TMI Blog1953 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... n idol known by the name of Dakshineshwar Jew and situated at a village called Dhop Dhopi within the district of 24-Parganas in West Bengal. The deity is an ancient one and its reputed founder and first shebait was one Udhab Chandra Pandit. It is not disputed that by successive devolutions the rights of the shebait came to vest in one Iswar Chandra Chakroborti, who was the common ancestor of the parties to this suit. The following genealogical table will make clear the relationship of the several persons who figure as parties. to the present litigation as between themselves and also to their common ancestor. Iswar died leaving six sons as his heirs and they were Ashutosh, Govinda, Gopal, Sadananda, Trailokhya and Haran. These six sons when they divided the properties of their father, divided the shebaiti right also which devolved upon them in six equal shares, and this division was by the method known as palas or turns of worship, which means that to each one of the sons was allotted the right of worshipping the deity for 5 days every month and during these days he alone was to discharge the functions of the shebait and receive the emoluments attached to the office. Gradual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Palani Bala, who is a minor and is represented by her husband as guardian. The second defendant is the receiver, who has been placed in charge of the properties of Palani Bala in a guardianship proceeding pending before the District Judge of 24Parganas. The defendants 3 and 4 are the surviving descendants of Iswar who hold the remaining interest in the shebaiti right. The case of the plaintiffs, in substance, is that the one- third share of the shebaiti right, which was held by Haran during his lifetime, devolved upon his widow Rajlakshmi who had only the restricted rights of a Hindu widow in respect to the same. On the death of the widow, the interest vested in the plaintiffs. who were the nearest heirs of Haran at the time of Rajlakshmi's death. They, accordingly, prayed for-being put in possession of this one-third share of the shebaiti right represented, as stated aforesaid, by 10 days pala every month after evicting the defendant No. 1 therefrom. There was a claim also for mesne profits from the date of the widow's death. In the plaint a description has been given of the temple, its appurtenant lands and also of the structures standing thereupon, but there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us in this appeal is that of limitation and the arguments that have been advanced before us on this point by the learned counsel on both sides really raise two questions for our determination. The first is, whether on the facts of the present case the plaintiffs' suit is governed by article 124 or article 141 of the Limitation Act ? If article 141 is the appropriate article, it is not disputed that the plaintiffs' suit is well within time; but if -article 124 is applicable, the other point that would require consideration is, when did the defendant or her predecessors take possession of the hereditary office of shebait adversely to the plaintiffs ? Was their possession adverse from the very date of the transfer by Rajlakshmi or did it become so only at her death ? The proposition is well established that the alienation of the shebaiti right by a shebait in favour of a stranger is absolutely void in Hindu law and cannot be validated even on the footing of a custom. The alienee of the right is, therefore, a trespasser out and, out and his possession as against the transferor is adverse from the very beginning. Mr. Chatterjee appearing for the plaintiffs appellants has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is urged that in the case of a hereditary office like that of a shebait, the powers of a female shebait are in no way more restricted than those of a male shebait and as the trust estate during the incumbency of a female shebait resides in her completely and effectually as in a male trustee, the male trustee who comes after her cannot claim the benefit of the principle upon which article 141 of the Limitation Act is founded. The points raised are no doubt important and require careful examination. It may be mentioned at the outset that in the old Limitation Act (Act XXIV of 1859) there was no specific provision relating to suits by reversioners for recovery of possession of property held by a Hindu widow in her restricted right. There were provisions only of a most general character contained in sections 12 and 16 of the Act, under which limitation for suits to recover immovable and movable properties was 12 and 6 years respectively from the time the cause of action arose . Even before this Act was passed, in a case (Goluckmani v. Digambar, (1852) Macpherson on Mortgage, 2nd ed., 20) decided by the Supreme Court of Calcutta, Peel, C. J. made the following observation: I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 505) upon which Mr. Ghosh has laid very great stress. In that case a trespasser had taken possession of the estate against the widow and it was held that such adverse possession was effective against the reversioners as well. The cause of action, it was said, accrued to the widow and a suit by her or by her reversioner must be brought within 12 years from the date of dispossession as laid down in section 12 of the Limitation Act of 1859. The decision can certainly be justified on the law of limitation as it then stood. The Act of 1859 did not provide a separate rule as regards reversioners and all suits for recovery of possession of immoveable property had to be brought within 12 years from the date of the accrual of the cause of action. If there was a trespass against the widow, the commencement of the trespass would constitute the cause of action for the suit and a suit against the trespasser would have to be brought within 12 years, no matter whether it was brought by the widow or by the reversioner. The learned Judges could not overlook the fact that it was not possible for the reversionary heirs to institute a suit for possession during the lifetime of the widow. The difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the estate of a Hindu or Mahommedan female heir, the legislature deliberately used the words a Hindu or Mahommedan entitled to possession of property on the death of a female heir. The estate of a Hindu female heir, as is well known, is extremely anomalous in its character; it cannot be described either as an estate of inheritance or one for life, though it partakes of the nature of both. The intention of the legislature in introducing this provision was obviously to do away with these anomalies for the purpose of applying 'the law of limitation and for this purpose the Hindu widow's estate was completely assimilated to that of a tenant for life. This was the view taken, and in our opinion quite rightly, by a Full Bench of the Calcutta High Court in Srinath Kur v. Prosunno Kumar((1883) 9 Cal. 934) and by the Bombay High Court in Vundravandas v. Cursondas ((1897) 21 Bom. 646), the decision in the latter case being affirmed by the Privy Council in Ranchordas v. Parvati ((1899) 26 I.A. 71). The decision in Ranchordas's case has all along been treated as an authority for the proposition that the statute of limitation does not begin to run against the reversioner whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges of the High Court have held and quite properly that the benefit of article 141 could be claimed only if there was a qualified estate in the female heir after whose death the plaintiff was entitled to the property as the heir of the last male holder. According to the learned Judges, however, this condition was not fulfilled in the present case, inasmuch as the subject matter of dispute was the right of shebaitship and the rights of a female shebait, it is said, are not in any way more restricted or qualified than those of a male shebait, although she cannot transmit this office to her own heirs. Reliance ha,; been placed in this connection upon a decision of the Madras High Court in Pydigantan v. Rama Dass ((1905) 28 Mad. 197), which was followed by a Division Bench of the Calcutta High Court in Lilabati v. Bishen ((1907) 6 C.L.J. 621). This method of approach seems to us to be open to doubt. Whatever might be said about the office of a trustee, which carries no beneficial interest with it, a shebaitship, as is now well settled, combines in it both the elements of office and property. As the shebaiti interest is heritable and follows the line of inheritance from the founder&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously to treat hereditary office like land for the purpose of barringsuits for possession of such office and extinguishing the right to the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is conceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time ; but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajlakshmi, the defendant could not be regarded as taking possession of the office adversely-to the plaintiffs. He refers in this connection to the definition of Plaintiff in section 2 (8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right to sue. In answer to this, it is argued by Mr. Ghose that a shebait like a trustee represents the entire trust estate and the next trustee, even though he may not strictly claim through or from the-previous holder of the office, must be deemed to be bound by acts or omissions of the latter; and in support of this contention he relies upon the judgment of the Judicial Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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