Full Judgment Text
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PETITIONER:
PROFULLA CHORONE REQUITTE & ORS.
Vs.
RESPONDENT:
SATYA CHORONE REQUITTE
DATE OF JUDGMENT02/03/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
TULZAPURKAR, V.D.
CITATION:
1979 AIR 1682 1979 SCC (3) 409
CITATOR INFO :
F 1985 SC 905 (13)
ACT:
Interpretation of Wills-Common ancestor of plaintiffs
and defendants created absolute debutter of his house in
favour of family deity-By two wills devised and bequeathed
the house to the trustees for service and worship of the
deity-Shebaiti rights-Whether vested in trustees or
descendants of the testator.
HEADNOTE:
The common ancestor of the plaintiffs and the defendant
owned a big residential house (the suit property) in which
he had his family deity. By two wills-one dated June 4, 1898
in respect of his properties in British India and another,
dated June 6, 1898 in respect of the house property in
Chandrangore-he appointed his wife, two sons and nephews as
trustees of the estate. By these wills he provided that in
the event of vacancy occurring in the office of trustees the
continuing trustees might appoint any other person or
persons to be a trustee or trustees. By his will of June 6,
1898 the testator created an absolute debutter in favour of
the family deity. This will also stated that he "devised and
bequeathed" the Chandranagore house to the trustees named
therein as a dwelling house "upon trust to stand possessed
of" and "to hold, retain and use the premises as an endowed
or debutter property for the service and worship of" the
family deity.
In 1934 rival claims of the sons and grandsons of the
testator to their residence in the debutter property were
referred to an arbitrator. The arbitrator allotted rooms
nos. 72 and 82 which had been in his use and occupation from
before to the defendant (respondent) and allotted certain
other rooms to the other sons and grandsons of the testator.
The then trustees (plaintiffs) filed a suit in 1959
claiming that the dwelling house at Chandranagore being
absolute debutter property belonging to the deity none other
than the trustees had any legal right in it, and since the
award of the arbitrator was not binding on the deity the
defendant should be ejected from the rooms forcibly occupied
by him.
The defendant on the other hand claimed that he was in
occupation of the rooms in dispute in his own right as a
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shebait and that the plaintiffs had no right to represent
the deity and so had no locus standi to maintain the suit as
trustees.
Dismissing the suit the trial court held that on the
death of the testator it was not the trustees but the
descendants of the testator who became shebaits and who had
the shebaiti rights in the endowed property and that the
defendant being the descendant (grandson) of the testator,
had a right, as a co-shebait, to occupy the rooms in the
suit property.
The District Judge, on appeal, affirmed the decision of
the trial court.
432
On second appeal the High Court decreed possession of
certain rooms to the plaintiffs but not in respect of the
rooms under the occupation of the defendant.
On further appeal to this Court it was contended on
behalf of the plaintiffs that from the language used in the
will dated June 6, 1898 the intention of the testator was
clearly to constitute the trustees as shebaits of the
property with exclusive right to manage the debutter.
On the other hand on behalf of the defendant it was
contended that the two wills should be read as complementary
to each other, and so read, they made it clear that the
testator did not wish to part with his shebaiti rights,
which were heritable property, in favour of the trustees to
the exclusion of his natural heirs under the Hindu Law.
Allowing the defendant’s appeal and dismissing the
plaintiffs’ appeal.
^
HELD: 1. A conspectus of the various provisions of the
two wills makes it clear that the testator left the
shebaitship undisposed of with the presumed intention that
it devolved on his natural heirs who would have the right to
use the suit house as their family dwelling house. The
rights conferred on the trustees may amount to curtailment
of the right to manage the endowed property which a shebait
would otherwise have; but such curtailment by itself would
not make the ordinary rules of Hindu Law of succession
inapplicable in regard to the devolution of shebaitship.
Therefore, the defendant and other descendants of the
testator became co-shebaits of the deity by the operation of
the ordinary rules of Hindu Law. [445 A-B]
2(a) It is well established that property dedicated to
an idol vests in it in an ideal sense only. The shebait is
the human ministrant and custodian of the idol, its
authorised representative entitled to deal with all its
temporal affairs and to manage its property. Under Hindu
Law, property absolutely dedicated to an idol, vests in the
idol and not in the shebait. Yet almost in every case a
shebait has a right to a part of the usufruct, the mode of
its enjoyment and the amount of the usufruct, depending on
usage and custom, if not devised by the founder. [439 F-G]
(b) In the conception of shebaitship both office and
property are blended. A shebait has, to some extent, the
rights of a limited owner. Shebaitship being property, it
devolves like any other species of heritable property. Where
the founder does not dispose of shebaiti rights in the
endowment created by him, the shebaitship devolves on the
heirs of the founder according to Hindu Law, if no usage or
custom of a different nature is shown to exist. [440 D-E]
Gossamee Shree Greedhareejee v. Rumanlaljee, 19 I.A.
137; Doorganath Roy v. Ram Chander Sen L.R. 4 I.A. 52;
Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 I.A.
245; referred to.
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3(a) The words "to hold, retain and use the premises
endowed or debutter property for the service and worship of
my family thakur or idol" used in the will, merely create a
trust or endowment and indicate the nature and purpose of
the endowment. They do not touch or deal with shebaiti
rights. [442 G]
(b) The two wills are complementary to each other. The
will of June 4, refers the family house as having been
endowed to the family deity and
433
would be used by the testator’s heirs for their residence.
By using the words "wife and sons and sons’ wives and other
relatives of mine" who shall reside in my residential house
in Chandranagore the testator meant that all the descendants
and heirs of his should reside in the house. In other words
although the entire family house was formally endowed to the
family idol, his intention was that his heirs and
descendants would also be entitled to use this house as
their family dwelling house, apart from the room where the
idol was enshrined. [443 A; H 444 A]
(c) The will also provided that although the trustees
were provided with funds for the Sewa-puja of the family
deity and for other festivals out of the estate of the
testator, they were not expressly constituted as shebaits of
the deity. The intention of the testator apparently was that
these funds would be expended for the purpose indicated by
him through the shebaits. [444 E]
(d) Even assuming that originally the trustees were
regarded as having been constituted as shebaits, then, too,
those among them who were not family members or descendants
of the founder had renounced and relinquished their shebaiti
right, if any, in favour of the descendants of the founder.
Such a relinquishment in favour of the co-shebaits will be
valid. [446 E]
(e) The shebaitship of the family deity remained solely
with the descendants of the founder and the defendant being
the grandson of the founder, had been regarded as one of the
shebaits and therefore was entitled to reside in the
disputed rooms. [446 F-G]
(f) Moreover in this case the trustees accepted the
award of the arbitrator allotting the disputed rooms to the
defendant and the plaintiffs described the defendant as a
shebait of the deity. [446 D]
(g) The trustees by themselves have no right to
maintain the suit in respect of the debutter property. The
legal title to the debutter property vests in the idol and
not in the trustees. The right to sue on behalf of the deity
vests in the shebaits. All the shebaits having not been made
parties, the suit was not properly constituted and was
liable to be dismissed. [446 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1873-
1874 of 1970.
From the Judgment and Decree dated 21-7-1969 of the
Calcutta High Court in Appeal from Appellate Decree No.
30/67.
Lal Narain Sinha and Sukumar Ghosh for the Appellant in
C.A. 1873/70 and Respondent in C.A. 1874/70.
A. K. Sen (In C.A. 1874/70) and D. N. Mukherjee for the
Respondent in C.A. 1873/70 and Appellant in C.A. 1874/70.
The Judgment of the Court was delivered by
SARKARIA, J. These two appeals on certificate arise out
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of the appellate judgment and decree, dated July 21, 1969,
of the High Court at Calcutta. The facts of the case are as
follows:-
Late Babu Durga Charan Requitte was the grandfather of
Satya Charan Requitte, defendant, and plaintiffs 1 and 2. He
owned consi-
434
derable immoveable property. He was an inhabitant of
Chandernagore (then a French territory). The suit property
is situated in Chandernagore. Among others, it included a
big residential house containing about 84 or 85 rooms with
extensive grounds, gardens and tanks. In this house, which
he was occupying for his residence, he had his family Deity
Sree Sree Iswar Sridhar Jiew.
Durga Charan made and published two Wills, one dated
June 4, 1898 with regard to his properties in the then
British India, and the other dated June 6, 1898 with regard
to his properties situated in the French territory of
Chandernagore. By these two Wills, Durga Charan appointed
his wife, Saraswati Dassi, his two sons, Shyama Chorone
Requitte and Tarini Chorone Requitte and his nephews,
Ashutosh Das and Bhola Nath Das, executrix and excutors and
trustees of the estate left by him. The Wills provided that
the trustees would hold the bequeathed properties left by
the testator according to the terms of the Wills for the
legatees and the beneficiaries mentioned therein. The Wills
also provided that in case of death or retirement or refusal
or incapacity to act of any of the trustees, the continuing
trustees of trustee for the time being, or the executors or
administrators of the last acting trustee might appoint any
other person or persons to be a trustee or trustees in place
of the trustee or trustees so dying or desiring to retire
from or refuse etc. But, in no case, the number of the
trustees should be less than two.
By his Will, dated June 6, 1898, Durga Chorone created
an absolute Debutter in favour of the said family Deity and
devised and bequeathed to his executors and trustees named
therein, his dwelling house with gardens and tanks
appertaining thereto situated in Chandernagore, "upon Trust
to stand possessed of and to hold, retain and use the
premises and endowed or Debutter property for the service
and worship of" his said family Deity. By that Will, he
further directed that this family idol "shall be located in
my said house in Chandernagore which said house and premises
shall be appropriated and devoted solely and exclusively to
the Thakur or Idol."
The testator died on August 27, 1898. Thereafter, the
Will, dated June 6, 1898, was duly probated and the trustees
came into possession of the Debutter properties and carried
on the administration of the estate and the Sewa and Puja,
as directed in the Will.
Smt. Saraswati, widow of Babu Durga Chorone, who was
one of the trustees named in the Will, died on October 30,
1913, while herson, Shyama Chorone, another trustee, died on
December 21, 1925.
435
Thereupon, Tulsi Chorone son of Shyama Chorone was appointed
a new trustee in place of his father, Bhola, the other co-
trustee, refused to act as such. Therefore, his son,
Devindra was appointed as trustee by the continuing
trustees. Tarani Chorone died on or about May 29, 1939 and
the continuing trustees appointed his son, Profulla Chorone
as a trustee. Tulsi Chorone died on August 17, 1952 and the
continuing trustees similarly appointed Bhagwati, son of
late Shyama Chorone as a new trustee. Debendranath Das died
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on or about March 7, 1956, and the continuing trustees
appointed Satish Chandra Das, a son-in-law of late Shyama
Chorone as a new trustee in his place.
In or about the year 1934, the descendants of the
settlor, Durga Chorone, some of whom were the then trustees,
referred certain disputes with regard to the endowed
property to the arbitration of one Bhringeswar Sreemany. The
disputes referred to the arbitrator included rival claims by
the sons and grandsons of Durga Chorone, to their residence
in the Debuttor property belonging to the family Deity. The
Arbitrator made an Award on September 6, 1934, whereby he
allotted rooms Nos. 72 and 82 to Satya Chorone, respondent,
who had been in use and occupation from before. The
Arbitrator made similar allotments of other rooms in the
said house in favour of the other sons and grandsons of the
settlor.
On April 20, 1959, Profulla Chorone Requitte, Bhagwati
Chorone Requitte and Satish Chorone Das, the then trustees
instituted Title Suit No. 28 of 1959 in the Court of the
Subordinate Judge, Ist Court, Hooghly. The plaintiffs prayed
for two reliefs in the plaint: (i) Possession by ejectment
of the defendant, Satya Chorone Requitte, primarily from all
the six rooms, alleging that the defendant had been
occupying the same as licensee under the plaintiffs and the
said licence had been revoked: (ii) in the alternative, for
possession of the four rooms mentioned in Item No. 1 of
Schedule ’B’ of the Plaint, which had not been allotted to
him under the award.
The plaintiffs’ case, as laid in the plaint, was that
since the dwelling house belonging to the Deity, had a large
number of rooms the trustees allowed temporarily the sons
and grandsons of Durga Chorone to occupy and use for their
families some of the rooms in the said dwelling house as
licensees. It was further alleged that in the year 1966, the
defendant illegally and forcibly occupied Room Nos. 63, 35,
46 and 57 in the aforesaid house without the knowledge and
consent of the trustees causing serious inconvenience in the
due performance of the religious ceremonies of the Deity
according to the terms
436
of the Will. It was further contended somewhat
inconsistently that the dwelling house at Chandernagore
being absolute Debutter belonging to the Deity, no person,
except the trustees, has any legal right in the said house
which can only be used for the Sewa Puja of the family Deity
located in the house; that the arbitration award of 1934 is
not binding on the Deity and/or the trustees who were not
parties to the arbitration; that the award was beyond the
scope of the reference and was adverse to the Trust, itself.
In his written statement, the defendant traversed the
material allegatious in the plaint and asserted that he was
in use and occupation of the rooms in dispute in his own
right as a Shebait. He further pleaded that the plaintiffs
had no right to represent the Deity and had no locus standi
to maintain the suit as trustees; that since all the
Shebaits had not been joined as parties the suit was
incompetent.
The subordinate Judge dismissed the suit holding, inter
alia, that:
(i) By his Will, Babu Durga Chorone had absolutely
dedicated the property in dispute to the family Deity, Sree
Sree Iswar Sridhar Jiew, but he had not under that Will made
any testamentary disposition of his Shebaiti rights in
respect of this Debutter property which, on the death of the
testator, devolved under Hindu Law upon his descendants, who
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in consequence, were entitled to reside in the house as
Shebaits.
(ii) The Trustees were not Shebaits. Only the
descendants of Babu Durga Chorone had become Shebaits and
had Shebaiti right in the endowed property.
(iii) The award made by the arbitrator, Bhringeswar
Sreemany, was valid and binding upon the plaintiffs.
(iv) The plaintiffs could not recover possession from
the defendant as trustees.
(v) The plaintiffs were not entitled to represent the
Deity and had no locus standi as trustees to maintain the
suit on behalf of the Deity.
(vi) The defendant had a right to occupy the rooms in
suit as co-shebaits.
(vii) The plaintiffs having not claimed any relief in
terms of the arbitration award, were not entitled to any
relief in respect of Room Nos. 35, 46, 57 and 63.
Aggrieved, the plaintiffs preferred an appeal to the
District Judge, who dismissed the same and affirmed the
decision of the Trial Court.
Against the appellate decree of the District Judge, the
plaintiffs carried a Second Appeal to the High Court at
Calcutta. The Division Bench of the High Court, by its
judgment dated July 21, 1969,
437
allowed the appeal, in part, and granted the plaintiffs’ a
decree for Khas possession of Room Nos. 35, 46, 57 and 63 in
the said dwelling house; but not in respect of Room Nos. 72
and 82 mentioned as Item No. 1 of Schedule ’B’ to the
Plaint.
After obtaining the certificate under Article 133(1)(b)
of the Constitution, as it then stood, the plaintiffs have
filed Civil Appeal 1873 of 1970 against the partial
dismissal of their claim in respect of Room Nos. 72 and 82;
while the defendant has filed Civil Appeal 1874 of 1970,
praying that the plaintiffs’ suit ought to have been
dismissed in respect of Room Nos. 35, 46, 57 and 63 also.
Both the appeals will be disposed of by this common
judgment.
The following pedigree table which has been compiled
from the material on record by the learned counsel for the
appellant, will be helpful in understanding the relationship
of the parties and other connected facts:-
Durga Chorone died on 27-8-1898
_____________________________|______________________________
| | |
Saraswati (Widow). Shyama Chorone Tarani Chorone
Executrix died (Son) (Son).
on 30-10-1913. Executor, died Executor died
on 21-12-25 on 29-5-39.
_____________________________|_________ |
| | | | |
Hari Tulsi Satya Bhagwati |
| Wife Chorone Chorone |
| Two sons & (Defdt.) (Plff.2) |
| their fami- | | |
| lies & one | | |
| unmarried | | |
| daughter. | | |
Three Wife,six Wife,five |
sons & sons and sons & two |
their families daughters |
families. and five (one un- |
daughters married). |
(one un- |
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married). |
_______________________________|___
| |
Profulla Chorone Amulya
(Plff. 1). (not a party)
| |
| |
Wife 4 Wife, 2 sons
daughters. & 6 daugh-
ters (3 un-
married.)
The principal question that falls to be determined in
these appeals is, whether the settlor had constituted the
same set of persons as Shebait as well as Trustees. This
question turns on a construction of the Will.
438
Mr. Lal Narain Sinha, learned Counsel for the appellant
in Civil Appeal No. 1873 of 1970 submits that the answer to
this question must be in the affirmative because the
Settlor, Durga Chorone Requitte had by express words in the
Will, (Ex. 6/6A), dated June 6, 1898, imposed an obligation
on the trustees to hold, manage and use the suit property
which he had thereby absolutely dedicated to the family
idol, for the service and worship of the idol. It is
maintained that although the word ’Shebait’ is not used in
the Will, yet the said obligation cast on the Trustees by
inevitable implication clothed them with the character of
Shebaits, also.
As against this, Mr. Ashok Sen contends that the answer
to the question posed must be in the negative. It is urged
that the words "to hold, retain and use the premises... for
the service and worship of my family deity", on which Mr.
Sinha’s argument rests, do not necessarily mean that the
Testator had disposed of his Shebaitship rights, also, and
vested them in the Trustees. It is stressed that there are
no words in the Will which, expressly or necessary
implication, constituted the Trustees as Shebaits; that the
testator has not used the word ’Shebait’ anywhere in the
Will; nor did he employ the word ’manage’ or ’manager’
anywhere in the Will while charging the Trustees to hold and
use the premises as Debutter property of the idol. According
to the learned counsel, if the Will is construed as a whole
in the light of the surrounding circumstances, it would be
clear that the trust created was not a continuing trust but
one which would terminate as soon as the Executor-Trustees
handed over the bequeathed properties to the beneficiaries.
It is pointed out that the two Wills, one dated June 4,
1898, and the other dated June 6, 1898, should be read as
complementary to each other. The necessity of executing two
separate Wills arose, because the properties bequeathed by
the Will (Ex. 6) were situated in the then French
territories, while those covered by the Will dated June 4,
1898, were situated in the British India. There were several
beneficiaries under these Wills, and the family idol was one
of them. The recitals in these Wills- according to the
counsel-particularly in the Will dated June 4, 1898, show
that the testator had kept, in tact, the right of residence
of his widow and daughters-in-law and other heirs in the
property dedicated to the idol. This, says Mr. Ashok Sen, is
a sure indication of the fact that the founder did not want
to part with his Shebaiti rights, which were heritable
property, in favour of the Trustees, to the exclusion of his
natural heirs under Hindu Law.
Mr. D. B. Mukherjee, appearing for the appellants in
Civil Appeal No. 1874 of 1970, further submitted that the
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words "to hold, retain
439
and use the premises as endowed or debutter property for the
service and worship of my family deity", if properly
construed in the context of the Will as a whole and
surrounding circumstances, mean that the Executors and
Trustees would hold the property in trust for the benefit of
the deity and the shebaits. In the alternative, counsel
submitted that even if it is assumed arguendo that they were
so appointed, the line of succession set out in the Will
would be hit by the principles laid down in Tagore v.
Tagore(1), Ganesh Chandra v. Lalit Behary(2); Jagadindra v.
Rani Hemanta Kumari(3) and by the Rule against perpetuities
(Manohar v. Bhupendra) (4). It is further contended that
since the founder did not dispose of the Shebaitship but
only founded the worship of the Thakur, Shebaitship would
vest in the heirs of the founder. For this proposition,
reliance has been placed on Gossamee Shree Greedhareejee v.
Rumanlaljee(5).
In reply to this, Mr. Sinha submits that trusteeship
with power to nominate successor is an estate recognised by
law, and in such a case the founder does not create an
estate of inheritance contrary to Hindu Law of Succession,
nor does the question of the rule of perpetuity arise
because the founder does not determine the choice of the
succeeding Trustees. Reference has been made in this behalf
to I.L.R. 24 Madras 219, and Underhill’s treatise on
"Trusts", 12th Ed. pp. 534-35 at 23-31. It is maintained
that the Trust in question is a continuing trust; it did not
come to an end when the Trustees had fully performed their
duties and obligations as executors of the Will, that the
general principle underlying Section 77 of the Trust Act is
applicable to the case in hand. It is further submitted that
of the two Wills, the later must prevail and reference to
the earlier Will, for the purpose of determining whether the
heirs of the Settlor had been given a right of residence in
the suit property, is irrelevant.
Before dealing with these contentions, it will be
appropriate to have a clear idea of the concept, the legal
character and incidents of Shebaitship. Property dedicated
to an idol vests in it in an ideal sense only; ex-
necessitas, the possession and management has to be
entrusted to some human agent. Such an agent of the idol is
known as Shebait in Northern India. The legal character of a
Shebait cannot be defined with precision and exactitude.
Broadly described, he is the human ministrant and custodian
of the idol, its earthly spokesman, its authorised
representative entitled to deal with all its temporal
440
affairs and to manage its property. As regards the
administration of the debutter, his position is analogous to
that of a Trustee, yet, he is not precisely in the position
of a Trustee in the English sense, because under Hindu Law,
property absolutely dedicated to an idol, vests in the idol,
and not in the Shebait. Although the debutter never vests in
the Shebait, yet, peculiarly enough, almost in every case,
the Shebait has a right to a part of the usufruct, the mode
of enjoyment, and the amount of the usufruct depending again
on usage and custom, if not devised by the founder.
As regards the service of the temple and the duties
that appertain to it, he is rather in the position of the
holder of an office; but even so, it will not be quite
correct to describe Shebaitship as a mere office. "Office
and property are both blended in the conception of
Shebaitship". Apart from the obligations and duties resting
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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 he able property. It follows that, where the
founder does not dispose of the shebaiti rights in the
endowment created by him, the Shebaitship devolves on the
heirs of the founder according to Hindu Law, if no usage or
custom of a different nature is shown to exist [Gossamee
Shree Greedharejee v. Rumanlaljee, (ibid.)]
Then, there is a distinction between a public and
private debutter. In a public debutter or endowment, the
dedication is for the use or benefit of the public. But in a
private endowment, when property is set apart for the
worship of a family idol, the public are not interested. The
present case is one of a private debutter. The distinction
is important, because the results logically following
therefrom have been given effect to by Courts, differently.
According to English Law, the beneficiaries in a
private Trust, if sui juris and of one mind, have the power
or authority to put an end to the trust or use the trust
fund for any purpose and divest it from its original object.
Whether this principle applies to a private endowment or
debutter created under Hindu Law, is a question on which
authorities are not agreed. In Doorganath Roy v. Ram Chunder
Sen(1), it was observed that while the dedication is to a
public temple, the family of the founder could not put an
end to it, but "in the case of a family idol, the consensus
of the whole family
441
might give the (Debutter) estate another direction" and turn
it into a secular estate.
Subsequently, in Pramatha Nath Mullick v. Pradyumna
Kumar Mullick(1), the Judicial Committee clarified that the
property cannot be taken away from the idol and diverted to
other purposes without the consent of the idol through its
earthly agents who, as guardians of the deity, cannot in law
consent to anything which may amount to an extinction of the
deity itself.
Although, Shebaitship is heritable property, yet, it
cannot be freely transferred by the Shebait. But there are
exceptions to this general rule. Some of such exceptions
recognised in several decisions, are: alienation in favour
of next shebait, or one in favour of the heir of the
transferor, or in his line of succession, or in favour of a
coshebait, particularly when it is not against the presumed
intention of the founder. (See Nirod Mohini v. Shibdas(2)
and Mancharan v. Pranshankar (2).
The Bombay High Court has also pointed out in Radhu
Nath v. Purnanand (4), that if any one of the Shebaits
intends to get rid of his duties, the proper thing for him
to do would be to surrender his office in favour of the
remaining Shebaits. In the case of such a transfer in favour
of co-shebait, no policy of Hindu Law is likely to be
affected, much less the persumed intentions of the founder.
Now, let us deal with the problem in hand in the light
of the principles cited above.
The first question that falls for determination is:
Whether the founder’s intention was to confer rights of
Shebaitship on the persons designated by him as ’trustees’
in his Will ? In other words, did he by the Will, dated June
6, 1898 (Ex. 6/6A), dispose of the Shebaitship of the deity,
also ? If the answer to this question is found in the
negative, shebaiti rights in this endowed property will
devolve, according to Hindu Law, on all the heirs of the
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founder, including the defendant. In that situation, the
defendant with his family, like the other co-Shebaits, will
be taken as residing in the debutter property, in his own
right. If, however, the answer to the said question is found
in the affirmative, the further question to be considered
would be with regard to the effect of the Award dated June
29, 1934 (Ex. C) on the respective claims of the parties.
442
We will now take up the first question.
Mr. Sinha, learned counsel for the appellants, submits
that since by his Will, dated June 6, 1898, the founder had
"devised and bequeathed" the Chandernagore house to the
plaintiffs-trustees ’upon Trust to stand possessed of" and
"to hold, retain and use the premises as endowed or debutter
property for the worship of the family Thakur", his
intention was to constitute the trustees as Shebaits of the
property having the exclusive right to manage the debutter,
to serve the idol and to preserve its property. It is
submitted that the founder had by these express words,
invested the trustees both with the legal title and
Shebaitship, although the beneficial title (in an ideal
sense) was vested in the idol.
The passage in the Will on which Mr. Sinha relies for
the construction propounded by him, runs as under:
"I desire, devise and bequeath to my Executors and
Executrix and Trustees hereinafter named... my dwelling
house with garden and tanks appertaining thereto
situate in Lal Bagan in Chandernagore. Upon trust to
stand possessed of and to hold, retain and use the
premises an endowed or Debutter property for the
service and worship of my family Thakur or idol
Sreedhar Jew, which I hereby direct shall be located in
my said house in Chandernagore which said house and
premises shall be appropriated and devoted solely and
exclusively to the Thakur or Idol."
(Emphasis supplied)
The crucial words are those that have been underlined.
It may be observed that this Will, in English, appears
to have been drafted in pursuance of legal advice by an
expert draftsman. The omission of the words "management",
"manager", "custodian of the idol" or "ministrant of the
idol" from the Will, therefore, cannot but be intentional.
It seems clear to us that the underlined words in the
above extract, by themselves, merely create a trust/or
endowment and indicate the nature and purpose of the
endowment. These words do not touch or deal with Shebaiti
rights. This inference receives support from the surrounding
circumstances.
Further, in arriving at the true import of the words
"to hold, retain and use the premises an endowed or Debutter
property for the service and worship of my family Thakur’,
it will not be improper to look to the conduct of the
Trustees and the members of the family of the founder.
443
There is no antagonism between the two Wills, one dated
June 4, 1898 and the other dated June 6, 1898, of the
founder. Indeed, in a sense they are complementary to each
other. There is a reference in the Will, dated June 4, 1898,
to the Testator’s dwelling house at Chandernagore, which
under the Will (Ex. 6) was endowed to the family deity. From
the following provisions in the Will, dated June, 4, 1898,
it is clear that the testator intended that the dwelling
house at Chandernagore would be used by his heirs for their
residence:
"(a). I further direct my said Executors and
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Trustees out of the said rents and profits of the said
premises number 39, Chowringhee Road to pay monthly a
sum of Rupees Fifty for the maintenance to each of my
daughter-in law Smt. Gopeswari Dassee wife of my eldest
son Shyama Chorone Requitte and Nagendra Moni Dassee
wife of youngest son Tarine Chorone Requitte during
their lives respectively and provided they reside with
their respective husbands at my dwelling house in
Chandernagore.
(b). The Trustees shall pay monthly a sum not
exceed in Rupees Two hundred in addition to the
interest of Government securities of the nominal value
of Rupees Twenty thousand hereinafter mentioned and
directed to be applied for the purpose of household and
other monthly expenses of my family, namely wife and
sons and sons’ wives and other relatives of mine who
shall reside in my dwelling house at Chandernagore.
(c). To pay and apply the net interest of
Government securities on the nominal value of Rupees
Twenty thousand for the house-hold and other monthly
expenses of my family, namely, wife and sons and also
sons’ wives and other and other relatives of mine who
shall reside in my dwelling house at Chandernagore and
also to pay and apply the net interest of Government
securities of the nominal value of Rupees six thousand
for the costs and expenses of keeping and maintaining
my said family dwelling house at Chandernagore in
proper repair and in payment of all taxes and
assessments in respect thereof."
(Emphasis supplied)
Looking to the general tenor of the document, it will
not be inappropriate to interpret the words "wife, and sons,
and sons’ wives, and other relatives of mine" in the above-
quoted portions of the Will, as including all the
descendants and heirs of the testator.
444
Thus construed conjointly, the two Wills make it clear
that although the entire family house, comprising 84 or 85
rooms, at Chandernagore was formally endowed to the family
idol, yet the testator’s intention was that his heirs and
descendants would also be entitled to use this house as
their family dwelling house, apart from the room wherein the
idol was enshrined.
It may be further noted that in the Will, dated June 4,
1898, the testator made the following provisions for the
Sewa puja of the idol at Chandernagore and for other
religious festivals:
(i) The trustees shall set apart interests of
Government securities for the daily expenses of worship of
the idol.
(ii) The Trustees shall pay and apply the net interest
of Government securities of the nominal value of Rs.
25,000/- for the yearly expenses of the Durga Puja festival
at Chandernagore.
(iii) The Trustees shall pay and apply the net interest
of Government securities of the nominal value of Rs.
15,000/- for the yearly expenses of the Dolejatra of the
family idol, Thakur Sreedhar Jew at Chandernagore.
The aforesaid provisions furiner show that although the
trustees were provided with the funds for the Sewa-puja of
the family deity and for other festivals out of the estate
left by the testator, but they were not expressly
constituted as Shebaits of the deity. It will, therefore, be
not unreasonable to infer that the intention of the testator
was that these funds would be expended for the purposes
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indicated by him, through the Shebaits.
Another telling circumstance appearing in evidence is
that after the death of the widow and the two sons of the
testator, their heirs, also, continued to live in this
family dwelling house at Chandernagore.
It may be further noted that by the Will, dated June 6,
1898, no legal title in the endowed property was vested in
the trustees. The title was expressly vested in the family
idol to whom the property was absolutely dedicated. The
testator did not create a trust estate in the sense in which
it is understood in English Law.
The above-quoted provisions from the Wills further show
that no rights to act as ministrant of the idol were
conferred upon the Trustees. On the other hand, a mere
obligation to hold and use the property for the endowment
indicated was imposed upon the persons designated as
’trustees’.
445
Reading the two Wills together, with particular focus
on the provisions extracted in this judgment, it is clear
that the testator, Durga Chand Requitte, did leave
Shebaitship undisposed of; his presumed intention being that
Shebaitship should devolve on his natural heirs who would
have a right to use the suit house as their family dwelling
house. The rights conferred on the Trustees under the Will
may, at the most, amount to a curtailment of the right to
manage the endowed property which a Shebait would otherwise
have. But, such curtailment by itself would not make the
ordinary rules of succession in Hindu Law inapplicable in
regard to the devolution of Shebaitship, which is heritable
property.
The upshot of the above discussion is that in spite of
the interposition of the Trust for management of the endowed
property, the Shebaitship remained undisposed of and, as
such, the defendant and other descendants of Durga Chand
Requitte became co-shebaits of the deity by the operation of
the ordinary rules of Hindu Law.
In arriving at the conclusion that in spite of the
interposition of the Trust, the founder by his Will left the
Shebaitship undisposed of, and as such, the defendant also,
under Hindu Law, became one of the Shebaits, we are
fortified by the inference arising out of the facts admitted
by no less a witness than Plaintiff No. 3, Satish Chandra
Dass, himself, who alone deposed for the plaintiffs. Though
he claimed that there were no Shebaits of the deities and
the trustees were managing the Shebaits. he categorically
admitted the following facts:
(a) "The disputed house is a big house", having 84-85
rooms. "It is the only family dwelling house" of the sons
and grandsons of Durga Chorone Requitte, who live in it,
while "the deity is installed in room No. 66 in the first
floor".
(b) "The inmates of the disputed house, as far as
practicable, look after the bath of the deity as also the
preparation of Naibedya (tray containing the offerings) and
Bhog (food) of the deity".
Thus even according to the plaintiffs-appellants, only
the descendants and heirs of the founder, who live in the
endowed house, have throughout been acting as ministrants of
the family idol, which, as already noticed, is one of the
vital characteristics of a Shebait. In other words, the sons
and the descendants of Durga Chorone Requitte, alone, have
throughout been acting as co-shebaits of the family deity,
to the exclusion of the ’trustees’ who were not his
descendants.
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The first two courts were, therefore, right in holding
that the Shebaiti rights remained with the heirs of the
founder.
446
Assuming for the sake of argument, that the ’trustees’
were also vested with the rights and obligations of a
Shebait, then also, the evidence on the record shows that
those trustees who were not descendants of the founder,
Durga Choron Requitte, never acted as such. They went out of
the picture long ago and must be presumed to have renounced
their Shebaiti rights in favour of their co-shebaits who
were descendants of the founder. It is in evidence that in
1934, a dispute arose among the descendants of the founder
with regard to the accommodation in their residential
occupation. Thereupon, the trustees agreed with the
descendants of the founder by means of the Agreement (Ex. E)
to refer the dispute to the sole arbitration of Shri
Shringerwar Shrimani. The arbitrator, inter alia, held that
the heirs of late Durga Choron Requitte and his descendants
alone had the rights to act as Shebaits. There is
documentary evidence on the record to show that this award
(Ex. G) given by the arbitrator was accepted by the
’trustees’. The present plaintiffs-appellants, by their
letter dated June 18, 1950 (Ex. A/7), asserted their right
on the basis of this award and described the defendant-
respondent as a shebait of the deity. The letters (Ex. A-8
and A-10) also point to the same conclusion.
Thus, even if it is assumed that originally, the
trustees were regarded as having been constituted as
Shebaits, then also, those among them who were not family
members or descendants of the founder, renounced and
relinquished their shebaiti rights, if any, in favour of the
descendants of the founder. Such a relinquishment made in
favour of the co-shebaits, will be valid.
From whatever angle the matter may be looked at, the
conclusion is inescapable that Shebaitship of the family
deity remained solely with the descendants of the founder;
and the defendant-respondent, who is admittedly a grandson
of the founder, had been regarded as one of the Shebaits,
and as such, entitled to reside in the disputed rooms. All
the Shebaits were therefore, necessary parties; but all of
them have not been impleaded. The Trustees by themselves,
have no right to maintain the suit in respect of the
debutter property, the legal title to which vests in the
idol, and not in the Trustees. The right to sue on behalf of
the deity vests in the Shebaits. All the Shebaits of the
deity not having been made parties, the suit was not
properly constituted, and was liable to be dismissed on this
score alone.
In the view we take, it is not necessary to decide,
whether the ’trust’ created by the Will of Durga Chorone
Requitte was a continuing trust or not, or whether the mode
of devolution of the office of
447
Trustees indicated by the founder in his Will was or was not
hit by the rule in Tagore v. Tagore (supra).
For the foregoing reasons, we allow the defendant’s
appeal (Civil Appeal No. 1874 of 1970), set aside the
judgment of the High Court, and dismiss the plaintiffs’
suit. In the result, Civil Appeal No. 1873 of 1970 filed by
the Plaintiffs, ipso facto fails, and is dismissed. In the
circumstances of the case, there will be no order as to
costs.
C.A. 1873/70 dismissed.
P.B.R. C.A. 1874/70 allowed.
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448