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Ashutosh Seal Vs. Benode Behary Seal and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1930Cal495
AppellantAshutosh Seal
RespondentBenode Behary Seal and ors.
Cases ReferredIn Pramatha v. Prodyumna
- rankin, c.j.1. the dispute in this case has reference to the shebait right in respect of the deity sri sri raj rajeswar founded and established by one madhab chandra seal, a hindu inhabitant of calcutta who died in 1866. by his will made in 1861 and a codicil thereto he had dedicated a certain house, now known as no. 12, madan butt's lane, and made certain provisions in that behalf.2. the first question which arises upon this appeal is the question whether upon a true construction of this will the persons who from time to time should be trustees under the will were made shebaits and were given power to appoint new shebaits from time to time. it is expressly conceded on behalf of the appellant ashutosh seal, one of the defendants to the suit, that if this question of construction be.....

Rankin, C.J.

1. The dispute in this case has reference to the shebait right in respect of the deity Sri Sri Raj Rajeswar founded and established by one Madhab Chandra Seal, a Hindu Inhabitant of Calcutta who died in 1866. By his Will made in 1861 and a codicil thereto he had dedicated a certain house, now known as No. 12, Madan Butt's Lane, and made certain provisions in that behalf.

2. The first question which arises upon this appeal is the question whether upon a true construction of this will the persons who from time to time should be trustees under the Will were made shebaits and were given power to appoint new shebaits from time to time. It is expressly conceded on behalf of the appellant Ashutosh Seal, one of the defendants to the suit, that if this question of construction be answered in the negative, he cannot claim under the original foundation any greater right than the decree under appeal has given to him in the office of shebait. The learned Counsel for the appellant has also stated before us that in this Court he does not contend that the plaintiff's suit should fail by reason that the Thakur itself has not been made a party to the suit. I propose, therefore, to address myself in the first instance to this question of construction and to postpone the examination of the facts and circumstances of the case until I have stated my conclusion as to the meaning and effect of those directions in the Will which have reference to the appointment of shebaits.

3. The testator having devised the house in question to the use of his wife Luckhymoney and his nephew Kalidas during their joint lives and to the survivor during life, with remainder to the use of the sons of Kalidas and their heirs male as tenants-in-common in equal shares, makes it clear that this bequest is subject to a trust to permit, such part or portion of the said house and premises as had been used as Thakurbari or for religious purpose to 0continue to be so used for the worship of the deity. He proceeds 'I direct i the exeoatrix and executor of this my Will (whom I hereby appoint shebaits of my said Thakur) to allow the silver articles which have been used in the worship of the said Thakur during my lifetime to continue to be so used after my death.'

4. This is the only passage in the Will making in express terms any appointment of shebaits. At the end of the Will the testator's wife and Kalidas are appointed executrix and executor. There is nothing in the codicil which can be construed as an appointment of she-baits. The contention for the appellant, however, is that in subsequent passages of the Will the testator has in effect appointed his executors to be trustees and has entrusted to his trustees for the time being the right to appoint their successors. In this way it is said that though the executors as such had been made original shebaits, the Will, upon a true construction, gives to the shebaits for the time being the right to appoint successors to the office of the shebaits. Now, the passage which follows the words which I have quoted bequeaths the residue of the testator's estate to his said wife and nephew upon trust for conversion and investment. It proceeds to direct the

trustees or trustee of this my Will to expend the sum of thirty rupees permensem for daily poojas in the said thakur bari and the additional sum of five hundred rupees per annum for poojas therein on extraordinary occasion...and to pay to my Gooroo the sum of four rupees per mensem during his life and the sum of ten rupees per annum for pooja times and to pay the said Kalidas Seal the sum of one hundred rupees per mensem during his life and so forth.

5. In the end two-thirds of the ultimate residue of the trust fund is given to the testator's wife and Kalidas in equal shares, the other third being bequeathed to Panchkauri Seal and his brother Prosaddas Seal in equal shares.

6. In my judgment there is no room upon the face of this Will for the construction which the appellant asks us to put upon it. The only appointment of shebaits is the appointment to that office of the executrix and executor of his Will as such. The residue of the testator's estate and effects is bequeathed to 'my said wife and nephew' who are made trustees thereof for the purposes immediately thereafter described. The circumstances that one of the trusts upon which the trust fund is to be held by the wife and nephew is:

to expend the sum of thirty rupees per mensem for daily poojas in the said thakur bari and the additional sum of five hundred rupees per annum for poojas therein on extraordinary occasion

in no way shows that it was any part of the testator's intention that whoever should become from time to time trustee of his trust fund should succeed to the office of shebait, The appointment of executrix and executor is made in the last passage of the Will No other person save the wife and Kalidas could, under that Will, be exe cutors. The Court might appoint an administrator with the Will annexed and the trustees might vary from time to time, but the appointment of the executrix and executor to the office of shebaits is a definite appointment of two near relations and of nobody else In order to supply funds for the worlship of the deity it was necessary that trustees should be appointed and directions given for the creation of a trust fund. Out of that fund the money for the upkeep of the worship had to come and it must be paid in the first instance by the trustees of the fund. The language 'to expend the sum of thirty rupees per mensem for daily poojas' in no way involves that the trustees should themselves be at all times shebaits. If and when the time should come when other people should be constituted trustees of the trust fund it is reasonably plain that prima facie they would execute this direction by paying over the monthly and annual sums to the shebaits. Without clear words to that effect it is impossible to impute to the testator the intention that from time to time persons might be appointed to the office of shebait of his family idol merely by virtue of their being chosen to act as trustees of his trust fund. When, for any reason, the term of office of the shebaits appointed by the testator comes to an end, the rule of Hindu law gives the office of shebait to heirs of the founder : Gossami v. Romanlalji [1890] 17 Cal. 3, as the appellant in this case expressly concedes. A fundamental change in the normal devolution of the office is not lightly to be read into a clause which finds place in the Will merely as one of a series of directions to the trustees of the testator's trust funds as to the payments by way of legacy which are to be made thereout. The clause which is at the end of the Will which declares that

the trustees or trustee for the time being shall be competent to exercise all the power and discretion hereby confided to the trustee herein named

cannot in my judgment be applied beyond its immediate intention which is confined to the residue of the testator's estate and has no reference to the property dedicated to the Thakur. In Surendro v. Doorgasoondery [1892] 19 Cal. 513 the testator bequeathed all his property to a family Thakur and directed that his two widows should each adopt a son to him, the sons to become shebaits of the property dedicated. The adoption made by the widows turned out to be invalid and a question arose whether the plaintiff (one of the two persons adopted) could take anything under the Will which contained no gift to him except in the character of shebait. Lord Hobhouse delivering the opinion of the Judicial Committee said:

There is no gift to the adopted sons except in the character of shebaits and it would require very strong and clear expressions indeed to show that a Hindu gentleman contemplated introducing as shebaits of his family Thakur two persons unknown to himself and strangers to his family.

7. In my judgment, therefore, this Will contained no power on the part of Kalidas or any other person to appoint successors to the office of shebait.

8. The testator's widow relinquished her right in the shebaiti to Kalidas in 1882 and as there is no proof of any corrupt or objectionable feature in this transaction, Kalidas may safely be taken to have been sole shebait until his death in 1914. Thereupon the office of shebait vested in the heirs of Madhab the plaintiff, and his brothers then living becoming entitled to a pala or turn of worship as well as the sons of Kalidas. The plaintiff's share, so to put it, in Madhab's endowment is, on this footing a one-eighth share and it is on this basis that he has recovered judgment before the learned Judge.

9. The second question in this case is of greater difficulty. In 1884 Kalidas, who was then sole shebait, executed an instrument of debutternama, or deed of endowment in favour of a deity, where by he dedicated to the Thakur Raj Rajeswar five items of immovable property described in the schedule thereto. Item 5 is the house and premises 12, Madan Dutt's Lane, which had been dedicated to the idol by Madhab himself. Kalidas in this deed treats this property as though it were his own and dedicates it together with the other four items of property to the deity purporting to vest them all by the deed in the Thakur and to divest himself of all interest therein. On this footing he gave directions first that the house 12, Madan Dutt's Lane, should be the thakurbari or temple where the idol should be located; secondly, that the employees and shebaits of the idol should stay and live there and, thirdly, that the worship should be performed in that house with the income available from the other properties, any surplus of income to be invested in immovable property in the name of the idol as being debutter property of the idol. With regard to the office of shebait, the deed provides as follows:

The charge of performing the 'parvas' sheba and rites and ceremonies as aforesaid of the said Sri Sri Iswar Raj Rajeswar Thakoor and the charge of looking after, making settlements and arrangements, collecting and realizing the income and paying in the taxes and revenues, et., and all such other necessary duties are entrusted so long as I shall remain alive to me and I remain appointed shebait of the said Thakur and on my passing away to the next world my two sons Srimau Durga Das Seal Babajiw and Sriman Bhagabati Das Seal Babajiw both jointly will remain appointed shebaits for life...and each of them will at the time of passing away to the next world appoint one person as shebait from amongst my family descendants and the person so appointed will remain appointed shebait together and jointly with the other shebait then existing, and in this manner from amongst my family descendants two persons at a time will remain appointed as shebaits on being nominated by the two appointed shebaits.

10. The case for the appellant Ashutosh Seal is laid under this deed. He says that upon the death of Kalidas in 1914 his two sons Durga and Bhagabati became shebaits; that Bhagabati died in 1918 having made no appointment of a shebait in his stead; that Durga continued thereafter as sole shebait until his death in 1925; and that by Durga's Will the appellant was appointed sole shebait and as such has become entitled to the office and the plaintiff has no claim therein.

11. Now, the learned Judge by his decree has not meroly declared the right of the plaintiff Benode Behary Seal to a one-eighth share in the worship of the Thakur and in the management of the property which was dedicated by Madhab, but has given to the plaintiff the like right in the property dedicated by the deed of endowment executed by Kalidas in 1884 and on this latter point the appellant Ashutosh Seal takes exception to the judgment and decree. The judgment of the learned Judge upon this point is as follows:

Kalidas Seal divested himself of all interest in the properties dedicated, the gift was complete and unqualified, and the appointment of shebaits after his death appears to me to be more in the nature of directions superadded. In my view Kalidas Seal did not, by virtue of his gift, become a founder and he was not competent to alter the line of shebaits. The gift was simply an 'accretion to an existing foundation.' I hold it was unqualified and was not affected by the appointments made. In my opinion this case falls within the principles of Hindu law as enunoiated by Page, J., in the case of Lalit Mohan Seal v. Brojendra Nath Seal A.I.R. 1926 Cal. 561 which was affirmed by the Court of appeal, and I hold that the appointments of shebaits made by Kalidas Seal were void.

12. The case law shows that additions to an existing foundation are not uncommonly made by persons who hold the office of shebait and that it is not uncommon for them to purport to give directions which would alter the devolution of the office, making the course of succession to depart either from the course laid down by the terms of the original dedication or from the course in which the Hindu law, in the absence of any direction by the founder, would require it to go. This matter has been considered by the Judicial Committee first of all in Gossami v. Romanlalji [1890] 17 Cal. 3, which I regard as the leading authority upon this point and indirectly in Pramatha Nath v. Pradyumna on an appeal from a decision of this Court reported in Pradyumna Kumar v. Pramatha Nath A.I.R. 1923 Cal. 708. It was canvassed at some length by a learned Hindu Judge in Sripati Chatterjee v. Khudi Ram : AIR1925Cal442 . The learned Judge in this case has followed the decision of Page, J., in Lalit Mohan Seal v. Brojendra Nath Seal A.I.R. 1926 Cal. 561 which was affirmed on appeal by a judgment to which I was a party : Brojendra Nath v. Lalit Mohan : AIR1927Cal262 . Now the reasoning adopted by the learned Judge from the case last mentioned and applied by him to the present case may be stated as follows : The first proposition is that Kalidas not being the founder of this endowment or the dedicator of the idol, could not at his own hand alter the line of succession to the office of shebait. This proposition is well covered by authority and in the case last mentioned is to be found a re-statement of the principle by Ghose, J.:

I am of opinion that the learned Judge was right in the view he took that, while it was open to G-opal Chandra Seal who was a shebait but not the founder of certain ancestral idols, to endow property for the use and benefit of the said idols, he could not in any way alter the line of shebaits as laid down by the founder of the idols, nor affect in any way the dispositions created by the original founder.

13. The second proposition is that upon the construction of the deed of 1884 the directions purporting to control or determine the appointment of shebaits do not amount to conditions upon which Kalidas was making a dedication of the properties comprised in the deed. In the view of the learned Judge they are 'more in the nature of directions superadded' and the gift of the properties was unqualified and was not affected by the directions as to the devolution of the shebait right. In the case to which the learned Judge refers, Page, J., came to a like conclusion but of course upon a different deed. Confining myself to the deed before us, I am of opinion that the view taken by the learned Judge is untenable.

14. A third proposition is perhaps involved in the learned Judge's reference to the previous case. In that case Page, J., was of opinion that directions as regards appointment of shebaits, if they were conditions were conditions subsequent and that they were void for impossiblity. I respectfully dissent to the application of this principle to the deed of endowment before us.

15. In my opinion the principles upon which the present question must be decided are the principles which were applied by the Judicial Committee in Gossami v. Romanlalji [1890] 17 Cal. 3 already mentioned. In that case in 1866 Munni Bibi was minded to provide a suitable habitation for an existing idol. At that date the plaintiff was shebait of the idol, but one Purushottam, a holy man and a cadet of the same family as the plaintiff, was taking an active part in the worship of the idol, the plaintiff not having been near it. The deed was addressed to Purushottam and the dedication was made to both of two idols. The tenor of the deed was, first, to make debutter the property in question and then to provide that Purushottam and his heirs were to have charge of the property subject to the gift and perform all necessary sheba or worship. There were other directions, but the essence of the matter was that there was an out and out gift by way of dedication followed by the appointment of Purushottam and his heirs as she-baits. The house so granted was used, the Thakurs were removed to it and a new and better temple was erected on the site for their location. When the plaintiff brought his suit to establish his right to the office, to the custody of the idol and to the temple, their Lordships of the Judicial Committee, having repelled a plea that the plaintiff's suit was barred by limitation, affirmed the decree of the High Court holding that the plaintiff was entitled to succeed in his claim to the portrait and the valuables. In agreement with the High Court, however, they held that his claim to the temple failed:

Their Lordships are of opinion that this part of the case must be governed entirely by the terms of Munni Bibi's dedication. She gave the house and land to the two Thakurs bat with the condition attached that Purushottam should be shebait. The Thakur Daoji, or those who speak for him on earth, need not take advantage of this gift. Munni Bibi could not, of her own authority, alter the shebaitship of the Thakur. But if the gift is taken and the condition insisted on, it must be observed. It has now been insisted on, and Deoji must elect whether to change his habitation or to change his shebait.

16. In the present case the main features of the deed of dedication of 1884 are the provisions giving a right to the shebait, to stay and live in the thakur bari which the deed treats as being dedicated for the first time, that the appointment of shebaits made by the deed is intended to be an appointment of shebaits in the full sense, not that the shebaits are in this family to act as their own pujaris, but that they are to have not merely the duty of a trustee administering property, but:

the charge of performing parvas, sheba and rites and ceremonies aforesaid of the said Thakur.

17. It appears to me that to treat the gift as a good gift to the deity and to treat the provisions as regards the office of shebait as though they were unessential terms or superadded directions by which it can be said that the gift to the idol is not affected as by a term or qualification is unreasonable in itself and in disconformity with ordinary Hindu ideas upon these matters. In Vidya Varuthi v. Balusami A.I.R. 1922 P.C. 123 the Judicial Committee gave a foil and careful exposition of certain cardinal features of the Hindu law with reference to such gifts, distinguishing the principles upon which gifts are made to an idol as a juristic entity vested with the capacity of receiving gifts and holding property, from the conceptions upon which the English law relating to trusts is based. They said:

Neither under the Hindu law nor in the Mahomedan system is any property 'conveyed' to a shebait or a mutawalli, in the case of a dedication.... Nor is any property vested in him; whatever property ho holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage.

18. Apart from the right of residence, it is true that no specific beneficial interest is given by the deed of 1884 to the shebait as such though there is no prohibition in Hindu law against the gift of a beneficial interest to the shebait as part of the terms of a dedication. It must, however, be conceded that while in form and, to Hindu ideas, in truth the gift is made directly to the deity, the enjoyment of the office of shebait is regarded as a matter of some distinction and advantage. So far from being regarded as a minor or extraneous question whether the office of shebait shall be held by one person or another, the intention that the members of the donor's family shall have the right of acting as shebaits is in general part of the very texture of the donor's gift. The theory of law is clear, but it is also clear as was said by Sir Montague Smith in Prosonna Kumari v. Golab Chand [1875] 2 I.A. 145 and again by Sir Arthur Wilson in Jagadindra Nath v. Hemanta Kumari [1904] 32 Cal. 129 at p. 140, 'it is only in an ideal sense' that property can be said to belong to an idol, and if the fact, that gifts for religious purposes take the form of gifts So an idol is to be regarded as a reason for regarding the terms with which the gift is coupled as unessential feature of the donor's intention, we will depart very widely from actualities. In my judgment it is as true of the dedication of Kalidas as it was true of Munni Bibi's dedication in the case cited, that the provision as to who should be shebait should be regarded as a condition. The Thakur Raj Rajeswar, or those who speak for him on earth, need not take advantage of the gift, but if the gift is taken and the condition insisted on, it must be observed. In this case, as in Munni Bibi's case, I see no question as to impossibility of performance. I fail to understand how in law, or in right reason, plaintiff cm claim any right in the additional property dedicated by Kalidas while repudiating the conditions attached by Kalidas to his gift.

19. The cases referred to by Page, J., in Lalitmohan's case A.I.R. 1926 Cal. 561 are cases with reference to a name and arms clause. In Greenwood's case [1903] 1 Ch. 749, as a condition of enjoying the testator's property, the testator required the object of his bounty to use his name but only from the date to which he succeeded to the property. The donee died before his interest became vested in possession, i. Rule before the death of the tenant for life. The condition being one requiring something to be done by the donee the Court applied the rule that when the condition becomes impossible by an act of God it is discharged and gone for ever and the estate is absolute. In re. Groxon the condition subsequent was that the devisee should bear and lawfully assume the testator's name and coat of arms. Kekewich, J., held that as it was not possible for the devisee to obtain lawful authority to use the arms in question the performance of the condition was impossible and he was not bound to comply with it in order to retain the estate. In my opinion the reasoning in Gossami v. Romanlalji [1890] 17 Cal. 3 is an authority inconsistent with the application of such principles to the question before us. In Pramatha Nath Mullik's case the observations of Lord Hobhou3e to which I have alrealy referred were recalled and applied and the principle was laid down that the will of the idol in regard to location must be respected. In that case, however, the Court was not dealing with a dedication such as we have before us in this case, but was dealing with a gift to trustees in trust for the idol-a form of conveyance which adapts itself with less difficulty to the principles of English law.

20. As regards the case of Lalitmohan v. Rrojendra : AIR1925Cal442 I desire to point out that in that case Gopal Chandra Seal had, with reference to the premises, 6 Damzen's Lane, made two inconsistent dispositions : first by a deed of arpanama in 1897; and secondly by his Will. In each he laid down a line of shebaits to take effect after his own death, but these differed very little from each other or from the line laid down by the founder or by Hindu law. The Will clearly could not alter the provisions of the arpanama and it would not be necessary to refer to the Will at all but for the fact that the line of shebaits laid down by the arpanama was laid down subject to a right of appointment by the donor in his lifetime. The decree of the learned Judge gave the shebaiti right to the plaintiff, the defendant Dulal Chunder Seal, and to the two sons of Akshoy Chandra Seal, namely Brojendra and Bonomali. Apart from a variation by appointment the arpanama had given the shebaiti light to these very people, Nilmoni Seal having long ago died childless. Unless, therefore, it was contended that Gopal by his Will had made an appointment under the powers contained in the arpanama, it will be readily intelligible that no discussion was embarked upon in the judgment on appeal as regards the question whether the conditions of the arpanama could be insisted on. Now the Will was altogether inconsistent with the arpanama as regards this property. It purported to give the widow a life-interest for her absolute use and benefit and it made other provisions to take effect thereafter. The learned Judge had put the Will aside as inoperative by reason that the property was covered by the previous deed. The judgment in appeal contains no discussion of this matter and though I appreciate that the learned Judge in the present case may well have been misled into thinking that the whole of the reasoning of Page, J., had been approved, the decision of the appellate Court did not extend so far.

21. Upon the question raised by Page, J., as to the correctness of the decision in Sripati Chatterjee's case : AIR1925Cal442 , it is not necessary to pronounce. That the dedication of additional properties to a deity and the appointment of a line of shebaits inconsistent with the original line of succession can be dealt with by treating the new line of shebaits as though they were mere trustees for the management of property and for payment of the income to those who are shebaits under the original dedication is a proposition by no means easy to accept.

22. In conclusion I desire to observe that it was contended in this appeal that although Kalidas in his lifetime could not on behalf of the idol accept the dedication of 1884, so as to alter the line of succession to the office of shedait it was possible to maintain that upon his death his sons Durga and Bhagabati had effectually accepted the conditions of the deed so as to alter the line of shebaits. This contention is without substance, because on the death of Kalidas the plaintiff's branch became entitled to an interest or share in the office and there is no evidence that the shebaits as a whole, and still less those interested in the worship of the deity, have done anything to effect so important a change. I see no reason to differ from the observations of the learned Judge in which he points out that Kalidas Seal, the donor, cannot be treated as having on behalf of the idol accepted the new endowment with the conditions laid down by himself. In Pramatha v. Prodyumna , already cited, where the question related to a condition as to the location of the image, it was thought in this Court that the Court might sanction the donor's acceptance of the condition on behalf of the idol on the ground that it was 'for the benefit of the idol.' This, as I read the judgment of the Judicial Committee, was not approved, the principle being adhered to that the will of the idol must decide the matter.

23. In my judgment this appeal should be allowed and the decree of the learned Judge should be varied by excluding from it all reference to the properties other than 12, Madan Dutt's Lane comprised in the deed of 1884. As the appellant and respondents have each succeeded in part I think there should be no order as to costs of this appeal. The appellant must pay the guardian ad litem his costs of the appeal.

C.C. Ghose, J.

24. I agree.

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