Jagatpat Singh Duggar v. Krishna Kamini Saheba — 1944 DIGILAW 190 (CAL)

JUDGMENT B.K. Mukherjea, J. - This Rule is directed against an order of the Subordinate Judge of Rangpur, dated 28th June 1944, passed in a Reference made to him under S. 55, Land Registration Act. 2. The material facts are not in controversy and may be briefly stated as follows: On 9th November 1878, one Maharaja Jagadindra Banwari Gobinda Deb Bahadur executed an arpannama by which he created an absolute debottar in respect of Touzi No. 224A of the Rangpur Collectorate in favour of Deity Kisori Banwari Jiu. Under the terms of the arpannama, the first shebait of the deity was the founder himself, then came his widow and on the death of the widow his grandson Banwari Mukunda Das Nandi was to be the shebait. The shebaitship devolved in the manner indicated in the arpannama, and Banwari Mukunda Das Nandi, the last shebait, died on 22nd December 1940. On 3rd February 1941, his widow Krishna Kamini Saheba and his four sons to wit, Banwari Birendra Deb, Banwari Pachhanda Deb, Banwari Sunanda Deb and Banwari Rabindra Deb applied to the Collector for mutation of their names as shebaits, in succession to Banwari Mukunda Das Nandi under the provisions of the Land Registration Act. 3. While the proceeding was pending, Banwari Sunanda Deb died on 22nd February 1941, and Banwari Rabindra Deb, another of his brothers, followed him on 2nd March 1941. Both of them had no male heirs, and on 10th March 1941, their respective widows, Susamabala and Lilabati got themselves substituted as applicants in places of their deceased husbands. Later on, Lilabati died, and her two daughters, Ila Dasi and Bolu Dasi, were substituted in her place. 4. The application for mutation was resisted by the present petitioner who is a putnidar under the deity of the touzi in question, and certain other persons who happen to be co-sharers in respect of some other properties not included in the debottar. Their contention, in substance, was that under the terms of the arpannama, no female heir was entitled to act as shebait. They also objected to the order of substitution made in respect of the heirs of Banwari Sunanda Deb and Banwari Rabindra Deb and also of Lilabati who subsequently died. 5. Their contention, in substance, was that under the terms of the arpannama, no female heir was entitled to act as shebait. They also objected to the order of substitution made in respect of the heirs of Banwari Sunanda Deb and Banwari Rabindra Deb and also of Lilabati who subsequently died. 5. The matter was taken to the Collector of Rangpur on appeal, and he was of opinion that the question involved was one of intricacy, depending on the construction of the arpannama and should more properly be decided by a civil Court, He accordingly made a reference to the civil Court under S. 55, Land Registration Act. The Subordinate Judge of Rangpur to whom the reference was made, by his order, dated 28th June 1944, held that all the applicants were entitled to possess the disputed touzi as shebaits after the death of Banwari Mukunda Das Nandi, and declared that their names should be mutated and that they should get delivery of possession of the estate on that basis. It is against this order that the present Rule has been obtained. 6. It should be noted at the outset that the decision of the civil Court to which a reference is made under S. 55, Land Registration Act, is a summary decision which has no other effect than that of settling the actual possession of the property. It does not bar a regular suit if anybody desires to have a proper adjudication on the question of title. Under S. 62, Land Registration Act, such order is final, not subject to appeal or review, and this Court, in our opinion, should not ordinarily interfere with such orders under S. 115, Civil P.C. We think further that there is considerable substance in the contention of Mr. Das that the present petitioner has got no locus standi to contest the application for mutation of names made by the heirs of the late shebait Banwari Mukunda Das Nandi. The petitioner is admittedly a putnidar under the deity in respect of the debottar estate and has got to pay the rent to such persons whose names are recorded under the Land Registration Act. The petitioner is admittedly a putnidar under the deity in respect of the debottar estate and has got to pay the rent to such persons whose names are recorded under the Land Registration Act. He is not at all interested in the question as to who are entitled to succeed to the shebaitship after the death of Banwari Mukunda Das Nandi, and the provisions of the Land Registration Act give him complete protection if he pays rent to the recorded proprietor or the manager as the case may be. 7. Section 55, Land Registration Act, contemplates that the dispute as to the applicant's possession or acquisition of title by transfer, succession or otherwise is raised by a person making a conflicting claim in respect thereof. Such dispute has got to be determined by the Collector, and in case he is of opinion that it can be more properly determined by a civil Court, he is entitled to make a reference under para. 2 of the section. As the petitioner has not put forward any claim to possession of or title to the property, we do not think that it was at all necessary for the Collector either to determine his objections or to refer them to the civil Court. As, however, the matter has been fully investigated by the Subordinate Judge, we will deal with the points that have been raised on behalf of the petitioner. 8. Mr. Rama Prosad Mookerjee who appears in support of the Rule has contended, in the first place, that according to the arpannama, only one person is entitled to be a shebait and the right cannot be claimed by all the heirs and descendants of the last shebait. The second contention put forward by him is that, at any rate, Krishnakamini, the widow of late Banwari Mukunda Das Nandi, could not be an heiress to her husband under the Hindu Women's Rights to Property Act (XVIII [18] of 1937)-the debottar estate being agricultural land. Lastly, it is argued that there is no provision for substitution in the land registration proceedings, and the entire procedure followed by the land registration officers in allowing the two widows and then the two daughters of one of them to be substituted in place of the original applicants was void altogether. We will take up these points one after another. 9. The first point need not detain us long. We will take up these points one after another. 9. The first point need not detain us long. Mr. Rama Prosad Mookerjee has drawn our attention to certain passages in the arpannama which speak of shebait in the singular number, and his argument is that the intention of the founder was that only one out of the descendants of the last shebait if the descendants are more than one, would succeed to the shebaiti rights. We have gone through the document ourselves and we do not find that there are any clear words to show that the founder expressed his desire that shebaiti is to be limited to one person only. 'Shebait' in the singular might refer to the whole body of shebaits as well. But even if Mr. Mookerjee's interpretation be accepted as correct, he has himself conceded that it is not open in law to the founder to direct the devolution of shebaitship amongst his unborn heirs in such a way as would go against the ordinary rules of inheritance under the Hindu law. He cannot create any sort of primogeniture or lay down that only some out of his future heirs would succeed as shebaits. Any way, therefore, the contention is of no substance, and the decision of the Court below on this point appears to be perfectly right. 10. In support of his second contention, Mr. Mookerjee has relied upon the decision of the Federal Court: In the matter of Hindu Women's Rights to Property Act, 1937, 45 C.W.N. (F.R.) 81 : (A.I.R. 1941 P.C. 72), and contends that the debottar property being a zemindary which consists primarily of agricultural lands, devolution of such lands would be governed not by the Hindu Women's Rights to Property Act 1937, but by the ordinary provisions of the Hindu law, and, consequently, the widow could not succeed in the presence of the sons. We do not think that we can accept this contention as sound. There is no dispute that the zemindary property belongs absolutely to the deity and the name of the deity is recorded as the proprietor of the estate under the provisions of the Land Registration Act. The name of Banwari Mukunda Das Nandi was recorded merely as a shebait or manager of the deity. There is no dispute that the zemindary property belongs absolutely to the deity and the name of the deity is recorded as the proprietor of the estate under the provisions of the Land Registration Act. The name of Banwari Mukunda Das Nandi was recorded merely as a shebait or manager of the deity. Such double entry is quite consistent with the provisions of the Act, and when one manager or shebait succeeds another, there is mutation only in the name of the manager, the name of the idol as proprietor remaining the same as before: (vide note 2 to S. 38, Land Registration Manual). 11. The question here is not one of succession to zemindary property at all, but of devolution of shebaiti rights which are of a distinct matter altogether. It is true that the shebaitship is not merely an office; both the elements of office and property, of duties and personal interests are blended together in it. In the Full Bench decision of our Court, Monohar Mukherjee v. Bhupendra Nath Mukherjee, 37 C.W.N. 29 : (A.I.R. (19) 1932 Cal. 791 (F.B.)), it was held that a person succeeding to shebaitship under a debottar grant is a grantee or donee of property, and his right to the office is subject to the rule that a gift cannot be made by a Hindu to a person not in existence at the time of the gift. The learned Judges in their judgment did not attempt to define precisely what kind of property shebaitship was; it was admitted that it lacked many of the ingredients of proprietary right, and it was difficult to place it under any of the different heads of property as are recognised by Hindu lawyers. It is, however, property of some kind, with regard to disposition of which the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore, I.A. Sup. vol., p. 47 : (9 Beng. L.R. 377 P.C.) would be attracted. 12. Under the Government of India Act, 1935, the devolution of agricultural lands is a matter within the exclusive competence of Provincial Governments, and comes within item 21, List 2, Sch. 7, attached to the Act. Assuming for the sake of argument that the debottar properties in this case are agricultural lands, there is no question hero regarding devolution of the agricultural lands which are vested perpetually in the deity. 7, attached to the Act. Assuming for the sake of argument that the debottar properties in this case are agricultural lands, there is no question hero regarding devolution of the agricultural lands which are vested perpetually in the deity. We cannot say that the devolution to shebaitship is to be regarded as devolution of agricultural lands simply because there are agricultural lands included in the endowment. The entire ownership, so far as the lands are concerned, is in the deity. There are certain privileges and benefits attached to the office of the shebait which give it the character of property, but a grantee of shebaitship is certainly not a grantee of the agricultural lands comprised in the endowment. An endowment generally consists of both agricultural and non-agricultural properties, and if the devolution of shebaitship is to depend upon the nature of the properties, the result might be that there would be different shebaits in respect of different properties, in the same endowment. In our opinion, shebaitship as property is quite distinct and separate from the endowed properties of the deity. It is a property of a peculiar character, and cannot be brought under any of the known classifications of property and cannot be described either as movable, or immovable, agricultural or non-agricultural. It does not certainly come within the purview of item 21, List 2 of Sch. 7 to the Government of India Act, 1935. We cannot say that the Hindu Women's Rights to Property Act of 1937 has no application with regard to devolution of shebait rights. 13. It is to be noted here that this question was not raised before the learned Subordinate Judge, and there was no investigation as to whether the lands comprised in the estate arc entirely or even mainly agricultural lands. The fact that the property is zemindary does not necessarily show that it must be agricultural land and nothing else. 14. The last point raised by Mr. Mookerjee relates to the proceedings before the land registration officers. His argument is that there are no provisions in the Land Registration Act under which the heirs of a person who has applied for registration of his name and who dies pending the proceeding can get their names substituted in place of the deceased and can carry on the proceedings as his heirs. His argument is that there are no provisions in the Land Registration Act under which the heirs of a person who has applied for registration of his name and who dies pending the proceeding can get their names substituted in place of the deceased and can carry on the proceedings as his heirs. We may say at the outset that we are not competent to say anything as regards the regularity or otherwise of the procedure adopted by the land registration authorities. If the substitution order made by the Deputy Collector was wrong, it was up to the petitioner to have it corrected by the appellate or higher authorities. We point out, however, that the objection seems to us to be purely technical which has not, in any way, affected the merits of the case. It is not disputed that the persons whose names have been substituted are really the heirs of the deceased applicants and are entitled to the same rights as the latter had. The whole irregularity would have been cured if instead of making applications for substitution separate applications for registration of their names were made. The matter is entirely one of form and not of substance. 15. As we have already pointed out, the petitioner is not a person aggrieved at all by the order made by the Subordinate Judge, and he himself does not lay any claim to the property and is not interested in disputing the claim of the opposite party. His only object might have been to delay the registration of the names of the opposite party which would help him in delaying payment of rent due to them. 16. In the result, this rule is discharged with costs; hearing fee three gold mohurs. 17. Let the records be sent down at once. Ellis, J. 18. I agree. 19. His only object might have been to delay the registration of the names of the opposite party which would help him in delaying payment of rent due to them. 16. In the result, this rule is discharged with costs; hearing fee three gold mohurs. 17. Let the records be sent down at once. Ellis, J. 18. I agree. 19. As we have pointed out in the body of our judgment, the order complained of is not one which can be interfered with by this Court under S. 115, Civil P.C. The summary order made by the Subordinate Judge in a reference made to him under S. 55, Land Registration Act, settles merely the question of possession, and not of title, and so far as the present petitioner is concerned, we have definitely held that he has not any locus standi in the matter and is not entitled to come forward and contest the proceedings for mutation of names. 20. There is no substantial question of law in this case as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder, and the point relating to the application of the Hindu Women's Eights to Property Act, 1937, was not even mooted in the Court below. In our opinion, this is not a matter which would justify us in granting a certificate under S. 205(1), Government of India Act, 1935, and such certificate is accordingly withheld.