'A SHAMBHU CHARAN SHUKLA v. THAKURLADLIRADHACHANDRA MADAN GOPALJI MAHARAJ & ANR

.. 'A SHAMBHU CHARAN SHUKLA ~·

THAKURLADLIRADHACHANDRA MADAN GOPALJI MAHARAJ & ANR

March 19, 1985

c Hindu Law: " Religious endowment - Founder by will making his wife shebait - No disposition in will regarding the shebaiti right - On death of founder widow succeeding to the shebaiti right - Whether widow could transfer the shebaiti right by her will. D

Hindu Succeession Act 1956 - Section 14(1}.

Shebaitship - Right to - Limited right of Hindu female whether enlarged to the absolute right of the holder. E

The idol of Gopalji was installed by one Purshottam Lal in his house at Vrindavan, which later became the temple of the deity. The founder who had no issue, performed seva Puja of the deity so 1ong as he was alive and thereafter it was performed by his wife. By his will Ex. A-2,,,.). he dedicated his entire property to the deity, and made his wife the Mohatmim/ ~ F Shebait without any power to transfer any property. In accordance with the • directions of her husband, the wife adopted the second respondent by a regis- tered deed after performing the necessary religious ceremonies. After the death of the wife, the appellant in the appeal worked as Pujari in the temple with the consent of the second respondent's guardian and natural father. Later he denied the rights of the second respondent and contended that the founder's • wife executed her last will and testamerit Ex. A~6 bequeathing her bank deposits, government bonds, household articles, utensils etc. to the appellant to be kept by him in his custody, so long as the second respondent was a minor and to be responsible for the seva puja and raj bhog of the deity and the _......_ management of the deity's properties. r·

A suit was filed by the respondents, for recovery of possession of the idol and temple of Gopalji and for the money lying in deposit with the bank, the zamindari abolition compensation etc.

ii. e. SHUKLA v."t: t.;' R. c. M'. o. MAiiAilAI ,,-.TJJe . tri!ll ~o~it heid the adoption or the second ~espondent to be ctu1y · lluth6rised-and valid and found that the foundef's wife had validly executed . the w_~ll EX. :A-·6, but c'ould not triinsfer the shebaiti rights to the second resPortdeot thereby and that' the second respondent had, ho"wever become the Mohatmim/Shebait by rcasort of the adoption, and found that the moVable' prt?perties a~d the cash claimed by the appellant under the will were the per- sonal Properties of the wife and that the appellant had become entitled to them ' as··a teiatee under the will and that the other properties belong to the first · respondent-Gopal Ji, and decreed the suit in part.

~....,· In the appeal by the appellant: afld the cross-objections· filed b:Y the '1 second respondent, the additional district judge found that as the adoption was without the· authority of the husband to adopt, it was invalid in· law and following this Courts' decisibn in K.K. Ganguli v Pama-Banerjee, ·AI-R ·J974 0: S.C R. 1932 held that the second respondent 'had not become shcbait under the wili and allowed the appeal and dismissed the corss-objections and the s1:1it in, . full.

In the second appeal, the High Court following this Courts' decision in Angu~ba/a Mullick v. Dehabrata Mu/lick, [1951} 2 S.C R. 1125 that shebaiti is heritabal property, held shebaiti is property & found t~at no restriction had been placed in the will of the founder in regard to the shebaiti"and theref~re the wife· had succeeded to the limited right of she bait as the· heir of her husband and· it became enlarged into an absolut~ right under section 14(1) of the Hindu Sue.:· cession Act, 1956 and that as there was on other heir or successor to the f0under, the wife's appoinment of the second respondent as the shebait'under her Will Ex. A-6 was valid in law. The second appeal was accordingly a110wed•. in part except in respect of certain items enumerated in 'the. plaint, artd cash 'in · fixed deposit with a bank.

Dismissing the appeal, to this Court.,

1Copy pinpoint1. The text of Hindu Law and the two decisions of this .Court in Profulla Choronl Requittee v. Satya Chornal Requillee [1979] 3 S.C.R. 431 and Ram Rattan v. Bajrang Lal & Ors., [l978) 3 S.C.R. 963 and the earlier decision in Angurbala Mullick v.Debabrata Mullick, [1951) 2 S,C R. 1125. show that shebait ship iS in the nature of immovable property heritable by the widow ·of the last male holder unless there is an usage or custom of a different nature -in cases. where the founder had not disposed of the shebaiti right in the endowment created by him. [382B·CJ

In the instant case, the founder (Purshottam Lal) had not made any . disposition regarding sh6baiti right in his will, Ex. A-2 dated 14-4-1944 where- by he created the endowment. No custom or usage to the contrary had been pleaded. Therefore, the widow (Asharfi Devi) had succeeded to the shebaiti H

~Ut>Rl!Mil cotJRt Rl!i>oRts (19851 3s.c.it A· right held by him on his death as a limited owner and that right had become enlarged into an absolute right by the provisions of Section 14(1) of the Hindu Succession Act, 1956 and she could transfer that right by a will in favour .of a person who is not a non-Hindu and who could get the duties of shebait per- formed either by himself or by any other suitable person. [382C·D) '

2Copy pinpoint2. The second respondent has acquired the shebaiti right under the will B Ex. A-6. No interference is called for with the judgment of the Single Judge of the High Court in the Second appeal. [382E)

(Per Sabyasachi Mukharji J. 'concurring)'

1. It is well settled that shebaitship is heritable. This Court in c· Angurba/e Mullick v. Debabrata Mullick, (1951] 2 S.C.R. 1125 recognised the right of a female to succeed to the religious office of shebaitship in view of the Hindu Women's Right to Property Act 1937. Section 14(1) of the Hindu Succeession Act 1956 enlarged the lin1ited right of a Hindu female to t_he absolute right of the holder. [382H ; 383A]

In the instant case, the property in the nature of shebaitship devolved on D· Smt. Asharfi Devi under the will of her husband, Shri Purushottam Lal dated April 14, 1944. This will had not restricted the property in any manner in shebaitship bequeathed to Smt. Asharfi Devi could therefore make a will in respect of shebaitship. [383B-C]

2. It is not necessary, to express any op1n1on on the correctness or otherwise of the views expresed in K.K. Ganguli v. Panna Baneriee, [1975) 1 E-· s.c.R. ns. [383DJ

CIVIL APPELATB JURISDICTION Civil Appeal No. 1372 of 1979.

From the judgment and decree of the Allahabad High Court F dated March 2, 1979 in Second Appeal No. 626/76.

P.K. Chatterjee and P.K. Mukherjee for the Appellant.

G. Viswanatha Iyer and M.V. Goswami him for the Respon- dents. G' The Judment of the Court was delivered by

VARADARAIAN, J. This appeal by special leave is by the defendant-respondent in Second Appeal No. 626 of 1976 on the file of the Allahabad High Court and directed against judgement of the. H learned Single Judge of that High Court in so far as it relates to the

{ s: c. SHUKLA v. T. L. R. c. M. G. MAHARAJ (Varadarajan, J.) 315 il'p°pointment of the second respondent/second plaintiff Man Mohan A as the Mohatmim/Shebait of the first respondent Shri Thakur Ladlt R1adhachandra Madan Gopalji Maharaj (for short "Gopalji") and the properties belonging to that idol.

The second appeal was filed by the respondents Gopalji and Man Mohan, plaintiffs 1 and 2 respectively. ·The second respondent • who is the son of one Shyam Sundar claimed to have been adopted by Asharfi Devi, wido~ of one Purushottam Lal by the document A-24 dated 20-11-1956. The High Court has not gone into tlie question of this adoption in its judgment. Therefore, it is not necessary to refer to the case of the parties and the judgment of t~e courts below in detail in regard to the question of the adoption. c the suit was filed by both the respondents·for recovery of possession of the idol and temple of Gopalji described in the plaint and the money lying in deposit with the Punjab National Bank at Vrindavan, the zamindari abolition compensation and the rehabilitatio.n grant •. ~onds specified in the plaint. The trial court decreed the suit except as regards items 1 to 25 and 37 to 41 of list I of Schedule "Ba" and the sum of Rs. 1004:97. The appellant filod an .appeal in .the District Court and the respondents filed a cross-objection in that .appeal in regard to the money claim disallowed by. the trial· court. The learned Second Additional District Judge, Mathura allowed the .appeal and dismissed tbe cross objection and. the suit. Therefore, E ·both the respondents filed the second appeal.

The respondents' case was that the idol of Gopalji ·was instal- led by Purushottam Lal in his hpuse at Vrindavan which later became the temple of the deity. Purushottam Lal, who had no issue, performed seva puja of the deity so long as he was alive and· F it was performed thereafter by his wife Asharfi Devi. By his will Ex. A-2 dated 14-4-1944 he dedicated his entire property to th.e , deity and made his wife the Mohatmim/Shebait without any power to transfnr any property. In accordance with the directions of her . husband, Asharfi Devi adopted the second respondent by a registered .deed dated 21-11-1956 by performing the necessary religious cere- monies. After the death of Asharfi Devi the appellant worked as Pujari in the temple of Gopalji with the consent of the secon_d . respondent's guardian and natural father Shyam Sunder. Later, he denied the rights of the second respondent contending that Asharfi \I Devi executed her last will Ex. A-6 dated 21-12-1957 bequeathing her H bank deposits, government bonds,'household articles etc. to' the appel-

376 SUPREME COURT REPORTS [198SJ 3:s.c.a. \

!ant Shambhu Charan and all her jewellery including those kept by her in the custody of Shyam Sunder to the second respondent and d.eclaring that so long as the second respondent was a minor the appellant shall act as Mohatmim of Gopal ji and be responsible for. the sewa puja and raj bhog of the deity and the management of the deity's properties. They will further declare that the appellant shall continue to live in the house at Bengal Bindala, Vrindavan and act as ihe guardian of the second respondent in view of his natural father Shyam Sunder's refusal to do so and that on the second respondent attaining majority the appellant shall hand over the sewa puja and raj bhog and he shall have all the rights of Mohatmim which Asharfi Devi held, without any .right to alienate any of the c properties. But this will was not duly executed by Asharfi Devi and she had no right to execute such a will and it does not confer any ijght,m:1 the appellant.

' Besides denying the adoption of the second respondent the ~ppellant contended in his written statement that Asharfi Devi validly executed the will dated 21-12-1957 inter a/ia bequeaihing '.items I to 25 and 37 to.41 of Schedule "Ba" and items 3 and 4 of the plaint Schedule, namely, the fixed deposit in Punjab National Bank, Vrindavan, the zamindari abolition compensation bonds and the E rehabilitation grant bonds which were all her personal properties, anif not endowed properties, to the appellant and he bas thereby become the absolute owner of those properties. In tbat will Shyani Sunder had got certain provisions alleged to confer certain rights on the s~cond respondent inserted by exercising undue influence on Asharfi Devi, and ·they are not binding on the appellant. ,F The trial court held the adoption of the second respondent by ·; th_e Asharfi Devi to be duly authorised and valid and found that she ·liad validly executed the will Ex. A-6 dated 21-12-1957 but could not transfer the shebaiti rights to the second respondent thereby arid thai 'the second respondent has, however, become the Mohatmim/ Shebait by reason of the adoption and that the appellant had spent the suiii of Rs. I 004.97 towards sewa puja and raj bhog of Gopal Ji. The trial court further found that the movable properties and tbe cash claimed by the appellant under the will were the personal ·pro- perties ·or Asharfi Devi and that the appellant has beconie entitled to th~m as a: legatee under the will and that the other properties belon~ to the first respondent Gopal Ji ~n\I tho~ decreed the suit in part•.

:S;"c:SHUKLA V, T. L. R. c. M. G. MAHARAJ (Varadarajan, J.) 377·

'In the appeal by the appellant and the cross-objections filed by the respondents the learned Second Additional District Judge, Mathura found that the adoption made in November 1956 was. without the authority of Asharfi Devi's husband to adopt and, there- fore fa¥alid in law. In the event of the adoption not being upheld the ;espondents wanted to fall b~ck on the will to support the second_ ~ respondent's claim to shebaitship. That was naturally opposed by B' the appellant as the respondents did not raly upon the will in the plaint and· based the second respondent's claim to shebaitship' only on the adoption. The learned Second additional District Judge -~ rejected that contention· as also the contention of the respondents .K - that Asharfi Devi as the heir of her husband could appoint her "°'- successor shebait by her- will on the ground that -it could not be done c- by will following this Court's decision in K.K. Ganguli v. _Panna. Banerjee(l) and he held that the second respondent- has not become" shebait under the will. In this view the learned Additional District' Judge allowed the appeal and dismissed the cross·objection and the s'uit'in full. D

378 SUPREME COURT REPORTS 11985) 3 S.C.R. \

A succeeded to the limited right of sbebait as the heir of bet hftsband and it became enlarged into an absolute right by s. 14(1) of the Hiiidu Succession Act, 1956 and that as there was no otlier·heir or successor to PuriJsbottam Lal, Asharfi Devi's appointment of the second respondent as the !shebait under her will Ex. A-6 dated 21-12-51 is valid in law. The learned Judge found that the zin'nin- dari abolition compensation and rehabilitation grant bonds go with· the sbebalti and could not be claimed by the appellant. Thus he allowed the second appeal in part except as regards items I to 25 and 37 to 41 and the cash of Rs. 1004.97 and the fixed deposit lying with the Punjab National Bank at Vrindavan. c In this Court, the only question to which the arguments were confined by the lear.ned counsel for the parties is whether th6 shebaiti right could be bequeathed by Asharfi Devi by her wiii Ex. A-6.

It has to be noticed at the outset that the respondents had -' based their claim to the properties and the shebaiti right only on Purushottam Lal's last will and testimony Ex. A-2 dated 14-4-1944 whereby he created the endowment constituting himself ·as the shebait and on the adoption deed Ex. A-24 dated 10-11-1956. That • ?doption which has been held to be valid by the trial court has been 'E fpund by the first appellate court to be invalid in law for want of ~uthority of the husband to make the adoption prior to the com- mencement of the Hindu Succession Act, 1956, and the High Court has not gone into that question.· The respondents at.tacked the g.enuineness of the will Ex. A-6 in toto in their plaint while the (\ppellant had relied upon it in part to the extent that it purports to F c9pfer on him absolute right in regard to certain properties including ite.ms 1 to 25 and 37 to 4Lof list 1 of Schedule "Ba". He contended ~hat the remaining ·portion of that will which purports to confer ~~Fbaiti rights on the second respondent bad been fraudulently intr0duced by the second respondent's natural father Sbyam Sunder by the exercise of undue influence on Asharfi Devi and that portion G ~ft~e 'Yill is not, therefore, binding on him. However, the learned • Judge ·()f the High Court has allowed the second appeal in part as ·s.t~ted. a.l:mve i;mly on the basis of that will. It may be stated that it was not contended by Mr. P.K. Chatterjee, learned Senior Advocate appearing for the appellant that it was not open to the II High Court to grant relief to the second respondent on the basis of the will on which no reliance had been placed in the plaint. As

) ' s: c. SHUKLA v. T. L. R. c. M. G. MAHARAJ (Varadarajan, J.) 379

stated earlier the only question regrading which Mr. Chatterjee A appearing for the appellant and Mr. G. Viswanath Iyer, learned Senior Advocate appearing for the respondent advanced their arguments was as regards the validity of the appointment of the second respondent as shebait by Asharfi Devi's will, Ex. A-6. Mr. ·chatterjee conceded in the course of his arguments that B shebaitship is heritable property but . submitted that heriditary succession to shebait is not mentioned in Purushottam Lal's will, Ex. A-2 and, therefore,.after the death of Asharfi Devi shebaitship right will revert to. the heirs of the founder Purushottam Lal and

i.;_. + that the second respondent coulj not, therefore, claim to be shebait of the first respondent-temple. In this connection, Mr. Chattarjee G invited our attention to the judgment of A.N. Ray, CJ., and K.K. Mathew, J. of this Court in K.K. Ganguli v. Panna Banerjee (supra) where at page 737, Chief Justice Ray speaking for the Bench has observed that the transfer of shebaitiship by wilJ is not permitted because nothing which the shebait has can pass by his will which operates only after his death. Earlier at page 733 the learned Chief D Justice has observed :

"The rule against alienation of shebait right has been relaxed by reason of certain special circumstances. These are classified by Dr. B.K. Mukherjee at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and E Charitable Trust,· First Edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and auffers from no di;q ualification regarding the performance or the duties. Second, when the transfer is made in the • interests of the deity itself and. to meet some pressing necessity. Third, when a valid custom is proved .anction- ing alienation of shebaiti right within a limited circlo of purchasers, who are actual or potential shebaits of the • deity or otherwise connected with the family." This decision rendered· in a case of sale of shebaitirightfor pecuniary consideration appears to support the stand taken by Mr. Chatterjee. But later decisions of this Court have taken a different view which appears to be consistent with the prindples of · Hindu Law. We find the following passage in para 419A of Mulla's ll Hindu Law, Fifteenth Edition :

380 . SUPREME COURT REPORTS 1198 SJ 3 s.c.R. A "Though a female is personally disqualified from officia- ting as a Pujari for the shastraically installed and conse- crated idols in the temples, the usage or a female succeed- ing to a priestly office and getting the same performed through a competent deputy has been well·recognised and it is not contrary to textual Hindu Law nor opposed to B public policy. In Raj Kali Kuer v. Ram Ratan Pandey(l) the Supreme Court upheld such usage.'

In the next para 420 we find the following passage :

"A sale by a shebait or mo hunt of his right to inanage c debutter property is void, even though the transfer may be coupled with an obligation to manage the property in confirmity with the trust attached thereto. Nor can the right be sold in execution of a decre.e against him".

.> D At paga 158 of Mukherjee's Hindu Law of Religious and Charitable Trusts, Third .Edition, it is stated thus :

"Unless therefore the founder has disposed of the shebait-. ship in any particular way and except when an usage or • custom of a different nature is proved to exist, shebaitship E like any ·oiher species of heritable property follows the line of inheritance from the founder. Where the founder of a temple had died without having appointed a shebait; it" was held that his widow on whom the right to appoint had developed was entitled to appoint a shebait for the E ie_mple, and such appointment' was not open to attack ·as an. alienation of the office of a trustee. And the rule th.a~ shebaitship develves like and other species. of pro- perty has been applied to the office of archaka, as well, where ·emoluments were attached to it." G • In the decision in Profulla Choron/ Requittee v. Satya Choron/ Requittee(2), ·sJrkari~, J. speaking for himself and TulEapur kar, J. has observed at page 440 thus : . ' --...----;;:,-:--:-:------- ff (1)-. [1955]2 S.C.R. J86. (2) [1979] 3 S.C.R. 431.

. S. c; SHUKLA v, T. L. R. C. M. G, MAHARAJ(Varadarajan, J.) 381 "Office and property are both blended in the conception of shebaitship ...... Apart from the obligations and duties resting on him in connection with the endowment, the shebait has a personal interest in the endowed property. He bas, to some extent, the rights of a limited owner. Shebaitship being property, it devolves like any other species of heritable property. It follows I.hat, where the founder does not dispose of the shebaiti rights iri the endowment created by him, the shebaitship develves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown. to exist."·

A similar view has been expressed in an earlier decision· cif Chandrachud. C.J. and Desai and Pathak, JJ, in Ram Rattawv. Bajrang Lal & Ors.(l) where Desai, J. speaking for the Bench has observed thus :

"This . hereditary office of shebait. is traceable to old Hindu texts and is a r~cognised concept of traditional Hindu Law. It appears to be heritable 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 E favoured ...... 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 .. .. . A full Bench of the Calcutta High Court in Manohar Mukherjee v. Bhupendra Nath Mukherjee and Ors. held that the office of shebait is hereditary and is regarded in Hindu Law as immovable property. This· court took note of this decision with approval in Angurbala· Mullick's case (supra) ...... Office· of shebait is hereditary unless provision to the contrary is made in the deed creating the endowment. In the • ·conception of she bait· botli"' the elements of office and property, dutie_s and personal interest are mixed up arid .. blended together and one of the elements cannot be · detached fr.om the other...... It is, therefore, ·sare to ·. · cohciucle that · the herediiary office of sh.ebliit which '

(I) (t979) 3 $.C.R. 963.

382 SUPREME COURT REPORTS !1985] 3 S.C.R. ' . would be enjoyed by the person by turn would be immovable property. The gift of such immovable pro- perty must of course be by registered instrument."

The text of Hindu Law and the aforesaid two decisions of this ' Court and the earlier decision in Angurba/a Mul/ick's case (supra) B show·that shebaitship is in the nature of immovable property herit· able by the widow of the last male holder unless there is an usage or custom of a different nature in cases where the founder has not disposed of the shebaiti right in the endowment created by .him. In the present case Purushottam Lal has not made any disposition regarding shebaiti right in his will, Ex. A-2 dated 14.4.1944 whereby be created the endowment. No custom or· usage to the contrary bas been pleaded. Therefore, the widow Asharfi Devi bad s~cceeded to the shebaiti right held by him on his death. as a limited owner and that right bas become enlarged into an absolute right by the provisions of s. 4 (I} of the Hindu Succession Act, 1956 and she could transfer that right by a will in favour of a person·who is not a non-HLdu and who could get the duties of shebait performed either by himself or by any other suitable person. In these circum- stances I hold that the second respondent bas acquired the shebaiti right under the will Ex.A-6 executed by Asharfi Devi on her death on 7,3.1963. No interference is called for in this appeal with the judgment of the learned Single Judge of the High Court. The 'r :E appeal is accordingly dismissed with costs. '·

SABYASACHI MUKHARJi,J. I agree that the appeal should be dismissed with costs. I would, however; like to explain the reasons why I ·come to that conclusion. In my opinion it is well-settled by ·n· the authorities that shebaitship is a property which is heritable. The devolution of the office of Shebait depends on the terms of the deed or the will or on the endowment or the act by which the Deity was installed and property consecrated or given•to the Deity, where there is no provision in the endowment or in the deed or will made by. the founder as to the succession or where the mode of ~G succession in. the deed or the will or endowment comes to an end, the title to the property or to the management and·control of the ' property as the case may be, follows the ordinary rules of inheritance according t().•Hi_ndu Law. As Shebaitship is property, .this Court in the.case of Angurba/a Mullick v. Debabrata Mu/lick(l) recognised ~- H ---------------- (I) (lqSI] 2 S.C.R. 1125.

~. c. SHUKLA v, T. !... R, d. r.l. d. MAliARAI Waradara)an, J.) 3~~ ;, the right of a female to succeed to the religious office of she baitship A in view of the Hindu Wome~'s Rights to Property A'ct,' 1937.

Section 14 (I) of the Hindu Succession Act, 1956 enlarged the limited right of a Hindu female to the absolute right of the holder. As in this case t)lere was no bar against alienation imposed bY the · founder, the property in the nature of shebaitship in this case •as B. devolved on Smt. Asharfi Devf under the will of her husband Shri Purushottam Lal dated 14th April, 1944. This will, the word- inas of which have been set out. in the judgment in the Second Appeal of the High Court, has not restrict'ed the property in any manner in sh~baitship bequeathed to Smt. Asharfi Devi. The High. Court found arid I respectfully agree with the High Court that ihe · c first sentence of the will makes an absolute bequest of shebaitship to Smt. Asharfi Devi. The subsequent words only describe the rights and duties. In the premises, in view of the law as laid down ,_ in Angurba/a's case (supra), she could make a will in respect_of shebaitship. · · D On the aforesaid reason, in my opm10n, the appeal should fail. It is not necessary, therefore, to express any opinion on the correctness or otherwise of the views expressed by this Court in KK. Ganguli v. Panna Banerjee(1 ). Appeal dismissed with costs.

N.V.K. Appeal dismissed

(I) {1975] ) S.C.R. 728.