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Sm. Sovabati Dassi Vs. Kashi Nath Dey and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberSuit No. 952 of 1959
Judge
Reported inAIR1972Cal95
ActsHindu Law
AppellantSm. Sovabati Dassi
RespondentKashi Nath Dey and anr.
DispositionSuit dismissed
Cases ReferredPeary Mohan Mukherjee v. Monohar Mukherjee
Excerpt:
- masud, j.1. the important point to be decided in this suit is whether a sole shebait can lawfully alienate his right to shebaitship by will under daya-bhaga school of hindu law. the facts of the case may be briefly stated as follows:2. the settler of a deed of endowment, kashinath dey, died in 1902 leaving his widow sm. jhanobi moni dassi and a son pulin behari dey. pu-lin behari dey died a few years after the death of kashinath dey, as stated by mr. dipankar ghosh on behalf of the defendant and not objected to by mr. debi de on behalf of the plaintiff, leaving kalicharan dey as his sole heir. kalicharan died on december 20, 1958 leaving kashinath dey, the present defendant, being the adopted son of kalicharan. kalicharan had a natural son panchugopal who died in may 1933. kalicharan left.....
Judgment:

Masud, J.

1. The important point to be decided in this suit is whether a sole shebait can lawfully alienate his right to shebaitship by will under Daya-bhaga School of Hindu Law. The facts of the case may be briefly stated as follows:

2. The settler of a deed of endowment, Kashinath Dey, died in 1902 leaving his widow Sm. Jhanobi Moni Dassi and a son Pulin Behari Dey. Pu-lin Behari Dey died a few years after the death of Kashinath Dey, as stated by Mr. Dipankar Ghosh on behalf of the defendant and not objected to by Mr. Debi De on behalf of the plaintiff, leaving Kalicharan Dey as his sole heir. Kalicharan died on December 20, 1958 leaving Kashinath Dey, the present defendant, being the adopted son of Kalicharan. Kalicharan had a natural son Panchugopal who died in May 1933. Kalicharan left a will dated November 21, 1958 whereby he appointed the defendant as the sole shebait. The material portions of the Deed of Settlement dated September 22, 1884 are stated below:

'.....Also witnesseth that In consideration of the premises the said Kassi Nath Dey (Doth) hereby appoint his wife the said Shreemutty Jhanobee Monee Dassi to be the sole sabait of the said Idol Sree Sree Iswar Sreedhar Jew Thakur and to perform in the daily and periodical worship on the said Idol and to perform the several poojahs hereinbefore mentioned and from and after her death the said Kassi Nath Dey hereby appoint his son Poolin Behari Dey to be the sabait of the said Idol Sree Sree Ishwar Sreedhar Jew Thakur and from and after his death the said Kassi Nauth Dey hereby appoints the heirs of the said Poolin Senary Dey to be the joint sabaits of the said Idol but in the event of the said Poolin Be-hary Dey having no heirs surviving then and in that case the said Kassi Nauth Dey hereby appoints his grandson by daughters to be the joint sabaits of the said Idol .....

The immovable properties under the said deed of endowment are the family dwelling house No. 4 Gobinda Chandra Sen Lane, Calcutta and premises No. 19. Gobinda Chandra Sen Lane, Calcutta. It is also provided in the said Deed of Endowment that the idol will remain installed in the upper floor of premises No. 4 Gobinda Chandra Sen Lane and that she-bait or shebaits will reside in the said floor. The deed also provides for performance of the daily and periodical worship of the Idol, the performance of Rashjatra, Doljatra, Jhulan-jatra, Janmashtami ceremonies and also for the support and maintenance of the shebait out of the income of the remaining tenanted portions of the said two buildings. In 1935 the widow of Panchu Gopal was a minor and she through her father and next friend Prosad Das Dey instituted a suit against Kalicharan Dey (suit No. 1096 of 1935). On July 28, 1936 a consent decree was passed relevant portions of which are as follows:

'I. That the plaintiff would be paid Rs. 20/- a month for her maintenance by the defendant Kalicharan Dey and after his death out of his estate.

II. That the specific portion in the first floor of premises No. 4 Gobinda Sen Lane as fully shown and described in the said terms of settlement as well as in the plan annexed thereto was set apart for the exclusive residence of the plaintiff.'

In or about 1938 the plaintiff attained majority. The said specific portion of premises No. 4 Gobinda Chandra Sen Lane is still in the control of the plaintiff. On an application by the plaintiff before the Execution Court a consent order was passed on February 23, 1938 to the effect that the plaintiff, inter alia, accepted Rupees 3,600/- and Rs. 460/- in full satisfaction of her claim against Kalicharan or his estate for future maintenance and costs respectively. On or about May 1, 1949 Kalicharan adopted the defendant Kashinath. On December 20, 1958 Kalicharan died leaving himself surviving the defendant Kashinath and the plaintiff, the widow of the said predeceased son Panchu Gopal. In July 1959 the plaintiff has instituted this suit claiming for a declaration that she is also a shebait of the said deity and tor other consequential benefits of a shebait as provided under the Deed of endowment. She even has asked for removal of the defendant Kashinath. Her counsel, however, abandoned the latter relief, i. e., removal of Kashinath from his office of shebaitship. The counsel, on behalf of the guardian of the deity without mentioning any ground, has submitted that a scheme for the administration of the estate should be framed by this Court. The counsel for all the parties agreed to have the matter disposed of without adducing any oral evidence. The following issues have been framed and settled:

1. Is the plaintiff a Sebait of the Defendant Deity under the Deed of Trust dated September 22, 1884?

2. Is the plaintiffs claim as a Sebait for residence and maintenance barred under the earlier consent decree and Order passed in suit No. 1096 of 1935?

3. Is the suit as framed maintainable ?

4. To what relief, if any, is the plaintiff entitled ?

Issues Nos. 1 and 2:

3. Mr. De, on behalf of the plaintiff, has argued that the plaintiff is entitled to be a coshebait with Kashinath inasmuch as under the Hindu Law a shebait cannot create a new line of succession in respect of the shebaitship and no alienation of shebaiti right by will is permissible as it was done by Kalicharan in favour of Kashinath in the present case. Reliance has been placed by him on Manohar Mukheriee v. Bhupendra Nath Mukherjee, AIR 1932 Cal 791 (FB) and also Sankatha Pandey v. Brii Mohan Pandey. : AIR1958All371 (SB). It has also been strenuously argued by him that shebaitship being an inseverable combination of an office and a proprietary right is a special kind of property which cannot be transferred by will. Reference has been made by him to Bameswar Bamdev v. Anath Nath, : AIR1951Cal490 , the observations of Mr. B. K. Mukherjee J. on the Hindu Law of Religious and Charitable Trust (third edition) pages 169. 177. 181 and 183, Gos-sami Sree Girdharjee v. Romanlal-jee Gossami, (1888) 16 Ind App ]37 (144) (PC) and Sm. Angurbala Mallik v. Debabrata Mallick. : [1951]2SCR1125 . He has. therefore, requested, the court to hold that the plaintiff and the defendant being the heirs of the founder are jointly entitled to be the shebait of the said debattar estate.

4. Mr. Ghosh, however, on behalf of the defendant, has argued that apart from the fact that the plaintiff is not an heir of Pulin and, as such, is not entitled to claim shebaitship there is no absolute bar to the transfer of a right of shebaitship under certain limitations. He has, therefore, submitted that his client is the sole shebait under the said Deed of Settlement and that the plaintiff in spite of being an heir of Kalicharan cannot claim shebaitship along with Kashinath. It appears to me that there has been an evolution of juridical thought on the subject of shebaitship. Originally a shebait was considered to be only a manager of a deity and is entitled to discharge the religious, spiritual or even the mundane duties which are required for the worship of the deity. Although, unlike the law of Trust, the debattar estate is not vested in the shebait various principles relating to the law of Trust are applicable to the case of shebaitship. The duties of shebaits are personal and, as such cannot be delegated to any other person. Not onlv the shebait is enjoined to arrange or perform religious ceremonies or practices but also he is entitled to get the benefit which the settler has provided in the Deed of endowment or the Arpannama as secular benefits to the office of shebaitship. As shebaitship involves religious duties it was thought that ordinarily right of shebaitship could not be alienated. It was subsequently, however, thought that if a shebait duly appointed under the Deed of Endowment, relinquishes or surrenders his right of shebaitship he can do so provided he has transferred all his rights of shebaitship to the transferee and also that he transfers the same in favour of all the persons who are next entitled to shebaitship under the Deed of Endowment. But the courts in India have also held that the transfer of she-baiti rights is valid provided the transfer is not inconsistent with the consent of a religious office in shebaitship and also the intention of the founder of the trust. A new situation, however, arose when the Supreme Court in : [1951]2SCR1125 (supra) has held that shebaitship is a recognised form of property in Hindu Law and there is nothing in the Hindu Women's Right to Property Act, 1937 which prevents the General Law as Succession to be applicable to shebaitship as well. In certain cases, the validity of a transfer inter-vivos or by will by a shebait in favour of some or all the heirs of the last shebaits arose and the learned Judges in the farts of the respective cases came to conflicting conclusions validating or invalidating such transfer. Juristically the 'concept of property' or ownership involves a right of alienation but there are special laws relating to transfer of certain categories of property. To illustrate, right of franchise is a property which cannot be transferred under any circumstances. Similarly copyright or patent rights can be transferred only in a qualified manner. A right to sue cannot be transferred but an actionable claim or a chose in action can be assigned under certain limitations. Shebaitship also constitutes a special kind ol property, transfer of which is permissible in a qualified sense. Transfer of a shebaiti right is invalid if the transferee is a person who is incapable or incompetent to discharge the religious duties according to Hindu Law or whose appointment as a shebait is not beneficial to the worship of the deity. Thus, the transfer of shebaitship might be declared valid if it does not conflict with well established principles of Hindu Law. It is well settled now that shebaitship comprises religious office and also some mundane benefits in the form of right of residence in the endowed property or the share of puja offerings or other benefits. If shebaitship would have been a religious office only, it would not be freely alienable. Similarly if the shebaitship comprises only material benefits it should not be absolutely inalienable. But shebaitship being both an office and profits can only be described as a special kind of property the alienability of which should be permissible under special circumstances. In this connection reference may be made to the observations of B. K. Mukherjee J. in his said Treatise at page 178:

'Although shebaiti right is heritable like any other property, it lacks the other incident of proprietary right, viz. the capacity of being freely transferred by the person in whom it is vested. The reason is that the personal proprietary interest which the Shebait has got is ancilliary to and inseparable from his duties as a ministrant of the deity, and a manager of its temporalities. As the personal interest cannot be detached from the duties, the transfer of shebaitship would mean delegation of the duties of the transferor which would not only be contrary to the express intentions of the founder but would contravene the very policy of law. A transfer of shebaitship or for the matter of that of any religious office has nowhere been countenanced by Hindu Lawyers.'

Mukherjee J. however, after discussing the general principles of cases some of which were cited before me also in conclusion made the following observation at page 180:

'Though the general proposition laid down in the cases referred to above has never been disputed, yet there are decisions of different High Courts in India, in which the rule against alienation of shebaiti right has been relaxed to some extent by reason of certain special circumstances. These circumstances may be conveniently grouped under three heads: (1) Where the 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 suffers from no disqualification regarding the performance of the duties. (2) When the transfer is made in the interests of the deity itself and to meet some pressing necessity. (3) When a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential She-baits of the deity or otherwise connected with the family.'

Mukherjee J. has elaborately discussed large number of cases at pages 181 to 187 and came to the conclusion that within certain limits alienation of shebaitship is permissible. Reference may be made to the observation of the learned Judge at page 183 in the following manner:

'Strictly speaking, there is no specific authority of the Calcutta High Court, where apart from any custom, a transfer of Shebaitship to one hi the line of Shebait has been held to be valid. Of course when the transferee is the sole and immediate heir of the transferor, the transfer can be looked upon as a surrender of the office in favour of the next heir, and such surrender does not offend either against the presumed intentions of the founder or the general policy of Hindu Law. A shebait like a trustee cannot delegate his duties to another person, but he is not bound to accept his office, and if he renounces his duties which he always can, then even if the renunciation be in the form of a transfer in favour of the next heir, it can be held valid in law. This is the view of Madras High Court, and this is exactly the view taken by Mr. Justice Page in Nagendra Nath v. Rabindra (vide Narayana v. Ranga, (1892) ILR 15 Mad 183) Muthu Kumaraswami v. Subbaraya, AIR 1931 Mad 505 and Nagendra Nath v. Rabindra Nath, ILR 53 Cal 132 = (AIR 1926 Cal 490). A transfer by one Shebait to the remaining Shebaits may also be justified on the same principle. A transfer by one of the Shebaits of his rights in favour of the grantor can scarcely be supported and has been expressly held to be invalid in a Bombay case, (Raghunath v. Purnanand, ILR 47 Bom 529 = (AIR 1923 Bom 358)). It has been pointed out by the learned Judges in that case, that if any one of the Shebaits intends to get rid of his duties, the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. When the transfer is in favour of the remain-Ing Shebaits, or the sole and immediate heir of the transferor, it can safely be said that no policy of Hindu Law is likely to be affected, nor can such transaction be held to be against the presumed intentions of the founder. Within these limits therefore the alienation of a religious office can be legally permitted. It goes without saying that whatever the form of transfer may be, it cannot be by will, for nothing which the Shebait has. can pass by his will which operates only at his death. (Rajeshwar v. Gopeshwar, (1908) ILR 35 Cal 226).'

5. But Rajeswari's case relied upon by Mukherjee J. did not contemplate cases where Shebaitship is not vested in the heirs of the founder. The case, however, accepts the proposition that alienation of a Shebaiti right inter vivos may be justified under special circumstances. Mr. Mukherjee has discussed the nature of shebaitship in the wellknown case, : [1951]2SCR1125 (supra). In that case the dispute between the parties was whether the plaintiff appellant the second wife of one Mritunjoy Mullick has a right to act as she-bait of an idol founded by Mritunjoy and his mother, either solely or jointly with the defendant, her step son. There Mritunjoy and his adoptive mother Nityasundari jointly dedicated certain Calcutta properties to a deity. The relevant portion in the Deed of Endowment regarding devolution of shebaitship reads as follows:--

'That the said Sm. Nitto Sundari Dassi doth- hereby constitute and appoint herself the Shebait of the said Thakur for and during the term of her natural life and doth hereby declare that after her death her son the said Mritunjoy Mullick shall become the Shebait of the said Thakur & after his death his wife Sm. Kiranbala Dassi and after her death the heirs of the said Mritunjoy Mullick shall be and act as the Shebait or Shebaits of the said Thakur and she doth hereby declare him or them such shebait or Shebaits accordingly & doth hereby direct and declare that the daily worship and other periodical festivals & ceremonies of the said Thakur should be performed by such Shebait or Shebaits, Provided, however, that in case the said Mritunjoy Mullick shall happen to die without any issue or without giving any authority to his wife him surviving, to adopt, then in such case it shall be competent for the said Mrityunjoy Mullick to appoint by will or otherwise a Shebait who would act as such after the death of his said wife as aforesaid but in case the Mritunjoy Mullick shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law.'

Admittedly Nityasundari acted as Shebait till her death and after her death Mritunjoy became the shebait. The first wife of Mritunioy died leaving the defendant Debabrota. After the death of the first wife Mritunioy married Angurbala and within five months after their marriage Mritunioy died. The suit was filed in the Original Side of Calcutta High Court and she prayed for a declaration that she was the sole shebait of the deity under the terms of the indenture or in the alternative was entitled to the shebaitship jointly with her step son, she being a co-heir of her step son under the provisions of the Hindu Women's Right to Property Act. Mr. Mukherjea. J. has stated at page 296:

'In the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property .....

Unless, therefore, the founder has disposed of the shebaitship in any particular manner and this right of disposition is inherent hi the founder or except when usage or custom of a different nature is proved to exist shebaitship like any other species of heritable property follows the line of inheritance from the founder.'

In the facts of that case and on the construction of the Deed of Endowment Mukherjee. J. came to the conclusion that the stepmother and her step son being the heirs of Mritunioy are the joint shebaits in respect of the Debottar estate. The important point in that said decision is that shebaitship like other properties is also 'a property' in the general sense and that the general law of succession governs also succession to shebaitship as well. The result of the said appeal went in favour of joint shebaitship because there the Deed was construed in favour of the widow of Mritunioy inasmuch as Mritunjoy was one of the founders of the Deed and that the line of succession opened on the death of Mritunjoy. But different consequences must follow where the line of succession is specifically provided in the deed of endowment by the founder who puts an end to the line of succession at a particular point, where the founder intends to have the line exhausted.

6. The conspectus of various decisions on the character of the shebaiti right and also its alienability may now be discussed. On the question of the nature of shebaiti right, it is well settled now that Shebaiti right is an amalgam of office which enjoins the performance of some religious or spiritual duties and also some material benefits and as such is a property. But the concept of 'property' in its application to the office of a shebait is to be understood not in its ordinary or unqualified sense. Shebaitship thus is a property of a very special nature. Reference may be made to. AIR 1932 Cal 791 (supra); Bhabatarini Debi v. Ashalata Debi, (1943) 70 Ind App 57 --(AIR 1943 PC 89); Pran Krishna Das v. Controller of Estate Duty. West Bengal. : [1968]69ITR139(Cal) ; : [1951]2SCR1125 ; and Commr. Hindu Religion Endowments v. Shri Lakshmindra Thirtha Swamiar, : [1954]1SCR1005 ; : AIR1951Cal490 (supra).

7. Further, the intention of the founder as expressed in the deed of endowment, if any, is the primary consideration for determination of the claim for shebaitship of a particular person. The founder might prescribe a perpetual or a hereditary line of succession of shebaitship so that the religious or spiritual duties might be performed by persons who are included in such line of succession. But at the same time a shebaitship might also confer some personal benefits like the right of residence, right of receiving income or other benefits out of a debattar property, like the right to enjoy the balance sum of the offerings to the idol. Thus in most cases some mundane interests are also involved in the office of shebaitship. It is therefore necessary to determine the scope and extent of the alienability of the shebaitship.

8. On the question of transfer of a shebaiti right the learned judges in the past have expressed different views on the matter which may be enumerated as follows:

(a) A shebaiti right cannot be transferred inasmuch as such transfer would mean delegation of the duties of the delegated authority and as such, contrary to public policy: vide Rajah Vurmah v. Ravi Vurmah, (1876) 4 Ind App 76 (PC).

(b) A shebait is not bound to accept his office and he can transfer his right to the shebaitship in favour of his next heir by way of 'renunciation', 'surrender', 'resignation' or 'abdication' of his entire interest : vide ILR 53 Cal 132 = (AIR 1926 Cal 490). Panchanan Banerji v. Surendra Nath, AIR 1930 Cal 180 and : AIR1951Cal490 (supra).

(c) A shebaiti right can be transferred if there is a valid and reasonable custom allowing such transfer: vide Mahamaya v. Haridas, ILR 42 Cal 455 = (AIR 1915 Cal 161 (2)); Hemanta Ku-mar v. Prafulla Kumar, : AIR1957Cal685 .

(d) A shebaiti right can be transferred to a person in line of succession who is not otherwise disqualified or unfit to perform the religious or spiritual duties: vide. The Official Receiver v. Sm. Jogmaya Dassi, (1946) 50 Cal WN 272.

(e) Alienation of the office of she-bait inter vivos in favour of a closely connected member of the family who seems to have more interest in the worship of the deity and without any idea of personal gain is valid : Nirod Mohini Dassi v. Shibadas Pal, (1909) ILR 36 Cal 975

(f) Sale of a shebaiti right for valuable consideration is invalid unless such sale was made in favour of all the immediate successor shebaits : vide Sitaram Bhat v. Sitaram Ganesh, (1869) 6 Bom H. C. R. 250. The transfer in the case was held to be valid also on the ground of custom.

(g) A shebaiti right can be transferred by gift inter vivos on the basis of the doctrine of necessity or benefit of deity only: vide Rajeshwar v. Gopeshwar, (1908) ILR 35 Cal 226. The decision was also justified on the special circumstances in that case following Khetter Chunder Ghose v. Haridas Bundopadhya (1890) ILR 17 Cal 557.

(h) The transfer of a shebaiti right by will has also been held valid in law even in favour of a possible successor shebait: Mancharam v. Pranshankar, (1882) ILR 6 Bom 298.

9. In my view, as stated above, shebaitship comprises a distinctive category of property, the transfer of which is permissible unless such transfer is repugnant to the principles of Hindu Law. Shebaitship, being an amalgam of office and property, it will not be correct to say that it is absolutely alienable like any other property or that it is not alienable under any circumstances. The general limitations under which such transfer is permissible may be set out as follows:

(a) The transfer of a shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the Deed of Endowment unless an, ancient or reasonable custom or usage has been followed to the contrary.

(b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his Deed of Endowment a particular she-bait cannot change the line of succession by any Deed of transfer unless the shebait transfers the totality of his rights in favour of the succeeding she-bait or shebaits during his lifetime.

(c) A transfer of a shebaiti right is also permissible for the benefit of the idol or the deity or for imperious necessity under special circumstances.

10. Applying the said principles to the facts of the present case I hold that Kalicharan Dey has lawfully transferred his shebaiti right by the will dated November 21, 1958 whereby he appointed the defendant as the sole she-bait after his death. In my view there are good reasons for the same. The relevant portions of the Deed of Endowment read as follows:

'.....the said Kassi Nauth Dey (doth) hereby appoint his wife the said Sreemutty Jhanobee Monee Dassee to be the sole sabait of the said Idol Sree Sree Iswar Sreedhar Jew Thakoor and to perform in the daily and periodical worship on the said Idol and to perform the several pooiahs hereinbefore mentioned and from and after her death the said Kassi Nauth Dey hereby appoint his son Poolin Behari Dey to be the sabait of the said Idol Sree Sree Ishwar Sreedhur Jew Thakoor and from, and after his death the said Kassi Nauth Dey hereby appoints the heirs of the said Poolin Behary Dey to be the joint sabaits of the said Idol......'

Thus, under the said Deed the founder has appointed his wife for her lifetime, after her death Poolin Behary and after his death his heirs. The founder has not stated that after the death of Poolin Behary his own heirs will be the succeeding shebaits. Nor has he stated that after the death of Poolin the heirs of Poolin and thereafter their heirs from generation to generation. The language of the said Deed shows that the founder has expressed a desire that after the death of his wife and Poolin, the heirs of Poolin will be the shebaits. Plaintiff's husband died in 1933 and Poolin died long before. Thus after the death of Poolin. Kalicharan Dey being the only son of Poolin became the sole shebait. It during his shebaitship, Kalicharan Dey would not have disposed of his shebaiti right by will the plaintiff, being an heir of the founder, would have a claim in shebaitship, vide, (1888) 16 Ind App 137 (PC). But in the present case Kalicharan has executed a will in favour of his adopted son Kashinath Dey and obtained a probate of the same. Thus, the direction of the founder as to the line of succession exhausted itself as soon as Kalicharan Dey disposed of the totality of his rights as shebait by will. The settlor here did not prescribe a perpetual or hereditary line of shebaitship. On the contrary, the testator has prescribed a line of succession for the devolution of shebaitship only upto a point and not beyond it. In support of such conclusion reliance may be placed oh, (1943) 70 Ind App 570 = AIR 1943 PC 89 Chokalinga Sethravayar v. Arumanaya-kam, : [1969]1SCR874 . In the present case the plaintiff in paragraph 9 of the plaint has claimed shebaitship as Kalicharan Dev's heir. It is not her case that as heir of Kalicharan Dev she has also become the heir of founder or of Poolin Behary Dev. As stated earlier if there is no perpetual or hereditary line of succession to shebaitship, after the death of the last shebait, the heirs of the founder of the settlement should be appointed shebait. But in a case where there is no perpetual or hereditary line of succession and the shebaitship has devolved on a particular person according to the Deed of Endowment his successor should be appointed from among the heirs of the founder unless shebaitship has been disposed of by the last shebait. In my opinion, in the present case there is no perpetual or hereditary line of succession prescribed by the settlor. It is well settled that in construing a will the intention of the testator is the primary consideration. If Kashinath Dey the founder or the settlor wanted that all his heirs would be entitled to be shebait he would have stated so in the Deed of Settlement. According to him after his death his widow would be the shebait during her lifetime; thereafter his son for his lifetime and after the death of his son the heirs of the son. Kalicharan Dey admittedly became the sole shehait of the Endowment after the death of his grandmother Sm. Jha-noobi Moni Dassi and his father Pulin Behary and therefore the plaintiff and Kalicharan's adopted son the defendant, after Kalicharan's death should have been ordinarily appointed as the joint she-baits as heirs of the founder. But as Kalicharan Dey has already disposed of his shebaiti right by will the plaintiff cannot claim shebaiti right along with Kashinath.

11. As discussed above, there are conflicting views as to the validity of the transfer of shebait right by will. I am, however, inclined to accept the view that a shebaiti right can be transferred by will according to the facts and circumstances of a case. The distinctive feature of a shebaiti right is that it cannot be absolutely alienable like all other properties inasmuch as it is an office enjoining certain religious and spiritual duties to perform- Similarly as there is an element of property also in the concept of shebaiti right the view that it cannot be transferred at all can no longer be accepted. Thus unless there is an absolute bar under Hindu law or an express prohibition in the Deed of religious endowment, there should not be any limitation of the power of a shebait to transfer his shebaiti right by gift or by will. Reliance may be placed on (1882) ILR 6 Bom 298 (Supra). The principles laid down in the said Bombay case have also been extended in (1909) ILR 36 Cal 975 (Supra) and also in (1946) 50 Cal WN 272 (Supra) and Banku B. Das v. Kasinath Das, : AIR1963Cal85 and : [1968]69ITR139(Cal) . In this connection reference may also be made to Ganesh Chunder Dhur v. Lal Behary Dhur, 63 Ind App 448 = (AIR 1936 PC 318); Nirmal Ch. Banerjee v. Jyoti Prasad Banerjee, 42 Cal WN 1138 = (AIR 1938 Cal 709) and Ramprasanna Rama-nuj Das v. Sudarsan Ramanuj Das, : AIR1961Ori137 ; Bhagaban Rama-nauj Das v. Roghunundun Ramanaui Das, (1895) 22 Ind App 94 (PC) where the various courts proceeded on the basis that a shebaiti right can be transferred by will.

12. Mr. De has relied upon the judgment of S. R. Dasgupta. J., in : AIR1951Cal490 (Supra) where the learned Judge after examination of various decisions on the point has expressed his view that a shebait cannot transfer his shebaiti right unless there is a complete renunciation of his right in favour of all the successor she baits. In my view the learned judge made the said observation with reference to the facts and circumstances of that case. There the testator died leaving a will in which he had provided for the devolution of the shebaitship. By a decree of the court the descendants of the testator's brothers were declared shebaits. One of the hebaits died transferring his 1/7 share of his shebaiti right to another shebait who as a result of the transfer got 2/7th share In the shebaiti right. The question arose whether this shebait who was holding 2/7th share could transfer l/7th to his son and reserve 1/7th for himself. Thus the shebaiti right according to Dasgupta, J., is not severable. Further the learned judge has also held in the facts of that case that the said transfer by the father to his son only for the purpose of eligibility of the son to be the secretary of a board of shebaits was not made bona fide. The learned Judge, it may be added here, followed the reasonings of Page, J., in ILR 53 Cal 132 = (AIR 1926 Cal 490) (Supra), and also Rankin, J. in AIR 1930 Cal 180 (Supra). But it appears to me that those earlier decisions were based upon the concept that shebaiti office was more a religious office than a property. In fact it was for the first time expressly laid down in AIR 1932 Cal 791 (FB) (Supra) that shebaiti right is substantially of property and this principle was consistently followed by the Privy Council and Supreme Court in 70 Ind App 57 = (AIR 1943 PC 89) (Supra) and : [1951]2SCR1125 (Supra) respectively. It may be added here that the personal interest of a shebait apart from his religious duties has also been faintly referred to by the Judicial Committee in Peary Mohan Mukherjee v. Monohar Mukherjee, ILR 48 Cal 1019 = AIR 1922 PC 235.

13. Mr. De also has relied upon a decision in (1908) ILR 35 Cal 226 (Supra) where it was decided that a shebaiti right can be transferred by a Deed inter vivos but not by a will. In the said decision the learned Judges disagreed with the principles laid down in (1882) ILR 6 Bom 298 (Supra). In my view this decision also was based upon the earlier concept that the shebaiti right is a personal right involving certain religious and spiritual duties and a certain personal benefit attached to the office of shebaitship. Emphasis was not made on the property aspect of the concept of shebaitship. But it may be added here that even in this decision the learned Judges also added that the transfer of a shebaiti right by a gift inter vivos is permissible under special circumstances. Although the present case is not a case of transfer inter vivos, in my view, there are many special circumstances in this case which would justify the validity of the will executed by Kalicharan Dey in favour of the defendant:

(a) The mode of devolution of shebaitship in the Deed of Endowment does not show that the settlor intended to have a perpetual or hereditary line of succession. The settlor specifically appointed his widow for her lifetime and after her death to his son Poolin and after the death of Poolin to his heirs. As discussed above the line of succession for the devolution of shebaitship was exhausted when Poo-lin's heirs. Kalicharan Dey was appointed the sole shebait. If, of course, Kalicharan Dey would not have transferred his shebaitship by will the plaintiff could have legitimately claimed as the heir of the founder. But admittedly Kalicharan Dey was the sole shebait under the Deed of Endowment. During the lifetime of Kalicharan Dey admittedly the plaintiff did not claim shebaitship at all. It was only after the death of Kalicharan the plaintiff claimed her shebaiti right The adoption of Kashinath Dev has not been challenged. Kashinath Dey also admittedly obtained the probate of the will of Kalicharan Dey. The line of succession having been prescribed upto Poolin's heir. Kalicharan, there was no limitation on his power to transfer by will his shebaiti right.

(b) Further it appears from the fact of this case that the plaintiff instituted a suit (suit No. 1096 of 1935) against Kalicharan Dey for maintenance and on July 28. 1936 by a consent decree the plaintiff agreed to accept Rs. 20/- per month as maintenance from Kalicharan Dey. By the said decree a specific portion of premises No. 4 Gobinda Sen Lane was reserved for her exclusive residence. Again on February 4, 1938 another consent order was passed in an execution application in the said suit whereby the plaintiff accepted a consolidated sum of Rupees 3.600/- in full satisfaction of her claim for maintenance against the said Kalicharan Dey or his estate. In fact by the consent decree dated July 28. 1936 and the consent order dated February 4. 1938 sums of Rs. 1,000/- and Rs. 460/- respectively were directed to be paid to the plaintiff as her settled costs. It is true that the said consent decree has been qualified with the words 'without prejudice of the plaintiffs right' but the fact remains that the plaintiff not only got the right of residence but also obtained a decree for maintenance. The consent order dated February 4, 1938 however has not been similarly qualified. It is significant that, although the plaintiff has been given the right of residence in the endowed property, she has not been residing there. The various proceedings between the plaintiff, on the one hand, and the Kalicharan Dey or Kashinath Dey on the other, show that the relationship between them was not normal and on account of the strained relationship between the plaintiff and the defendant the performance of the Poojah of the Thakoor may not be properly done. Thus even for the benefit of the deity the transfer of the Shebaiti right by the will of Kalicharan can also be justified.

(c) Further as stated above the right of maintenance and the right of residence of the widow have been fully covered by the previous orders of the court. In fact in the said consent orders she has agreed to accept the sum of Rs. 3,600/- in full satisfaction of her right of maintenance. It is true that the said right of maintenance has been claimed against Kalicharan and his estate but in the instant case the Deed of Endowment also provides for the maintenance to a shebait. It appears to me that as by consent her right of maintenance and right of residence has been fully provided for, she cannot be allowed to get maintenance again which will be payable to the plaintiff as a consequential benefit, if she is appointed as a co-shebait.

14. In the premises, the issues Nos. 1 and 2 should be answered in the negative. Issue No. 3

15. Mr. Ghosh on behalf of the defendant, has argued that as by the consent decree dated July 28, 1936 and the consent order dated February 4, 1938 the plaintiff in full satisfaction of her legal rights was allowed the right of residence and the sum of Rs. 3,600/-towards maintenance, the present suit is not maintainable. But this contention cannot be accepted inasmuch as the said consent decree has been specifically qualified by the following statement 'without prejudice to the plaintiff's right which she may be entitled to upon the death of the defendant'. In the premises, this issue is answered in the affirmative. Issue No. 4

16. The plaintiff is not entitled to any relief and, as such, the suit is dismissed. The costs of the parties and the costs of guardian-ad-litem will come out of the estate. The costs of the guardian-ad-litem will come at the first instance.


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