Prabhu Sahu v. Thakur Krishnaji and Radhikaji — 1981 DIGILAW 729 (ALL)

JUDGMENT Deoki Nandan, J. - This is a defendant's Second Appeal. The appellant Prabhu Sahu was the second defendant in the suit. On his death, his place has been taken by Basant Lal who was the third defendant and the sixth respondent, and is also one of the legal representatives of his father Vishwanath who was the fifth respondent and the first defendant in the suit. The Plaintiffs-respondents, are: (1) The Deity of Sri Thakur Krishnaji and Radhikaji installed in one of the houses in suit, namely, House C/15/64 of Mohalla Lallapura Kalan, Varanasi, (2) Mata Prasad; (3) Raghunath Prasad; and (4) Ram Khelawan, Mata Prasad and Raghunath Prasad claim to be the coshebaits of the deity under the will of Bechan Sahu and Ram Khelawan dated the 13th November, 1959. Ram Khelawan was the fourth plaintiff-respondent. It was stated before me that he died in the year 1978, though his name still stands as such in the memorandum of appeal. His name shall be struck off, but that will not affect the maintainability of the appeal. 2. The trial court had decreed the suit for recovery of Rs. 114-90 P. as arrears of rent against the first defendant Vishwanath, who was respondent No. 5 in the appeal in this Court, with proportionate costs, but had dismissed the claim for his ejectment from the two rooms described at the foot of the plaint, and for recovery of mesne profits against him, and the claim for declaration of title to the property in suit in favour of the plaintiffs Nos. 2 to 4 against the defendant No. 2 namely deceased appellant Prabhu Sahu. On the plaintiffs' appeal therefrom the lower appellate court modified the decree of the trial court and decreed the suit for ejectment of the first defendant Vishwanath and third defendant Basant Lal from the said two rooms and for mesne profits in respect of the same. The lower appellate court further declared by its decree that the defendants Nos. 2 and 3, namely, Prabhu Sahu and Basant Lal are not the shebaits of the property in suit and have no concern with the same. 3. The lower appellate court further declared by its decree that the defendants Nos. 2 and 3, namely, Prabhu Sahu and Basant Lal are not the shebaits of the property in suit and have no concern with the same. 3. Since the defendants Nos, 1 and 3, namely, Vishwanath and Basant Lal, did not appeal from the decree for ejectment and for recovery of arrears of rent and mesne profits against them, that part of the decree should be deemed to have become final against them, and the appeal by Prabhu Sahu could be heard only against the decree declaring that the defendants Nos. 2 and 3 were not the she baits of the property in suit, although the whole of the decree has been challenged and sought to be set aside in his memorandum of appeal. In the lower appellate court also, although Vishwanath defendant No. 1 did not appeal from the trial court's decree for recovery of rent against him, Prabhu Sahu had appealed therefrom, His appeal was dismissed by the lower appellate Court. 4. Prabhu Sahu, the second defendant and the sole appellant, having died during the pendency of the Second Appeal in this Court, his appeal against the declaration that he was not a shebait of the deity would also appear to have abated in so far as it concerned him personally, but Basant Lal the third defendant who has now been transposed as the appellant in his place, claims not only to have been a shebait jointly with Prabhu Sahu during his lifetime, but also the shebait after him as his heir and legal representative, and, appointed as such, by registered deed dated 18th October, 1965, executed by Prabhu Sahu, vide Paper No. 33-Ka. Since Basant Lal now claims to be the shebait of the deity and its property as the legal representative and heir of Prabhu Sahu, under that deed, the question whether Prabhu Sahu was one of the shebaits is a question which still survives for consideration in this Second Appeal. 5. The endowment was created by Gopal Sahu who was undisputedly the owner of the property in suit by a deed dated 8th November, 1929, vide Ext. 101. 5. The endowment was created by Gopal Sahu who was undisputedly the owner of the property in suit by a deed dated 8th November, 1929, vide Ext. 101. The deed recites the facts that Gopal Sahu was the sole owner in possession of an area of 9 biswas 10 dhurs Parjawat land bearing plot No. 420 in Mohalla Lallapura, Mata Kund, Varanasi: that he had built two houses Nos. 164 and 165 thereon and had installed the idols of Sri Thakur Krishnaji and Radhikaji therein and performed their sewa puja himself; that the remaining area was occupied by the houses of certain persons on Parjawat tenure and that he realised Parjawat from them. The deed then goes on to recite that, apart from the said houses and the land, Gopal Sahu had another pucca house No. 161 of Mohalla Lallapura, Varanasi, which he had purchased under a sale deed dated 27th April, 1889 and which was in his exclusive possession as his sole property. The deed declares that all the said property was the self acquired property of Gopal Sahu, who, it was said, had attained the age of 80 years ant often remained ill on account of old age and at the time of execution of the deed also he was unwell and did not know how long he would live. On the said premises, the deed declares that Gopal Sahu dedicated the said property, that is the houses Nos. 164, 165 and 161 and land of plot 420 having an area of 9 biswas ltl dhurs along with the buildings thereon and the Parjawat rights therein, to Sri Thakur Krishnaji and Radhikaji installed in the said house No. 164. The terms of the endowment, as specified in the deed, were that ownership and possession of the dedicated property became vested in the said Thakurji from the date of the said deed and the executant no longer had any rights therein. The terms of the endowment, as specified in the deed, were that ownership and possession of the dedicated property became vested in the said Thakurji from the date of the said deed and the executant no longer had any rights therein. that so long as the executant was living he would himself perform sewa-puja of the said Sri Thakurji and manage the endowed property, and for managing the property after him, he appointed Bechan Sahu, Shanker and Murli sons of Mathura who were related to him like a grand-son (although he himself had no issue) and Ram Khelawan son of Gajadhar and Prabhu son of Munge as trustees to look after and manage the endowed property and to perform the sewa-puja of Sri Thakurji. These terms are followed by certain directions details of which it is not necessary to mention here except for the one which said that Bechan Sahu would live in house No. 164 and himself perform sewa-puja of Sri Thakurji and in case he neglected to do so the trustees would be entitled to make him vacate the house and entrust the sewa-puja to a pujari, and the other direction which said that management of the endowed property and the sewa-puja of Sri Thakurji would be carried on in consultation and in accordance with the majority opinion of the trustees who would settle the accounts of income and expenditure by agreement between themselves. The last clause of the deed said that the trustees would have no right to alienate the endowed property. 6. It appears that, Gopal Sahu survived for a few years after the said deed of endowment. According to the finding of the lower appellate court, he died in or about the year 1935. The names of Sri Thakur Krishnaji and Radhikaji through the five trustees appointed by the said deed would appear to have been mutated in the Municipal records, vide Exts. 1 to 94. It further appears that Bechan Sahu remained in effective management of the endowed properties and continued to perform the sewa-puja of the deities so long as he lived. He died in October, 1960. 7. Vishwanath the first defendant in the suit was a tenant of two rooms in the houses forming part of the endowment. He admits that he was admitted as a tenant by Bechan Sahu. He died in October, 1960. 7. Vishwanath the first defendant in the suit was a tenant of two rooms in the houses forming part of the endowment. He admits that he was admitted as a tenant by Bechan Sahu. He appears to have been the brother-in-law (sister's husband) of Prabhu Sahu, the deceased appellant, and was the father of Basant Lal now substituted as the appellant. 8. It appears that none of the trustees other than Bechan Sahu appointed by Gopal Sahu under the deed of endowment ever took any part in the management of the endowed properties, or the sewa-puja of the deities, and Bechan Sahu alone continued to shoulder the whole responsibility and to enjoy the en tire benefit without any objection from his co-trustees whose names, however, continued to be recorded along with his name in the Municipal papers as the trustees of the endowed properties. Bechan Sahu along with Ram Khelawan Sahu executed a registered deed which purports to be their will in respect of the shebaiti rights in the endowment. This deed is dated the 13th November, 1959, and was presented for registration before the Sub-Registrar on the same date. It recites the fact of the creation of the endowment and the appointment of the five trustees by Gopal Sahu, by the said deed dated 8th November, 1929. It further recites that Sahu had died some twenty years ago; that Bechan Sahu was particularly entrusted by the said deed of endowment with the duty of performing the sewa-puja and rag-bhog of the deities by living in house No. 164 old and 15/64 new, which he had been regularly performing, and that Shanker and Murli out of the said trustees had taken no interest in the management of the endowed properties and had maintained no connection therewith. Having said so much the deed states that after the death of Prabhu Sahu the executants alone were the de facto trustees and had the fullest right to manage the endowed properties but of them also Ram Khelawan was a resident of different Mohalla at Varanasi and was unable to perform the sewa-puja and rag-bhog of the deities, while Bechan Sahu had become very weak due to old age and did not know when his end would come. Under these circumstances, the deed goes on to declare that the executants, in consultation with each other a nd in the interest, of convenience and proper management of the endowed property and the proper performance of the sewa-puja and rag-bhog of the deities in accordance with the terms of the deed of endowment dated 8th November, 1959, felt it necessary to entrust the same to Raghunath Prasad son of Bechan Sahu, who had been living with the latter in the house No. C-15/64 and helping him in the performance of the Sewa-puja and rag-bhog of the deities, and Mata Prasad, who was the grand-son of Ram Khelawan, as the trustees after their death as their heirs, and do appoint them as such. This is followed by certain directions as to the terms on which the appointment was made and the description of the endowed properties, which it is not necessary to reproduce here. 9. Trouble seems to have been started after the death of Bechan Sahu. First there was an exchange of notices in the year 1963 between Raghunath Prasad, the son of Bechan Sahu, who appears to have taken over the duties of performance of the sewa-puja of the deities and of managing the endowed properties after his death, and Vishwanath who was the tenant of two rooms in the endowed property. The tenancy of the two rooms was thereafter purported to be terminated by a notice dated 25th August, 1964 which was served on behalf of the deity by Mata Prasad and Raghunath Prasad both. Undisputedly a sum of Rs. 30/- was paid by Vishwanath to Raghunath Prasad as rent during this period. 10. This was followed by a deed executed by Prabhu Sahu on 18th October, 1965 and presented for registration on the same date. Undisputedly a sum of Rs. 30/- was paid by Vishwanath to Raghunath Prasad as rent during this period. 10. This was followed by a deed executed by Prabhu Sahu on 18th October, 1965 and presented for registration on the same date. After reciting the facts about the creation of the endowment by Gopal Sahu, by the deed dated 8th November, 1929, and its terms, this deed executed by Prabhu Sahu goes on to recite that after the death of Gopal Sahu the intention of Bechan Sahu and Ram Khelawan trustees became dishonest and Bechan Sahu did not take any interest in the Sewa-puja of the deities but was interested only in deriving illegitimate gain out of the endowed properties, with the result that he was removed from the trusteeship by the other trustees and he ceased to have all connection with the deities and the endowed properties, but he continued to raise disputes. Ultimately he died. Shanker did not also take any interest in the management of the endowed properties. According to this deed, the result was that only the executant continued to perform the sewa-puja, rag-bhog of the deities and to look after the endowed properties. He had become sixty years of age and was unable to look after the endowed property all alone and it was accordingly necessary to have some one else as a trustee with him. He accordingly appointed Basant Lal son of Vishwanath who was a sister's son by relationship and whose father Vishwanath was a tenant of a portion of house No. 164 and who was also for some time past giving the executant all help in performing the sewa-puja, rag-bhog and festivals of the deities and managing the endowed property, as the managing trustee, as also the trustee after him as his legal representative. Of the terms of appointment, the two important terms are: (1) that from the date of the execution of that deed, Basant Lal would be one of the trustees for arranging the sewapuja and rag-bhog and festivals of the deities and management of the endowed properties with full powers of management of the trustees; and (2) that after the death of the executant, Basant Lal would also be the trustee in place of the executant as his legal representative with power to appoint a managing trustee to help him. It is not necessary to reproduce the other terms of this deed. 11. As noticed earlier, the decree for recovery of rent, mesne profits and possession by the ejectment of Vishwanath and Basant Lal from the two rooms of the endowed property was not challenged either by Vishwanath, the deceased tenant or by his son Basant Lal, who were defendants Nos. 1 and 3, and against whom alone the decree had been passed. It was challenged by Prabhu Sahu alone. He was not the tenant nor was that decree passed against him. He claimed to be one of the trustees, or speaking technically, one of the co-she baits of the deity who owned the endowed property, in a portion of which the two rooms were occupied by Vishwanath and his son Basant Lal as tenants. If Prabhu Sahu was truly one of the co-shebaits, the decree for rent, mesne profits and ejectment against Vishwanath and Basant Lal was in his favour, inasmuch as it was in favour of the deity and as a shebait, he could only represent the interest of the deity. He could not advance any personal cause against the interest of the deity and, at any rate, if there was any cause to be advanced against the decree for rent, mesne profits and ejectment, it was for Vishwanath and Basant Lal to do that, Prabhu Sahu could not have appealed from the decree against Vishwanath and Basant Lal, defendants Nos. 1 and 3 respectively, for rent, mesne profits, and ejectment. That part of the decree must be deemed to have become final against them. Basant Lal on transposition as the appellant in place of Prabhu Sahu on the basis of his claim of being a trustee as the legal representative of Prabhu Sahu stands in to better position as an appellant as such. The other relief, in respect of which the lower appellate Court has declared that the defendants Nos. 2 and 3 namely Prabhu Sahu and Basant Lal are not the shebaits of the property in suit and have no concern with the same, was claimed in the plaint in the following terms, namely, that it be declared that the plaintiffs Nos. The other relief, in respect of which the lower appellate Court has declared that the defendants Nos. 2 and 3 namely Prabhu Sahu and Basant Lal are not the shebaits of the property in suit and have no concern with the same, was claimed in the plaint in the following terms, namely, that it be declared that the plaintiffs Nos. 2 to 4 are alone the managing trustees of the endowed property described at the foot of the plaint and are in possession over the endowed properties as managing trustees on behalf of the first plaintiff and that the defendants Nos. 2 and 3 have no concern with the endowed properties. The trial Court found that the recital in the will dated the 13th November, 1959 of Bechan Sahu and Ram Khelawan, Ext. 121, that Prabhu Sahu was dead, was a false recital and, therefore, "the plaintiffs Nos. 2 and 3 cannot be declared to be the sole managing trustees of the trust property", that the deed of endowment dated the 8th November, 1929 did not give the trustees any power to appoint their successor and "in the absence of any such provision Bechan Sahu and Ram Khelawan had no right to make a will with regard to the trust property in favour of his son and grandson respectively." The trial Court went on to hold that "even Bechan Sahu deceased from whom the plaintiffs Nos. 2 and 3 alleged to have derived their title was also not a managing trustees", although "it is true that he was doing all the work connected with the trust and he was in possession of the trust property". The further finding recorded by the trial Court on the basis of the evidence on record is that after the death of Bechan Sahu, the plaintiffs Nos. The further finding recorded by the trial Court on the basis of the evidence on record is that after the death of Bechan Sahu, the plaintiffs Nos. 2 and 3 alone were managing the endowed property and they were undoubtedly de facto trustees, but, according to the trial court, "in face of the rightful trustee namely Prabhu, they cannot be held to be the managing trustee of the trust property so long as Prahhu is not removed by a competent court from the post of trusteeship." As regards the claim of the third defendant, namely, Basant Lal, the trial Court held that he could not be held to be a trustee of the trust property; inasmuch as Prabhu, who had appointed him as a trustee in his place "had no right to do so". The trial Court held the suit for recovery of rent and ejectment etc., by the plaintiffs Nos. 2 and 3 on behalf of the deity to be maintainable, but in the view that it took of the effect of the fact that all the trustees had not joined in serving the notice dated 25th August, 1964, by which the tenancy was purported to be terminated, it decreed the suit only for recovery of arrears of rent in the stun of Rs. 114-90 P. and dismissed it in respect of the relief for ejectment and mesne profits. The relief for declaration was, on the finding reached by the trial court, bound to be dismissed and was dismissed accordingly. 12. As already noticed above, there were two appeals before the lower appellate court-one by the plaintiffs and the other by Prabhu Sahu. The first finding arrived at by the lower appellate court on the plaintiffs' appeal was against the plaintiff-appellant. It held that Bechan Sahu was not the sole shebait and the other four persons named in the deed of endowment dated 8th November, 1929 as trustees were not mere advisors. 13. According to the lower appellate court, the main contention of the plaintiffs in their appeal before it was that Prabhu Murli and Shankar never accepted the office of Shebaitship that they remained out and disinterested throughout and that even Ram Khelawan, the fourth plaintiff. remained disinterested. 13. According to the lower appellate court, the main contention of the plaintiffs in their appeal before it was that Prabhu Murli and Shankar never accepted the office of Shebaitship that they remained out and disinterested throughout and that even Ram Khelawan, the fourth plaintiff. remained disinterested. It was pointed out to the lower appellate Court that tho names of all the five co-shebaits were entered in the Municipal records over the houses in suit and it was urged for the defendants on that basis that if Prabhu and others were not taking interest in the shebaiti rights their names would not have been entered in the Municipal records. The lower appellate court negatived this contention by accepting the explanation of Mata Prasad who it was said was a lawyer's clerk by profession; the explanation being that he had taken the application for mutation to Prabhu, Murli and Shanker for their signatures but they refused to sign thereon, whereupon he got the application signed by Bechan Sahu alone and moved it as such and since the names of all the five were mentioned in the deed of endowment, the application for mutation was drafted on behalf of all the five of them and the names of all of them were recorded consequently. This allegation was denied by Prabhu Sahu in his statement on oath. A copy of that application or any other record to show the circumstances in which the names of all the five were recorded as the trustees of the deity in the place meant for recording the name of the owner of the endowed property in the Municipal records, has not been produced. From the documents produced, vide Exts. 1 to 94, it does appear that the names of all the five persons stood recorded since before 1940, for the first receipt on record, issued by the Municipal Board, Ext. 1, bears the date 17th February, 1940, Mata Prasad claimed to have been appointed to shebait under the will dated the 13th November, 1959 of Bechan Sahu and Ram Khelawan, as the latter's heir. The will declares, though falsely, that Prabhu Sahu had died about 20 years ago. The will was duly registered before the Sub-Registrar and not being a secret document and Mata Prasad being a lawyer's clerk he should be presumed to have had knowledge of its contents. The will declares, though falsely, that Prabhu Sahu had died about 20 years ago. The will was duly registered before the Sub-Registrar and not being a secret document and Mata Prasad being a lawyer's clerk he should be presumed to have had knowledge of its contents. The allegation that Prabhu Sahu had died more than twenty years ago was false, and was made in order to effectuate the appointment of Mata Prasad as one of the trustees of the endowed property. The lower appellate court was, under the circumstances, not right in accepting the said explanation trotted out by Mata Prasad at its face value and holding on its basis that the entry of the names of all the five co-shebaits in the Municipal records did not indicate that Prabhu Sahu had become a co-shebait of the deity on the death of Gopal Sahu under the deed of endowment dated 8th November, 1929. Further, the lower appellate Court would appear to have mixed up the two ideas of non acceptance of a trust and relinquishment of office by a shebait, While it does appear from the evidence on record that Prabhu Sahu did not take any interest in the sewa-puja or rag-bhog of the deity or in the management of the endowed property after the death of Gopal Sahu, and the allegations made by Prabhu Sahu to the contrary in the deed executed by him on 18th October, 1965 are falses, it cannot be said on that basis that Prabhu Sahu had initially refused to accept the office of a co-shebait. The finding of the lower appellate Court that for more than thirty years at least Prahhu Sahu had not taken any interest in the management of the debutter is most probably right. It is also correct that thirty years is a long period of time, but the element of office and property being inseparably inter-linked with each other in the concept of shebaitship under the Hindu Law, it is not possible to say with the lower appellate Court that these facts lead to the conclusion "that he had not accepted the office of the shebait". The duties of a shebait and the sewapuja and ragbhog of the deity were being attended to during all this period by Bechan Sahu, and that was, partly at least in accordance with the directions of the founder Gopal Sahu as expressed in the deed of endowment. Prabhu Sahu cannot, be blamed for not meddling in the management of the debutter. After all it appears to have been a private trust, The beneficiaries of the endowment could only be the heirs of Gopal Sahu and it being so apparent that he left no heirs as such, the trustees appointed by him could be said to be not only the co-shebaits but also all the co-beneficiaries of the endowment created by him. Their duty was to maintain the worship of the deities. That could not have cost much money and, not only to enjoy the spiritual bene fit derived by the worship of the deities, but also to enjoy the balance income of the endowed properties that remained after meeting the necessary expenses of maintaining it and the worship of the deity, as the Prasad of the deity. This was the property aspect of the office of the co-shebait which Prabhu Sahu did undoubtedly come to possess initially under the deed of endowment dated the 8th November, 1929. Prabhu Sahu could not have transferred the office coupled with the benefit attached to it, by an act inter vivos, nor could he have sold it or transferred it for valuable consideration. He could have, if he so desired, only relinquished it in favour of one of his co-shebaits. Or he could have appointed his successor shebait by his will. As to the last proposition, the law before the enactment of the Hindu Succession Act., 1956, was that succession to shebaitship could not be appointed by will, unless it be the will of the founder who first created the endowment by dedicating property to a deity, property over which he had absolute powers of disposition. As to the last proposition, the law before the enactment of the Hindu Succession Act., 1956, was that succession to shebaitship could not be appointed by will, unless it be the will of the founder who first created the endowment by dedicating property to a deity, property over which he had absolute powers of disposition. But, on a review of the authorities on the point, I have in Second Appeal No. 626 of 1976, (Ladli Radha Chandra Madan Gopal Ji Maharaj v. Shambhu Charan) decided on 2nd March 1979: (1979 All UJ NOC 70), adopted the view that the Hindu Succession Act, 1956, governs the succession of property in the nature of shebaiti rights possessed by a Hindu, and in the case of a Hindu widow the limited estate possessed by her in shebaiti rights, must be deemed to have fructified into full ownership under Section 14 of that Act and she must be held to have become a fresh stock of descent in respect thereof, to be taken on her death intestate by her heirs prescribed by Section 15 in accordance with the manner of distribution prescribed by Section i6 thereof and the other general rules of intestate succession prescribed by the other provisions of the Act, and that shebaitship was property of a nature capable of being disposed of by testamentary succession under Section 30 thereof. It was not necessary for the purposes of that case to go into the wider question whether a shebait may bequeath the shebaiti rights to one or more of his heirs to the exclusion of any of them. In that case, the direction, of the founder as to the succession of shebaitship were found to have exhausted themselves when his widow became the shebait and she had no male issue. In this situation, it was held that she could have lawfully made a testamentary disposition of the shebaiti rights possessed by her. 14. That wider question, which did not arise and was not decided in that case (Second Appeal No. 626 of 1976 Ladli Radha Chandra Madan Gopal Ji Maharaj v. Shambhu Charan) : (1979 All LJ NOC 701, does arise in the present case. One feature of the present case may, however, be noticed, At the time when Bechan Sahu and Ram Khelawan executed their will purporting to appoint the plaintiff-; Nos. One feature of the present case may, however, be noticed, At the time when Bechan Sahu and Ram Khelawan executed their will purporting to appoint the plaintiff-; Nos. 2 and 3 as their successor shebaits, all their co-shebaits were alive, if the rules of joint tenancy were to be applied, the shebaiti rights would devolve by survivorship first among the co-shebaits we after the other, and then on the heirs of the last surviving one among the shebaits. But it is not easily possible to apply the rule of joint tenancy as it is unknown to Indian law except in the case of Hindu joint families governed by the Mitakshara. The parties in this case may be presumed to be Hindus governed by Mitakshara, nevertheless the corner-stone of a Mitakshara coparcenary is the acquisition of interest by birth in paternal property. The co-shebaits in the present case did not acquire by birth any interest in the shebaiti rights which they possessed, inasmuch as they were appointed coshebaits by Gopal Sahu to succeed as such after his death. The shebaiti rights were thus their sapratibandh-daya (obstructed heritage) and not apratibandha-daya (unobstructed heritage). The co-shebaits could not, therefore, be said to have held the shebaiti rights as joint tenants, and must be deemed to have held the same as co-tenants having a distinct and equal share in the same. It follows that each one of the five co-shebaits appointed by Gopal Sahu had a ?th share in the property in the nature of shebaitship of the deity. And the respective heirs of each one of the co-shebaits were entitled to inherit the ?th share of the co-shebait to whom they happened to be heir. 15. The question is whether any of the co-shebaits could dispose of his ?th share in the shebaiti by his will and whether in doing so he could appoint a person who was not his heir if he had died intestate, or to a particular one or more of his heirs to the exclusion of others. 16. 15. The question is whether any of the co-shebaits could dispose of his ?th share in the shebaiti by his will and whether in doing so he could appoint a person who was not his heir if he had died intestate, or to a particular one or more of his heirs to the exclusion of others. 16. For the reasons given by me in the judgments in Second Appeal No. 626 of 1976 (Ladli Radha Chandra Madan Gopal Ji Maharaj v. Shambhu Charan, (1979 All LJ NOC 70) and in Second Appeal No. 1940 of 1977 (Kalyan Das v. Rambir Das) : (AIR 1980 NOC 123 (All)), it can be said with certainty that the provisions of the Hindu Succession Act, 1956, do apply to the devolution of shebaiti rights on the death of a Hindu as they apply to all his secular property. It is indisputable in view of the authorities noticed in the said two judgments, particularly the three decisions of the Supreme Court in Angurbala Mullick v. Debabrata Mullick ( AIR 1951 SC 293 ), Chokalinga Sethurayar v. Arumanyakam ( AIR 1969 SC 569 ) and Profulla Choron Requittee v. Satya Choron Requittee, ( AIR 1979 SC 1682 Paragraphs 20, 21 and 22) that shebaiti right.. are heritable property and the devolution thereof is governed by the rules of Hindu Law applicable to any other species of secular property and the law which now governs the matter is the Hindu Succession Act. Section 30 thereof provides as follows:- "30. Testamentary succession -- Any Hindu may dispose of by will or other testamentary disposition any property. Which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation- The interest of a male Hindu in Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumnba or Kavaru in the property of the tarward, tavazhi, illom, kuturnba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section." 17. According to S. 57 of the Succession Act, 1925 read with para. 1 of the Sch. According to S. 57 of the Succession Act, 1925 read with para. 1 of the Sch. III thereto, nothing contained in that Act authorised a testator to bequeath property which he could not have alienated inter vivos, or to deprive any person of any right of maintenance of which he could not deprive him by will. The two well known kinds of property which a Hindu could not have alienated inter vivos were the undivided interest of a male Hindu in coparcenary property governed by the Mitakshara and the Hindu Women's limited estate. In order to enable Hindu males to make a valid testamentary disposition of their undivided interest in coparcenary property, and in the case of Hindu women of the property possessed by them as their limited estate besides the unequivocal declaration by the Explanation to S. 30, that the interest in coparcenary property could be disposed of by will, Sections 6 and 14 of the Act make it possible to do so in the case of a Hindu male by converting his undivided interest in coparcenary divided into a share equal to that which would have been allotted to him if a partition had taken place immediately before his death, and in the case of women by converting their limited estate in property possessed by them into their full ownership. The provisions of Sections 6 and 14 of the Act make the rules of intestate and testamentary succession applicable speaking generally, to the undivided interest in coparcenary property of Hindu males, and to the limited estate in property possessed by Hindu Women. A Hindu male could not have alienated interiors his undivided interest in coparcenary property governed by the Mitakshara, and could not have, therefore, made a valid testamentary disposition thereof. Such interest did not devolve by succession strictly so called but devolved by survivor ship on the surviving members of the coparcenary. A Hindu male could not have alienated interiors his undivided interest in coparcenary property governed by the Mitakshara, and could not have, therefore, made a valid testamentary disposition thereof. Such interest did not devolve by succession strictly so called but devolved by survivor ship on the surviving members of the coparcenary. Section 6 of the Act makes its devolution by testamentary or intestate succession under the Act possible, in cases where a coparcener dies leaving him surviving at least one of the eight female relatives, or the one male relative who claims through a female, specified in Class I of the Schedule, by providing that the interest of the coparcener dying shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. In the case of females, Section 14 converted the property possessed by them as their limited estate into full ownership. The result was that the undivided interest of a Mitakshara coparcener became ascertained and separate property capable of being alienated inter vivos, immediately before his death. There could be no dispute that a female Hindu could alienate inter vivas all property of which she became a full owner under S. 14 (1) of the Act. Thus so far as secular property is concerned, a Hindu could lawfully make a testamentary disposition of it in most cases, the exceptions being the undivided interest in the Mitakshara coparcenary of a male Hindu who did not leave him surviving any of the eight female heirs, or the one male relative claiming through a female specified in Class I of the Schedule, or a female Hindu who continues to hold a restricted estate in property under Section 14 (2) of the Act. 18. Shebaiti rights though property, could not, and cannot be alienated inter vivos whether for consideration or otherwise. The only kind of disposition of shebaiti rights by an act inter vivos that has been allowed was by an act of relinquishment in favour of a co-shebait or in favour of the next presumptive heir to the shebaiti rights. That was not alienation inter vivos. It was regarded to be an acceleration of succession. The only kind of disposition of shebaiti rights by an act inter vivos that has been allowed was by an act of relinquishment in favour of a co-shebait or in favour of the next presumptive heir to the shebaiti rights. That was not alienation inter vivos. It was regarded to be an acceleration of succession. The question is whether a Hindu could by Virtue of the provisions of the Hindu Succession Act make a valid testamentary disposition of shebaiti rights possessed by him although that Act does not alter the inalienable character of the property in the nature of shebaitship of Hindu religious endowment. 19. The rule, prescribed by paragraph 1 of the Schedule III to the Succession Act, 1925, to the effect that nothing contained therein authorised a testator to bequeath the property, which he could not have alienated inter vivos. relates not to the nature of the property as such, but to the powers of disposition enjoyed by its owner. The restrictions imposed by Hindu Law on the powers of the owners of the property to dispose of them by an act inter vivos have largely been done away with by the provisions of Sections 6 and 14 of the Hindu Succession Act. Shebaiti rights or shebaitiship being heritable property like any other secular property, and Hindu Succession Act being applicable thereto as the new Code of the Hindu Law of Succession, it seems impossible to import the restrictions imposed on the free alienation of shebaiti rights by an act inter vivos into the scheme of the law of succession now applicable to the same. The object of those restrictions on alienation of shebaiti rights was to properly continue to maintain the service of the deity by preventing an imprudent shebait from improperly alienating the endowed property by the device of alienating his shebaiti rights for consideration or for corrupt motives. The object of those restrictions on alienation of shebaiti rights was to properly continue to maintain the service of the deity by preventing an imprudent shebait from improperly alienating the endowed property by the device of alienating his shebaiti rights for consideration or for corrupt motives. Moreover, even in the case where a man appoints his chosen successor by his will, and in the process of doing so even chooses to disinherit his heir or heirs on an intestacy, the property cannot be said to pass or to be conveyed to the heir appointed by the will, by the testator's act of executing the will in his lifetime, but it passes on his death by the operation of the law of succession, which prescribes, not only the heirs of a person who succeed to his property on an intestacy, but also prescribes the rule that a man may appoint his successor by will. The devolution of property in such a case is effected on death by and in accordance with the law of testamentary succession. 20. I may also add in this context that the law of testamentary succession was before the advent of the Britishers in India unknown to the Hindus or to their smriti law. Nevertheless, it has, by gradual stages, which it is unnecessary to recount in this judgment, come to be applied to all Hindus and to all the property held by them, by the Hindu Succession Act, 1956. Taking a broad view of things and having regard to the necessity of preservation of the worship of a deity in the case of failure of heirs of a shebait, or in case the heirs of a shebait on an intestacy happen to be do-nothings or incompetent, it would subserve the public interest best if the law of testamentary succession is held to be fully applicable to the property of a Hindu in the nature of the shebaitship of a deity, even if the doing so is regarded to be judicial law making. I say so because of the rule prescribed by sub-section (2) of Section 37 of the Bengal Agra and Assam Civil Courts Act, 1887, which runs as follows :- "37. I say so because of the rule prescribed by sub-section (2) of Section 37 of the Bengal Agra and Assam Civil Courts Act, 1887, which runs as follows :- "37. Certain decisions to be according to personal law Where in any suit or ether proceeding it is necessary for a civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammedan Law in cases, where the parties are Muhammedans, and the Hindu Law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished. (2) In cases not provided for by subsection (1) or by, any other law for the time being in force, the Court shall act according to justice, equity and good conscience." 21. And to me, it seems equitable and just to extend and apply the law of testamentary succession to property in the nature of shebaitship of a deity. 22. I, therefore, hold that in the case in hand, either of the five co-shebaits appointed by Gopal Sahu could have appointed their respective successors by will in accordance with the law of testamentary succession applicable to Hindus under the Hindu Succession Act, 1956, read with the Succession Act, 1925. 23. The two documents material in this context, namely, the will dated the 13th November, 1959 of Bechan Sahu and Ram Khelawan (Ext. 121) and the deed of appointment of a trustee in execution of power, executed by Prabhu Sahu on 18th October, 1965 have already been noticed in his judgment. While there is more difficulty in reading the latter document executed by Prabhu Sahu as a will, nevertheless, the second one of the terms of its appointment appointing Basant Lal as the trustee in place of the executant, namely, Prabhu Sahu, after his death, could be read as an appointment by the will of Prabhu Sahu. The document is registered and appears, on its face, to be attested by two witnesses. But even the proviso to Section 68 of the Evidence Act does not exempt the calling of an attesting witness in proof of the execution of a will which has been registered in accordance with the Registration Act, 1908, although its execution by the person, by whom it purported to have been executed, is not specifically denied. But even the proviso to Section 68 of the Evidence Act does not exempt the calling of an attesting witness in proof of the execution of a will which has been registered in accordance with the Registration Act, 1908, although its execution by the person, by whom it purported to have been executed, is not specifically denied. In the present case, however, Prabhu Sahu himself appeared as D.W. 3 and not only admitted, but specifically proved the due execution and the attestation of the document. The genuineness of the document not having been questioned and the document having been proved in the aforesaid manner by the executant himself during his lifetime, it may be taken to have been only proved in accordance with law, (See Section 70, Evidence Act). The question is whether the second term thereof under which Prabhu Sahu purported to appoint Basant Lal as the trustee in his place as his legal representative after his death, could operate or be given effect to as the will of Prabhu Sahu. 24. The question is not free from difficulty. But it appears to me that with the knowledge of the law applicable to the devolution of shebaitship of a deity, as interpreted by the Courts at the time when the document was executed, Prabhu Sahu and, his advisors must have adopted the device of purporting to appoint Basant Lai as trustee in execution of power, inasmuch as the validity of appointment of a shebait by will was considered extremely doubtful. However, the document does in unequivocal terms express the intention of Prabhu Sahu to make Basant Lal a shebait of the deity in his place, in his lifetime and after- wards both. However, the document does in unequivocal terms express the intention of Prabhu Sahu to make Basant Lal a shebait of the deity in his place, in his lifetime and after- wards both. Of course, so long as Prabhu Bahu was alive, the document did not confer on Basant Lai any title to the shebaiti, but Prabhu Sahu, having died in the course of pendency of the Second Appeal in this Court and his place as an appellant having been allowed to be taken by Basant Lal, mainly on the basis of the second term of appointment contained in that document, namely, that he was appointed shebait in place of and as the legal representative of Prabhu Sahu after his death, I may proceed on the assumption that the document is a will in so far as it appoints Basant Lal as the shebait in place of and as the legal representative or heir and successor of Prabhu Sahu after his death. 25. In the case of the first document, namely, the will of Bechan Sahu and Ram Khelawan dated the 8th November, 1959, the only difficulty was that Ram Khelawan was still alive when the suit was filed and his appointee Mata Prasad could not have been said to be a trustee so long as he was alive, but Ram Khelawan, having also died during the pendency of the Second Appeal, in this Court, Mata Prasad could be said to have become a shebait in his place as his heir and successor under the said will. The appointment of Raghunath Prasad as the shebait took effect on the death of Bechan Sahu in the year 1960. Indeed, he appears to have been the shebait in possession after and in place of Bechan Sahu. 26. I must here take account of the finding of the lower appellate court to the effect that Prabhu Sahu had not acted as a shebait for well over thirty years and that the only act which he purported to perform as a shebait was the act of execution of the deed of appointment of trustee in execution of power, which he did on the 18th October, 1965, and that act was not a bona fide act in the interest of the deity as its shebait but an act which was highly prejudicial to the interest of the deity. The lower appellate court has held that Prabhu Sahu must be deemed not to have accepted the office of shebait and must in that view of the matter be deemed not to have become a shebait at all under the deed executed by Gopal Sahu. 27. While it is true that a trustee must in order to become a trustee accept the trust to which he is appointed by the founder. There is, however, a difference between the office of shebait and a trustee. Shebaitship is office coupled with property. A trustee must perform the duties of his office himself and the office of a trustee is not heritable like secular property. A shebait may delegate the performance of a part at least of the duties of his office such as sewa-puja and ragbhog of the deity to a pujari or some of her person. Similarly, a shebait may leave the management of the endowed property to his co-shebaits. Indeed, a shebait may take no more interest in the endowment except to take the benefit of worshipping the deity and of receiving the Prasad like any other beneficiaries of the religious endowment. It has already been noticed above that shebaitship is heritable property and is heritable like any other secular property of a Hindu. Under all these circumstances. I find it impossible to agree with the learned Judge of the lower appellate Court that Prabhu Sahu must he deemed to have not accepted the shebaitship on account of his proved inactivity for a period of over thirty years, although the lower appellate Court does appear to be right in saying that the act of appointment of Basant Lal as a trustee by the deed of 1965 was motivated not by a desire to benefit the deity, but by a desire to perpetuate the possession of Vishwanath who was Prabhu Sahu's brother-in-law (sister's husband) by appointing Vishwanath's son Basant Lal as a trustee. The action of Prabhu Sahu was prejudicial to the deity and the course of these proceedings also indicates that Prabhu Sahu was throughout more interested in saving the possession of Vishwanath over the two rooms in the endowed property which lie took as a tenant from Bechan Sahu, rather than the endowed property. Nevertheless, the result of that act could not be to automatically oust Prabhu Sahu from the shebaitship of the deity. Nevertheless, the result of that act could not be to automatically oust Prabhu Sahu from the shebaitship of the deity. One result of this prejudicial act could be to hold that the suit for eviction of Vishwanath from the portion of the endowed property occupied by him was maintainable at the instance of Raghunath as the shebait in possession, and the further result of the prejudicial act of Prabhu Sahu could have been to have him removed from the office of shebait by an appropriate proceeding taken during his ldetime, but the rights of property held by Prabhu Sahu in the property in the Nature of shebaitship could not be deemed to have come to an end by any such conduct. 28. It is, however, not necessary to pursue this matter further, for in spite of my finding that Raghunath Prasad and Mata Prasad have duly been appointed shebalits by the will of Bechan Sahu and Ram Khelawan respectively, and that the appointment of Basant Lal as a shebait by the Will of Prabhu Sahu cannot also be said to be invalid, I propose to refuse altogether the grant of any relief of declaration of shebaiti rights in this suit. 29. In view of the findings arrived at, the relief of declaration as claimed in the plaint namely, that the plaintiffs Nos. 2 to 4 are the sole managing trustees in the possession of the endowed properties on behalf of the first plaintiff deity and that. the defendants Nos. 2 and 3 have no concern or connection with the endowed properties, cannot be granted. All that could be said at present is that the plaintiffs Nos. 2 and 3, namely, Mata Prasad and Raghunath Prasad along with the third defendant Basant Lal, who clone is now the appellant in this Court, are, in law, the co-shebaits of the endowment and of these co-shebaits Raghunath Prasad alone, or may be Mata Prasad also, are in possession as shebaits, Basant Lal is not in possession as a shebait of any part or portion of the endowed property, not granting them the relief of declaration will not prejudice their position, inasmuch as the decree for rent, ejectment and mesne profits against Vishwanath and even Basant Lal as one of his heirs, has been maintained. 30. 30. And since there is a decree for recovery of arrears of rent, ejectment end rnesne profits against Basant Lai as one of the heirs of his deceased father Vishwanath, and since there is no claim for relief of declaration or of possession by Basant Lal as a shebait, it would be improper in this suit to make any declaration in his favour. Thus there will be no declaration about the shebaiti rights beyond confirming the finding of the two courts below to the effect that the suit for arrears of rent, ejectment and mesne profits against Vishwanath was maintainable at the instance of the plaintiffs Nos. 1, 2 and 3. That part of the decree has already become final. 31. I therefore, allow the appeal in part. The decree for arrears of rent, ejectment and mesne profits against the deceased defendant Vishwanath now represented by his heirs and legal representatives, including Basant Lal the appellant stands and is maintained. The decree of the lower appellate court declaring that Prabhu Sahu deceased and Basant Lal were not the shebaits of the endowed property and had no concern whatsoever with it, is set aside, and the relief of declaration, claimed in the plaint is altogether refused. In the circumstances of the case, the parties shall bear their own costs in this Court.