PROFULLA CHORONE REQUITTE & ORS. v. SATYA CHORONE REQUITTE
Citation: [1979] 3 S.C.R. 431; 1979 INSC 57
Court: Supreme Court of India
Bench: R.S. SARKARIA , V.D. TULZAPURKAR
Judgment date:
Case summary
1979 INSC 57. Supreme Court of India judgment dated 1979-03-02. PROFULLA CHORONE REQUITTE & ORS. v. SATYA CHORONE REQUITTE. Read the judgment and case...
Judgment text
432 SUPREME COURT REPORTS [1979] 3 s. c. R. PROFULLA CHORONE REQUI'ITE & ORS. v. SATYA CHORONE REQUITTE March 2, 1979 [R. S. SARKARIA AND V. D. TULZAPURKAR, JJ. ] Interpretation of Wills-Common ancestor of plaintiffs and defendant! .. created absolute debutter of his house in favour of family deity-By two wills • devised and bequeathed the house to the trustees for service and lvorship of the deity-Shebaiti rights-Whether vested in trustees or descendants of the testator. The common ancestor of the plaintiffs and the defendant owned a big residential house (the suit property) In which he had his fumily deity. By hvo wills-one dated June 4, 1898 in respect of his properties in British lndia and another, dated June 6, 1898 in respect of the house property in Chandran-gore-he appointed his wife, two sons and nephews as hustees of the estate.
By these wills he provided that in the event of vacancy occurring in the office of trustees the continuing trustees might appoint any other person or persons to be a trustee or trustees. By his will of June 6, 1898 th'e tes-ta. tor created an absolute debutter in favour of the family deity. This will also stated that he "devised and bequeathed" the Chandranagore house to the tn1stees named therein as a dwelling house "upon trust to stand possessed of" and "to hold, retain and use the premises ns an endowed or debutter property for the service and worship of" the family deity. In 1934 rival claims of the sons and grandsons of the testator to their residence in the debutter property were referred to an arbitrator. The arbitrator allotted rooms nos. 72 and 82 which had been in his use and occupation from before to the defendant (respondent) and allotted certain other rooms to the other sons and grandsons of the testator.
The then trustees (plaintiffs) filed a suit in 1959 claiming that the dwelling house at Cbandranagore being absolute debutter property belonging to the deity none other than the trustees had any legal right in it, and since the award of the arbitrator was not binding on the deity the defendant should be ejected from the rooms forcibly occupied by him. • The defendant on the other hand claimed that he was in occupation of the • rooms in dispute in his own right as a shebait and that the plaintiffs had no right to represent the deity and so had no locus standi to maintain the suit as trustees. Dismissing the suit the trial court held that on the death of the testator it was not the trustees but the descendants of the testator who became shebO. its and who had the shebaiti rights in the endowed property and that the defendant being the descendant (grandson) of the testator, had a right, as a co-. ~hebait, to occupy the rooms in the suit property.
IJ'he District Judge, on appeal, affirmed the decision of the trial court. 8-253 scr/79 On second appeal the High c·ourt decreed possession of certain rooms to the plaintiffs but not in respect of the rooms under the occupation of the defendant. 0n further appeal to this Court it was contended on behalf of the plaintiffs that from the language used in the 'vill dated June 6, 1898 the intention of the testator was clearly to constitute the tn1stees as shebaits of the property with exclusive right to manage the dehutter. On the other hand on behalf of the defendant it was contended that the two wills should be read as complementary to each other, and so read, they made it clear that the testator did not wish W part with his shebaiti ri;ghts, which were heritable property, in favour of the trustees to the exclusion of his natural heirs under the Hindu Law. . Allowing the defendant's appeal and dismissing the plaintiffs' appeal. HELD : 1.
A conspectus of the various provisions of the two wills makes it clear tha. t the testator left th'e shebaitsliip undisposed of with the presumed intention that it devolved on bis natural heirs who would have the ri,g,ht to use the suit house as their family dwelling house. The rights conferred o:o the trustees may amount to curtailment of the right to manage the endowed property which a shebait would otherwise have; but such curtailment by itself would not 0 make the ordinary rules of Hindu Law of succession inapplicable in regard eo the devolution of shebaitship. Therefor'e, the defendant and other descenda11ts of the testator became ctrshebaits of the deity by the operation of the ordinary rules of Hindu Law. [445 A-Bl 2(a) It is well established that property dedicated to an idol vests in it in an ideal sense only. The shebait is the human ministrant and custodian of the idol, its authorised representative entitled to deal with all its teinporaJ affairs and to manage its property.
Under Hindu Law, property absolutely dedicated to an idol, vests in the idol and not in the shebait. Yet almost in every case a shebait has a right to a part of the usufruct, the mode of its enjoyment and the amount of the usufruct, depending on usage nnd custom, if not devised by the founder. [439 F-G] ,. 'r (b) In the conception of shebaitship both office and property are blended. shebait has, to some extent, the rights of a limited owner. Shebaitship being property, it devolves like any other species of heritable property. Where the founder does not dispose of shebaiti rights in the endowment created by him, the shebaitship devolves on the heirs of the founder according to Hindu Law, ,.. if no usage or custom of a different nature is shown to exist. [440 D-E] Gossamee Shree Greedhareejee v. Rumanlalje~, 19 I. A. 137; Doorganath Roy v. Ra1n Chander Sen L. R. 4 I. A. 52; Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 I. A. 245; referred to.
3(a) The words "to hold, retain and use the premises endowed or debutter property for the service and worship of my family thakur or idol" usei in the wilJ, merely create a trust or endowment and indicate the nature and purpose fl of the endowment. They do not touch or deal with shebaiti rights. [442 GJ (b) The two wills are complementary to each other. The will of' June 4, .. o, • refers "~" the family house as having been endowed to the family deity and P. c. REQUITTE v. s. c. REQU! TTE (Sarkaria, !. ) 433 ' 1 v.. ·ould be used by the testator's heirs for their residence. By using the words "''wife and sons and sons' \Vives and other relatives of mine" w·ho shall reside in my residential house in Chandranagore the testator n1eant that all the des~ cendants and heirs of his should reside in the house. In other words although 'the entire family house ¥.
'as formally endowed to the family idol, his intcutit>n was that his heirs and descendants "'ould also be entitled to use this house ' as their family dwelling house, apart from the room where the idol was en~ shrined. [443 A; ll 444 Al (c) The will also provided that although the trustees were provided with funds for the Sewa-puja of the family deity and for other festivals out of tho • -estate of the testator, ·they were not expressly constituted as shebaits of the deity. The intention af the testator apparently was that these funds would te expended for the purpose indicated by him through the sheb -shebaits . .. (vii) The plaintiffs having not claimed any relief in terms of the • arbitration award, were not entitled to any relief in respect of Room Nos. 35, 46, 57 and 63. Aggrieved, the plaintiffs preferred an appeal to the District Judge, who dismissed the same and 'affirmed the decision of the Trial Court.
Against the appellate decree of the District Judge, the plaintiffs -- not precisely in the position of a Trustee in the English sense, becaus•~ under Hindu L'aw, property absolutely dedicated to an idol, vests in .. the idol, and not in the Shebait. Although the debutter never vest> in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, amf • the amount of the usufruct depending again on usage and custom, if ' not devised by the founder. As regards the service of the temple and the duties th•at appertain to it, h. e is rather in the position of the holder of an office; but even so, it will not be quite correct to describe Shebaitship as a mere office,. "Office and property are both blended in the conception of Shebait· ship". Apart from the obligations and duties resting on him in con-nection with the endowment, the Shebait has a personal interest in the endowed property.
He has, to some extent, the rights of a limited' owner. ShelYaitship being property, it devolves like any other species of hec ·'. able property. It follows that, where the founder does not dispose of the shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist [Gossamee Shree Greedharejee v. Rumanlaljee, (ibid. ) ] Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of a family idol, the public are not interested. The present ca'se is one of a private debutter. The distinction is im-portant, because the results logically following therefrom have been ,. given effect to _l:iy Courts, differently. Aooording to English Law, the beneficiaries in a private Trust,.
if sui juris 11nd of one. mind, have the power or authority to put arr end to the trust or use the trust fund for any purpose and divest it from its original object. Whether this principle applies to a private endowment or debutter created under Hindu Law, is a question on which authorities are not agreed. In Doorganath Roy v. Ram· Chunder Sen('), it was observed that while the dedication is to it public temple, the family of the founder could not put an end to it, but "in the case of a familv idol, the consensus of the. whole family (I) L. R. 4 I. A. 52. P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, J. ) 441 '>-might give the (Debutter) estate another direction" and tum it into a secular estate. Subsequently, in Pramatha Nath Mullick v.
Pradyunma KumQI' Mullick('), the Judicial Committee clarified that the property cannot • be taken away from the idol and diverted to other purposes without the consent of the idol through its earthly agents who, as guardians of the deity, cannot in law consent to anything which may amount to an extinction of the deity itself. Although, Shebaitship is heritable property, yet, it C'annot be freely tnu1sferred by the Shebait. But there are exceptions to this general rule. Some of such exceptions recognised in several decisions, are : alienation in favour of next shebait, or one in favour of the heir of the transferor, or in his line of succession, or in favour of a co-shebait, particularly when it is not against the presumed intention of the founder. (See Nirod Mohini v. Shibdas(') and Mancharan v. Pranslwnkar('). The Bombay High Court has also pointed out in Radhu Nath v. Purnanand ('), that if any one of the Shebaits intends to get rid of his ) duties.
the proper thing for him to do would be to surrender his office in favour of the remaining Shebaits. In the case of such a transfer in favour of co-shebait, no policy of Hindu L'aw is likely to be affected, much less the presumed intentions of the founder. Now, let us deal with the problem in hand in the light of the principles cited above. The first question that falls for detennination is : Whether the founder's intention ~·as to confer rights of Shebaitship on the persons designated by him as 'trustees' in his Will? In other words, did he · by the Will, dated June 6, 1898 (Ex. 6/6A), dispose of the Shebaitship of the deity, also? 'If the answer to this question is fonnd in the negative, shebaiti rights in this endowed property will devolve, according to Hindu Law, on all the heirs of the founder, including the defendant. In that situation, the defendant with his family, like the • other co-Shebaits, will be taken as residing in the debutter property, in his own right.
If, however, the answer to the said question is fonnd in the affirmative, the further question to be considered would be with regard to the effect of the Award dated June 29, 1934 (Ex. C) on the respective claims of the parties. (l) 52 I. A. 245. (2) I. L. R. 36 Cal. 975. - r (3) I. L. R. 6 Born. 298. (4) I. L. R. 47 Born. 529. We will now take up the first question. Mr. Sinha, learned counsel for the appellants, submits that since by his Will, dated June 6, 1898, the founder had "devised and bequeathed" the Chandernagore house to the pl'aintiffs-trustees "upon Trust to stand possessed of' and "to hold, retain and use the premises • as endowed or debutter property for the worship of the family Thakur'', his intention was to constitute the trustees as Shebaits of the property • having the exclusive right to manage the debutter, to serve the idol ' and to preserve its property.
It is submitted that the founder had by these express words, invested the trustees both with the legal title and Shebaitship, although the beneficial title (in an ideal sense) was vested in the idol. The passage in the Will on which Mr. Sinha relies for the construction propounded by him, runs as under : "I desire, devise and bequeath to my Executors and Executrix and Trustees hereinafter named . . . my dwelling house with garden and tanks appertaining thereto situate in Lal Bagan in Chandernagore. Upon trust to stand possessed of and to hold, retain and use the premises an endowed or Debutter property for the service and worship of my family Thakur or idol Sreedhar Jew, which I hereby direct shall be located in my said house in Chandernagore which • said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or Idol. " (Emphasis supplied) The crucial words are those that have been underlined.
It may be observed that this Will, in English, appeoars to have been drafted in pursuance of legal advice by an expert draftsman. The 1 omission of the words "management", "1nanager' , "custodian of the idol" or "ministrant of the idol" from the Will, therefore, cannot but J( be intentional. It seems clear to us tlrat the underlined words in the above ex-tract, by themselves, merely create a trust/or endowment and indicate the nature and purpose of the endowment. These words do not touch or deal with Shebaiti rights. This inference receives sup-port from the surrounding circumstances. Further, in arriving at the true import of the words "to hold, retain and use the premises an endowed or Debutter property for the service and worship of my family Thakur', it will not be improper to look to the conduct of the Trustees and the members of the family of the founder. P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, J.
) 443 There is no antagonism between the two Wills, one dated June 4, 1898 and the other dated June 6, 1898, of the founder. Indeed, in a sense they are complementary to each other. There is a reference in the Will, dated June 4, 1898, to the Testator's dwelling house at Chandernagore, which under the Will (Ex. 6) was endowed to the • family deity. From the following provisions in the Will, dated June, 4, 1898, . it is clear thoat the testator intended that the dwelling house at Chandernagore would be used by his heirs for their residence : "(a). I further direct my said Executors and Trustees out of the said rents and profits of the said premises number 39, Chowringhee Road to pay monthly a sum of • Rupees Fifty for the maintenance to each of my daughter-in law Smt.
Gopeswari Dassee wife of my eldest son Shyama Chorone Requitte and Nagendra Mani Dassee wife of youngest son Tarine Choron-e Requitte during their lives respectively and provided they reside with their respective husbands at my dwelling house in Chandernagore. (b). The Trustees shall pay monthly a sum not exceed-in Rupees Two hundred in addition to the interest of Government securities of the nominal wlue of Rupees Twenty thousand hereinafter mentioned and directed to be applied for the purpose of household and other monthly expenses of my family, namely wife and sqns and sons' wives and other relatives of mine who shall reside in my dwelling house at Chandernagore. ( c).
To pay and apply the net interest of Government securities on the nominal wlue of Rupees Twenty thousand for the house-hold and other monthly expenses of my family, namely, wife and sons and also sons' wives and other and other relatives of mine who shall reside in my dwelling house at Chandernagore and also to pay and apply the net interest of Government securities of the nominal value of Rupees six thousand for the costs and expenses of keeping • and maintaining my said family dwelling house at Chandernagore in proper repair and in payment of all taxes and assessments in respect thereof. " (Emphasis supplied) Looking to the general tenor of the document, it will not be inappropriate to interpret the words "wife, and sons, and sons' wives, 4 r and other relatives of mine" in the above-quoted portions of the Will, as including all the descendants and heirs of the testator.
Thus construed conjointly, tl)e two Wills make it clear that although the entire family )muse, comprising 84 or 85 rooms, at Chandernagore was formally endowed to the faniily idol, yet the testator's intention was that his heirs and descendants would also be entitled to use this house ~s their family dwelling house, apart from • the room wherein the idol was enshrined. It may be further noted that in the Will, dated June 4, 1898, the testator made the following provisions for the Sewa puja of the idol at Chandernagore and for other religious festivals : (i) The trustees shall set ap•art interests of Government secur. ities for the daily expenses of worship of the idol. (ii) The Trustees shall pay and apply the net interest of Government securities of the nominal value of Rs. 25,000/- for the yearly -expenses of the Durga Puja festival at Chandernagore. (iii) The Trustees shall pay and 11pply the net interest of Government securities of the nominal value of Rs.
15,0001- for the yearly expenses of the Dolejatra of the faniily idol, Thakur Sreedhar Jew at Chandernagore. The aforesaid provisions further show that although the trustees were provided with the funds for the Sewa-puja of the family deity and for other festivals out of the estate left by the testator, but they • were not expressly constituted as Shebaits of the deity. It will, therefore, be not unreasonable to infer that the intention of the testator W\lS that these funds would be expended for the purposes indicated by him, through the Shebaits. Another telling circumstance appearing in evidence is that after the death of the widow and the two sons of the testator, their heirs, also, continued to live in this family dwelling house at Chandernagore. " It may be further noted that by the Will, dated June 6, 1898, no legal title in the endowed property was vested in the trustees. The title was expressly vested in the family idol to whom the property was ' absolutely dedicated.
The testator did not create a trust estate in the sense in which it is understood in English Law. The above-quoted provisions from the Wills further show that no rights to act as ministrant of the idol were conferred upon the Trustees. On the other hand, a mere obligation to hold 11nd use the property for the endowment indicated was imposed upon the per>ons designated as 'trustees'. P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, J. ) 445 Reading the two Wills together, with particular focus on the pro- te, alone, have throughout been acting as co-shebaits of the family i deity, to the exclusion of the 'trust'ees' who were not his descendants. I The first two courts were, therefore, right in holding that the )' • Shebai~I rights remained with the heirs of the founder. I Assuming for the sake of argument, that the 'trustees' were also vested with the rights and obligations of a Shebait, then also, the evi- .. dence on the record shows that !
hose trustees who were not descendants of the founder, Durga Charon Requitte, never acted as such. They went out ot the picture long ago and must be presumed to have • renounced their Shebaiti rights in favour of their co-shebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to < the accommodation in their residential occupation. Thereupon, the • trustees agreed with the descendants of the founder by means of the Agreement (Ex. E) to refer the dispute to the sole arbitration of Shri Shringerwar Shrimani. The arbitrator, inter alia, held that the heirs of late Durga Charon Requitte and his descendants alone had the rights to act as Shebaits. There is documentary evidence on the record to show that this award (Ex. G) given by the arbitrator was accepted by the 'trustees'. The present plaintiffs-appellants, by their letter dated June 18, 1950 (Ex.
A/7), asserted their rights on the basis of this award and described the defendant-respondent as a shebait of the deity. The letters (Ex. A-8 and A-10) also point to the same conclusion. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as Shebaits, then also, those among them who were not family members or descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favO"Jr of the descendants of the founder. Such a relinquishment made in favour or the co-shebaits, will be valid. From whatever angle the matter may be looked at, the conclusion is inescapable that Shebaitship of the family deity remained solely ' ) with the descendants of the founder; and the defendant-respondent, who is admittedly a grandson of the founder, had been regarded as one of the Shebaits, and as such, entitled to reside in the disputed rooms.
All the Shebaits were therefore, necessary parties; but all of "' them have not been impleaded. The Trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the Trustees. The ' right to sue on behalf of the deity wsts in the Shebaits. All the Shebaits of the deity not having been made parties, the suit was not properly constituted, and was liable to be dismissed on this :score alone. In the view we take, it is not necessary to decide, whether the • I 'trust' created by the Will of Durga Chorone Requitte was a continuing trus~ or not, or whether the mode of devolution of the office of I P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, J. ) 447 Trustees indicated by the founder in his Will was or was not hit by A the rule in Tagore v. Tagore (supra). For the foregoing reasons, we allow the defendant's appeal (Civil Appeal No.
1874 of 1970), set aside the judgment of the High Court, • and dismiss the plaintiffs' suit. In the result, Civil Appeal No. 1873 of 1970 filed by the Plaintiffs, ipso facto fails, and is dismissed. In B the circumstances of the case, there will be no order as to costs. C. A. 1873/70 dismissed. P. B. R . C. A. 1874/70 allowed. • • ' 9-253SCI/79
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