chornal
Requittee [1979] 3 S.C.R. 431 and Ram Rattan v. Bajrang Lal
JUDGMENT:
Angurbala Mullick v.Debabrata Mullick, [1951] 2 S,C R 1125
show that shebait ship 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 had not disposed of the shebaiti
right in the endowment created by him. [382B-C]
In the instant case, the founder (Purshottam Lal) had
not made any disposition regarding shebaiti right in his
will, Ex. A-2 dated 14-4-1944 where-by he created the
endowment. No custom or usage to the contrary had been
pleaded. Therefore, the widow (Asharfi Devi) had succeeded
to the shebaiti
374
right held by him on his death as a limited owner and that
right had become enlarged into an absolute right by the
provisions of Section 14(1) of the Hindu Succession Act,
1956 and she could transfer that right by a will in favour
of a person who is not a non-Hindu and who could get the
duties of shebait per formed either by himself or by any
other suitable person. [382C-D]
2. The second respondent has acquired the shebaiti
right under the will Ex. A-6. No interference is called for
with the judgment of the Single Judge of the High Court in
the Second appeal. [382E]
(Per Sabyasachi Mukharji J. ’concurring)’
1. It is well settled that shebaitship is heritable.
This Court in Angurbale Mullick v. Debabrata Mullick, 119511
2 S.C.R. 1125 recognised the right of a female to succeed to
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the religious office of shebaitship in view of the Hindu
Women’s Right to Property Act 1937. Section 14(1) of the
Hindu Succession Act 1956 enlarged the limited right of a
Hindu female to the absolute right of the holder. [382H;
383A]
In the instant case, the property in the nature of
shebaitship devolved on Smt. Asharfi Devi under the will of
her husband, Shri Purushottam Lal dated April 14, 1944. This
will had not restricted the property in any manner in
shebaitship bequeathed to Smt. Asharfi Devi could therefore
make a will in respect of shebaitship. [383B-C]
2. It is not necessary, to express any opinion on the
correctness or otherwise of the views expressed in K.K.
Ganguli v. Panna Banerjee, [1975] 1 S.C.R. 728. [383D]
&
CIVIL APPELATE JURISDICTION: Civil Appeal No. 1372 of
1979.
From the judgment and decree of the Allahabad High
Court dated March 2,1979 in Second Appeal No. 626/76.
P.K. Chatterjee and P.K Mukherjee for the Appellant,
G. ViswanathaIyer and M.V. Goswami him for the Respon-
dents.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is by the
defendant-respondent in Second Appeal No. 626 Of 1976 on the
file of the Allahabad High Court and directed against
judgement of the learned Single Judge of that High Court in
so far as it relates to the
375
appointment of the second respondent/second plaintiff Man
Mohan as the Mohatmim/Shebait of the first respondent Shri
Thakur Ladli Radhachandra Madan Gopalji Maharaj (for short
"Gopalji") and the properties belonging to that idol.
The second appeal was filed by the respondents Gopalji
and Man Mohan, plaintiffs 1 and 2 respectively. The second
respondent who is the son of one Shyam Sundar claimed to
have been adopted by Asharfi Devi, widow of one Purushottam
Lal by the document A-24 dated 20-11-1956. The High Court
has not gone into the question of this adoption in its
judgment. Therefore, it is not necessary to refer to the
case of the parties and the judgment of the courts below in
detail in regard to the question of the adoption. The suit
was filed by both the respondents for recovery of possession
of the idol and temple of Gopalji described in the plaint
and the money lying in deposit with the Punjab National Bank
at Vrindavan, the zamindari abolition compensation and the
rehabilitation grant bonds specified in the plaint. The
trial court decreed the suit except as regards items 1 to 25
and 37 to 41 of list I of Schedule "Ba" and the sum of Rs.
1004.97. The appellant filed an appeal in the District Court
and the respondents filed a cross-objection in that appeal
in regard to the money claim disallowed by the trial court.
The learned Second Additional District Judge, Mathura
allowed the appeal and dismissed the cross objection and the
suit. Therefore, both the respondents filed the second
appeal.
The respondents’ case was that the idol of Gopalji was
installed by Purushottam Lal in his house at Vrindavan which
later became the temple of the deity. Purushottam Lal, who
had no issue, performed seva puja of the deity so long as he
was alive and it was performed thereafter by his wife
Asharfi Devi. By his will Ex. A-2 dated 14-4-1944 he
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dedicated his entire property to the deity and made his wife
the Mohatmim/Shebait without any power to transfer any
property. In accordance with the directions of her husband,
Asharfi Devi adopted the second respondent by a registered
deed dated 21-11-1956 by performing the necessary religious
ceremonies. After the death of Asharfi Devi the appellant
worked as Pujari in the temple of Gopalji with the consent
of the second respondent’s guardian and natural father Shyam
Sunder. Later, he denied the rights of the second respondent
contending that Asharfi Devi executed her last will Ex. A-6
dated 21-12-1957 bequeathing her bank deposits, government
bonds, household articles etc. to the appel-
376
lant Shambhu Charan and all her jewellery including those
kept by her in the custody of Shyam Sunder to the second
respondent and declaring that so long as the second
respondent was a minor the appellant shall act as Mohatmim
of Gopal ji and be responsible for the sewa puja and raj
bhog of the deity and the management of the deity’s
properties. They will further declare that the appellant
shall continue to live in the house at Bengal Bindala,
Vrindavan and act as the guardian of the second respondent
in view of his natural father Shyam Sunder’s refusal to do
so and that on the second respondent attaining majority the
appellant shall hand over the sewa puja and raj bhog and he
shall have all the rights of Mohatmim which Asharfi Devi
held, without any right to alienate any of the properties.
But this will was not duly executed by Asharfi Devi and she
had no right to execute such a will and it does not confer
any right on the appellant.
Besides denying the adoption of the second respondent
the appellant contended in his written statement that
Asharfi Devi validly executed the will dated 21-12-1957
inter alia bequeathing items 1 to 25 and 37 to 41 of
Schedule "Ba" and items 3 and 4 of the plaint Schedule,
namely, the fixed deposit in Punjab National Bank,
Vrindavan, the zamindari abolition compensation bonds and
the rehabilitation grant bonds which were all her personal
properties, i- and not endowed properties, to the appellant
and he has thereby become the absolute owner of those
properties. In that will Shyam Sunder had got certain
provisions alleged to confer certain rights on the second
respondent inserted by exercising undue influence on Asharfi
Devi, and they are not binding on the appellant.
The trial court held the adoption of the second
respondent by the Asharfi Devi to be duly authorised and
valid and found that she had validly executed the will Ex.
A-6 dated 21-12-1957 but could not transfer the shebaiti
rights to the second respondent thereby and that the second
respondent has, however, become the Mohatmim/ Shebait by
reason of the adoption and that the appellant had spent the
sum of Rs. 1004.97 towards sewa puja and raj bhog of Gopal
Ji. The trial court further found that the movable
properties and the cash claimed by the appellant under the
will were the personal properties of Asharfi Devi and that
the appellant has become entitled to them as a legatee under
the will and that the other properties belong to the first
respondent Gopal Ji and thus decreed the suit in part.
377
In the appeal by the appellant and the cross-objections
filed by the respondents the learned Second Additional
District Judge. Mathura found that the adoption made in
November 1956 was without the authority of Asharfi Devi s
husband to adopt and, therefore, invalid in law. In the
event of the adoption not being upheld the respondents
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wanted to fall back on the will to support the second
respondent’s claim to shebaitship. That was naturally
opposed by the appellant as the respondents did not raly
upon the will in the plaint and based the second
respondent’s claim to shebaitship only on the adoption. The
learned Second additional District Judge rejected that
contention as also the contention of the respondents that
Asharfi Devi as the heir of her husband could appoint her
successor shebait by her will on the ground that it could
not be done by will following this Court’s decision in KK
Ganguli v. Panna Banerjee(l) and he held that the second
respondent has not become shebait under the will. In this
view the learned Additional District Judge allowed the
appeal and dismissed the cross-objection and the suit in
full.
In the second appeal also the question whether the
appointment of the second respondent as shebait of the first
respondent deity by Asharfi Devi’s will was valid in law was
the only question considered by the Single Judge. The
learned Judge expressed the view that it cannot be disputed
that prior to the commencement of the Hindu Succession Act a
successor to shebaitship could not be appointed by will
unless it be that the will was executed by the founder who
had created the endowment by dedicating his own absolute
properties to the deify. In the light of this Court’s
decision Angurbala Mullick v. Debvbrata Mullick (2) in which
it has been held that if a shebait dies leaving behind him a
widow and no son she would succeed to the shebaiti right -
under the ordinary law but her rights in the shebaiti would
be restricted in the same manner as they would have been if
the successor was the son, which view reiterates the view
expressed by the Privy Council in Bhabe Foririe Devi v.
Ashalata Devi (3) that shebaiti is heritable property, the
learned Single judge held that shebaiti is property and
found that no restriction had been placed in the will of
Asharfi Devi’s husband Purushottam Lal in regard to the
shebaiti and, therefore, Asharfi Devi had
(1 ) AIR .1974 SC 1932
(2)(1951) S. C.R. 1125
(3) AIR 1943 PC 89
378
succeeded to the limited right of shebait as the heir of her
husband and it became enlarged into an absolute right by s.
14(1) of the Hindu Succession Act, 1956 and that as there
was no other heir or successor to Purushottam Lal, Asharfi
Devi’s appointment of the second respondent as the shebait
under her will Ex. A-6 dated 21-12-57 is valid in law. The
learned Judge found that the zamindari abolition
compensation and rehabilitation grant bonds go with the
shebaiti and could not be claimed by the appellant. Thus he
allowed the second appeal in part except as regards items
l.to 25 and 37 to 41 and the cash of Rs. 1004.97 and the
fixed deposit lying with the Punjab National Bank at
Vrindavan.
In this Court, the only question to which the arguments
were confined by the learned counsel for the parties is
whether the shebaiti right could be bequeathed by Asharfi
Devi by her will Ex. A-6.
It has to be noticed at the outset that the respontents
had based their claim to the . properties and the shebaiti
right only on Purushottam Lal’s last will and testimony Ex.
A-2 dated 14A 1944 whereby he created the endowment
constituting himself as the shebait and on the adoption deed
Ex. A-24 dated 10-11-1956. That adoption which has been held
to be valid by the trial court has been found by the first
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appellate court to be invalid in law for want of authority
of the husband to make the adoption prior to the
commencement of the Hindu Succession Act, 1956, and the High
Court has not gone into that question. The respondents
attacked the genuineness of the will Ex. A-6 in toto in
their plaint while the appellant had relied upon it in part
to the extent that it purports to confer on him absolute
right in regard to certain properties including items 1 to
25 and 37 to 41 of list 1 of Schedule "Ba". He contended
that the remaining position of that will which purports to
confer shebaiti rights on the second respondent had been
fraudulently introduced by the second respondent’s natural
father Shyam Sunder by the exercise of undue influence on
Asharfi Devi and that portion of the will is not, therefore,
binding on him. However, the learned Judge of the High Court
has allowed the second appeal in part stated above only on
the basis of that will. It may be stated that it was not
contended by Mr. P.K. Chattrjee, learned Senior Advocate
appearing for the appellant that it was not open to tho High
Court to grant relief to the second respondent on the basis
of the will on which no reliance had been placed in the
plaint. A8
379
stated earlier the only question regrading which Mr.
Chatterjee appearing for the appellant and Mr. G. Viswanath
Iyer, learned Senior Advocate appealing for the respondent
advanced their arguments was as regards the validity of the
appointment of the second respondent as shebait by Asharfi
Devi’s will, Ex. A-6.
Mr. Chatterjee conceded in the course of his arguments
that shebaitship is heritable property but submitted that
heriditary succession to shebait is not mentioned in
Purushottam Lal’s will, Ex. A-2 and, therefore, after the
death of Asharfi Devi shebaitship right will revert to the
heirs of the founder Purushottam Lal and that the second
respondent could not, therefore, claim to be shebait of the
first respondent-temple. In this connection, Mr. Chattarjee
invited our attention to the judgment of A.N. Ray, J., and
K.K. Mathew, J. Of this Court in K.K. Ganguli v. Panna
Banerjee (Supra) where at page 737, Chief Justice Ray
speaking for the Bench has observed that the transfer of
shebaitiship by will is not permitted because nothing which
the shebait has can pass by his will which operates only
after his death. Earlier at page 733 the learned Chief
Justice has observed:
"The rule against alienation of shebait right has been
relaxed by reason of certain special circumstances.
These are classified by Dr. B.K. Mukherjee at page 231
in his Tagore Law Lectures on the Hindu Law of
Religious and Charitable Trust, First Edition under
three heads. The first case is where transfer is not
for any pecuniary benefit and the transferee is the
next heir of the transferor or stands in the line of
succession of shebaits and suffers from no
disqualification regarding the performance of the
duties. Second, when the transfer is made in the
interests of the deity itself and to meet some pressing
necessity. Third, when a valid custom is proved
sanctioning alienation of shebaiti right within a
limited circle of purchasers, who are actual or
potential shebaits of the deity or otherwise connected
with the family."
This decision rendered in a case of sale of
shebaitiright for pecuniary consideration appears to support
the stand taken by Mr. Chatterjee. But later decisions of
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this Court have taken a different view which appears to be
consistent with the principles of Hindu Law. We find the
following passage in para 419A of Mulla’s Hindu Law,
Fifteenth Edition:
380
"Though a female is personally disqualified from officiating
as a Pujari for the shastraically installed and consecrated
idols in the temples, the usage or a female succeeding to a
priestly office and getting the same performed through a
competent deputy has been well recognised and it is not
contrary to textual Hindu Law nor opposed to public policy.
In Raj Kali Kuer v. Ram Ratan Pandey(1) the Supreme Court
upheld such usage.’
In the next para 420 we find the following passage:
"A sale by a shebait or mohunt of his right to manage
debutter property is void, even though the transfer may
be coupled With an obligation to manage the property in
confirmity with the trust attached thereto. Nor can the
-right be sold in execution of a decree against him".
At page 158 of Mukherjee’s Hindu Law of Religious and
Charitable Trusts, Third Edition, it is stated thus:
"Unless therefore the founder has disposed of the
shebait ship in any particular way and except when an
usage or custom of a different nature is proved to
exist, shebaitship like any other species of heritable
property follows the line of inheritance from the
founder. Where the founder of a temple had died without
having appointed a shebait, it was held that his widow
on whom the right to appoint had developed was entitled
to appoint a shebait for the temple, and such
appointment was not open to attack as an alienation of
the office of a trustee. And the rule that shebaitship
devolves like and other species of pro. party has been
applied to the office of archaka, as well, where
emoluments were attached to it." In the decision in
Profulla Choronl Requittee v. Satya Choronl
Requittee(2), Sarkaria, J, speaking for himself and
Tulzapurkar, J. has observed at page 440 thus:
(1) [1955] 2 S.C.R. 186.
(2) [1979] 3 S.C.R. 431.
381
"Office and property are both blended in the conception
of shebaitship.. Apart from the obligations and duties
resting on him in connection with the endowment, the
shebait has a personal interest in the endowed
property. He has, to some extent, the rights of a
limited owner. Shebaitship being property, it devolves
like any other species of heritable property. It
follows that, where the founder does not dispose of
the shebaiti rights-in the endowment created by him,
the shebaitship develves on the heirs of the founder
according to Hindu Law, if no usage or custom of a
different nature is shown to exist."
A similar view has been expressed in an earlier
decision of Chandrachud, C.J. and Desai and Pathak, JJ. in
Ram Rattan v. Bajrang Lal & Ors.(1) where Desai, J. speaking
for the Bench has observed thus:
"This hereditary office of shebait is traceable to old
Hindu texts and is a recognised concept of traditional
Hindu Law. It appears to be heritable and partible in
the strict sense that it is enjoyed by heirs of equal
degree by turn and transferable by gift subject to the
limitation that it may not pass to a non-Hindu. On
principles of morality and propriety sale of the office
of shebait is not favoured ... Both the elements of
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office and property, of duties and personal interest
are blended together in - the conception of shebaitship
and neither can be detached from the other ..A full
Bench of the Calcutta High Court in Manohar Mukherjee
v. Bhupendra Nath Mukherjee and Ors. held that the
office of shebait is , hereditary and is regarded in
Hindu Law as immovable property. This court took note
of this decision with approval in Angurbala Mullick’s
case (supra).. Office of shebait is hereditary unless
provision to the contrary is made in the deed creating
the endowment. In the conception of shebait both the
elements of office and property, duties and personal
interest are mixed up and blended together and one of
the elements cannot be detached from the other.. It is,
therefore, safe to conclude that the hereditary office
of shebait which
(1) (1979) 3 S.C.R. 963.
382
" would be enjoyed by the person by turn would be
immovable property. The gift of such immovable property
must of course be by registered instrument."
The text of Hindu Law and the aforesaid two 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 There the founder has not disposed
of the shebaiti right in the endowment created by him. In
the present case Purushottam Lal has not made any
disposition regarding shebaiti right in his will, Ex. A-2
dated 14.4.1944 whereby he created the endowment. No custom
or usage to the contrary has been pleaded. Therefore, the
widow Asharfi Devi had succeeded to the shebaiti right held
by him on his death as a limited owner and that right has
become enlarged into an absolute right by the provisions of
s. 4 (l) of the Hindu Succession Act, 1956 and she could
transfer that right by a will in favour of a person who is
not a non-Hindu and who could get the duties of shebait
performed either by himself or by any other suitable person.
In these circumstances I hold that the second respondent has
acquired the shebaiti right under the will Ex.A-6 executed
by Asharfi Devi on her death on 7.3.1963. No interference is
called for in this appeal with the judgment of the learned
Single Judge of the High Court. The appeal is accordingly
dismissed with costs.
SABYASACHI MUKHARJI, J. I agree that the appeal should
be dismissed with costs. I would, however, like to explain
the reasons why I come to that conclusion. In my opinion it
is well-settled by the authorities that shebaitship is a
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 or 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 There the mode of 6
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- As
Shebaitship is property, this Court in the case of Angurbala
Mullick v. Debabrata Mullick(1) recognised
(1)- [1951] 2 S.C.R. 1125.
383
the right of a female to succeed to the religious office of
shebaitship in view of the Hindu Women’s Rights to Property
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Act, 1937.
Section 14 (1) of the Hindu Succession Act, 1956
enlarged the limited right of a Hindu female to the absolute
right of the holder. As in this case there was no bar
against alienation imposed by the founder, the property in
the nature of shebaitship in this case was devolved on Smt.
Asharfi Devi under the will of her husband Shri Purushottam
Lal dated 14th April, 1944. This will, the wordings of which
have been set out in the judgment in the Second Appeal of
the High Court, has not restricted the property in any
manner in shebaitship bequeathed to Smt. Asharfi Devi. The
High Court found and I respectfully agree with the High
Court that the first sentence of the will makes an absolute
bequest of shebaitship to Smt. Asharfi Devi. The subsequent
words only describe the rights and duties. In the premises,
in view of the law as laid down in Angurbala’s case (supra),
she could make a will in respect of shebaitship-
On the aforesaid reason, in my opinion, the appeal
should fail. It is not necessary, therefore, to express any
opinion on the correctness or otherwise of the views
expressed by this Court in K K. Ganguli v. Panna
Banerjee(1). Appeal dismissed with costs.
N.V.K. Appeal dismissed
(1) [1975] 1 S.C.R. 728.
384