Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 168 (PAT)

Keshri Devi v. Ram Jatan Prasad Agrawal

2013-02-05

RAVI RANJAN

body2013
ORDER I have heard learned counsel for the petitioners and perused the records of this case. 2. No one appeared on behalf of the respondents despite valid service of notice. So far respondent no.9 is concerned, after his death, his name has been expunged vide order dated 13.12.2012. 3. Petitioners seek quashing of the order dated 1.5.2010 passed by the Munsif, Sherghati in Misc. Case No.3 of 2003 by which he has rejected the petition filed on behalf of the petitioners for their substitution in place of the deceased sole petitioner filed under Section 22 Rule 3 of the Code of Civil Procedure. 4. Short facts which would be necessary for consideration of this case are being enumerated as under: 5. The respondents filed a Title Suit No.75 of 1995 for grant of following relief which would be apparent from the certified copy of the plaint produced on behalf of the petitioners at the time of hearing of this case. “(A) It be declared that plaintiffs are the owners in possession and the Principal defendant has no right to interfere in possession of the plaintiffs in any manner whatsoever. (B) A decree of permanent injunction restraining the Principal defendant from interfering in peaceful possession of the plaintiffs over the suit land in any manner whatsoever. (C) Cost of the suit be awarded. (D) Any other relief or reliefs.” 6. The husband of the petitioner no.1, namely Rajendra Mahto, son of Sita Ram Mahto was impleaded as the Principal defendant in the case. Plaintiff claimed themselves to be owners of the land described in Schedule 1 of the plaint having purchased by virtue of eight registered sale deeds dated 24.7.1975 from Rekhawati Kuer and others and they claimed to have come in possession thereof. The plaintiffs have stated in the plaint that the suit land was garden of predecessors in interest of proforma defendant and subsequently, the garden of the temple which was existing there, was converted into agriculture land. The Principal defendant wanted to create disturbance in peaceful possession of the land in dispute in December,1994 and a proceeding under Section 144 Cr.P.C. was also initiated at his instance. However, the plaintiffs claimed that the police reported that they are in peaceful possession of the suit land. In paragraph-17 of the plaint, the claim of the Principal defendant of being shebait Bataidar have been denied. However, the plaintiffs claimed that the police reported that they are in peaceful possession of the suit land. In paragraph-17 of the plaint, the claim of the Principal defendant of being shebait Bataidar have been denied. A written statement was filed on behalf of the defendant no.1 i.e., deceased husband of petitioner no.1 taking a stand that the land in question belongs to the Lord Shiva and a temple of Lord Shiva is standing over the concerned cadastral plot no.2604. Further case of the defendant is that the tenure holders of the aforesaid khata no.1103 had orally donated the entire land to the Lord Shiva for maintenance of the temple and offering Rag-Bhog after a few years of the publication of cadastral survey Record of Rights. Thus, Lord Shiva is the absolute owner of the lands in issue. It has further been stated that the maternal grand father (Nana) of the Principal defendant namely Achchu Mahto was appointed as Shebait for maintenance of the temple by local public and tenure holders of Khata No.1103 in the year 1925-26. 7. The aforesaid Shebait has made certain changes in the nature of land also for the benefit of the deity and was cultivating the lands on batai basis. After the death of the aforesaid Achchu Mahto in the year 1955-56, his son Balchand Mahto was appointed as Shebait. The said Balchand Mahto entrusted the Principal defendant to cultivate the suit property on Batai basis in the year 1960 and to give the produce to the Shebait for maintenance of temple and Rag-Bhog of the deity. In the year 1967-68, the aforesaid Balchand Mahto expressed his desire to quit as Manager and the Principal defendant was appointed as Shebait and he has been cultivating the suit property as bataidar thereafter. The defendant has denied the right, title and interest of the vendors of the plaintiff. 8. However, it has been stated in the writ petition that the suit was allegedly compromised on 17.2.2003. The Principal defendant of the suit i.e. the husband of petitioner no.1 namely Rajendra Mahto, thereafter, filed the Misc. Case No.3 of 2003 for setting aside compromise decree passed in Title Suit No.75 of 1995. In the meantime, during the pendency of the aforesaid Misc. Case, the sole petitioner Rajendra Mahto died on 19.8.2009. The Principal defendant of the suit i.e. the husband of petitioner no.1 namely Rajendra Mahto, thereafter, filed the Misc. Case No.3 of 2003 for setting aside compromise decree passed in Title Suit No.75 of 1995. In the meantime, during the pendency of the aforesaid Misc. Case, the sole petitioner Rajendra Mahto died on 19.8.2009. The petitioners filed a petition for their substitution in place of the deceased sole petitioner in the Misc. Case No.3 of 2003 on 10.11.2009 under Order XXII Rule 3 and Section 151 of the Code of Civil Procedure. A copy of the petition has been brought on record as Annexure-1 which reveals that the petitioner no.1 claimed to have acting as Shebait after the death of her husband and a co-villager i.e. Jamuna Mishra, petitioner no.2 started to look after the Rag-Bhog etc. of the deity. It has been clearly stated in paragraph-2 that the petitioner no.1 Keshri Devi was managing the affairs of the temple and petitioner no.2 Jamuna Mishra is looking after the Rag-Bhog etc. of the deity. 9. A rejoinder was filed on behalf or the respondents questioning the right of the widow of the deceased petitioner of Misc. Case on the ground that from the statement made in the written statement, it emerges out that her husband claimed to be only Shebait of the Shiva temple and not the exclusive owner of the property in dispute thus, the petitioner no.1 Most. Keshri Devi cannot inherit that property which was not held exclusively by her husband. Copy of the rejoinder has been brought on record as Annexure-2. 10. Accordingly, a stand has been taken that her claim to be substituted as a legal heir or legal representatives would not be tenable in law. 11. Second point has been taken in the rejoinder is that the Misc. Case has not been filed by or on behalf of the deity and as such no one could be substituted in place of the deceased Rajendra Mahto and, thereafter, it has been claimed that the Misc. Case has already abated on account of the death of the sole petitioner Rajendra Mahto. However, it does not appear from the rejoinder that the petitioners’ claim, that after the death of her husband she was managing the affairs of the temple, has been denied or questioned by the respondents. 11. Case has already abated on account of the death of the sole petitioner Rajendra Mahto. However, it does not appear from the rejoinder that the petitioners’ claim, that after the death of her husband she was managing the affairs of the temple, has been denied or questioned by the respondents. 11. The court below, by the impugned order dated 1.5.2010, has rejected the prayer of the petitioners for their substitution in place of the deceased sole petitioner Rajendra Mahto. For better appreciation of the matter, the concluding paragraph of the impugned order is reproduced as under :– ^^mHk; i{kksa ds vfèkoDrk }kjk dk odZ lquk ,oa i=kksoyh dk voyksdu fd;k ftlls Li"V gksrk gS fd jktsUnz egrksa rhu f'kokyk eafnjksa ds lsobr Fks tks fd mudh futh vFkok iSr`d lEifr ugha Fkh D;ksafd mlus dfFkr lEifr ij vius LoRo dk nkok ugha fd;k Fkk cfYd mlus lsobr gksus dk nkok fd;k Fkk vr% mldh iRuh ds'kjh nsoh dks e`rd ds ckn dksbZ LoRo gkfly ugha gSA fcuk fdlh LoRo ds eksñ ds'kjh nsoh dks e`rd jktsUnz egrks ds fofèkd izfrfufèk ds :i esa] izfrLFkkfir ugha fd;k tk ldrk gSA blh izdkj lg xzkeh.k tequk feJ dks fcuk fdlh ,sls nLrkost ds tks ;g lkfcr djs fd og e`rd dk mrjkfèkdkjh gS] e`rd ds LFkku ij izfrLFkkfir ugha fd;k tk ldrk gSA ifj.kke Lo:i vkosnu fnukad 16.11.2009 [kkfjt fd;k tkrk gSA gñ@& vLi"V 1.5.10” 13. From perusal of the order, it appears that the court below has held that the deceased Rajendra Mahto never claimed the property in question to be either his personally acquired property or his ancestral property. He never claimed his title over the property rather his claim was that he was acting as a Shebait of the deity Lord Shiva who was the owner of the property. The Court has held that since the deceased sole petitioner never claimed his title over the suit property, her widow Keshri Devi would not inherit that after his death. In the aforementioned facts and circumstances, he has rejected the claim of the petitioner no.1. So far as the petitioner no.2, he has rejected the claim on the basis that a villager without any document etc. can not claim to be the heir or legal representative of the deceased entitling him for his substitution after the death of the sole petitioner. 14. Mr. So far as the petitioner no.2, he has rejected the claim on the basis that a villager without any document etc. can not claim to be the heir or legal representative of the deceased entitling him for his substitution after the death of the sole petitioner. 14. Mr. Dhrub Narayan, learned Senior Counsel appearing on behalf of the petitioners has submitted that it is well established that the Shebaitship is also inherited by the heirs and legal representatives of the deceased Shebait like a property unless there is a document of endowment to the said extent showing contrary and appointing somebody else after the death of the Shebait or if the parties are able to demonstrate that the custom of the locality is otherwise. Mr. Dhrub Narayan, learned Senior Counsel has also contended that since the petitioner no.2 has engaged himself in managing the Rag-Bhog of the deity and offering Rag-Bhog etc., he should also be substituted in place of the deceased petitioner. 15. Second submission made on behalf of the petitioners is that once it is established that the Shebaitship can be inherited like a property under the existing law by the legal heirs and legal representatives of the deceased Shebait then in the present case it cannot be held that the petitioner no.1 being a women cannot inherit Shebaitship. Though the aforesaid questions were not considered by the court below, however, in view of those being connected to the main issue concerned, are being considered. 16. Upon the aforesaid submission made on behalf of the petitioners, following issues emerge out for consideration in this case :– (i) Whether the office of Shebaitship would be heritable one? (ii) Whether the petitioner no.1 being widow of the erstwhile Shebait, is competent to inherit the office of Shebaitship? (iii) Whether the petitioner no.2 would also be entitled for substitution in place of the deceased sole petitioner Rajendra Mahto in the concerned Misc. Case. 17. Learned counsel for the petitioners has referred paragraphs 5.21 and 5.22 from a book, Hindu Law and Religious Charitable Trust, Tagore Law lectures (5th Addition) authored by B.K. Mukherjee. It has been stated in paragraph 5.21 thereof that shebaitship is a property and it devolves like any other property according to the ordinary Hindu Law of inheritance. Case. 17. Learned counsel for the petitioners has referred paragraphs 5.21 and 5.22 from a book, Hindu Law and Religious Charitable Trust, Tagore Law lectures (5th Addition) authored by B.K. Mukherjee. It has been stated in paragraph 5.21 thereof that shebaitship is a property and it devolves like any other property according to the ordinary Hindu Law of inheritance. In paragraph 5.22, it stands enumerated that as succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a women can succeed to shebaitship. It has referred a decision of Supreme Court rendered in Mst. Raj Kali Kuer Vs. Ram Rattan Pandey, AIR 1955 Supreme Court 493 holding that shebaitship is “property” within the meaning of Hindu Women’s Right to Property Act which was in operation at that point of time and as a consequence in a case to which the Act applies the widow and the son of the last shebait would succeed jointly to the shebaiti rights held by the latter. It has been held further that even if the expression “property” in the Hindu Women Right to Property Act is to be interpreted as meaning property in its common or accepted sense and is not to be extended to any special type of property which “shebaitship” admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent it has been modified by the Hindu Women’s Right to Property Act would also be attracted to devolution of shebaiti rights. The issue relating to the office of “Pujari and Panda” of a famous temple in the town of Ara came to be considered by the Apex Court in the aforesaid case. 18. Though the lis in the aforesaid case was not exactly the same as the devolution of right and office of Pujari and Panda to a female was in issue and a question was raised as to whether a women would be allowed to offer Puja Rag-Bhog etc. to the deity, however, the Apex Court has held as under in the relevant passage of Mst. Raj Kali Kuer (supra) :– “4. On the view that ‘Shebaiti’ is property, this Court has also recognised the right of a female to succeed to the religious office of ‘Shebaitship’ in the case reported as – ‘Sm. Anugurbala Vs. to the deity, however, the Apex Court has held as under in the relevant passage of Mst. Raj Kali Kuer (supra) :– “4. On the view that ‘Shebaiti’ is property, this Court has also recognised the right of a female to succeed to the religious office of ‘Shebaitship’ in the case reported as – ‘Sm. Anugurbala Vs. Debabrata’, AIR 1951 SC 293 (E), where the question as to the applicability of Hindu Women’s Right to Property Act to the office of ‘Shebaitship’ came up for consideration.” 19. It has further been held by the Hon’ble Supreme Court that even it is assumed that the women are not capable of making prayer offering doing Rag-Bhog of the deity even then she could manage the affair and get the same performed through the competent deputy who is fairly well recognized to do such offerings or Puja. Relevant passage from the aforesaid judgment on this issue is reproduced as under :– “11. A careful review, therefore, of the reported cases on this matter shows that the usage of a female succeeding to a priestly office and getting the same performed through a competent deputy is one that has been fairly well-recognized. There is nothing in the textual Hindu law to the contrary. Nor can it be said that the recognition of such a usage is opposed to public policy, in the Hindu law sense. As already pointed out the consideration of public policy can only be given effect in the present state of the law, to the extent required for enforcing adequate discharge of the duties appurtenant to the office. Subject to the proper and efficient discharge of the duties of the office, there can be no reason either on principle or on authority to refuse to accord to a female the right to succeed to the hereditary office held by her husband and to get the duties of the office performed by a substitute excepting in cases where usage to the contrary is pleaded and established.” 20. The matter of inheritance of the women, though on different context of a Charitable Trust, again came up for consideration before the Apex Court in Chockalinga Sethurayar and another Vs. Arumanayakam, AIR 1969 Supreme Court 569. The matter of inheritance of the women, though on different context of a Charitable Trust, again came up for consideration before the Apex Court in Chockalinga Sethurayar and another Vs. Arumanayakam, AIR 1969 Supreme Court 569. Hon’ble Supreme Court has held that it is well settled that succession to trusteeship would be similar to the ordinary rule of Hindu Law if there was no special custom to the contrary. Thus, it was held that sister was capable to inherit the interest being one of the heirs of a male person. 21. The question of office of Shebait if hereditary in nature again came to be considered by the Apex Court in Ram Rattan (dead) by L.Rs. Vs. Bajrang Lal and others, 1978(3) Supreme Court Cases 236. It has been held that the office of the shebait is hereditary unless provision to contrary is made in the deed creating the endowment. While considering the issue, their Lordship at Supreme Court have referred a Full Bench decision of Calcutta High Court in Monohar Mukherjee Vs. Bhupendra Nath Mukerjee and others, AIR 1932 Calcutta 791 holding that the office of shebait is hereditary and is recognized in Hindu Law as Immovable Property. 22. The Supreme Court has also considered the earlier decision rendered in Angurbala Mullick Vs. Debabrata Mullick reported in 1951 SCR 1125 holding that shebaitship would be held to be property and a female heir of the shebait has a right to succeed to the religious office of the shebaitship. The relevant passages from the judgment rendered by the Supreme Court in Ram Rattan (dead) by L.Rs. (supra) are reproduced as under :– “8. Shebaiti being held to be property, in Angurbala Mullick Vs. Debabrata mullick, this Court recognised the right of a family to succeed to the religious office of Shebaitship. This hereditary office of Shebait is traceable to old Hindu texts and is a recognised concept of traditional Hindu law. It appears to be heretable and partible in the strict sense that it is enjoyed by heirs of equal degree by turn and transferable by gift subject to the limitation that it may not pass to a non-Hindu. On principles of morality and propriety sale of the office of Shebait is not favoured. 9. The position of Shebait is not merely that of a Pujari. He is a human ministrant of the deity. On principles of morality and propriety sale of the office of Shebait is not favoured. 9. The position of Shebait is not merely that of a Pujari. He is a human ministrant of the deity. By virtue of the office a Shebait is an administrator of the property attached to the temple of which he is Shebait. Both the elements of office and property, of duties and personal interest are blended together in the conception of Shebaitship and neither can be detached from the other (vide Commissioner of Hindu Religious Endowments, Madras Vs. Sri lakshmindra Thirtha Swamiar of Sri Shirur Mutt). 13. It may be mentioned that the definition of immovable property in Registration Act lends assurance to treating Shebait’s hereditary office as immovable property because the definition includes hereditary allowances. Office of Shebait is hereditary unless provision to the contrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the courts with very few exceptions have recognised hereditary office of Shebait as immovable property, and it has all along been treated as immovable property almost uniformly. While examining the nature and character of an office as envisaged by Hindu law it would be correct to accept and designate it in the same manner as has been done by the Hindu law text writers and accepted by courts over a long period. It is, therefore, safe to conclude that the hereditary office of Shebait which would be enjoyed by the person by turn would be immovable property.” 23. The aforesaid aspects does not seem to have been considered by the court below while rejecting the claim of the petitioner no.1. 24. In my considered opinion, the court below has committed error of jurisdiction in rejecting the claim of petitioner no.1 at least. As has been discussed above, it was the case of the deceased sole petitioner of Misc. Case No.3 of 2003 in the title suit concerned being Principal defendant that it was the property belonging to the deity Lord Shiva and he was shebait. As has been discussed above, it was the case of the deceased sole petitioner of Misc. Case No.3 of 2003 in the title suit concerned being Principal defendant that it was the property belonging to the deity Lord Shiva and he was shebait. No document has been brought on record by any side which discloses that, after the death of earlier shebait, i.e., after the husband of the petitioner no.1, a particular person was to succeed as shebait. In the absence of the above since the office of shebaitship has been held to be just like immovable property and is to be inherited by the heirs and legal representatives as per the law and custom of Hindu Law, the petitioner no.1 was entitled for her substitution in place of deceased husband. In Mst. Raj Kali Kuer Vs. Ram Rattan Pandey (supra), the Apex Court has considered the provisions of Hindu Women’s Right to Property Act which was in existence at that point of time and has found a women entitled to succeed such office. However, much water has flown thereafter as, under Section 14 of the Hindu Succeesion Act,1956, the limited ownership granted to the widow became absolute and, thereafter, by subsequent amendment under the Hindu Succession Act in the year 2005 now the females apart from being heirs of a male deceased are also to be considered equivalent to a co-parcenor. Thus, there is no reason now to reject the claim for substitution of the petitioner no.1 in place of her deceased husband. So far the petitioner no.2 is concerned, he has not been able to show that he has inherited the property. Even if he has been appointed for performing puja or Rag-Bhog of the deity, he is not required to be substituted in place of the deceased Shebait. Thus, his claim has rightly been rejected by the court below. In above view of the matter, the order dated 1.5.2010 as contained in Annexure-3 is set aside so far it concerned the petitioner no.1 and the court below is directed to take steps for substitution of the petitioner no.1 in place of the deceased petitioner Rajendra Mahto. Thus, his claim has rightly been rejected by the court below. In above view of the matter, the order dated 1.5.2010 as contained in Annexure-3 is set aside so far it concerned the petitioner no.1 and the court below is directed to take steps for substitution of the petitioner no.1 in place of the deceased petitioner Rajendra Mahto. However, in view of the fact that in the title suit the claim of the Principal defendant of being shebait of the temple and the property belonging to the deity has been disputed, the effect of this order would only be limited for the purpose of substitution of the legal representatives of the deceased petitioner. This order would not mean that the case of the petitioner-defendant has been accepted. This order has been passed only with a view to ensure that the case concerned does not go uncontested and rightful legal representatives is not ousted from contesting the same. So far issues involved in the case, such as, whether the compromise decree is valid or not or the defendant was actually a shebait or the property actually belonged to the deity concerned or not, are concerned that would have to be decided by the court of competent jurisdiction if such occasion arises without being prejudiced by any observation or finding recorded by this Court in the present order. Accordingly, this writ application stands allowed in part.