Judgment Mukherjea J.- This appeal is directed against an appellate judgment of the Calcutta H. C., dated 19-5-1950, which affd, the judgment of a single Judge of the Original Side of that Ct. passed on 9- 2-1949, in Suit No. 2481 of 1947. 2. The pltf. who is the applt, before us, is the widow of one Mrityunjoy Mullick, & wealthy Hindu resident of Calcutta, while the deft. who is still an infant, is the only son of Mrityunjoy born of his first wife Kiranbala, who died during the lifetime of her husband. The controversy between the parties centres round the short point as to whether the pltf, is entitled, after the death of her husband, to act as shebait of an idol named Sree Sree Nittogopal Jew founded by Mrityunjoy & his mother, either solely or jointly with the deft. her stepson. 3. To appreciate the points that have been canvassed before us in this appeal, it will be necessary to narrate a few antecedent fact about which there is no dispute between the parties. It may be stated here that neither side adduced any evidence before the trial Judge during the hearing of the case & the questions raised up the suit were argued as questions of law turning on the construction of the indenture which created the endowment as well as of the provisions of the Hindu Women s Rights to Property Act (Act XVIII [18] of 1937) as amended by Act (XI [11] of 1938). 4. It appears that one Dhananjoy Mullick, who was the adoptive father of Mrityunjoy, died on 28-8-1907, leaving behind him, his widow Nitto Sundari & the adopted son Mrityunjoy, who was then a minor. On 11-2-1910 Nitto Sundari obtained Letters of Administration to the estate of the deceased Dhananjoy limited during the minority of the adopted son. On 13-6-1920 the widow purchased a house property in the City of Calcutta -being premises No. 14, Syakrapara Lane- out of the monies belonging to the estate of her husband, & on 10-10-1934 she conveyed the said property to Mrityunjoy who had by that time attained majority. On the very same day that this property was conveyed to Mrityunjoy, Nitto Sundari & Mrityunjoy together executed an indenture, by which certain properties described in Sch. A & B of the document & inCluding premises No. 14, Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. On the very same day that this property was conveyed to Mrityunjoy, Nitto Sundari & Mrityunjoy together executed an indenture, by which certain properties described in Sch. A & B of the document & inCluding premises No. 14, Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. The indenture recites that Nitto Sundari had, with the consent & concurrence of her son, established & consecrated the said idol & located it in premises No. 14, Syakrapara Lane, & that she had been performing the worship & periodical festivals of the deity according to Hindu rites. The documents lays down in detail the various rites, ceremonies & festivals of the idol that are to be performed daily or at specific periods, & the way in which the expenses necessary for these purposes are to be met from the income of the dedicated properties. A remuneration of 25 per cent, of the net income at the debater property has also been provided for the Shebait or Shebaits for the time being. After deClaring the various trusts, the indenture proceeds to produce for appointment of Shebaits & for devolution of shebaitship in the following manner:--- "That the said Sm. Nitto Sundari Dassi doth hereby constitute & appoint herself the Shebait of the said Thakur for & during the term of her natural life & doth hereby deClare that after her death her son the said Mrityunjoy Mullick shall become the Shebait of the said Thakur & after his death his wife Sm. Kiranbala Dassi & after her death the heirs of the said Mrityunjoy Mullick shall be & act as the Shebait or Shebaits of the said Thakur & she doth hereby deClare him or them such Shebait or Shebaits accordingly & doth hereby direct & deClarre that the daily worship & other periodical festivals & ceremonies of the said Thakur should be performance by such Shebait or Shebaits. Provided, however, that in case the said Mrityunjoy Mullick shall happen to die "without any issue or without giving any authority to his wife him surviving, to adopt, then such case it shall be competent for the said Mrityunjoy Mullick to appoint by will or otherwise a Shebait who would act as such after the death of his said wife as aforesaid but in case the said Mrityunjoy Mullick shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu law." 5. It is not disputed that Nitto Sundari acted as Shebait till her death in 1938 & that after her death Mrityunjoy became the Shebait. Kiranbala, the first wife of Mrityunjoy, who is referred to in the indenture as stated above, died on 14-1-1942, leaving her infant son Debabrata, who is the deft. in the suit. Soon after her death, Mrityunjoy married the pltf. Angurbala as his second wife & within five months after this marriage Mrityunjoy died on 4-7-1942. The present suit was filed in the Original Side of the Calcutta H. C. on 29-8-1947 by Angurbala & she prayed for a deClaration that she was the sole Shebait of the deity under the terms of the indenture or, in the alternative, was entitled to shebaitship jointly with the deft. she being a co-heir of her stepson under the provisions of the Hindu Women s Rights to Property Act. There was a further prayer Claiming a right of residence in premises No.14, Syakrapara Lane. 6. The written statement that was filed on behalf of the deft. denied the pltf. s Claim of shebaiti right, either exClusively in herself or jointly with the deft., & asserted that the deft. was the sole Shebait under the terms of the deed of endowment as well as under law. The deft. also contended that the pltf. was not entitled to any right of residence in the premises mentioned above. 7. The learned trial Judge by his judgment dated 9-2-1949 held that the pltf. was neither the sole Shebait of the deity nor was she entitled to Claim shebaiti rights jointly with the deft. & that the Hindu Women s Rights to Property Act was inapplicable to devolution of shebaiti rights at all. It was held further that as the pltf. The learned trial Judge by his judgment dated 9-2-1949 held that the pltf. was neither the sole Shebait of the deity nor was she entitled to Claim shebaiti rights jointly with the deft. & that the Hindu Women s Rights to Property Act was inapplicable to devolution of shebaiti rights at all. It was held further that as the pltf. was not in law the natural guardian of the deft. she could not Claim to exercise the rights of a Shebait on behalf of the deft as his natural guardian so long as the deft. remained a minor. The learned Judge held, however, that the pltf. s Claim to a right of residence in premises No.14, Syakrapara Lane, was well founded & she was held entitled to relief in that respect. The result was that save & except giving the pltf. a deClaration of her right of residence in premises No.14, Syakrapara Lane, all the other prayers of the pltf. were dismissed. 8. Against this decision, the pltf. preferred an appeal which came up for hearing before an appeal Bench of the Calcutta H. C. consisting of Sir Trevor Harries, C. J. & Sinha J. The learned counsel appearing in support of the appeal did not seriously challenge that part of the decision of the trial Judge which negatived the pltf s Claim to act as a sole Shebait either under the terms of the indenture of endowment or as a guardian of the deft. during the period of his minority. The only question pressed was whether the plaintiff was entitled to be a joint Shebait with the deft. The learned Judges rejected this contention of the applt. primarily on the ground that the identical point was raised & consd. by the F. C. in Umayal Achi v. Lakshmi Achi, 1945 F. C. R. 1 & it was held there that succession to shebaitship was not in any way altered or affected by the provisions of the Hindu Women s Rights to Property Act. The appeal was thus dismissed & the pltf. having obtained a certificate under Art. 133 (1) (a) of the Constitution has now come up in appeal to the Ct. 9. The Sub-stantial contention raised by Mr. Tek Chand, who appeared on behalf of the pltf. applt. The appeal was thus dismissed & the pltf. having obtained a certificate under Art. 133 (1) (a) of the Constitution has now come up in appeal to the Ct. 9. The Sub-stantial contention raised by Mr. Tek Chand, who appeared on behalf of the pltf. applt. is that under the Clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to Kiranbala after the death of Mrityunjoy and after her death it is to vest in the heirs of Mrityunjoy. As Kiranbala, died during the lifetime of Mrityunjoy, the grant of the Shebaiti right in her favour lapsed & the heirs of Mrityunjoy are, therefore, entitled to come in as the next Shebaits after Mrityunjoy s death. Who these heirs are has got to be determined according to the law in force at the time when the succession opened & under the Hindu Women s Rights to Property Act, which came into force in the year 1937, the widow of a property, who dies intestate, would rank as an heir along with the son & would be entitled to the same share as a son gets in the property of the deceased. It is said that as shebaitship is property, it would devolve u/s 3, Hindu Women s Rights to Property Act upon both the pltf. & the deft. jointly. Assuming, however, for argument s sake, that the expression property , as used in the Hindu Women s Rights to Property Act, does not inClude shebaiti right, it is argued by the learned counsel that it is a well established proposition of law that succession to shebaitship is governed by the ordinary rules of inheritance in respect to secular property under the Hindu Law, & as the Hindu Women s Rights to Property Act has amended the general law of inheritance in certain matters, the same alterations must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. Tek Chand-though it was not pressed seriously,-that the language of the indenture would go to suggest that in the matter of succession to shebaitship the wife of Mrityunjoy would have priority over other heirs. A point was also raised by Mr. Tek Chand-though it was not pressed seriously,-that the language of the indenture would go to suggest that in the matter of succession to shebaitship the wife of Mrityunjoy would have priority over other heirs. It is true that the document speaks only of Kiranbala, the wife of Mrityunjoy who is to come as Shebait after his death; but it is argued that the word "Kiranbala" is merely descriptive of the word wife & whoever would happen to be the wife of Mrityunjoy at the date of his death, would be entitled to succeed to his shebaiti rights. 10. Mr. Shankar Banerjee appearing for the resp. stated at the outset that he would not dispute as a proposition of law that shebaitship is property of some kind, the devolution of which is governed, in the absence of any direction to the contrary given by the founder; by the ordinary rule of succession under the Hindu Low. He contended however, that the Hindu Women s Rights to Property Act, which is a piece of special legislation enacted for a special purpose, does not use the expression property in a wide & unlimited sense; & it would appear Clear from the provisions of the different sections of the Act that it could not have had in contemplation & does not purport to affect, the rules of succession relating to the special & somewhat anomalous type of property which shebaitship admittedly is. The learned Counsel refd. in this connection to the provisions of Ss. 3 & 5 of the Act as well as to the preamble which sets out its object, & considerable stress was laid upon the pronouncement of the F.C. in Umayal Achi v. Lakshmi Achi, (1945) F. C. R. 1. The other contention put forward by the learned counsel turns upon the construction of the relevant Clauses in the indenture refd. 3 & 5 of the Act as well as to the preamble which sets out its object, & considerable stress was laid upon the pronouncement of the F.C. in Umayal Achi v. Lakshmi Achi, (1945) F. C. R. 1. The other contention put forward by the learned counsel turns upon the construction of the relevant Clauses in the indenture refd. to above which lay down the mode of devolution of the shebaitship, & his argument was that reading the Clauses as a whole, it would be Clear that the intention of the executants of the deed was that the issue of Mrityunjoy would succeed to him as Shebaits in the first instance & that no other heir of Mrityunjoy basing his Claim either upon general law or any special enactment would be entitled to become Shebait so long as any issue of Mrityunjoy was alive. A further question relating to the construction of the deed raised by Mr. Banerjee, was that the words "heirs of the said Mrityunjoy" occurring in the deed are to be construed not as words of devolution but of direct gift to the heirs under the deed & consequently the expression heirs must mean those who could legally Claim as heirs at the time when the grant was made; & any Sub-sequent charge in the law could not affect the position. 10. We will first advert to & examine the provisions of the Hinda Women s Rights to Property Act & see whether the Act includs within its scope a property of such character as shebaitship is. 11. The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami, 48 I. A. 302 that the relation of a Shebait in regard lo debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust properly vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religions endowment on the other hand the entire ownership; of the dedicated property is transferred to the deity or the institution itself as a juristic person & the Shebait or Mahant is a mere manager. In a Hindu religions endowment on the other hand the entire ownership; of the dedicated property is transferred to the deity or the institution itself as a juristic person & the Shebait or Mahant is a mere manager. But though a Shebait is a manager & not a trustee in the technical sense, it would not be correct to describe the shebaitship as mere office. The Shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the Shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the Shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of Shebaiti both the elements of office & property, of duties & personal interest, are mixed up & blended together; & one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights & attaches to it the legal incidents of property. This was elaborately discussed by a F. B. of the Calcutta H. C. in Manohar Mukherji v. Bhupendra Nath, 60 Cal. 452 & this decision of the F. B. was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary, 63 I. A. 448 and again in Bhabatarini v. Ashalata, 70 I. A. 57. The effect of the first two decisions, as the P. C. pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, & to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. "According to Hindu Law", observed Lord Hobhouse in Gossamee Sree Greedharreejee v.Rumanlolljee Gossamee 161. "According to Hindu Law", observed Lord Hobhouse in Gossamee Sree Greedharreejee v.Rumanlolljee Gossamee 161. A, 137 : "When the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that be has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shebaitship in any particular manner-& this right of disposition is inherent in the founder-or except when wage 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. 12. Turning now to the Hindu Women s Rights to Property Act, it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down- Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of s. 3 shall apply where a Hindu dies intestate." Section 3 (ii then provides : "When & Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, & when a Hindu governed by any other school of Hindu Law....... dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, Subject to the provisions of Sub--s. (3), be entitled in respect of property in respect of which be dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, & shall inherit in like manner as a son s son if there is surviving a son or son s son of such predeceased son : Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son." Sub-- ss. (2) & (4) of S. 3 are not material for our present purpose. Sub--s. (3) lays down : "Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman s estate. . . ." S. 4 lays down that the Act is not to operate retrospectively. (2) & (4) of S. 3 are not material for our present purpose. Sub--s. (3) lays down : "Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman s estate. . . ." S. 4 lays down that the Act is not to operate retrospectively. The only other section in the Act which has been refd. to in the course of arguments is S. 5 which runs as follows : "For the purposes of this Act a person shall be deemed to die intestate in respect of all property of which he has not made & testamentary disposition which is capable of taking effect." It will be seen that S. 3 (1) abrogates the general rule of Hindu law according to which a widow succeeds to her deceased husband s property only in default of male issue & she is now entitled to the same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached to S. 3 (1) to the widow if a predeceased son & also to the widow of a predeceased son of a predeceased son. Section 3 (1) speaks of any property . The expression prima facie includs, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of property in law. Of course, the property must be heritable property in respect to which alone the question of succession may legitimately arise. 13. Reliance has been placed by Mr. Banerjee, first of all, upon the object or purpose for which the statute was passed. The object as set out in the preamble, is to give better rights to women in respect to property; in other words, the object of the legislation is to confer larger rights upon women in comparison to what they enjoyed under the ordinary Hindu law. In our opinion, the preamble does not throw any light on the question as to whether the Act does or does not inClude within its ambit rights & interest of a shebait. 14. Mr. In our opinion, the preamble does not throw any light on the question as to whether the Act does or does not inClude within its ambit rights & interest of a shebait. 14. Mr. Banerjee next invokes in support of his contention the provisions of Sub--s. (3) of S. 3, which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the Hindu Woman s Estate . It is argued that this distinction between the Hindu Woman s estate & the unrestricted rights of a male heir can be predicated only of ordinary secular property but this distinction is unmeaning when applied to shebaiti right, for the nature of the interest enjoyed by a male or a female shebait is exactly the same. This argument does not appear to us to be at all convincing. Precisely the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow & no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect of the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations & restrictions attached to and inherent in the shebaiti right itself & they exist irrespective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male & the female shebeits may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu woman s estate. When a Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shebaiti right would not pass to her stridhana heirs but would go to the heirs of the last shebait, Anuragi Kuer v. Parmanand, A. I. R (26) 1939 Pat. 1. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shebaiti right would not pass to her stridhana heirs but would go to the heirs of the last shebait, Anuragi Kuer v. Parmanand, A. I. R (26) 1939 Pat. 1. Sub-- s. (3) of S. 3, therefore, is of no assistance to Mr. Banerjee s Client. 15. Mr. Banerjee then contends that S. 5, Hindu Women s Rights to Property Act affords a Clear indication that the Act is intended to be applicable only to property in respect to which a testamentary disposition is possible. This section, it mey be noted, was added by the Amending Act XI [11] of 1938 and the object apparently was to explain what is meant by dying intestate . It says that for the purposes of the Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. Mr. Banerjee would read the section as qualifying the meaning of the word property as used in S. 3 (1) or rather as engrafting & limitation upon it. What be says is, that the language of the section would be wholly inappropriate if the Act is applicable to properties in respect to which, as in the case of shehaitship, no testamentary disposition is possible. This argument, in our opinion, cannot be accepted as sound. Section 2 of the Act which has been refd. to above maker the provisions of S. 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will disposing at his properties. A doubt might arise as to whether this Act would apply when & will was actually executed by a deceased, but for same reason or other it was incapable of taking effect & it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of S. 5 of the Act is exactly the same as that of S. 30, Succession Act & the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exClude the operation of the Act. The language of S. 5 of the Act is exactly the same as that of S. 30, Succession Act & the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exClude the operation of the Act. The will must be an operative will & if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is non-testamentable , as Mr. Banerjee puts it, no testamentary disposition of such property is possible or could take effect in law & the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression property as used in S. 3 (1) has a limited or restricted interpretation & is not applicable to shebaitship, which is recognised as property in Hindu law. 15a. Reference may now be made to the decision of the F. C. in Umayal Achi v. Lakshmi Achi, 1945 F. C. R. 1 upon which the learned appellate Judges of the H. C. practically based their decision. The facts of that case stripped of unnecessary details are that one Arunachalam Chettiar who was a resident of Madras & owned considerable properties, moveable & immovable, both within & outside British India, died leaving behind him two widows & the widow of a predeceased son. The deceased had left a will but the legacies given by the same exhausted only, a small portion of his estate so that with regard to the rest which was of considerable value he died intestate. The deceased was in possession of several trust properties in regard to which there were certain religious & charitable trusts and the direction in the will was that the management of these trusts should devolve upon his heirs. The son s widow instituted a suit in the Ct. of the Sub-ordinate Judge at Devakottai for administration of the estate & for partition & separate possession of a half share of the same, basing her Claim upon the Hindu Women s Rights to Property Act. The son s widow instituted a suit in the Ct. of the Sub-ordinate Judge at Devakottai for administration of the estate & for partition & separate possession of a half share of the same, basing her Claim upon the Hindu Women s Rights to Property Act. The suit was resisted by the two widows as well as by the executors appointed under the will of the deceased & it was pleaded, inter alia, that the Hindu Women s Rights to Property Act was ultra vires the legislature & that in any event it was not applicable as the propositus did not die intestate. The trial Ct. held first that the Act was not ultra vires & was operative on all properties with the exception of agricultural lands & this finding was affd. by the H. C, on appeal & also on further appeal to the F. C, by the majority of the Judges of that Ct. The second finding of the trial Judge was that the deceased died intestate with regard to a considerable amount of property & consequently the pltf. was entitled to a half share thereof. The H. C. affd. this finding with this variation that her Claim to moveables situated outside British India was not allowed but the E. C. reversed the decision of the H. C, on this point & restored that of the trial Judge. The other point & that is the point with which we are concerned in the present case related to the devolution of the trust estates which were held by the testator. Both the Cts. below concurred in holding that these trusts should go to the heirs of the deceased under the ordinary Hindu law & that the provisions of the Hindu Women s Rights to Property Act were not attracted to the trusts. This decision was upheld by the majority of the judges in the F. C. & the point was actually dealt with by Varadachariar J. in his judgment. The view expressed by the learned judge is that the Hindu Women s Rights to Property Act was intended to apply only to properties beneficially owned by the propositus & it was not applicable to rights in the nature of trusteeship. It seems to us that, properly construed, this decision does not stand in the way of the applt. The view expressed by the learned judge is that the Hindu Women s Rights to Property Act was intended to apply only to properties beneficially owned by the propositus & it was not applicable to rights in the nature of trusteeship. It seems to us that, properly construed, this decision does not stand in the way of the applt. In the first place, we do not know at all what the nature of these trusts was. The learned Judge observed himself in his judgment that there was little or no evidence as to the terms of the foundations in respect of any of the trusts managed by the deceased. This observation, taken along with the terms of the documents refd. to it the judgment, would go to show that the deceased was a mere manager of the trusts & in respect of some of them at least he was the manager jointly with other persons. In the H.C. Sir Lionel Leach C. J. expressly held that in no sense could the trust properties be regarded as the separate property of the testator & consequently Act XVIII [18] of 1937 could not apply to such a case: Varadachariar J. observed with reference to the documents reld. upon by the learned counsel for the applt. that they only provided for management by his heirs . At any rate, we have no materials to hold that in regard to the trusts that formed the Subjects matter of that suit the trustees had any beneficial or personal interest in the trust properties. The indications, on the other hand, are Clearly in the opposite direction. In these circumstances, no question arises in the present case of controverting the proposition of law that Varadachariar J. purported to lay down, namely, that the Hindu Women s Rights to Property Act could not govern succession to property in respect to which the propositus had no beneficial enjoyment. It is not possible, however, to enunciate on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is normally involved would not be governed by the provisions of the Act. It is not possible, however, to enunciate on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is normally involved would not be governed by the provisions of the Act. There are indeed one or two observations of the learned Judge in his judgment, not very definitely expressed, from which it is not impossible to draw an inference in favour of the respondent, but we think that they should be construed in the light of the facts & the actual decision in the case. The observation that Hindu law regards trusteeship as property for certain purposes is of a most general character & it has to be noted that not only the word shebaitship has not been used by the learned Judge but he does not even confine his remarks even to religious trusts. Moreover, trusteeship is not certainly equivalent to shebaitship. On the other hand, the reference made by the learned judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had no personal interest in the trust property. The object of the Act, as stated above, is to give better rights to women in respect of property. If a trusteeship, even if it is regarded as property, carries with it no emoluments or any beneficial interest for the trustee & consists of nothing else but a bundle of obligations & duties, it might possibly be said that giving of a share in such rights to a Hindu widow would not in any way improve her position. But the position would be obviously different if there is a beneficial interest of a Sub-stantial kind inseparably connected with the duties of a particular office. Then again, the learned Judge possibly used the expression private property in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own. The reference to S. 3(3), Hindu Women s Rights to Property Act, is, as we have indicated already, not much helpful for the purpose of construing the Act. The reference to S. 3(3), Hindu Women s Rights to Property Act, is, as we have indicated already, not much helpful for the purpose of construing the Act. Alter all we must take the decision as it stands & it is not right to call into aid a particular reason assigned by the learned Judge, for the purpose of carrying the decision beyond whit it actually purports to lay down. We think that a very proper view of the effect of this decision of the F. C. has been taken by a D. B. of the Madras H. C. in Suryanarayana charyulu v. Seshamma, A. I. R. (31) 1950 Mad. 103. There the question arose in connection with the rights associated with the office of archakatavm, which is a hereditary religious office & the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the F. C. in Umayal Achi v. Lakshmi Achi, 1945 F. C. R. 1, has no application to a case relating to the office of archakatvam. It is pointed out by the Madras H. C. that though the observations of the learned Judge in the F. C. are wide, the decision proceeded only on the main ground that the Act governs succession to property beneficially owned by the propositus. In our opinion, the same reasons apply to the case of a hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent, of the net income of the endowed properties has been given to the shebait or shebaits for the time being as their remuneration. Our conClusion, therefore, is that there is nothing in any of the provisions of the Hindu Women s Rights to Property Act which excluds from the scope & operation of the Act succession to shebaitship which is a recognized form of property in Hindu law, 16. Assuming that the word property in Act XVII [18] of 1937 is to be interpreted to mean property in its common & ordinarily accepted sense & 13 not to be extended to any special or peculiar type of property; even then we think that the other contention of Mr. Tek Chand is perfectly sound. Assuming that the word property in Act XVII [18] of 1937 is to be interpreted to mean property in its common & ordinarily accepted sense & 13 not to be extended to any special or peculiar type of property; even then we think that the other contention of Mr. Tek Chand is perfectly sound. Succession to shebaitship, even though there is an ingredient of office in it, follows succession to ordinary or secular property. It is the general law of succession that governs succession to shebaitship as well. While the general law has now been changed by reason of Act XVIII [18] of 1937, there does not appear to be any cogent reason why the law as it stands at present should not be made applicable in the case of devolution of shebaitship. 17. The last contention of Mr. Tek Chand that under the indenture itself the wife of Mrityunjoy & not Kiranbala particularly has been given rights of succession to shebaitship prior to any issue of Mrityunjoy is manifestly untenable & as the learned counsel was not at all serious in pressing this point, we consider it unnecessary to discuss it any further. 18. It remains for us now to advert to & consider the other contentions raised by Mr. Banerjee which depend upon the construction of the relevant Clauses in the indenture. It may be stated at the outset that we are not at all impressed by the argument of the learned counsel that the words heirs of the said Mrityunjoy occurring in the document are to be construed as words not of inheritance but of grant. Such construction would be against the language & the whole tenor of the document. It is to be noted that Mrityunjoy was the owner of the dedicated properties & the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity & was looking after its worship & service since it was installed. It was in the fitness of things, therefore, that Mrityunjoy should request his mother to become the first shebait & this is exactly what is recited in the indenture. It was in the fitness of things, therefore, that Mrityunjoy should request his mother to become the first shebait & this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder himself, was to be the shebait and save & except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before the F.C. in Umayal Achi v. Lakshmi Achi, 1945 F. C. R. I. with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was not reasonable to construe such words as words of gift & not of devolution. 19. On the question of construction, Mr Banerjee s main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole it will be manifest that the executants of the dead intended that the issues of Mrityunjoy were to have preference over other heirs in the matter of succession to shebaitship; & that an heir who is not an issue could not came in so long as an issue remained alive. The relevant portion of the document has been set out already & it provides in the first place that after the death of Nitto Sundari, her son, the said Mrityunjoy Mullick, shall become the shebait, after him his wife Smt. Kiranbala Dassi, & after her death, the heirs of the said Mrityunjoy Mullick shall be & act as shebaits. Then there is a proviso to the effect that if the said Mrityunjoy shall happen to die without any issue or without giving any authority to his wife, him surviving, to adopt, then in such case it shall be competent for Mrityunjoy to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said Mrityunjoy Mullick shall happen to die without any issue, the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under Hindu law. Mr. Mr. Banerjee lays stress upon the proviso, particularly the last portion of it & it contains, according to him, a Clear direction that it is only on the failure of issue that the heirs of Mrityunjoy can come in as shebaits. In order that the proviso may be reconciled with the Clause that precedes it, Mr. Banerjee invites us to hold that the word heirs in the previous Clause should be taken to mean only the issue of Mrityunjoy. 20. We do not think that the interpretation suggested by the learned counsel is the proper one. A proviso is normally an excepting or a qualifying Clause & the effect of it is to except out of the preceding Clause upon which it is engrafted something which but for the proviso would be within it. The word heirs cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned, there is nothing in the language or in the context to suggest that the word heirs has not been used in its ordinary or natural sense. Mr. Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together & no portion is to be omitted. In our opinion, the Clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression heirs has not been used in any restricted or limited sense & extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue & without giving any authority to his wife to adopt a son. It may be noted that the word issue includs both son & daughter & the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. It may be noted that the word issue includs both son & daughter & the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is mentioned here is fulfilled, Mrityunjoy would be entitled to appoint a shebait, although no such power can be deduced from the general Clause. In case the contingency does happen but the wife is not given any power of adoption & no appointment is also made by Mrityunjoy, the consequence would certainly be that the other heirs of Mrityunjoy would succeed as shebaits & this is what is laid down in the conCluding portion of the proviso. The expression his heirs at the end of the proviso would certainly mean heirs other than the son & daughter of Mrityunjoy. As Mrityunjay actually left a son, the contingency contemplated by the proviso did not arise at all & in these circumstances the proviso is to be ignored altogether for purposes of construction & it is not proper to attempt to spell out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. Banerjee also must fail. 21. The result, therefore, is that, in our opinion, the appeal succeeds. The judgment & decree of both the Cts. below are set aside except the deClaration of the right of residence of the pltf. which was given by the trial Ct. & not disturbed in appeal. In addition to that, it will be deClared that the pltf. is entitled to joint shebaitship with the deft. in respect of the debuttar created by the indenture of 10-10-1934. We direct the taxed casts of both the parties in all the Cts. to be paid out of the debuttar estate. 22. Chandrasekhara Aiyar J.- I agree with the conClusion reached by my three learned brothers in the judgment just now pronounced, but I would like to add a few words on two points on which I do not see eye to eye with them fully. 23. In support of his contention that the word property in the Hindu Women s Rights to Property Act cannot be construed so comprehensively as to inClude a shebaiti right, Mr. Bannerji referred to Sub--Cl. 23. In support of his contention that the word property in the Hindu Women s Rights to Property Act cannot be construed so comprehensively as to inClude a shebaiti right, Mr. Bannerji referred to Sub--Cl. (3) of S. 3, which speaks of "any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman s estate"; & he urged that the conception of such an estate as distinguished from an absolute interest is inapplicable to such a right of property. This is a point that deserves some attention. In dealing with it, we are not thinking of any property endowed to the Thakur or the deity & its intrinsic legal characteristics as constituting a religious endowment. We have in mind the shebaitship itself as a species of property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a "Hindu woman s estate" as contrasted with a full or absolute estate taken by a male heir? Does a male heir get higher rights than a Hindu widow? & if so, what are they? So far as a shebaitship is concerned, the office does not enure beyond the life time of the holder, whether male or female, & is generally inalienable. It is res extra commercial. A male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on alienability arises out of the nature of the property & not out of the nature of the estate taken by the heir. In the very nature of things, there can be no alienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible & attractive is this line of reasoning, & it lends support to the view taken in Umayal Achi v. Lakshmi Achi, 1945 F. C. R. 1, by Sir Varadachariar, where, referring to Sub- Cl. (3) of S. 3, he observes : "The provision will be appropriate enough in relation to private property where the woman s estate is different from the interest taken by a male heir. (3) of S. 3, he observes : "The provision will be appropriate enough in relation to private property where the woman s estate is different from the interest taken by a male heir. But in respect of trusreeship or other similar office, the law makes no difference between the interest taken by a male heir & the interest taken by a female heir." But it does not decisively outweigh the several considerations set forth in the judgment just now delivered by my learned brother Mukherjea J. for construing the word "property" in a wider sense so as to inClude the shebaiti right also. If there is no legal objection to a woman being a shebait under Hindu law, there is no particular reason, why she should be exCluded from succeeding to the same under an Act which imposes no restriction or prohibition either in express terms, or by necessary implication. 23a. The next point relates to the construction of the deed of indenture executed by Nittamony Dasi & Mrityunjoy. I am of the opinion that the technical rules of interpretation of provisos & exceptions, with reference to their scope & legal effect, adopted in construing statutes should not ordinarily be importer in interpreting deeds & documents executant by laymen In ordinary deeds, a proviso may sometimes be in the nature of an explanation of the main Clause or provision; & we must took not merely at the form of the language but its Sub-stance, the governing idea or purpose of the deed, the context & the surrounding circumstances to gather the real meaning or intention of the executing. Judged in this light & adopting a broad construction, it appears to me that what Mrityunjoy had in mind when he executed the indenture was, as made Clear in the proviso, that his issue (born of his loins) or any person whom his wife may adopt on his authority, should succeed to the shebaiti in the first instance; & secondly, in default of such contingency, the shebaitship should go to any person who may be nominated in this behalf by his will; & thirdly in default of issue (born or adopted) & in default of nomination by will (which is necessarily implied), the right was to devolve upon his heirs under the Hindu law. In other words, the proviso explains what he means by his heirs in the preasding Clause. In other words, the proviso explains what he means by his heirs in the preasding Clause. In this view, the resp. will succeed to the office in preference to the applt. 24. But the construction placed on the indenture by my learned brothers is also a possible one & I do not desire to express any dissent from the result they have reached. Appeal allowed. For Citation : AIR 1951 SC 293 = 1951(2) SCR 1125 = 1951 SCJ 394 Vikas Info Solutions Pvt. Ltd.