1. This case raises an issue of deep and general interest to the Hindu Community, viz., whether a shebait is entitled to transfer the rights and duties which appertain to his office.
2. On the 19th April 1867 Raja Sir Radha Kanto Deb died. He was an erudite Sanskrit scholar, and a personage of culture and distinction. He left surviving him three sons and numerous other relations of whom the following is a pedigree:
RAJA RADHA KANTO DEB BAHADUR, K.C.S.I.,
| | |
(Kumar) Mahendra Raja Rajendra Narayan (Kumar) (Kumar) Debendra Narayan,
Narayan x Kristo Ramani, (left one eon and four daughters) (dead.)
(dead.) (dead.) |
| | ------------------------------
----------------------- | | |
| | | Brojendra Narayan, Surendra Narayan,
S.M. Brajo Coomary, S.M. Kamal Coomary, | (dead) (dead.)
(dead.) (dead.) | | |
| | | -------------------- |
--------------------- | | | | |
| | | | | Monindra Jatindra Narayan, |
Nagendra Nripendra Narayan | | Narendra (dead) x S.N. |
N. Mitter. N. Mitter. N. Mitter.| | | Padmabati, (alive.) |
| | | |
--------------------------------- | ---------------------- |
| | | | | | | | |
Khetter Pal Bhujanga Radha Ballaw Radha | Sachindra Robindra Dwijendra |
Bose. B. Bose. Bose. Kisto | Narayan. Narayan, Narayan. |
Bose, | (defendant) |
(dead.)| | |
| ---------------------- |
| | | |
| Minor son Minor son |
| (alive.) (alive.) |
| | | | | |
| Ganendra Bhupendra Shib Kali Guru
| Narayan. Narayan. Prosad. Prosad. Prosad.
| | | | |
Kumar Girindra S.M. Gourabini, S.M. Kristo S.M. Usha, S.M. Mokhada,
Narayan (original (dead.) Tarangini (dead.) (dead) (left a
plaintiff, dead x M. | | | son and daugh-
S.M. Nagendra Bala) | Atul Krishna Ghose. | ter)
(dead.) | | |
| | |
(Pre-deceased daughter) | ----------------------------------------- |
S.M. Hemanto Kumari, | | | | | |
(dead.) | Amulya P. Debendra P. Atulya P. Son (name|
| | Ghose. Ghose Ghose unknown.)|
Bireswar Mitra. | |
| | |
| Purna Ch. Mitter, S.M., Probhabati x M.
| substituted plaintiff as to Nagendra Nath Palit,
| executor and trustee under Will (substituted plaintiff the
| of Kumar Girindra Narayan, (dead.) solo surviving executor and
| trustee under Will of Kumar
| Girindra Narayan Deb.
| | |
S.M. Sukhada. S.M. Saibalini, Arun Chandra Bose
3. On the 3rd August 1863 the Raja made his last Will which has been admitted to Probate, although the terms thereof have formed the subject of much litigation. Under this Will a large estate passed to the executors and trustees subject to certain trusts, but for the purpose of my judgment in this suit, I need refer only to those set out in the 12th, 15th, 16th clauses of the Will. Under the 12th clause it is provided:
The executors and trustees shall pay to my sons or their heirs and representatives such sums for the sheba or service of my family idols and the usual pujas that are celebrated in my house and the periodical sradhas of my ancestors, of my late wife and of myself when dead as to the executors and trustees may seem fit and proper, but the executor, and trustees are not to be personally responsible for the proper performance of this trust, which is to devolve and be a burden and duty upon the recipient and recipients of the said sums.
4. Under the 15th clause provision was made for the mode in which the family dwelling-houses, including a certain garden-house at Sukchar, should be used. Under the 16th clause it is provided that:
the clothes, ornaments, jewels and other articles for the use of the family idol, daily or on festive occasions and relating to the pujas and ceremonies are to remain in the common custody of my sons and heirs, provided nevertheless that the articles above mentioned shall not be appropriated to any private use of my sons or their heirs.
5. By a decree of the High Court (Peacock, C.J., and Macpherson, J.), dated 20th September 1869, it was declared that the bequests contained in the 12th and 16th clauses were valid, and as regards the 15th clause it was declared that in so far as the terms thereof related to the dedication of property to the family idol, Gobinjee, the same were valid, but in so far as the said clause related to the use of the family dwelling-houses and garden, the directions of the testator must be limited to the members of the family who were living at the time of his death. By a decree of the High Court (Macpherson, J.), dated 6th October 1871, it was inter alia ordered that the. worship of the idols was to be performed by the three branches of the family in palas of one year in succession and that the ' garden with baitakkhana at Sukchar be enjoyed by the person or persons entitled to perform the deb sheba while performing the same during his or her turn of worship.' Since that date further litigation in connection with the terms of the Will has taken place, but it is unnecessary I think, that I should refer to these later proceedings except to mention that by a decree of the High Court (Sale, J.), dated 7th September 1899, the garden and house at Sukchar were included in the trusts under the Will of 3rd August 1863, provided that the same should be used in the manner prescribed under the decree of the 6th October 1871.
6. On the 13th September 1918 Girindra Narayan, the only son and heir of Raja Rajendra Deb, being entitled to a pala of the worship of the deities, referred to in the Will, executed in favour of the defendant an indenture of arpannama in the following form:
This indenture of arpannama patra made this thirteenth day of September in the Christian Year one thousand nine hundred and eighteen, between Kumar Girindra Narain Deb, son of the. late Raja Rajendra Narain Deb Bahadur of the Sovabazar Rajbati in Raja Nabo Kissen Street in the town of Calcutta hereinafter called the grantor of the one part and Robindra Narain Deb, son of Monindra Narain Deb of the same place of the other part hereinafter called the grantee (in which term is included his lineal male heirs and representatives unless the context is repugnant thereto) whereas Raja Sir Radha Kanto Deb Bahadur, K.C.S.I. of Sovabazar in the town of Calcutta died on the nineteenth day of April one thousand eight hundred and sixty-seven leaving behind him three sons, viz., Kumar Mahendra Narain Deb, Kumar (subsequently Raja) Rajendra Narain Deb and Kumar Debendra Narain Deb and a Will bearing date the third day of August in the year of Christ one thousand eight hundred and sixty-three. And whereas a Probate was obtained by the executor therein named of the Will from the Testamentary and Intestate Jurisdiction of the Hon'ble High Court of Judicature at Fort William in Bengal on first day of May, one thousand eight hundred and sixty seven, and whereas the grantor herein Kumar Girindra Narain Deb the only son and heir of Raja Rajendra Narain Deb, deceased, was born during the lifetime of the said testator Raja Radha Kanto Deb Bahadur and whereas under the terms and provisions of the said Will the grantor is sufficiently possessed of the right of worship of the family deity Sree Sree Iswar Radha Gobinda Jew and other deities in the manner indicated in Clause 12 of the said Will and as such sufficiently entitled to and possessed of the right of enjoyment of certain properties, privileges, rights and liberties particularly set forth in the said Will by Clause 12 and also by terms and provisions of the consent decree, dated (5th of October one thousand eight hundred and seventy-one, in Suits Nos. 155 and 220 of 1868 and also under the decree in Suit No. 699 of 1899 in the High Court of Judicature at Fort William in Bengal in its Ordinary Original Civil Jurisdiction to any other rights, privileges in or any other deeds and documents and whereas the grantor herein is performing the daily worship of the said family deity Sree Sree Iswar Radha Gobinda Jew and other pujas according to his turn of worship and the annual sradh in compliance with the terms and provisions of the said Clause 12 of the said Will and in the manner indicated therein and the decrees and orders set forth above and is in full possession, enjoyment of the rights, privileges, etc., as set forth in the said Will of Raja Sir Radha Kanto Deb Bahadur and the consent decree dated sixth day of, October one thousand nine hundred and seventy-one made in Suits Nos. 155 and 220 of 1868 and also of the decree of seventh day of September one thousand eight hundred and ninety-nine in Suit No. 699 of 1899 in the Original Side of the High Court and whereas the grantor has no male lineal descendant and has only a grandson Bireswar Mitra son of his deceased daughter Sreemuty Hemanta Kumari Dasi who the grantor holds and considers is unfit to perform the various orders and duties imposed upon him and enjoy the privileges by the terms and provisions of the Will of the late Raja Radha Kanto Deb Bahadur and the decree set forth above by reason of his want of training and defective moral character and whereas the grantor hath given the grantee sound and regular training as to the way in which the said worship of the family deities Sree Sree Laksmi Narain Jew Salagram established and consecrated by his late father and also of the periodical sradh from his infancy and believes and considers the said grantee the best person to perform truly and faithfully the worship of the said deities and is best able to manage the properties and control the affairs in connection with the warship of the said family deities other pujas and sradhs of the late Raja Sir Radha Kanto Deb Bahadur instead of the grantor and whereas the said grantee Robindra Narain Deb is great great grandson of the said testator Raja Sir Radha Kanto Deb Behadur, K.C.S.I., in the male line of succession and best able to perform the worship of the said deities. Now this indenture witnesseth that in consideration of the said grantee being a great great grand son of the said testator Raja Sir Radha Kanto Deb Bahadur in the male line of succession and by his character, education and training is best able to perform the worship of the said family deity Sree Sree Radha Gobinda Jew and other deities of late Sir Radha Kanto Deb Bahadur and of Sree Sree Laksmi Narain Jew Salagram as above stated and in consideration of the fact that the arrangement will be beneficial for the said deities as it will be conducive to the proper conduct of the worship the grantor Kumar Girindra Narain Deb doth hereby convey, confer, alienate and transfer his right, title and interest to and in the worship of the said family deity Sree Sree Radha Gobinda Jew and other deities with all rights and privileges that he is entitled to under the Will of the said Raja Sir Radha Kanto Deb Bahadur, K.C.S.I. and the consent decree dated the 6th day of October one thousand eight hundred and seventy-one in Suits Nos. 155 and 220 of 1868 on the Original Side of the High Court and by any other document for the performance of the said seva and puja to be held and enjoyed by him so long as he shall be alive and capable of performing the seva, or service of the family deity, etc., and the usual pujas that are celebrated in the house of Raja Sir Radha Kanto Deb Bahadur, K.C.S.I. to be continued to be so held and enjoyed by his heirs in the male line of succession only on condition of their duly performing the seva and service of the said family deities, etc, with other usual pujas that are held and celebrated in the family Rajbati and not for any personal gain and that in the event of failure in the male line of succession of the same grantee the grantor doth hereby confer or convey and alienate his right of worship of the said family deities, etc., and privileges attached thereto under the Will of the late Raja Sir Radha Kanto Deb Bahadur, K. C. S.I., and the consent decree of the sixth day of October one thousand eight hundred and seventy one in Suits Nos. 155 and 220 of 1868 in the High Court of Judicature at Fort William in Bengal or by any other deed or deeds in favour of Dwijendra Narain Deb the third son of Monindra Narain Deb and in his absence his heir or heirs in the male line of succession who may be living at the time to be held and enjoyed by him or them only on condition of his or their performing the seva or service of the said deities, etc., and in his or their absence the grantor doth hereby confer, convey, transfer and alienate his right of worship of the said family deities and the several pujahs and all rights and privileges attached to the same under the terms and provisions of the Will of late Raja Sir Radha Kanto Deb Bahadur and those of the consent decrees of sixth day of October one thousand eight hundred and seventy-one in Suits Nos. 155 and 220 of 1868 and the decree dated seventh day of September one thousand eight hundred and ninety-nine in Suit No. 699 of 1899 in the Original Side of the High Court of Judicature at Fort William in Bengal to the nearest male agnate that may be alive at the time to the exclusion of Sachindra Narayan Deb eldest on of Monindra Narain Deb and his representatives.
7. In witness whereof I do hereunto affix my signature.
(Sd.) Girindra Narayan Deb.Witnesses:Romesh Chandra Bose,Solicitor, Calcutta.Anil Chandra Sircar,Clerk to Babu Romesh Chandra Bose.Solicitor.
8. On the 14th September 1918 Girindra executed a general power-of-attorney in favour of the defendant empowering him inter alia to represent Girindra in all matters connected with the trust estate, and to receive monies for the purpose of the deb sheba expenses. After executing the said documents Girindra went to Benares, and in his absence the defendant performed the Durga Puja of 1918. In December 1918 Girindra returned to Calcutta, and becoming suspicious of the manner in which the defendant was managing his affairs cancelled the said power-of-attorney, and on the 23rd June 1921 filed the present suit, praying inter alia that the said indenture of arpannama be declared invalid and void, and that the said indenture be cancelled, and for incidental relief. On the 20th April 1923 Girindra died, and on 3rd July 1923 an order was made substituting his two executors as plaintiffs in his stead. On the 7th March 1924 one of the executors died, and on the 14th April 1924 an order was made directing the present plaintiff, as the sole surviving executor to prosecute the suit.
9. The defendant has based his defence upon three grounds : (1) that the present plaintiff is not entitled to maintain the suit; (2) that Girindra did not execute the said indenture of arpannama with the intention thereby of defeating or delaying his creditors, as the plaintiff alleged, or in the alternative, if such was his intention, that the said creditors were thereby defeated and/or delayed; (3) that the transfer of Girindra's rights and interests in the turn of worship of the said deities was for the benefit of the deities, and that Girindra executed the said indenture bona fide in the interest of the dieties in order that the worship should be more fittingly celebrated and the endowment more effectively managed.
10. As regards the first ground of defence, the defendant urged that as the subject-matter of the suit related to a personal right of worship vested in Girindra as the heir of Rajendra, the cause of action, if any, which Girindra possessed did not pass to his executors, for actio personalis moritur cum persona. In my opinion, there is no substance in this contention. Apart from the question as to whether, having regard to the interlocutory proceedings in this suit, it is open to the defendant to raise this contention, by para. 27 of the plaint the plaintiff alleged that his 'turn of worship commenced from the 1st Bysack 1328 (14th April 1921), and he had begun to perform the worship of the deities in accordance with the testator's Will at his own expense. The plaintiff has been put to great hardship in consequence of the withdrawal of the funds by the said trustee at the instance of the defendant.' This allegation is not denied in the written statement, and the executors clearly are entitled to recover from the trust estate the reasonable expenses of the palas which Girindra incurred, and this relief they cannot obtain unless and until the indenture is cancelled, or declared to be void. In my opinion, the cause of action is not merely of a personal nature, and the plaintiff is entitled to maintain the suit [Peary Mohan Mukerji v. Norendra Nath Mukerji 5 Ind. Cas. 404 : 37 C. 229 : 14 C.W.N. 261 : 7 A.L.J. 125 : 7 M.L.T. 63 : 11 C.L.J. 220 : 12 Bom.L.R. 257 : 20 M.L.J. 171 : 37 I.A. 27 (P.C).]
11. In support of the second ground of defence, evidence was led, and arguments were addressed to me for the purpose of casting aspersion upon the moral conduct; and impugning the financial dealings of the parties in connection with this debutter estate. Now, this is a dispute between relatives, and the parties are members of a well-known and distinguished family. It is very desirable, I think, that I should not embark upon a discussion of the matters raised in this ground of defence, for the result inevitably would be to embitter, and not to heal, the dissensions which have arisen among the members of this family; unless, indeed, I am compelled to do so in order to determine the issues raised between the parties.
12. It is a source of satisfaction to me (hat I am not called upon to express any opinion upon the second ground of defence, for, in my opinion, the terms of the indenture of arpannamna are such that I must hold the indenture to be in law void and inoperative. It is to be observed that by the operative words in the indenture the grantor 'doth hereby convey, confer, alienate and transfer his right, title and interest to, and in the worship of, the said family deity Sree Sree Radha Gobinda Jew and other deities with all rights and privileges that he is entitled to under the Will of the Raja Sir Radha Kanto Deb and the consent decree, dated the 6th October 1871, in Suits Nos. 155 and 220 of 1868 on the Original Side of the High Court, and by any other document for the performance of the said sheba and puja to Robindra, to be held and enjoyed by him so long as he shall be alive and capable of performing the sheba or service of the family deities.' And later 'doth hereby confer, convey, transfer and alienate his right of worship of the said family deities, and of the several pujas and all rights and privileges attached to the same to the nearest male agnate that may be alive at the time to the exclusion of Sityendra Narain Deb. eldest son of Monindra Narain Deb, and his representatives.'
13. It is conceded that the rights and privileges conveyed by the indenture are solely those relating and attached to the worship of the deities, and that the line of succession to the shebaiti set out in the indenture is neither that laid down by the founder, nor that prescribed by the principles of the Hindu Law. It is contended, however, that inasmuch as the provisions of the indenture were 'for the benefit of the deities,' and the grantee was a member of the founder's family, the indenture was one that Girindra as shebait was competent to execute, and that the transaction should receive the sanction of the Court. I have to determine whether this contention is sound or not.
14. A Judge who is not a Hindu must needs approach the consideration of such a question with diffidence, but I have had the advantage of hearing the matter exhaustively argued by distinguished Hindu Counsel, and I have myself explored the case-law and such Hindu texts as bear upon the subject. The ancient sages for the most part are silent on the subject of shebaiti rights and duties, [per Seshagiri Aiyar, J., Annaya Tantri v. Ammakka Hengsu 47 Ind. Cas. 341 : 41 M. 886 : 35 M.L.J. 196 : 8 L.W. 301 : 24 M.L.T. 163 : (1918) M.W.N. 569], but the decisions are numerous, and conflicting and I find myself, therefore, at liberty--indeed I am constrained to express my own opinion on the matter.
15. Now, 'sheba' means 'service,' and when-ever an image or idol is setup and consecrated, there must, needs be a shebait to serve and sustain the deity whose tabernacle the image is. The duties and the privileges of a shebait primarily are those of one who fills a sacred office. He must take the image into his charge and custody; he must see that it is washed and fed and clothed and tended, and that due provision for its worship is made: '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 removed 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.' [Per Mookerjee, J., in Rambrama Chatterjee v. Kedar Nath Banerjee 72 Ind. Cas. 1026 : 36 C.L.J. 478 at p. 483 : A.I.R. 1923 Cal. 60.] The main concern of a shebait, therefore, is duly to carry out the sacred duties of his office. He may perform his spiritual functions personally or he may--indeed, if he does not possess the necessary qualifications to enable him to celebrate the worship of the deity he must,--appoint a qualified deputy to officiate in his stead. [Annaya Tantri v. Ammaka Hengsu 47 Ind. Cas. 341 : 41 M. 886 : 35 M.L.J. 196 : 8 L.W. 301 : 24 M.L.T. 163 : (1918) M.W.N. 569.]
16. Now, it usually happens when an image is consecrated that property, moveable or immoveable, is dedicated to its use. This is the common, indeed, almost the invariable, practice. After dedication the proprietary title to the property is vested in the idol, the right to possess and the duty to manage the property in the shebait. Jagadindra Nath Roy v. Hemanta Kumari Debi 31 I.A. 203 : 32 G. 129 : 8 C.W.N. 809 : 6 Bom.L.R. 765 : 1 A.L.J. 585 : 8 Sar.P.C.J. 698 (P.C.).] 'As regards the property the manager is in a position of a trustee. But as regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office or dignity' [Per Lord Macnaughten: Ramanathan Chetti v. Murugappa Chetti 29 M. 283 at p. 289 : 10 C.W.N. 825 : 8 Bom.L.R. 498 : 16 M.L.J. 265 : 4 C.L.J. 189 : 3 A.L.J. 707 : 1 M.L.T. 327 : 33 I.A. 139 (P.C.).] There is 'no distinction between the office and the property of the endowment; the one is attached to the other' [Per Sir Richard Couch in Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 at p. 77 : 4 C.W.N. 329 : 23 M. 271 : 2 Bom.L.R. 597 : 10 M.L.J. 29 : 7 Sar.P.C.J. 671 : 8 Ind. Dec. (N.S.) 591 (P.C.)] but, in truth, it is the endowment which is attached to the office, not the office to the endowment, for while there may be a shebait without endowed property, there cannot be property dedicated to an idol without a shebait to manage it. 'I might at once say that in respect of such a religious office, it is not the right of the office-holder to receive emoluments which is the important or principal right, but, in my opinion it is the right of the deity to have certain services performed to it which is a primary right. I also think that as regards the religious office itself, the duties of the office should be considered as the substance of the office, the right to receive the emoluments being only an appurtenance of the said duties.... I am inclined to hold that it is the rights that are subordinate and appurtenant to the duties, and it is not the duties that are subordinate sand appurtenant to the rights' [per Sadasiva Aiyar, J., in Sundarambal Ammal v. Gogavanagurukkal 23 Ind. Cas. 72 : 38 M. 850 : 26 M.L.J. 315 : (1914) M.W.N. 286 : 1 L.W. 276.]
17. I have emphasised the distinction between the shebait's obligation to perform the spiritual duties of his office, and his obligation to manage the temporalities of the idol, because it is important to bear in mind that a shebaiti primarily and mainly is a sacred office, and that it does not follow, because in certain circumstances a shebait may be entitled to alienate the temporalities of the deity, that in similar or any circumstances he is entitled to transfer the spiritual duties and privileges which appertain to his office.
18. Now, on the question which falls for determination the authorities in India are numerous, but, as I apprehend them, the decisions sometimes are inconsistent, sometimes inconclusive, and if I refrain from examining them in detail, I do so, not out of want of respect for the learned Judges who were parties to the decisions, but because I am content to found my judgment upon the Common Law of India and the decisions of the Judicial Committee of the Privy Council which, to my mind, put the matter beyond controversy. In 1869 an appeal was heard by the Judicial Committee in which the issue was whether a shebait was entitled to sell certain jammas connected with a taluk which had been dedicated to an idol. The Judicial Committee held that 'The taluk itself, with which these jammas were connected by tenure, was dedicated to the religious services of the idol. The rents constituted, therefore, in legal contemplation, its property. The shebait had not the legal property, but only the title of manager of a religious endowment. In the exercise of that office, she could not alienate the property, though she might create proper derivative tenures and estates conformable to usage.' [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.]
19. In 1875 in Prosunno Kumari Debya v. Golab Chand 2 I.A. 145 at p. 150 : 14 B.L.R. 450 Sir Montague Smith, in the course of the judgment, observed that 'there is no doubt that, as a general rule of Hindu Law, property given for the maintenance of religious worship and of charities connected with it is inalienable.... But, notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is, in their Lordships' opinion, competent for the shebait of property dedicated to the worship of the idol, in his capacity as shebait and manager of the estate, to incur debts and borrow money for the proper expenses of keeping up the religious worship, repairing the temples or other possessions of the idol, defending hostile litigious attacks, and other like objects. The power, however, to incur such debts must be measured by the existing necessity for incurring them.... It is only in an ideal sense that property can be said to belong to an idol; and the possession and management of it must in the nature of things be entrusted to some person as shebait, or manager. It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol, and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. If this were not so, the estate of the idol might be destroyed or wasted, and its worship discontinued, for want of the necessary funds to preserve and maintain them.'
20. In 1876 in Raja Vurmah Valia v. Ravi Vurmah Kunhi Kutty 41. A. 76 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar.P.C.J. 687 : 3 Suth. P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C). the issue was whether the urallers or managers of a pagoda were entitled to assign the conduct of the worship and the right to manage the property of the endowment to the Raja of Cherakel. The deed of assignment recited that 'the pagoda and its dependent institutions belong exclusively to the four tarwads of the urallers; that they are in debt to the amount of Rs. 46,000; that as the property was insufficient to conduct the affairs of the pagoda, this debt was likely to increase, that the Cherakel was willing to pay off the debts and take over the pagoda and its property and conduct all the ceremonies, and that the urallers had received in cash Rs. 46,000 to pay off debts and Rs. 10,000 for their own use. In consideration of the above the deed assigned over to the Raja all the property, moveable and immoveable, of the pagoda, and the uraima right of the four families, with the reservation of the right to join in the assembly for conducting the ceremonies and to receive the privileges attached thereto.'
21. Sir James Colville who in this appeal -delivered the opinion of the Board, observed: 'The first question is, whether, independently of custom, persons holding such a trust are capable of transferring it at their own will. No authority has been laid before their Lordships to establish this proposition; principle and reason seem to' be strongly opposed to such a power, and particularly to such an exercise of it as has taken place in this instance. The unknown founder may be supposed to have established this species of corporation with the distinct object of securing the due performance of the worship, and the due administration of the property by the instrumentality and at the discretion of four persons capable of deliberating and bound to deliberate together; he may also have considered it essential that those four persons should be the heads of particular families resident in a particular district, open to the public opinion of that district and having that sort of family interest in the maintenance of this religious worship which would insure its due performance. It seems very unreasonable to suppose that the founder of such a corporation ever intended to empower the four trustees of his creation at, their mere will to transfer their office and its duties, with all the property of the trust, to a single individual who might act according to his sole discretion, and might have no connection with the families from which the trustees were to be taken. Such a transferee might be a powerful man, as probably this Cherakel Rajah is, and, therefore, [the less amenable to public opinion, the less capable of being reached by the Courts, and the more likely to deal with the institution with a high hand. Mr. Mayne almost admitted that the broad principle delegatus non potest delegate would prima facie apply to such a case.' After discussing the authorities, his Lordship added: 'This being the state of the authorities, their Lordships are of opinion that there is no authority binding even on the Court of Madras which is inconsistent with the judgments under appeal; that the general principle affirmed by those judgments is correct; and consequently that the urallers had no power under what may be termed the Common Law of India to transfer their uraima right to the plaintiff, the Cherakel Rajah. But it is said that in India, and particularly in that part of India in which this pagoda is situated, custom must prevail against the general law. That such would be the consequence of a well proved and established custom their Lordships do not deny.... But their Lordships are of opinion that no custom which can qualify the general principle of law has been established in this case; and they desire to add that if the custom set up was one to sanction not merely the transfer of a trusteeship, but as in this case the sale of a trusteeship for the pecuniary advantage of the trustee, they would be disposed to hold that that circumstance alone would justify a decision that the custom was bad in law.'
22. In 1899 in Gnanasambanda Pandara Sannadhi v. Velupandaram 27 I.A. 69 at p. 77 : 4 C.W.N. 329 : 23 M. 271 : 2 Bom.L.R. 597 : 10 M.L.J. 29 : 7 Sar.P.C.J. 671 : 8 Ind. Dec. (N.S.) 591 (P.C.) a later Board of the Judicial Committee re-stated the same rule: 'In Raja Vurmah Valia v. Ravi Vurmah Kunhi Kully 41. A. 76 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar.P.C.J. 687 : 3 Suth.P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C). this Committee held that an assignment by the urallers of a pagoda of the right of management thereof was beyond their competence under the Common Law of India, and that no custom to do so had been established. There is no proof of any custom in this case, and consequently these deeds of sale are void and do not give any title to the purchaser.' Alienations by a shebait in contravention of the law as laid down in these decisions are void and need not be set aside: Raja Vurmah Valia v. Ravi Vurmah Kunhi Kutty 41. A. 76 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar.P.C.J. 687 : 3 Suth.P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C)., Narayana Chettiar v. Lakshmanan Chettiar 23 Ind. Cas. 1 : 39 : M. 456 : 28 M.L.J. 571 and such an alienation may be declared void even at the instance of the alienor [Juggut Mohini Dossee v. Sokheemoney Dossee 17 W.R. 41 : 14 M.I.A. 289 : 10 B.L.R. 19 : 2 Suth. P.C.J. 512 : 3 Sar. P.C.J. 23 : 20 E.R. 795, Srimati Mallika Dasi v. Ratammani Chakervarti 1 C.W.N. 493 at p. 496. The Judicial Committee have never deviated from the principles laid down in the above cases, and it is settled law that 'in the absence of any custom or usage to the contrary or any term to that effect in the deed of endowment a religious trust or the right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder [per Mookerjee, J., in Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 42 C. 455 at p. 470 : 19 C.W.N. 208 : 20 C.L.J. 183.]
23. In the present case it is conceded that no usage obtains in the family which would render valid the indenture of arpannama, if otherwise it is void under the Common Law of India. I need not, therefore, embark upon the still unsettled question as to whether, and if so, in what circumstances, the Courts would sanction an usage under which rights of worship have been alienated by a shebait. Again, there is authority for the proposition that the consensus of all the persons interested in the worship may 'give the estate another direction,' [Raja Vurmah Valia v. Ravi Vurmah Kunhi Kutty 4 I.A. 76 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar.P.C.J. 687 : 3 Suth.P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C)., Khetter Chunder Ghose v. Hari Das Bundopadbya 17 C. 557 : 8 Ind. Dec. (N.S.) 911 and Pramatha Nath Mullick v. Pradyumna Kumar Mullick : but so far as I know the Judicial Committee in no case have determined that such a consensus of opinion would justify a transfer of the spiritual rights and duties of the office of a shebait : Sethuramaswamiar v. Meruswamiar 43 Ind. Cas. 806 : 41 M. 296 : 7 L.W. 22 : 4 P.L.W. 91 : 34 M.L.J. 130 : 16 A.L.J. 113 : 27 C.L.J. 231 : 22 C.W.N. 457 : 20 Bom.L.R. 514 : 45 I.A. 1. (P.C.). In this case, however, it is admitted that Girindra executed the arpannama entirely at his own will, and upon his own initiative, and that he neither invited nor obtained a consensus of opinion among those interested in the worship of the deities in favour of the course which he pursued. It is further urged that Girindra as shebait was competent and entitled to execute the indenture of arpannama provided that either of the following conditions was fulfilled : (1) that the assignment of the pala was to a member of the founder's family qualified to perform the duties of shebait, or (2) that the assignment was 'for the benefit of the deities.' As regards (1) it is well-settled that 'according to Hindu Law, when the worship of a thakur has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution' [Gossamee Sri Gridhariji v. Ramanlalji Gossami 16 I.A. 137 at p. 144 : 17 C. 3 : 13 Ind. Jur. 211 : 5 Sar.P.C.J. 350 : 8 Ind. Dec. (N.S.) 541 (P.C.).]
24. The High Court at Madras consistently has held that an alienation by a shebait of the corpus of the dedicated property, either to a member of the founder's family or to a stranger, is utterly void. Kuppa Gurukal v. Dorasami Gurukal 6 M. 76 : 7 Ind. Jur. 75 : 2 Ind. Dec. (N.S.) 331, Narayana v. Ranga 15 M. 183 : 2 M.L.J. 19 : 5 Ind. Dec. (N.S.) 477 and Sundarambal Ammat's case 23 Ind. Cas. 72 : 38 M. 850 : 26 M.L.J. 315 : (1914) M.W.N. 286 : 1 L.W. 276; see also Juggurnath Roy Chowdhry v. Kishen Pershad Surmah 7 W.R. 266, Narayan v. Chintaman 5 B. 393 : 3 Ind. Dec. (N.S.) 259, Shri Ganesh Dharnidhar Maharajdev v. Keshaorav Govind Kulgavkar 15 B. 625 : 8 Ind. Dec. (N.S.) 421, Mallika's case 1 C.W.N. 493 at p. 496 and Gobinda Kumar Roy Chowdhry v. Debendra Kumar Roy 12 C.W.N. 98. In Mallika's case 1 C.W.N. 493 at p. 496 Banerji, J., observed that 'It has been held in a uniform current of decisions, both in this and in the High Courts of Bombay and Madras, that a priestly office with emoluments attached to it is inalienable.... If it were necessary to give reasons for such a proposition so amply supported by authority, as the proposition contended for on behalf of the respondent is, I may say that it would be contrary to public policy to allow an office like this to be transferred either by private sale or by sale in execution of a, decree. The defendant in this case is one of several shebaits to the idol, his turn of office extending for eleven days in a month. The emoluments of the office consist of votive offerings. And if a person professing a religion differing from Hinduism were to become the execution purchaser, it would lead to no end of complications and disturbances, which would be detrimental in the highest degree to the interests of other shebaits and of votaries generally.'
25. It is not settled whether the renunciation of a shebaiti by the office-holder in favour of a sole immediate heir would be void: [Narayana v. Ranga 15 M. 183 : 2 M.L.J. 19 : 5 Ind. Dec. (N.S.) 477.] It may be--though I do not decide--that such an alienation would contravene the doctrine of delegatus non-potest delegare: [Raja Vurma Valid v. Ravi Vurmah Kunhi Kutty 41. A. 76 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar.P.C.J. 687 : 3 Suth.P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C).], but if it be assumed that a shebait is competent to abdicate from his office, in my opinion, such an act would operate to transfer the office to the persons entitled thereto as reversioners under the foundation, or in default of any directions by the founder or of custom according to the principles of the Common Law of India. The office would not pass under or by virtue of any assignment of his office by the abdicating shebait whether it purported to be in favour of the sole immediate heir or of any other person, for every such assignment, in my opinion, is wholly void and inoperative. If the view of the position and status of a shebait which I have expressed is correct, it follows that the case of Moncharam v. Pranshankar 6 B. 298 : 6 Ind. Dec. 426 : 3 Ind. Dec. (N.S.) 655 was wrongly decided and ought not to be followed. Rajeswar Mullick v. Gopeswar Mullick 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 315 and Gobinda Kumar Roy's case 12 C.W.N. 98, As regards (2) it is urged that the assignment in suit is valid and should receive the imprimatur of the Court because the transfer of the pala was 'for the benefit of the deities.' In support of this contention the learned Counsel for the defendant referred to the decision of this Court in Nirodbarani Dassi v. Shiba Das Pal Dewasin 3 Ind. Cas. 76 : 36 C. 975 : 13 C.W.N. 1084 and the dictum of Mitra, J., in Rajeswar Mullick's case 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 315. With all respect to the learned Judges who decided these cases, for the reasons which I am about to state, I am of opinion that the decisions in Nirodbarani Dassi's case 3 Ind. Cas. 76 : 36 C. 975 : 13 C.W.N. 1084 and in Rajeswar Mullick's case 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 315 so far as it is founded upon the same reasoning, are not in accordance with the Law of India as enunciated by the Judicial Committee of the Privy Council, and I cannot acquiesce in them.
26. The contention which learned Counsel has urged upon the Court, in my opinion, is founded upon a heresy which has crept into the Hindu Law, and ought to be exposed and eradicated. This is not the only branch of law in which the words 'for the benefit' have caused error and confusion [see Barwick v. English Joint Stock Bank (1867) 2 Ex. 259 : 36 L.J. Ex. 147 : 16 L.T. 461: 14 W.R. 877, Lloyd v. Grace, Smith. & Co. (1912) A.C. 716 : 81 L.J.K.B. 1140 : 107 L.T. 531 : 56 S.J. 723 : 28 T.L.R. 547.] Who is to determine whether any particular alienation is 'for the benefit of the deity?' Is it the founder? Is it the persons interested in the worship? Is it the shebaits, or one or more of them? Is it the Court? I do not pause to hazard a conjecture, for, in my opinion, the doctrine contravenes the Hindu Law, and in any event cannot be extended to an alienation of the spiritual rights and duties of a shebait. The genesis of the heresy may be found, I think, in a misapprehension of certain observations of Sir Montague Smith in Prosunno Kumar's case 2 I.A. 145 at p. 150 : 14 B.L.R. 450: 'The authority of the shebait of an idol's estate would appear to be in this respect analogous to that of the manager for an infant heir which was thus defined in a judgment of this Committee delivered by Lord Justice Knight Bruce: The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law a limited and qualified power; it can only be exercised rightly in a case of need or for the benefit of the estate, but where in the particular instance the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance is the thing to be regarded.' Hunoomanpersaud Pandey v. Babooee Munraj Koonweree 6 M.I.A. 393 at. p. 423 : 18 W.R. 81n : Sevestre 53n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 From the above passage the doctrine has been evolved that although there might be no necessity for any particular alienation of debutter property, yet, if the transfer was 'for the benefit' or 'for the clear benefit' of the endowment, it could be upheld according to the Hindu Law. It is incumbent upon me, therefore, to examine more closely the rule propounded in Prosunno Kumari's case 2 I.A. 145 at p. 150 : 14 B.L.R. 450. It is to be observed that while Sir Montague Smith laid down that a shebait ' may incur debts or borrow money for necessary purposes,' his Lordship added: 'The power, however, to incur such debts must be measured by the existing necessity for incurring them' Since 1875, the Judicial Committee have more fully defined the circumstances in which a shebait is empowered to alienate debutter property. In 1876 Sir Montague Smith, delivering the opinion of the Board in Konwar Doorganath Roy v. Ram Chunder Sen 4 I.A. 52 : 2 C. 341 : 3 Sar.P.C.J. 681 : 1 Ind. Dec. (N.S.) 508 (P.C.) stated that the Rani Rashmoni, who had effected the alienation of the property then in suit 'had, as the manager of the estate, power, if it were debutter dedicated to the idol, to alienate so much of it as was necessary to keep up the temple and worship of the idol; and if it were secular to alienate it if it became necessary to do so to preserve the rest of the family estate.' And later in his judgment his Lordship, referring to Prosunno Kumari's case 2 I.A. 145 at p. 150 : 14 B.L.R. 450 observed that 'in that case a shebait had incurred debts, and mortgaged the property of the idol for the purpose of the necessary sustentation of the worship of the idol; and this tribunal held that the position of the shebait was analogous to that of a manager of an infant, and that he had the same authority, which in both cases arises from the necessity of the case, to raise money for the benefit of the estate.' In that case their Lordships held that the 'sale of part of the land was justified by the imperious necessity of finishing the temple which had been commenced.' In Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 C. 1003 : 14 C.W.N. 1 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 36 I.A. 148 (P.C.), Sir Andrew Scoble, delivering the judgment of the Board, observed that 'it is well-settled law that the power of the mohunt to alienate debutter property is, like the power of the manager for an infant heir, limited to cases of unavoidable necessity.' Again, in Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 44 I.A. 147 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom.L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 222 (P.C.), Lord Atkinson laid down that 'if for the reasons above mentioned the grant of a lease in perpetuity of debutter lands at a fixed rent requires to be justified by unavoidable necessity, it is difficult to see why an absolute alienation in perpetuity of the same kind of land in consideration of a premium, should not equally require to be justified by the same kind of necessity, since it brings about quite as completely the same prejudicial results.' His Lordship also observed that 'the only specific point touching the present case actually decided in these three authorities was this: that a debutter estate may be mortgaged to secure the re-payment of money borrowed and applied to prevent its own extinction by sequestration. No indication is to be found in any of them as to what is, in this connection, the precise nature of the things to be included under the description 'benefit of the estate.' It is impossible, their Lordships think, to give a precise definition of it applicable to all cases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it from injury or deterioration by inundation, this and such like things would obviously be benefits. The difficulty is to draw the line as to what are, in this connection, to be taken as benefits, and what not.' An examination of these authorities leads to the conclusion that the power of a shebait to alienate the corpus of debutter property is to be measured by the exigencies of the occasion. An alienation of such property, in my opinion, cannot, be justified unless it is impracticable duly to carry out the service and worship of the deity, and matters incidental thereto, or to preserve the dedicated property without incurring the expenditure, to defray which it is proposed to effect the alienation; and further, unless the required expenditure cannot be met out of the income of the endowment, and without alienating the corpus of the estate. In short, the shebait's power of alienation must be exercised for purposes of defence and not of aggrandisement, as a shield and not as a sword. Occasions which would justify the alienation of the corpus will not frequently arise, for 'even in cases where, owing to causes beyond the control of the managers, such as famine, etc., the income falls off, the uniform and approved practice of the country has been to regulate the scale of the services with reference to the diminished income until the income returns to its normal condition, and not to keep up the services on a scale rendering the incurring of debts necessary. Nor is money ever borrowed, even for the purpose of repairs. One reason why a manager never thinks of mortgaging or setting the corpus for such a purpose is that he will ordinarily not be able to find a mortgagee or purchaser among the members of the community since the principle that property dedicated to God ought never to be diverted for other purposes, operates so strongly on the mind of the community that even innocent participation in such diversion is understood to be sinful, and to forbode evil to the participator.... Nor should it be forgotten that, as shown by the formula with which grants and donations to charities usually conclude, the people take that to renovate is even more meritorious than to found. In such circumstances it is obvious that the manager's powers are quite limited. He can only do what is necessary for the services of the idol...and he need only preserve and duly manage what property may belong thereto. It is no part of his duty to effect improvements with reference to existing endowments when the funds in his hands do not admit of it; nor is he called upon to enter into transactions for the purpose of augmenting the funds of the institution. He cannot in any manner subject the institution in his charge to duties, obligations and burdens to which, with reference to the nature of the foundation or otherwise, the institution is not inherently or necessarily subject' [per Subramania Iyer, A. C.J.) in Nallayappa Pillian v. Ambalavana Pandara Sannadhi 27 M. 465 at p. 473 : 14 M.L.J. 81.]
27. Where there is an 'imperious necessity' or an 'unavoidable necessity' in the above sense compelling the shebait to alienate the property, such an alienation clearly is 'for the benefit of the deity,' but if there is no such necessity, the fact that the value of the estate will be increased if an alienation by sale, mortgage, exchange or otherwise is effected, will not justify such a transaction, although thereby it may be that the endowment can be benefited [per Subramania Aiyar, (A. C.J. in Nallayappa Pillian v. Ambalavana Pandara Sannadhi 27 M. 465 at p. 473 : 14 M.L.J. 81; per Lord Atkinson in Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 44 I.A. 147 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom.L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 223 (P.C.), Bhagwan Das Naik v. Mahadeo Prasad Pal 71 Ind. Cas. 959 : 45 A. 390 at p. 394 : 21 A.L.J. 271 : A.I.R. 1923 All. 298 and Shankar Sahi v. Baichu Ram 86 Ind. Cas. 769 : 47 A. 381 : 23 A.L.J. 204 : L.R. 6 A. 214. Civ : A.I.R. 1925 All. 383. As it is admitted that there was no necessity in the sense I have indicated which would justify the execution of the arpannama in suit, in my opinion, the contention that the Court ought to uphold the arpannama on the ground that it was or might be 'for the benefit of the deities' is misconceived, and irrelevant, and I reject it.
28. I desire to add that, in my opinion, the rule of necessity extends only to an alienation of the temporalities of the idol. It does not, and, in my opinion, it cannot be made to apply to an alienation of the spiritual rights and duties, the fulfilment of which is the primary function of a she-bait. To apply such a rule to the spiritual duties of a shebait would be to contravene the fundamental principle of the Hindu Law, and to violate the religious instincts of all orthodox Hindus. Indeed, in the nature of things there can be no necessity for a voluntary transfer of the spiritual duties of a shebait [Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami 27 M. 435 : 14 M.L.J. 105] and the doctrine that a shebait at his own will and pleasure is at liberty to alter the line of shebaits on the ground that to do so will be 'for the benefit of the deity' offends against the Common Law of India and is in conflict with the uniform rulings of the Judicial Committee of the Privy Council. For these reasons, in my opinion, the indenture of arpannama of the 13th September 1918 must be declared void and inoperative and there will be a decree in favour of the plaintiff.
29. The Receiver will be discharged. Each party will bear his own cost.