1. In this suit the plaintiff seeks to obtain a declaration that he is entitled to the shebaitship and para or turn of worship, particulars of which are given in para 10 of the plaint. His claim is based on a registered deed of gift of 14th August 1929, whereby the plaintiff's father, Nibaran Chandra Mukherjee, purported in consideration of natural love and affection to transfer to the plaintiff his (the donor's) right, title and interest to and in the worship of the deity Sree Sree Sidheswari Thakurani and in his several palas or turns of worship. The plaintiff also asks for the partition of a certain joint pala among the parties entitled thereto, or in the alternative a direction for the sale of the said joint pala to the highest bidder among the parties to the suit. The most complete pedigree of the family with which we are concerned is to be found in the written statement of the defendant Adya Nath Mukherjee.
ANANTA RAM CHAKRABURTI
| | |
Ramnidhi Lakhi Kanto Kaliprosad
| | |
Daibaki Debi Sambhu Srimati ----------------
| Debi (died without | |
------------------------------ issue) Ram Mohan Durga Charan
| | | |
Hari Banerjee Jagadamba Debi Bromhomoyee Sham Charan
| | Debi (died |
Hara Sundari Kedareswar Mukherjee without issue) Tara Charan
(without issue) = (adopted son)
| | | Rakha Kali
Bindubasini Ramdhone Mukherjee Naba Durga
(1st wife) (2nd wife without issue) (3rd wife)
| | | |
Shibchandra Bireswar Kailash Preonath
| | = |
Nimai Moni Adya Nath -------------------------- |
| | | | |
---------------- 1st wife Nibaran 3rd wife Surbomangala
| | 2nd wife | |
---------------- | | |
| | | ------------ Pulin Narayani Debi
Narayan Debendra Surendra | |
| | (died un- Prosad Protap
Gocool --------- married)
2. Of the four defendants, Gocul Chandra Mukherjee and Panchcowrie Banerjee do not appear. The defendant Adya Nath Mukherjee does not contest the plaintiff's claim to a declaration, and his opposition has been limited to the plaintiff's demand to have the joint pala partitioned, and in particular to the proposal that it should be sold to the highest bidder among the parties. The substantial contest is that between the plaintiff and the defendant Narayani Debi. In para 14 of the plaint the plaintiff alleges that by custom the pala is transferable. This allegation is traversed in para 4 of Narayan's written statement, which goes on to state that the shebaitship was all along vested in the heirs of the founder and there was no custom to the contrary. All parties agree that the Hindu law as regards the transferability of the office of shebait by way of gift is accurately summarized at p. 487 of the late Sir Dinshaw Mulla's Principles of Hindu Law, Edn. 8. It will be convenient to set out the relevant passage:
Gift-Though a sale of a religious office is void, there is no absolute prohibition against a gift of such an office. Cases of this kind generally arise where the founder of an endowment has reserved the right of management to his own family, or has conferred it upon some other family. In such a, case, it is competent to the shebait to renounce his right of management and transfer it to a person standing in the line of succession, provided the transferee is not disqualified by personal unfitness. Similarly, where there are several joint shebaits, they may renounce their right in favour of anyone of them, provided the arrangement is for the benefit of the endowment. But a gift of the right of management made to a stranger is not valid, unless it is sanctioned by custom.
3. The first document relied on by the plaintiff is the will of Shamboo Chandra Chakravarti, a grandson of the founder of the endowment, Ananta Ram Chakravarti. That document is dated 24th November 1923, and a copy is annexed to a bill of complaint filed on the equity side of the Supreme Court in 1842. The testator specifically mentions his interest in the shebaitship in the words,
and as to, for, and concerning my interest in and to the idol Sree Sree Sidheswari Thakurani and her temple and all her estate and effects and also to the profit arising from the offering to the said Thakurani and to perform her ceremonies,
and he bequeathed this interest along with the rest of his estate to Ramdhone Mukherjee. Another testamentary document which has been put in evidence is the will of Shib Chandra Mukherjee, dated 17th July 1890. This document in itself does not seem to me to carry matters any further, because the shebaitship is not specifically referred to, for the will is a simple document, bequeathing a life interest in the testator's entire estate to his wife with remainder to his sons and grandson in equal shares. It must however be mentioned here that in Suit No. 244 of 1891, which was a partition suit in which Nibaran was the plaintiff, Shib Chandra's will was considered by Sale J., who held that the terms of the will were sufficiently wide to pass the whole estate including the right to worship to the testator's widow for life. In this suit a compromise was effected by a deed of settlement, to which Nibaran, Bireswar, Sarbomangala (widow of Preonath) and Nemaimoni were parties, dated 6th December 1892. Clause 3 deals with those days of the sheba when the worship is 'cyclical' and not joint, and contains a provision whereby Sarbomangala leases her pala for consideration to Bireswar for a period of five years. With regard to the joint pala the position is as follows: Since the days of Ramdhone, the grandfather of Nibaran and Adya Nath, the sheba has been performed jointly on certain festival days when the offerings are unusually valuable, these offerings being subsequently divided among the shebaits according to their shares. These days are six in number, being four days of the Durga Puja, one day of the Kali Puja, and one day of the Ratami Puja. With regard to this joint sheba, Clause 4 of the deed provides as follows:
It is further declared that keeping the joint pala joint, that is, in common, we have divided and take our ancestral separate seventeen days pala in the above manner, and we four persons declare that none of us four persons and our heirs and representatives shall ever be at liberty to urge objection or plea with regard to the holding of the said palas in the above manner. Should we or they raise any objection or plea it would be void and rejected by the Court.
4. Some time after the termination of the leasehold interest granted by Sarabomangala to Bireswar under the deed of 6th December 1892 she again leased out her pala of four and a quarter days by way of mortgage to Adya Nath for a period of seven years. Narayani was a party to this document in which she acknowledged that its terms were binding on her. With regard to the interest of defendant 4 Panchcowrie Banerji, the position is this. The line of Kali Prosad, the founder's third son, came to an end with the death of Tara Charan Chakravarti, the adopted son of Shama Charan, Kali's grandson. Tara Charan died childless his sole heir being his widow Rakha Kali. This lady on 17th May 1905 executed a conveyance wherein she recited that she was absolutely entitled to a pala of thirteen days in every month and to a two-fifths share in the joint sheba. She then proceeded to convey her pala and her share in the joint sheba to her brother Kalipada Banerjee, for the consideration therein named, such consideration . being the payment of the balance of the profits of the sheba to herself for her natural life. Kalipada is now dead, and his interest has devolved upon his son, the defendant Panchcowrie. On 8th September 1913, shortly after the death of Rakha Kali, Nibaran instituted a suit against Kalipada (No. 942 of 1913), asking for a declaration that the defendant Kalipada had no interest in the deity, or its sheba, or its properties. This suit was compromised in terms of a deed of settlement executed on 2nd April 1914. To this deed the defendant, Adya Nath was a party, though Narayani, in spite of the fact that she was impleaded in the suit, was not. The deed recites that there is a long standing custom of alienation of shebaitship by deed and will or either of them. In the face of this recital, Adya Nath's counsel has felt it impossible to question the existence of the custom. The operative part of the deed conveys certain days of the thirteen days of Kalipada's pala to Nibaran and Adya Nath and also fractional shares in the joint pala. Kalipada died in 1926. Prior to this Jogmaya and Lilabati daughters and heiress of Debendra, the second son of Shib Chandra, had sold one-third of their pala to Gocool. These are all the relevant facts. A technical issue as to non-joinder was raised. First it was said that the deity should have been made a party. Since the decision of the Judicial Committee in Promotha Nath v. Pradhyumna Kumar this is a contention which is advanced almost as a matter of course.
5. However, as was pointed by C. C. Ghose J. delivering the judgment of the Court in an appeal from the original side, Brojendra Nath v. Lalit Mohan : AIR1927Cal262 , that case Promotha Nath v. Pradhyumna Kumar is no authority for the broad proposition that in every case where questions of debsheba arise, the idol is a necessary party to be brought on the record. In the present case the main question, i.e., the transferability of the shebaitship, cannot depend upon the will of the idol. As to the secondary issue which is concerned with the claim for partition of the joint pala, inasmuch as I do not propose to disturb the status quo, I see no reason to have the idol separately represented. It was further suggested, though the contention was not very vigorously urged, that Nibaran's other two sons, the plaintiff's half-brothers Protap and Prosad, as also Jogmaya and Lilabati should have been impleaded. I confess that I do not see on what principle these parties should be joined, although of course any decree made in the suit in no way binds them. On the main question I have come to the conclusion that the plaintiff has succeeded in proving that a custom exists whereby the palas of the deity are transferable. The language of the will of Sham-boo Chandra, which was executed as long ago as 1823, is to all intents and purposes a specific bequest of the pala. The only instance in which a transfer has been called in question is Nibaran's suit of 1913 which was eventually compromised in terms of a document which expressly recognizes the transferability of the pala.
6. There is force in the contention that some of the transfers on which the plaintiff relies, as for example the leases by Sarbomangala and Narayani and the sale by Jogmaya and Lilabati, are open to attack on the ground that they are for consideration, but the fact remains that, although they might possibly have been set aside at the instance of the other shebaits, they have in fact been accepted. In. these circumstances I hold that the plaintiff is entitled to the declaration for which he asks in para, (a) of the prayer to the plaint. On the other hand I reject his claim for partition of the joint palas. In so far as he seeks to have the joint pala put up for sale, I consider that it will be contrary to principle to make such an order, as in my view, it would obviously be wrong to compel the holder of a religious office to part with it against his wishes for a pecuniary consideration. As to partitioning the joint palas by giving each shebait a turn of worship in rotation there is in my opinion no general legal objection to such a course, since cases like Sri Raman Lalji Maharaj v. Gopal Lalji Maharaj ('97) 35 Bom. 371 do not apply when, as here, the she-baits have a material and proprietary interest in the offerings. I find however the plaintiff has failed to show that, as he alleges in para. 13 of the plaint, it has become impossible owing to disputes and differences to carry on the sheba jointly.
7. But, apart from this, I consider that the deed of settlement of 6th December 1912 to which Nibaran was a party is a bar to any claim on the part of a shebait to partition. In an earlier part of this judgment I have set out the terms of Clause 4 of that document in extenso and there is no need to repeat them. They have become part of a decree of the Court, and I think that in the circumstances Cowasji v. Kisandas ('11) 35 Bom 371 is of assistance. In that case certain predecessors in title of the parties had consented to a decree which provided inter alia that the land in suit should not be partitioned. In dealing with the plaintiff's claim for a partition decree the Court observed:
Apart from that clause in the consent decrees which affects to prohibit partition, we think it clear that, as tenants in common, the plaintiffs would be entitled to partition.
But the question is whether in this suit the plaintiffs are entitled to give the go-by to a particular clause in an existing decree on the ground that that clause, if resting on no higher authority than the agreement between the parties, would be bad in law. We think that this question must be answered in the negative. It may be though we express no opinion as to this that in a suit properly framed for that purpose the plaintiffs might have been able to get the decree set aside. But no such suit has been brought and the decree is a subsisting decree nor does it, we think, make any difference that it was taken by consent of the parties who were all sui juris. The decree stands, and, while it stands, it operates as an estoppel between the then parties and their present representatives.
8. In the result the plaintiff has partly succeeded and partly failed. I see no reason why the debutter estate should be burdened with the entire costs of the litigation. I therefore make no order as to the costs of the plaintiff and of the defendant Narayani. The defendant Adya Nath has not resisted the declaratory decree for which the plaintiff asked, but he has successfully opposed the prayer for partition or sale of the joint sheba. In these circumstances he may have his taxed costs out of the debutter estate.