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Rambrama Chatterjee Vs. Kedar Nath Banerjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal60,72Ind.Cas.1026
AppellantRambrama Chatterjee
RespondentKedar Nath Banerjee and ors.
Cases ReferredKalyana Venkataramana Aiyangar v. Kasturi Ranga Aiyangar
Excerpt:
charitable endowments, nature, of - founders, powers of--hindu religious endowment--direction entitling descendants of founder's daughters to participate in bhog offerings, validity oft--gift to human being and offering to deity, distinction between,--rule of determination--usage--founder, intention of, proof of--dedication--execution of document, whether essential. - .....lands, the income whereof is regularly appropriated to meet the expenses of the puja including the bhog offering. it is not necessary to determine here whether the dedication was of the completest kind known to the law; jagadindra nath roy v. hemanta kumari debi 31 i.a. 203 : 32 c. 129 : 8 c.w.n. 809 : 6 bom. l.r. 765 : 1 a.l.j. 585 : 8 sar. p.c.j. 698 (p.c.); or whether the property was secular, charged with a religious trust; ashutosh dutt v. doorga churn chatterjee 6 i.a. 182 : 5 c. 438 : 5 c.l.r. 296 : 4 sar. p.c.j. 58 : 3 suth p.c.j. 694 : 3 ind. jur. 571 : 3 shome l.r. 32 : 2 ind. dec. (n.s.) 888 (p.c.). it is sufficient to hold, as the courts below have done, that there is an endowment and that the income thereof has been and is applied for the performance of the daily worship pf.....
Judgment:

1. This is an appeal by the first defendant in a suit for declaration that the plaintiffs are entitled to participate in the bhog offered to three idols and for consequential relief. One Gopinath Chatterjee, the common ancestor of the plaintiffs and defendants, more than 200 years ago, consecrated an image of Vishnu. His sons Nandadulal Chatterjee and Durga Charan Chatterjee followed in the footsteps of their father; each of them consecrated an image of Siva, and Durga Charan Chatterjee consecrated, in addition, an image of Kali. Temples were erected, those now in existence were consecrated in 1792 and 1801 and elaborate arrangements were made for the daily worship. Properties were also dedicated to secure the due performance of the worship, though this is not directly evidenced by a written document. But the execution of a document is not essential for the purpose of a valid dedication which may be inferred from application of proceeds and family conduct; Muddun Lal v. Komul Bibee 8 W.R. 42; Moonohar Ganesh Tambekar v. Lakhmiram Govindram 12 B. 247 : 12 Ind. Jur. 387 : 6 Ind. Dec. (N.S.) 650.; Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 I.A. 148 at p. 164 : 36 C. 1003 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 14 C.W.N. 1 (P.C.). It is established that from a long time past, service lauds have been held by persons who discharge various duties in connection with the temples and the worship, such as the dome who beats the drum during the daily puja of the thakurs, the barber who supplies flowers and bel leaves for the puja and provides light at dusk in, the temples, the gardner who supplies plantain leaves, the woodman who procures fuel, and the fisherman who supplies fish for the bhog. There is further evidence of the existence of a bund or tank which covers an area of 1100 bighas, of gardens and of other lands, the income whereof is regularly appropriated to meet the expenses of the puja including the bhog offering. It is not necessary to determine here whether the dedication was of the completest kind known to the law; Jagadindra Nath Roy v. Hemanta Kumari Debi 31 I.A. 203 : 32 C. 129 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698 (P.C.); or whether the property was secular, charged with a religious trust; Ashutosh Dutt v. Doorga Churn Chatterjee 6 I.A. 182 : 5 C. 438 : 5 C.L.R. 296 : 4 Sar. P.C.J. 58 : 3 Suth P.C.J. 694 : 3 Ind. Jur. 571 : 3 Shome L.R. 32 : 2 Ind. Dec. (N.S.) 888 (P.C.). It is sufficient to hold, as the Courts below have done, that there is an endowment and that the income thereof has been and is applied for the performance of the daily worship pf the idols including the offering of the bhog.

2. The plaintiffs allege that they and their ancestors, who are descendants of the founders through their daughters, participated in the cooked rice bhog from generation to generation till the first defendant obstructed them on the 31st December 1914. The Courts below have concurrently found that the descendants of the founders in the male line have been the shebaits, and as their number increased they arranged amongst themselves to carry on the worship, as is common, by turns or palas. The Courts have further found that the descendants of the founders in the female line have 'al-ways participated in the bhog after it has been duly offered to the idols. From the long continuance of this arrangement, which has been in operation now for several generations, the Courts have come to the conclusion that this system must have had its origion in a direction given by the founders. This was a legitimate inference, for as stated by Muthusami Iyer, J., in Venkatachalapati v. Subbarayadu 13 M. 293 : 4 Ind. Dec. (N.S.) 916, a rule of determination is looked for in the case of such institutions in their usage, because it is an index to the intention of those who founded and endowed them and who have since kept them up; Greedharee Doss v. Nundokishore Doss Marsh 573 : 2 Hay 633; Thackersey Dewraj v. Hurbhum Nursey 8 B. 432 : 4 Ind. Dec. (N.S.) 664. The proof of the intention of the founder becomes almost conclusive where, as here, the usage is immamorial, though intention may be presumed from a number of instances extending over a limited period, provided only that the existence of an invariable practice is made out by clear and unambiguous evidence; Raghubhushana v. Vidiavaridhi 34 Ind. Cas. 875.

3. The question thus arises, whether it was competent to the founder to direct that the shebaitship shall be vested in his descendants through his sons, and that his descendants through his daughters should have the right to participate in the bhog offering. The first defendant, who alone amongst the shebaits contests the claim of the plaintiffs to participate in the bhog offering, has 10: been able to invoke any general principle or to cite any authority in support of his contention. In the words of Lord Mansfield in St. John's College v. Todington (1757) 1 Burr. 158 at p. 200 : 97 E.R. 845, a charitable corporation, in so far as it is charitable, is the creature of the founder. On this view, Lord Hardwicke had ruled in Green v. Rutherforth (1750) 1 Ves. Sen 462 at pp. 468, 472 : 27 E.R. 1144, that the founder may provide for the Government and administration of his creature and the application in perpetuity of the revenue; see also Philips v. Bury (1694) 1 Ld. Raym 5 : Comb. 268 : Holt 715 : 4 Mod. 106 : Skin 447 : Carth 180 : 1 Shower 360 : 2 T.R. 346 : 91 E.R. 900, which was ultimately decided by the House of Lords Philips v. Bury (1694) Shower P.C. 35 : 15 Ld. Jo. 441 : 1 Burn. E.L. 442 : 2 T.R. 346 : 4 Mod. 106 : Skin 447 : 1 E.R. 24 and contains an elaborate review of the rights of founders of charitable and religious trusts. This is subject to the reservation that a founder may not, unless special power has been reserved in this behalf, after the constitution of the corporation, vary the trusts or modify the application of the endowment or its. revenues; R v. Vice-Chancellor of Cambridge (1765) 3 Burr. 1647 at p. 1656 : 97 E.R. 1027; Ex Parte Bolton School (1789) 2 Bro. C.C. 662 : 29 E.R. 367 Attorney General v. Dulwich College (1841) 4 Beav. 255 : 5 Jur. 814 : 49 E.R. 337. These principles have been applied in the case of religious endowments created in accordance with Hindu Law. According to that law, when the worship of an idol has been founded, the shebaitihip is vested in the founder and his heirs unless he has disposed of it otherwise, or there has been some usage or course of dealing which points to a different mode of devolution; Gossami Sri Gridhariji v. Romanlalji Gossami 16 I.A. 137 : 17 C. 3 : 13 Ind. Jur. 211 : 5 Sar. P.C.J. 350 : 8 Ind. Dec. (N.S.) 541 (P.C.); Jagadindra Nath Roy v. Hemanta Kumari Debi 31 I.A. 203 : 32 C. 129 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698 (P.C.); Mohan Lalji v. Gordhan Lalji 10 Ind. Cas. 337 : 40 I.A. 97 : 35 A. 283 : 17 C.W.N. 741 : 11 A.L.J. 548 : 17 C.L.J. 612 : 15 Bom. L.R. 606 : (1913) M.W.N. 536 : 14 M.L.T. 27 (P.C.); Kunjamani Dasi v. Nikunja Behary Das 32 Ind. Cas. 823 : 22 C.L.J. 404 : 20 C.W.N. 314. There is no reason why the founder, who is competent to provide for the government and administration of the trust, should not be able to give a direction for its management, which is not inconsistent with its character as a religious and charitable trust. No doubt, as held in Juggut Mohini Dossee v. Sokheemoney Dossee 14 M.I.A 289 : 17 W.R. 41 : 10 B.L.R. 19 : 2 Suth. P.C.J. 512 : 2 Sar. P.C.J. 23 20 E.R. 795, the grant once made cannot be re-samad and is irrevocable; but so long as the foundation continues, the shebait is, on the one hand, bound to carry out all legitimate directions given by the founder at the time of the establishment, and is, on the other hand, free to manage the trust without interference by him or his representatives: Teertdruppa v. Soonderajien (1851) Mad. S.D.A. 57. The test in each case is, whether the direction given by the founder is inconsistent with the nature of the endowment as a religious and charitable trust and is a colourable device for the evasion of the law of perpetuities. There may be room for controversy in a concrete case, whether the dedication is in reality for a charitable purpose or is designed for private aggrandisement; Fatmabibi v. Advocate General of Bombay 6 B. 42 : 6 Ind. Jur. 253 : 3 Ind. Dec. (N.S.) 485; Limji Nowroji Banaji v. Bapuji Ruttonji 11 B. 441 : 6 Ind. Dec. (N.S.) 289; Yeap Cheah Neo v. Ong Cheng Neo (1875) 6 P.C. 381; Commissioners of Income Tax v. Pemsel (1891) A.C. 531 : 61 L.J.Q.B. 265 : 65 L.T. 627 : 55 J.P. 805. But there is manifestly no room for such doubt in the present case. There is unquestionably a genuine and valid debuiter which has been in existence for more than two centuries; the shebaitship has been enjoyed by the descendants of the sons of the founder, at the same time, after the bhog offerings have been made to the idols, the descendants of the daughters of the founder have participated in them. The Court will be slow to draw an inference which would defeat a right that has been exercised without question during so long a period as the present and unless such inference is irresistible the Court will presume everything that is reasonably possible to presume, in favour of such a right. It is now well-settled that, as explained in Bhupati Nath v. Smrittiirtho v. Ram Lal Mitra 3 Ind. Cas. 642 : 37 C. 128 : 14 C.W.N. 18 : 10 C.L.J. 355. There is a fundamental distinction between a gift to a sentient being and an offering or dedication to a deity. Subject to special usages to the contrary, the offerings do not become the property of the officiating priest, but contribute to the maintenance of the shrine with all its rights, ceremonies and charities: Girijanund Datta Jha v. Sailajanund Datta Jha 23 C. 645 : 12 Ind. Dec. (N.S.) 429; Maharanee Shibessouree Debia v. Mothooranath Acharjo 13 M.I.A. 270 : 13 W.R.P.C. 18 : 2 Suth P.C.J. 300 : 2 Sar. P.C.J. 528 : 20 E.R. 552; Chotalal Lakhmiram v. Manohar Ganesh 24 B. 50, 2 Bom. L.R. 516 : 4 C.W.N. 23, 261. A. 199, 199 : 7 Sar. P.C.J. 559 : 2 Ind. Dec. (N.S.) 570 (P.C.); Ram Parkash Das v. Anand Das 33 Ind. Cas. 583 : 43 I.A. 73 : 43 C. 707 : 20 C.W.N. 802 : 14 A.L.J. 621 : (1916) 1 M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J. 116 : 20 M.L.J. 267 (P.C.); Kalyana Venkataramana Aiyangar v. Kasturi Ranga Aiyangar 38 Ind. Cas. 73 : 20 M.L.T. 490 : 31 M.L.J. 777 : 5 L.W. 625 : (1917) M.W.N. 400 : 40 M. 212. We need not describe here in detail the normal type of continued worship of a consecrated image, the sweeping of the temple, the process of smearing, the removal of the previous day's offerings of flowers, the presentation of fresh flowers, the respectful oblation of rice with flowers and water, and other like practices. It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest. The dedicated food, known as bhog, is, after completion of the worship, distributed in charity amongst members of the family as also among guests invited and uninvited; for in the oldest Brahminical writings hospitality is regarded as the discharge of a common debt to humanity and the guest is honoured as a divinity. In our opinion, a direction that the descendants of the daughters of the founder should participate in such a distribution of consecrated food, is in no way inconsistent with the purpose of the endowment. The pecuniary value of the bhog may be and in the present case is insignificant from a secular point of view. But to the pious Hindu, the worth of prasad or consecrated food, which has been dedicated to the deity, cannot be measured in money; and the right to participate in its distribution would obviously possess special importance in the eyes of the descendants of the founder. Our conclusion is, that it was competent to the founder, not only to prescribe the line of succession to the shebaitship in the descendants of his sons, but also to direct that the decendants of his daughters would be entitled to participate in the bhog offerings dedicated to the idols established by him.

4. The result is, that the decree made by the Subordinate Judge, in concurrence with the Trial Court, is confirmed and this appeal dismissed with costs.


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