Kali Kinkor Ganguly versus Panna Banerjee and Ors.

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' l

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KALI KINK OR GANG UL Y

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v.

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PANNA BANERJEE AND ORS.

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August 16, 1974

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[A. N. RAY, C.J., AND K. K. MATHEW, J.J

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B

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Religious endowment-TransferofofficeofShebaiti-When.pern1issible.
Onthe death of B whohadtheShebaiti rightofthedeitiesina temple, oneof
his two widows, carried onthesheba pujaandon her death, her brother took pos-
sessionofthetemple premises.Theother widow filed a suitandobtained a decreein
herfavour declaringherrighttobeentitledtothe templepren1isesandtothe right
ofsheba puja. She sold ahalfshareofthe temple andtheshebaiti righttoG for
meeting the expensesofthelitigation. The appellant, a legateeofG, filed a suit
claiming a declarationthathe was entitled to the shebaiti right, which the respon-
dents, who are the heirsof'B' denied. The High Court,inappeal held against	c
theappellantonthe groundthatthe transfertoG was invalid.

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.r

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Dismissing the appeal to this Court,

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HELD: Although shebaiti rightisheritable like any other property,itlacks the otherincidentofproprietary rights, namely, capacityofbeingfreely transferred by
theperson in whomitisvested. The rule against alienationofshebaiti right has beenrelaxedincertain decisionsofthe High Courts, which are clas.sified under
threeheads (a) where the transfer isnotfor any pecuniary benefitandthetransferee
isthenextheirofthetransferororstands inthelineofsuccessionofshebaits and
suffer.; fromnodisqualification regardingtheperformanceofduties;(b)whenthe
transferismadeintheinterestofthedeity itselfandtome(1t..1,somopressingneces-
sity;and(c) whenavalid custom is proved sanctioning the alienationofshebaiti
right within a limited circleofpurchasers, who are actualorpotentialshebai_tsof
thedeityorothenvise connected withthefamily.Inthe present case,theappellant
restedhisclaim on the second exceptiononthe groundthatthe transfer was made
intheinterestofthe deityandtomeet a pressing necessity. But,theappellant
cannotinvoke the doctrineoftransferofshebait right for the benefitofthedeity,
because,thetransfertoGisillegal, for the reason,thatneitherthetemple nor the
deities,northeshebaiti right canbetransferredbysale for pecuniary consideration.
The ruleofnecessity extended onlytoanalienationofthetemporalityofthe idol
anddoesnotandcannotapplytoalienationofthe spiritual rightsandduties. The
doctrineofalienabilityoftheshebaitship itselfonthegroundofnecessityorbenefit
tothedeity,isbased upon a misconceptionofthe observationsoftheJudicialCom-
mitte.e. Suchasale is void in its inception.Anassignmentofareligious office
bywhichthealiener gets pecuniary benefitisagainst public policy and cannotbe uphe!J.[733C-D,H-734C,735C-F]

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Pro,anna Kumari v. Go/ap Chand 2 LA. 145 explained.

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Mahamaya v. Haridas I. L. R. 42 Cal. 455, Khatra Chandra Ghosh v. Haridas I.L.R. 17 Cal. 557, Rajah Vurmah v. Ravi Burn1ah 41. A. 76. Sundarmnbalv .. Yoganyanag1uukkul I.L.R. 38 Mad. 850, Rajeshwar v. Gopaswar I.L.R. 35 Cal. 226, l'1irn1al Chandra Banerjee v. Jyoti Prasad 42 C.W.N. 1138 Nagendra ]1/ath v. Rabindra I.L.R. 53 Cal. 132 and Dr. B.K. Mukherjea, Hindu Law of Religious and Charitable Trust, referred to.

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G

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ARGUMENTS

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For the appellant-The alienation in favour of Gisin same tcnns as the alienation under which B hi1nself had acquired rights. The documents were understood throughout by all the parties as a mere transfer of the personal proprietary interest of a shebait \vh_i~h is ancillary to is d_uties.as a ministre_n of the deity and a manager of its temporalitles. There is no Justification for not g1vmg effect to the true import and substance of the document, and, indeed it \vas conceded before the High Courl that no claim was being laid to either the deity or the temple. In such circumstances, the only question which arose for determination was whether in the fact and circun1stances of the instant case the transfer to G was .invalid and could not be given effect to. ·

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H

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K. K. GANGULY V. P. BANERJEE

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729

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lt is now \Veil settled that in the concept of shebaiti both the ele1nents of office and property are there. It has been held (vide Angurbala v. Devabrata (1951) SCR 1125 that shebaitship is property within the meaning of Hindu Women's Right to Property Act and was also property in the general sense and the general law of succession governed succession to shebaitship. It has also been held that a partition of the shebaiti right .amongst several co-shebait or co-heirs can be suitable effected under a scheme allotting differant palas or terms of worship to the different claimants (vide I.L.R. 42 Calcutta 445). If the proprietary interest of a sbebait is both heritable and capable of being partitioned, there is no reason ·why, subject to certain limitations, it should not be alienable. To the general rule, founded on the principle that the elements of office and property, of duties and personal interests are more or less blended together, that shebaiti right was inalienable, there are, certain notable exceptions, one being that such transfer is permissible if it was neither contrary to the intentions of the Founder as expressed in the Deed of Endowment or otherwise nor was in any was obnoxious to the principles of Hindu Law, and subject always to this fundamental limitation, a shebait can ·always transfer his or her shebaiti interest which was an amalagan1 of office and property for the benefit ·C of the idol or the deity or for any legal or pressing necessity.

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Now in the instant case the following facts are either admitted or found : Either under the transfer from the original founders, or under the transfer to B and also under the transfer to the predecessor-in-interest of the plaintiff, a right of transfer to strangers was conferred expressly and each had a right to extinguish and exhaust the line of -succession.

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D It is apparent th~t the intention of the founders was that strangers could be taken in management and power was expres..'\ly given by them in redelegate the authority to such strangers. Accordingly, the transfer cannot be said to be contrary to the founders' intentions, and, as the transfer has been made to a person who was in no manner disqualified to discharge the duties of the office of a shebait, the transfer comes squarely under the exception mentioned above.

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To impose a total ban will be contrary to the principle enshrined in Article 19(I)(b) of the Constitution and, in any case it cannot be in consonance with a sound public policy to ban a transfer to a qualified person even in a case of dire legal neces· sity such as presentation of the very existence of the deities and recover them and their abode from possession of one who had taken forcible posse.5sion.

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An alienation of shebaiti right for necessity or benefit of the deity was held justified in the undernoted cases :

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I. I.L.R. 17 Cal. 557 2. I.L.R. 35 Cal. 226 F 3. 42 c.w.N. ll38 4. 8. I.A. 146 (152) 5. 44 I.A. 147 6. 48 I.A. 302 7. 36 I.A. 148.

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45 C.W.N. 809

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I.L.R. 6 Born. 298

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G Therefore, the alienation was wrongly held as invalid.

¶33

For the respondent-The earlier transfers were not challenged in the suit. It is well settled that neither the temple nor the deities can be the subject matt.er of any sale transactions and this .Propoition has not been conteste by t~e appel!ant. That being so, on the face of it, the impugned transfer should fad. It JS submttted that the deed should be read as a whole from which the subject matter of the sale is to be ascertained. That being so, it is not permissible to consider separately the question of transfer of the half share of her shebaiti-right. It is submitted that the said H transfer as a whole should be held to be invalid.

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Even assuming that the question of transfer of shebaiti-right can be separated, as contended by the appellant, the transfer of shebaite-right should be held to be

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(1975} 1 S.C.R.

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SUPREME COURT REPORTS

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730

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fnvalid. It has been held in Raja Rai¹ i Varn1a's case (4 I.A. 76) and in several other decisions that sale of shebaitship is altogether void. This subject has been dealt within detail by Dr. B.K. Mukherjee in his Tagore Law Lectures on Hindu Law f Roligious and Charitable Trusts delivered in 1951 at pages 228 onwards of the Orig1· nal Edition. After considering the texts and Case Law on the subject the opinion expressed by the learned author is that although alienation may be permissible in favour of next shebait or one in the line of succession or to a co-shebait the same cannot be made in favour of a stranger even on the ground of necessity. The lear ned author at page 235 has observed that certain decisions of the Calcutta High Court which had purported to uphold the transfer of shabaiti-right on the ground of necessity was of doubtful authority and was to a great extent based upon misconstruction of certain pronouncements of the judicial Committee. The editor of the said Edition of Dr. Mukherjee's said Tagore Law Lectures (Mr. T. L. Venkatarama Ayyar) has also expressed the same view. This being the legal position, it is submitted, G did not acquire any right of shabaitship of the deities by the deed of sale in his favour. Accordingly the ap~e11ant also derived no right and the High Couri in appeal rjghtly decided the question raised before it. For the Receiver : On behalf of the Receiver some submissions were made regarding his remuneration and expenses including the salary of his clerk. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1115of1973. Appeal from the Judgment & Decree dated the 11th April 1973 of the Calcutta High Court in Appeal from Original :Oecree No. 52 of 1972. A. B. M. Sinha, Sa/ii Ganguly and Samir Roy Choudhury, for the appellant. B. Sen and D. N. Mukhe1jee, for the respondents. P.K. Mukherjee, for the respondent. The Judgment of the Court was delivered by RAY, C.J. This appeal is by certificate from the judgment dated 11 April, 1973 of the High Court at Calcutta difmissing the appellant's suit.

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Two contentions were advanced on behalf of the aprellant. First, a shebaiti right being both an clllce as well as species of property can and has been transferred in certain circumstances. Such transfer is possible ifitis not contrary to the intention of the founder as expr<md in the deed or any document concerning shebaitship. Second, it is permissible for the benefit of the idol or the deity or any other pres· sing necessity to execute a sale deed in respect of shebaiti right.

¶40

The deity at the premises is popularly known as Firingi Kali. R<makanta Pal constructed a Shiva temple and installed the deity Shiva at the premises. Ramakanta Pal became the shebait. In 1820 Kali Prasad Pal and Gouri Prasad Pal the two sons of Ramakanta Pal orally transferred the temple together with the idol and shebaiti right of the deity to Srimanta Pandit. Srimanta Pandit carried on tl1e sheba. He constructed a small brick built one storeyed rccrn thereotL He installed the deities Kali, Sitala Manasha and Shalig1Cm Shila .. In 1880 Srimanta Pandit by a registered deed transfemd the temple together with the deities and the shebaiti right of the deities to Shashi' Bhusan Banerjee. Shashi Bhusan Banerjee performed sheba tilf

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K. K. GANGULY v. P. BANERJEE (Ray, C.l.)

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731

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A his death on 24 August, 1894. He left behind him two widows Paripuma Debi and Pramila Sundari Debi. Paripurna Deh after the death of Shashi Bhusan Banerjee carried on sheba puja of the deity. She died on 10 April 1905. On her death Rakhal Chandra Mukherjee brother of Paripurna Debi took possession of the temple pmniHs and ousted Pramila Debi.

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B On 22 August, 1905 Pramila Debi filed a suit in the High Ccmt against Rakhal Chandra Mukherjee for a declaration of her right in the temple premises and the sheba puja. On 12 February, 1907 Pramila Debi obtained a decree aga;nst Rakhal Chandra Mukherjee declaring her to be entitled to temple premises and to the right of sheba puja.

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c Meanwhile on 3 August, 1906 Pramila Debi alcng with cne Chandra Kumar Banerjee who was the reversioner of Shashi Bhman Banerjee sold certain properties of the estate of Shashi Bhusan Banerjee to Upendra Nath Ganguli for legal necessity. On 29 January, 1907 by a deed Pramila Devi sold one half share of her full title in the tc mple and the share of shebaiti right to Upendra Nath Ganguli. The legal necessity claimed in the deed was incurring expenses in ccnnection with D the litigation relating to the temple premises and the shebaiti 1i~ht against Rakhal Chandra Mukherjee.

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Upendra Nath Ganguli who came into possession of the pH mises carried on sheba puja till his death in 1925. On 5 November, 1922 Upendra Nath Ganguli made his first wilJ. He appointed his brother Pramatha Nath Ganguli as the executor. Upendra Nath Ganguli E bequeathed life interest in respect of temple premises to Pnmila Dtbi as shebait and after her death to the appellant Kali Kinkor Ganguly. On 15 February, 1925 Upendra Nath Ganguli made a second will by which he bequeathed to Pramila Debi all his right, title ar.d inttmt in the temple premises for her life. Upendra Nath Ganguli ditd en 30 January, 1925. On 3 August, 1925 Pramatha Nath Ganguli applied for probate before the District Judge 24-Parganas. On 12 December, F 1925 Pramila Debi filed an objection in the probate prccecdings. She contended that there was a second will. The District Judge granted probate to Pramatha Nath Ganguli in respect of first will and letters of administration with copy of the will annexed to Pramila Debi in respect of the second will. By an order dated 6 February, 1928 the proceedings relating to letters of administr.ation granted to Pramila Debi were remanded to the District Judge by a Division Bench of G the High Court at Calcutta. On 17 July, 1928 probate was granted to Pramatha Nath Ganguli in respect of both the wills of Upendra Nath Ganguli.

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On 15 September, 1947 Pramila Debi died. In 1949 Pramatha

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Nath Ganguli died.

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The appellant filed this suit on 22 January, 1959. The appellant H claimed a Cleclaration that he is the sole owner of premises No. 244 Bowbazar Street, Calcutta and is the sole shebait of Firingi Kali and other deities. The alternative prayer is a declaration that the plaintiff

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[1975] 1 S.C.R.

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SUPREME COURT REPORTS

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732

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is entitled to an undivided half share in the said pr<mis<S and lo half the pala in the sheba. The allegations in the plaint are that the respondents, viz. the Banerjees who are the heirs of Shashi Bhusan Banerjee denied the appellant's right in the premises and in shebaiti rights.

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The trial court held that the transfer of half share of shtbaiti right by Pramila Debi to Upendra Nath Ganguli was for legal necessity and the transfer was binding on the defendants in the suit. The trial court passed a decree in favour of the appellant. The appellant was entitled to half share of the shebaiti right of the deities and the respondents were entitled to the other half in accordance with the deed dated 29 January, 1907 made by Pramila Debi in favour ofUpendra Nath Ganguli.

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The High Court on appeal set aside the decree. The High Court held that the transfer by Pramila Debi in favour of Upendra Nath Ganguli is invalid.

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The centre of controversy in this appeal turns on the constructic n of the deed dated 29 January, 1907 made by Pramila Debi in favour of Upendra Nath Ganguli. By the deed Pramila Debi sold to Upendra Nath Ganguly for consideration of Rs. 1200/- "one half share of the full title that I have in the said Kalibati together with the land underneath, the pucca building and income etc. (from the Kalibari) that is to say -/8/- eight annas share in the said Kali Mata, Her seba and pala etc. and in the Kali Mandir and Bati situate at 244, Bowbazar Street, Calcutta together with the land underneath the pucca building and in the entire income and profit therefrom. From this day share to the extent of -/8/- eight annas out of the sixteen annas in right title and interest which J had in the said property, devolves on you and you being entitled to the rights of gifts, sale etc. shall enjoy and possess the said property for ever down to your sons or heirs and rnprcsentatives in succession. To that, mine or any other heirs or representatives of my husband shall not be competent to raise any kind of plea or objection".

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The appellant contended that no one laid any claim to the deity or to the temple. The appellant contended as follows : The sum and substance of the deed sued upon is that it is a mere transfer of the personal proprietary interest of a shebaiti which is ancillary to his duties as a ministrant of the deity and the manager of its temporalities. The concept of shebaiti has both the elements of office and property. A partition of shebaiti right amongst several co-sebaits or co-heirs can be effected under a scheme allotting different Palas. The transfer from the original founders to Srimanta Pandit in 1820 or the transfer from Srirnanta Pandit to Shashi Bhusan Banerjee and the transfer from Pr'amila Debi to Upendra Nath Ganguli, the predecessor-ininterest of the appellant all indicate that the shebaits exerci,ed rights of transfer to strangers and further that the she bait had rights to extinguish and exhaust the line of succession. These transfers of shebaiti rights indicate that it was the intention of the founders that strangers could be taken in management and power was given by them to redelegate the authority to such strangers. Therefore, transfer by Pramila

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K. K. GANGULY·V. P. BANERJEE (Ray, C.J.)

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733

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A

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Debi to Upendra Nath Ganguli is not coutrary to the founders' intentions. Furthermore, Upendra Nath Ganguli was not di•qualified to discharge the duties of the office of shebait.

¶77

Counsel for the appellant relied on the decision of this Ccurt in Angurbala v. Devabrata 1951 S.C.R. 1125 in support of the proposition that shebaitship is property. Reliance was also plae<d on He B decisions in Mahamaya v. Haridas I.LR. 42 Cal. 455 and Kherta Chandra Ghosh v. Haridas I.LR. 17 Cal. 557 in support of the proposition that a partition of shebaiti right is possible. A ccrollary was drawn by counsel for the appellant that if the proprietary interest of a shebati is both heritable and capable of being partiticmd, there is no reason why subject to certain limitations it should nnt be alienable. It was said that an alienation of a shebaiti right for necessity or benefit c of the deity is permissible as well as justified.

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. In the Hindu Law of Religious & Charitable Trust, !st Edition, being the Tagore Law Lectures delivered by Dr. B.K. Mukherjea the statement of law at page 228 is this : "Although shebaiti right is. heritable like any other property, it lacks the other incident of prcpnetary right, viz., capacity of being freely transferred by the person in whom D it is vested. The reason is that the personal propreitary interest which the shebait has got is ancillary to and inseparable from his duties as a ministrant of the deity, and a manager of its temporalitks. As the personal interest cannot be detached from the duties the transfer of shebaitship would mean a delegation of the duties of the transfercr which would not only be contrary to the express intent icns cf tile founder but would contravene the policy of law. A transfer of shebaitship or for the matter of that of any religious office has nowhere been countenanced by Hindu lawyers".

¶79

In Rajesh Vurmah v. Ravi Burmah 4 I.A. 76 Rajah paid certain sum to the ura/lers (managers) of the religious foundation who transferred all their rights to the Rajah. The Judicial Committee held t_hat the assignment was void in law and could not create any rights in favour F of the Rajah. An assignment of religious office for the pecuniary benefit of the holder of the office was held to be against public policy and contrary to the intentions of the founder. Such tramfer was said to amount to delegation of delagated authority and cculd not be sanctioned even on the footing of a custom because it would be against public policy.

¶80

G The doctrine in Rajah Vurmah's case (supra) has been applied on transactions by way of lease or mortgage. In Sundrambal v. Yoganyanagurukkul I.L.R. 38 Mad. 850 one of the parties alienated half share in the Arc~aka right for a pecuniary benefit. It was said that "an alienation of a religious office by which the alienor gets a pecuniary benefit cannot be upheld even if a custom is set up sanctioning such alienation''.

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H

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The rule against al.ienation of shebaiti right has been relaxed by reason of cer.tam special cu~um.stances. These are classified by Dr. B.K. MukherJea at page 231 m his Tagore Law Lectures on the Hindu

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(1975] 1 S.C.R.

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SUPREME COURT REPORTS

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734

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Law of Religious and Charitable Trust, !st Editicn under three heads. The first case is where transfer is not for any pecunia1y brnefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is mede in the interests of the deity itself and to meet scme pressing necessity. Third, when a valid custom is proved sanctioning alienation cf shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.

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A

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B

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In ~he present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interfst of the deity and t o meet some pressing necessity.

¶90

The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebait is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. Jn such a case no policy of Hindu Law is likely to be affected qor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at his death (See Rajeswar v. Gopeswar J.L.R. 35 Cal. 226). The decisions in Mahamaya's case and Khetra Chandra Ghosh's case (supra) do not support the appellant's contention of sale of shebaiti right for pecuniary consideration. A shebait cannot delegate his duties to another person, but he is not bound to accept his office. If he renounces his duties the renunciation in the form of a transfer in favour of the next heir can be valid in Jaw.

¶91

In Khetra Chandra Ghosh's case (supra) on which the appellant relied in support of the assignment of shebaiti right on the doctrine of benefit to the deity the question was whether the Ghoshes who were the shebaits of a private family endowment could make over the idol together with the endowed property to the predecessors of the plaintiff in that case on the ground that the Ghoshes were unabl, to carry on the worship of the idol with the income of the Debutter. Dr. B. K. Mukherjea at pages 236-239 in his Tagore Law Lectures Ist Edition examined various decisions on this aspect. In Khetra Clrandra Ghosh's case (supra) the Court relied on the decision of the Judicial Committee in Prosa1111a Kumari v. Golap Chand 2 I.A. I 45 where the Judicial Committee said that a she bait must, of necessity, be empowered to do whatever might be required for the service of the idol and for benefit and preservation of the ·property. The ratio in Khetra Chandra Ghosh's case (supra) is that all the members of the Ghosh family, for the purpose of preserving the property of idol and preventing the discontinuance of its worship gave the estate another direction.

¶92

In Rajeswar v. Gopeswar case (supra) the doctrine of necessity or beuefit to the deity was referred to. The actual decision in the case was that a hereditary shebait cannot alienate his office by will.

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K. K. GANGULY v. P. BANERJEE (Ray, C.J.)

730-

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In Nirmal Chandra Banerjee v. Jyoti Prasad 42 C.W.N. 1138 the transfer of shebaiti rights was not by way of a sale, but was found to be conducive to the interests of the idol. It was held to be valid.

¶113

Dr. B.K. Mukherjea doubted the propriety of these decisions. Shri Venkatarama Aiyar as the editor of the Second Edition of Dr. B.K. Mukherjea's Tagore Law Lectures also expressed the same view at pages 219-220 that even if the transfer is for no consideration the transfer would be bad if it is not in favour of those next in the line of succession.

¶114

Dr. B.K. Mukherjea in his Tagore Law Lectures has pointed out that the decision in Prasanna Kumari's case (supra) was that the rule of necessity extended only to an alienation of the temporality of the idol and it does not and cannot apply to alienation to the spiritual rights and duties. Dr. Mukherjea illustrated this with reference to the decision in Nagendra Nath v. Rabindra I.L.R. 53 Cal. 132 and an earlier decision in Rajeswar v. Gopeswar (supra). The doctrine of alienation of shebaitship on the ground of necessity or benefit to the deity is said by Dr. Mukherjea to be of doubtful authority and based upon a misconception of certain pronouncements of the Judicial Committee.

¶115

In the present case, the appellant cannot invoke the doctrine ortransfer of shebaiti right for the benefit of the deity because the transfer by Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception.

¶116

For these reasons the appeal is dismissed. We may state here that we are not in agreement with the various reasons given by the concurring judgment of the High Court.

¶117

Some submissions were made on behalf of the receiver about his remuneration and expenses including salary of the clerk. At the time we granted stay of the operation of the decree of the High Court we indicated that the question of remuneration and salary of the clerk would be gone into at the time of the disposal of the appeal. The receiver will be entitled to his remuneration for 16 months during the pendency of the appeal. The High Court sanctioned the receiver a remuneration of 130 gold mohurs for 7 months and salary of the clerk at the rate of Rs. 50/- per month. The High Court will fix the remuneration of the receiver for the subsequent months up to the discharge of the receiver on passing of his accounts. The High

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[1975] 1 S.C.R.

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SUPREME COURT REPORTS

736

A

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·Court will also fix the salary of the clerk because it was submitted before us that the salary of the clerk was low considering that he had .to attend the temple every day for long hours without any holiday. The receiver will submit his accounts and will be discharged on passing of accounts. The receiver will hand over to the respondents, viz., the Banerjees all monies lying with him after deducting his remuneration, salary of the clerk and.all other expenses at the passing of the accounts by the High Court.

¶124

The appellant will pay one set of costs to be shared by the respon- dents and the guardian-ad-litem.

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Appeal dismissed.

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l/.P.S.

Kali Kinkor Ganguly v. Panna Banerjee and Ors.

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Kali Kinkor Ganguly v. Panna Banerjee and Ors.

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