TMI Blog1951 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be necessary to narrate a few antecedent facts about which there is no dispute between the parties. It may be stated here that neither side adduced any evidence before the trial judge during the hearing of the case and the questions raised in the suit were argued as questions of law turning on the construction of the indenture which created the endowment as well as of the provisions of the Hindu Women's Rights to Property Act (Act XVIII of 1937 as amended by Act XI of 1938). 4. It appears that one Dhananjoy Mullick, who was the adoptive father of Mrityunjoy, died on 28th of August, 1907, leaving behind him, his widow Nitto Sundari and the adopted son Mrityunjoy, who was then a minor. On February 11, 1910, Nitto Sundari obtained letters of administration to the estate of the deceased Dhananjoy limited during the minority of the adopted son. On June 13, 1920, the widow purchased a house property in the city of Calcutta - being premises No. 14, Syakrapara Lane - out of the monies belonging to the estate of her husband, and on October 10, 1934, she conveyed the said property to Mrityunjoy who had by that time attained majority. 5. On the very same day that this property wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndari acted as shebait till her death in 1938 and that after her death Mrityunjoy became the shebait. Kiranbala, the first wife of Mrityunjoy, who is referred to in the indenture as stated above, died on 14th January, 1942, leaving her infant son Debabrata, who is the defendant in the suit. Soon after her death, Mrityunjoy married the plaintiff Angurbala as his second wife and within five months after this marriage Mrityunjoy died on the 4th of July, 1942. The present suit was filed in the Original Side of the Calcutta High Court on 29th August, 1947, by Angurbala and she prayed for a declaration that she was the sole shebait of the deity under the terms of the indenture or, in the alternative, was entitled to shebaitship jointly with the defendant, she being a co-heir of her stepson under the provisions of the Hindu Women's Rights to Property Act. There was a further prayer claiming a right of residence in premises No. 14, Syakrapara Lane. 7. The written statement that was filed on behalf of the defendant denied the plaintiff's claim of shebaiti right, either exclusively in herself or jointly with the defendant, and asserted that the defendant was the sole shebait under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to Kiranbala after the death of Mrityunjoy and after her death it is to vest in the heirs of Mrityunjoy. As Kiranbala died during the life-time of Mrityunjoy, the grant of the shebaiti right in her favour lapsed and the heirs of Mrityunjoy are, therefore, entitled to come in as the next shebaits after Mrityunjoy's death. Who these heirs are has got to be determined according to the law in force at the time when the succession opened and under the Hindu Women's Rights to Property Act, which came into force in the year 1937, the widow of a propositus, who dies intestate, would rank as an heir along with the son and would be entitled to the same share as a son gets in the property of the deceased. It is said that as shebaitship is property, it would devolve under section 3 of the Hindu Women's Rights to Property Act upon both the plaintiff and the defendant jointly. Assuming, however, for argument's sake, that the expression property , as used in the Hindu Women's Rights to Property Act, does not include shebaiti right, it is argued by the learned counsel that it is a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of Mrityunjoy would succeed to him as shebaits in the first instance and that no other heir of Mrityunjoy basing his claim either upon general law or any special enactment would be entitled to become shebait so long as any issue of Mrityunjoy was alive. A further question relating to the construction of the deed, raised by Mr. Banerjee, was that the words heirs of the said Mrityunjoy occurring in the deed are to be construed not as words of devolution but of direct gift to the heirs under the deed and consequently the expression heirs must mean those who could legally claim as heirs at the time when the grant was made; and any subsequent change in the law could not affect the position. 12. We will first advert to and examine the provisions of the Hindu Women's Rights to Property Act and see whether the Act includes within its scope a property of such character as shebaitship is. 13. The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami [48 I.A. 302] that the relation of a shebait in regard to debutter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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. Unless, therefore, the founder has disposed of the shebaitship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder. 14. Turning now to the Hindu Women's Rights to Property Act, it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down :- Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of section 3 shall apply where a Hindu dies intestate. 15. Section 3(1) then provides :- When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law....... dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the preamble does not throw any light on the question as to whether the Act does or does not include within its ambit rights and interest of a shebait. 20. Mr. Banerjee next invokes in support of his contention the provisions of sub-section (3) of section 3, which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the Hindu woman's estate . It is argued that this distinction between the Hindu woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular property, but this distinction is unmeaning when applies to shebaiti right, for the nature of the interest enjoyed by a male or a female shebait is exactly the same. This argument does not appear to us to be at all convincing. Precisely the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect of the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is non-testamentable , as Mr. Banerjee puts it, no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression property as used in section 3(1) has a limited or restricted interpretation and is not applicable to shebaitship, which is recognized as property in Hindu law. 22. Reference may now be made to the decision Federal Court in Umayal Achi v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the ordinary Hindu law and that the provisions of the Hindu Women's Rights to Property Act were not attracted to the trusts. This decision was upheld by the majority of the Judges in the Federal Court and that point was actually dealt with by Varadachariar J. in his judgment. The view expressed by the learned Judge is that the Hindu Women's Rights Property Act was intended to apply only to properties beneficially owned by the propositus and it was not applicable to rights in the nature of trusteeship. It seems to us that, property construed, this decision does not stand in the way of the appellant. In the first place, we do not know at all what he nature of these trusts was. The learned Judge observed himself in his judgment that there was little or no evidence as to the terms of the foundations in respect of any of the trusts managed by the deceased. This observation, taken along with the terms of the documents referred to in the judgment, would go to show that the deceased was a mere manager of the trusts and in respect of some of them at least he was the manager jointly with other persons. In the High Court, Sir Lionel Leach C.J. expressly held that in no sense cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in any wan improve her position. But the position would be obviously different if there is a beneficial interest of a substantial kind inseparably connected with the duties of a particular office. They again, the learned Judge possibly used the expression private property in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own. The reference to section 3(3) of the Hindu Women's Rights to Property Act is, as we have indicated already, not much helpful for the purpose of construing the Act. After all, we must take the decision as it stands and it is not right to call into aid a particular reason assigned by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to lay down. We think that a very proper view of the effect of this decision of the Federal Court has been taken by a Division Bench of the Madras High Court in P. Suryanarayanacharyulu v. P. Seshamma . There the question arose in connection with the rights associated with the office of archakatvam, which is a hereditary religious office and the holder or holders of it for the time being are beneficially entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Mrityunjoy occurring in the document are to be construed as words not of inheritance but of grant. Such construction would be against the language and the whole tenor of the document. It is to be noted that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that Mrityunjoy should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebait and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1] with regard to the devolution of trust estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the main provision is concerned there is nothing in the language or in the context to suggest that the word heirs has not been used in its ordinary or natural sense. Mr. Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression heirs has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be noted that the word issue includes both son and daughter and the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king of any property endowed to the Thakur or the deity and its intrinsic legal characteristics as constituting a religious endowment. We have in mind the shebaitship itself as a species of property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a Hindu woman's estate as contrasted with a full or absolute estate taken by a male heir ? Does a male heir get higher rights than a Hindu widow ? and if so, what are they ? So far as a shebaitship is concerned, the office does not ensure beyond the lifetime of the holder, whether male or female, and is generally inalienable. It is res extra commercium. A male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on alienability arises out of the nature of the property and not out of the nature of the estate taken by the heir. In the very nature of things, there can be no alienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line of reasoning, and it lends support to the view taken in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1] by Sir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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