Banshidhar Chakravarty v. Nemai — 1978 DIGILAW 622 (CAL)

JUDGMENT 1. THIS appeal under clause 15 of the Letters Patent is directed against the judgment and decree dated June 24, 1974, passed by N. C. Mukherji, J, in Second Appeal No. 2459 of 1965. This appeal arises out of a suit for injunction which was dismissed concurrently by the two courts below but was decreed by our learned brother n. C. Mukherji J, by the judgment and decree under appeal. The facts which led to the suit may be stated shortly as follows : - 2. TWO brothers Chandi Charan and Baladeb dedicated the suit properties in favour of their ancestral deity Sr. Sitala Debi Thakurani by a deed of Endowment dated October 3, 1929. By the endowment they appointed themselves to be the Shebaits during their lifetime and it was further provided that on their death there respective heirs in succession would be the Shebaits. The endowment in or imported the usual restriction that the shebaits for the time being will carry on the Devseva of the deity and will manage and use the suit property for the said purpose but would not be entitled to transfer the same in any manner or use it as their personal property. Chandi Charan being dead it is not in dispute, his interest in Shebaiti devolved upon the plaintiff Nemai and his brother's son defendant No. 1, Bansidhar. Baladev's interest had devolved on defendant Nos. 2 to 4 his sons. The existing shebaits were carrying on Devseva according to Palas agreed between them and there is no dispute that between the plaintiff and defendant No. 1 each of them was carrying on Seva Puja for 15 days in a month which fell in their allotment. By a registered Deed of Gift dated April 6, 1948, the plaintiff Nemai made a gift of his shebati in favour of his brothers son Bansidhar, the defendant No. 1. He did so as is evident from the recital in the deed on the ground that as he was doing the business of oil engine repairing work which led him to go to different places frequently he was unable to perform the Seva Puja of the deity Sree Sitala Debi Thakurani. He did so as is evident from the recital in the deed on the ground that as he was doing the business of oil engine repairing work which led him to go to different places frequently he was unable to perform the Seva Puja of the deity Sree Sitala Debi Thakurani. The deed further recited that in future there is no hope or expectation that he shall be able to perform his duty as a Shebait and since the done, his nephew was performing the Seva Puja of the deity devoutly, attentively and whole-heartedly and according to Hindu rites, for the benefit of the deity the Shebaiti should be gifted in his favour. On November 8, 1962, totally suppressing the said gift in favour of defendant No. 1, the plaintiff Nemai instituted the suit out of which the present appeal arises upon an allegation that while the plaintiff was carrying on the Sera Puja jointly with the defendant no. 1 in the Pala allottted to them, defendant No. 1 since 17th Kartick, 1369 B. S threatened to oust him from the Office of Shebait and to obstruct him to perform the Seva Puja of the deity. On this simple allegation, he instituted a "suit for injunction restraining the defendant no. 1 from doing so. 3. DEFENDENT No. incontesting the said suit filed a written statement pleading the gift dated April 6, 1948, as above in his favour and further pleading that by virtue of the said gift he had been performing and enjoying the Shebaiti Pala allotted to him and the plaintiff since April 1948. Defendant No. 1 thus claimed exclusive right to the Pala allotted in favour of the plaintiff and the defendant No. 1. On the written statement so filed, the plaint was amended and the plaintiff pleaded the gift to be fictitious, illegal and fraudulent. He further pleaded that the said gift was never acted upon. By an additional written statement filed on behalf of the defendant No. 1, such a claim was strongly controverter. 4. EVIDENCE being led, both the courts below concurrently found that the plaintiff Nemai had executed a Deed of Gift dated April 6, 1948, voluntarily and there was no fraud or coercion in the matter of execution of the said Deed in favour of defendant No. 1. 4. EVIDENCE being led, both the courts below concurrently found that the plaintiff Nemai had executed a Deed of Gift dated April 6, 1948, voluntarily and there was no fraud or coercion in the matter of execution of the said Deed in favour of defendant No. 1. It was also found that the defendant No. 1 came into possession of the Shebaiti in the Pala allotted in favour of the plaintiff and defendant No. 1 by virtue of such a gift since April 1948. On the question of legality the two courts below took the view that though Shebaiti is not ordinarily alienable in law but nonetheless the gift in question is valid as it was not for any pecuniary benefit and was made in favour of a co-Shebait starding in the line of succession and suffering from no disqualification regarding the performance of the duty and that the same was made in the interest of the deity. The two courts thus upheld the gift in favour of the defendant No. 1 and dismissed the plaintiff's suit for injunction. The plaintiff Nemai preferred the above second appeal. In disposing of the second appeal our learned brother mukherji, J, however, took the view that though the Deed of Gift was duly executed and registered in favour of defendant No. 1 voluntarily and without any coercion or fraud yet Shebaiti bating inalienable in law, defendant No. 1 acquired no right title and interest in lalw by the said gift. In that view, our learned brother set aside the concurrent decisions of the two courts below and decreed the plaintiff's suit for injunction. Hence, the present appeal under clause 15 of the Letters Patent. Mr. Banerji appearing in support of this appeal has raised two points. In the first place, Mr. Banerji has contended that our learned brother Mukherji. J, failed to take into consideration the fact that though Shebaiti is not ordinarily alienable yet an alienation which constitutes, as in the present case, renunciation of the Shebaiti in favour of a co-Shebait standing in the line of succession, such a transfer is not invalid if it is made not for any pecuniary benefit of the transferor. Secondly it has been contended by Mr. Secondly it has been contended by Mr. Banerji that Shebaiti being itself a property when the defendant No. 1 by virtue of the gift came to possess and enjoy the said Shebaiti since 1948, he must be deemed to have acquired a valid title thereto by adverse possession even if the Deed must fait on the ground that it is not a valid transaction in law. Both the points thus raised by Mr. Banerji has strongly been controverter by Mr. Mukherji who is aperitif for the plaintiff respondent In this appeal. 5. WE have carefully considered both the points raised by Mr. Banerji and in our view there is ample substance in the contentions so raised by or banerji In our view, our learned brother mukherji, J, was following the settled principle that Shebaiti though heritable lacks the other incidence of proprietary right, namely, the capacity of being freely transferred by a person in whom it is vested. The said principle is obviously based on the fact that the personal proprietary interest which a Shebait has got is ancillary and inseverable from his duties as a ministrant of the deity and the manager of its temporalities; as the personal interest cannot be detached from the duties, the transfer of Shebaitship would mean delegation of the duties of the transferor which would not only be contrary to the expressed intentions of the founder but would contravene the very policy of law see Dr. B. K. Mukherjee on Hindu Law of Religious and Charitable Trust, 1st Edition, page 228. Though such is the ordinary principle, certain exceptions have been recognised by judicial decisions. Though as has been rightly pointed out by the learned judge in the courts below there is no uniformity amongst the court. in respect of the extent of such exceptions it is almost well settled that all the high Courts have upheld such an alienation where the transfer is not for any pecuniary benefit and the transfer is in favour of the successor of the holder of the office who makes the transfer. Such a transfer is upheld for the reason that the same constitutes renunciation in favour of the next heir and such surrender of Sihebaitship does not offend either the intention of the founder or the general policy of Hindu Law. Such a transfer is upheld for the reason that the same constitutes renunciation in favour of the next heir and such surrender of Sihebaitship does not offend either the intention of the founder or the general policy of Hindu Law. It appears to us that our learned brother Mukherji, j. did not consider the impugned unary far from this aspect and did not come to any conclusion as to whether the same can be upheld though not as a transfer but as a surrender in favour of the next heir. 6. MR. Mukherji appearing for the plaintiff respondent has contended that the two courts below upheld the gift not on the ground that it really constitutes renunciation in favour of the next heir but as a transfer in favour of a co-shebait standing in the line of succession who suffers no disqualification. Regarding the performance of his duties and that the transfer is beneficial to the interest of the deity. The Coms. Below have strongly relied on an earlier decision of this court in the case of Nerode Mohmi-v-Sibdas I. L. R. 36 calcutta 975. It appears to us that the transfer impugned in the present case stands practically in the same position as the one upheld as valid in the above decision of this court. But according 10 Mr. Mukherji, a transfer in favour of a co-Shebait only because he is a co-Shebait or that he. stands in the line of succession does not render the transfer valid since such a transfers remains a transfer not recognized by hindu Law. Moreover, according or Mr. Mukherji whether the transfer is for the benefit of the deity or not is wholly inconsequential. Of course, the view expressed by this court in the above decision was critically reviewed by page, in the case of Nagendra Nath-v-Rabindra, I. L. R. 53 Calcutta 132 and Dasgupta, J (as His Lordship then was) in the case of Banesutar-v.-Anath, A. I. R 1951 Calcutta 490. It would, however, be pertinent to refer to a very recent decision of the Supreme Court throwing some light over the disputed principle. In the case of Ramatan-v-Bajrang, A. I. R. 1978 S. C. 1393, it was observed : "shebaiti being held to be a property, in Angurbala Mullick-v-Deba-brata Mullick, 1951 9. C. R. 1125, this court recognized the right of a family to succeed to the religious Office of shebaitship. In the case of Ramatan-v-Bajrang, A. I. R. 1978 S. C. 1393, it was observed : "shebaiti being held to be a property, in Angurbala Mullick-v-Deba-brata Mullick, 1951 9. C. R. 1125, this court recognized the right of a family to succeed to the religious Office of shebaitship. This hereditary - office of shebaitship is traceable to old Hindu text and is a recognised concept of traditional Hindu Law. It appears to be heritable and par table in the strict sense that it is enjoyed by the heirs of equal degree by. Turn and transferable by gift subject to the limitation that is may not pass to a non-Hindu. On principles of morality and propriety sale of the office of Shebaitship is not favoured," If a transfer by gift subject to the limits indicated by the Supreme court is permissible in law certainly mr. Banerji can rightly contend that the impugned transfer in the present case canont be held to be in any way invalid. That apart, even accepting the contention of Mr. Mukherji, in our view the, impugned transfer may be upheld though not as a transfer but as a surrender in favour of the next heir. Such a transaction has been upheld uniformly by all the High Courts though the Bombay High Court appears to have extended the principle to uphold a transfer in favour of any one standing in the line of succession of Shebaits. In the present case, as it appears, the plaintiff and the defendant No. 1 inherited the Shebaiti from Chandi Charan. While they were jointly enjoying the office as such Shebaits, the plaintiff executed the gift in favour of defendant No. 1, his brother's son. It was so executed in the year 1948 and the evidence adduced in the present case do not show that at the date of the transfer any one else stood in the position of next heir other than the defendant No. 1, the brother's son of the plaintiff. Such being the position, ' we cannot but uphold the transfer as a valid one since though the transfer may not be upheld as a transfer it can very well be upheld as a renunciation in favour of the next heir. In our view, our learned brother Mukherji, J, failed to take into consideration this aspect of the case altogether. So far as the second point raised by Mr. In our view, our learned brother Mukherji, J, failed to take into consideration this aspect of the case altogether. So far as the second point raised by Mr. Banerji is concerned, it appears to us that there is ample substance therein also. The Full Bench decision of this Court in the case of monohar- v- Bhupendra I. L. R. 60 Calcutta 432 having been approved by the privy Council as also by the Supreme Court it is now well settled that Shebaitship is not mere office, it is property as well. On the facts of the present case it is well established that the defendant No. 1 came into possession of such a property as early as in April 1948, by virtue of a gift by the plaintiff in his favour and that so far as the Pala in their favour is concerned, had been exclusively enjoyed and possessed by defendant No. 1 for all these years. Though the document may fail in law, the defendant no. 1 having came into possession in his own rights and having enjoyed the property as such for long over 12 years, must be held to have acquired title by adverse possession" (See. Padma Vitho-ba v. Md. Multani A. I. R. 1973 S. C. 70). That one can acquire title to the hereditary office of Shebaitship by ad-verse possession is now well recognised. (See. Palani Bala v. Kalipadia, 54 C. W. N. 960, and Gnanasambanda. Pan-dara Sunmadhi v. Velu Pandaram, I. L. R. 27 I. A. 69 at page 77). 7. FOR the reasons given, both the points raised by Mr. Banerji succeed. The appeal is accordingly allowed. The judgment and decree passed by N. C. Mukherji, J, are set aside and those of the trial court are restored. There will be no order for costs in this appeal. Appellant may be discharged from the security. Appeal allowed, no order as to costs.