196

1
possibly have retained the affections of the state.” It seems that it

was the emergence of an independent power by way of the institution of

public temple threatening and influencing the course of policy at all

levels which laid them open to control and ultimately to a break with the

past. It is this factor which influences the State to proceed with

conscious determination to transform the political foundation of the temples

under the guise of reform and this determination continues even to the

present day.

Apparently temples and other religious institutions "are businesses,

2 3
operated for the profit of their managers.” In Hahadeva v. H.R.E. Board,
temples are discussed as business concerns. As the spiritual purpose of a

donor is fulfilled at the moment of divesting the property or making offering

in favour of a deity, Hindus are not concerned with the dedicated assets and

income thereoi. To a Hindu worshipper "the dedication is what counts” but

the same cannot be said generally of Hindu shebaits. Countless cases in

which we find disputes between the parties relating to shebaiti rights

testify to the fact that shebaits in general are more interested in the

property (shebaiti being property) of the debutter than in its religious

aspects. In this context it may be pointed out that the members of the

public have deeper regard for religious endowments than the shebaits have.

Their expectations are different. Nominally, "The managers and the archakas

have far less at stake than the worshippers. Their interest is that of

servants or agents. The worshippers have a deeper interest in the integrity

1. Derrett, "The Reform of the Hindu Religious Endowments", cited above

311-336, 336.
2. Derrett, Critique, 373*
3. ILR (1956) Mad 62^, 633* The case was concerned with the question whether
or not the character of the temple was private or public. ,
k. Derrett, Critique, 376-377.
 197

1
and the well-being of the institution."
Worshippers go to a temple for worship and they make their offerings

to the deity for their spiritual satisfaction. They are not at all concerned

with the destination of their offerings. "The actual enjoyment of the object

given can be left to the trustees, the priests, and the touts and hangers-on
2
who attach themselves to the temple as a business." This impression
about the temple managers and their servants becomes deeper when someone

goes through the law reports. Urns in Rama-fteo v, Board of Cbmmrs.vKih^'the archakas

claimed half of all offerings. In Shahzad Kunwar v. Ram Karan priests

claimed to be the shebaits of the temple. In other words, priests wanted

more material benefits from the debutter than what they were receiving as

servants of the shebaits of the temple in question. In seems that for

those who go there for worship and making offerings, temples are religious

institutions, but for those who work there or are supposed to look after the

temples they are business places, money-earning sources, to be exploited

for their material gratification. The attitude of Hindu shebaits and priests

towards debutter property is in striking contrast with the world at large.

Priests in other religions treated votive offerings, for example, with

scrupulous care - maintaining, it seems, inventories, and eschewing

peculation.^

In this context, it may be added that worshippers do not always go to

the temples for their spiritual benefit. They use the temples and make

their offerings to the deity so that some unfulfilled wishes materialise.

1. Per Seshagiri Ayyar, J., Venkataramana Ayyangar v. Kasturi Pmga Ayyangar ILR
(1917) ^0 Mad 212 (FB) 225. In that case two worshippers filed the suit against the
archakas of a ternple, praying for a declaration that the perpetual lease cf the
temple-income in favour of the archakas was void. The view of the case was approved
by the Supreme Court in Bishwanath v. Paaha
Ballabhji? AIR 1967 SC 10^, 10^+7, in which the suit was filed by an idol
for a declaration cf the title and possession of its property from a person in
illegal possession. This case will be dealt with in detail in the 3 th
chapter. On the point in question, seeDerrett's PBS I, ^+86.

2. Derrett, RLSI, 487. 3. AIR 1965 SC 231. 4. AIR 1963 SC 234.

3. B.A.Litvinskiy and I.R. Pichikiyan, "The Temple of the Gxus", J.R.A.S.,1981,
no. 2, 133-167, 136.
 198

It is painful to point out that a large number of worshippers go to

temples with their gifts not to satisfy their spiritual needs but

1
"primarily for the propitiating of God." Vows are made for material
2
gains e.g. "to obtain a son or to recover from a disease." Businessmen
make lavish donations so that their interests are protected."^ So, we

find that gifts are given to God by the worshippers not for spiritual

satisfaction but for receiving some kind of favour from the deity. Gifts

are made to temples as if God is bribed to get material benefit for the

worshippers. But there are cases when devotees make offerings simply to

get merit.^

Again, as worshippers do not bother the way their offerings are spent,

temples and charities flourish so that systematic exploitation of the endowed

property and the offerings poured into it could be made by the temple-trustees

and their helpers. We have already seen that the temple and its income are

not the monopoly of its trustees, hereditary priests also have vested

interests in their temples. Hereditary priesthood, where it exists by

5
custom, is recognised as a property. Thus m Raj Kali v. Ram Rattan v'here

the main question for determination was whether a female is entitled to

succeed to the office of a hereditary priest, the Supreme Court recognised

the right to office of a hereditary priest as a property where emoluments

were attached to such a priestly office. Disputes resulting in ligitations

involving shebaits, priests and even pandas over their shares of offerings

^ * Parr,a Rao v. Board of Commrs.,HRB, AIR 1969 SC 231; the same view was
expressed by G-D. Sontheimer, op.cit., 71*
2. Derrett, RLSI, ^81.
3. Ibid. .
*+. Derrett, RLSI, A88. See also Ramaswami v. Commr. H.R. 8c C.E. AIR 196^
Mad 317, 319. The only question for determination was'whether
the shrine in question was a temple within the definition of the Madras Hindu
Religious and Charitable Endowments Act, 1951•
5. AIR 1955 SC A93.
6. Pandas are pilgrim guides attached to temples. For a litigation involving

pandas 1 right see Nar Hari v. Badrinath AIR 1952 SC 2^5. • .

 199

are common. "Again and again shebaits claimed that the idol was God

Almighty who would reward the generosity of the pilgrim a thousand-fold

(centuplum accipies), and when the coins were once within their grasp

asserted that these were personal presents belonging entirely to them."

2
In Venkataramana Ayyangar v. Kasturi Eanga Ayyangar, Seshagiri Ayyar, J.

in his judgement gave us the idea of the apparent functions of a public

temple when his lordship observed that "In all the important temples in South

India, devotees are called to pay a fixed sum for the archana that has to

be performed. This includes the wages of the person who performs the

archana, the cost of the flowers, the remuneration of the person who recites

the archana etc. and swarnapushpam offered to the deity. A practice which

distributes a portion of the levy to the persons who bring the flowers, who

recite the holy names and who actually do the puja, will not be illegal..."^

So for devotees temples are places of worship but for others who are actively

associated with these institutions as managers, pu.jaris and persons working

for the secular side of the temples, they (temples) are centres primarily

for their living. No wonder that so many decided cases in the Courts are

related to temples where vested interests of so many persons are involved.

Public temples in most of the Indian states are controlled by statutes

made by different states' Assemblies and at least it is gratifying to see

k
that they are susceptible to Governmental controls. It is shocking to

note that no statute for controlling Hindu public religious endowments has
5
yet been introduced by the State Assembly of V/est Bengal. The new methods

1. Derrett, ELSI, 489-^90. See Manohar v . Lakhmiram ILK (1887) 12 Born 2^7
supra,p.137,where the sevaks were held accountable for the right disposal of
the offerings which they claimed to belong to them. We have seen earlier a case
where the plaintiff claimed a public temple to be his personal property. See
Eaja Bira Kishore v. State of Crissa AIE 196^ SC 1501.
2. ILK (1917) ^0 Had 212 (FB).
3. Ibid., p. 220.
E. Dhavan, "Tine Supreme Court and the Hindu Eeligious Endowments, 1930-73"
1 (1978) 20 JILI 32-102, 78.
5. Derrett, Critique, 37^*
 200

of controlling and administering public temples through statutory

provisions as adopted by many states in India, recognising the interest

of the public, place the responsibility of looking after the endowed

properties in the hands of a public body. The overall aim of this public

body is to eliminate malpractices of the temple managers and to make

1
proper use of temple funds.
In this context it may be pointed out that legislations controlling

Hindu public religious endowments exist piecemeal - different statutes

2
for different states and even separate statutes for a particular public
3
temple. Legislation should not be different for different states and there
should be a single statute covering all public religious and charitable

endowments. Moreover, it should not be limited to Hindu religious and

charitable endowments. Reform is needed in this field whereby a legislation

like the present Bombay Public Trusts Act, 1950, niay be introduced by the

Indian Parliament so that all public religious and charitable endowments

of different communities become susceptible to a single statute. If the

b
Bombay Act could work in the State of Bombay for all communities then a
would-be central Government Act could well apply to public religious or

charitable endowments of all communities in India. Then at least we could

5
see the beginnings of the uniform Code to which our Constitution aspired

1. Derrett, "The Reform of Hindu Religious Endowments", D.E.Smith (ed.), South

Asian Politics and Religion, Princeton, Princeton Univ. Press, 1966, 311-356, 329*
See also Mudaliar, Secular State and Religious Institutions in India, op.cit,
specially p.2b2 in her concluding chapter where she points out that the State of
Madras was concerned primarily "with the mismanagement of funds by trustees rather
than with questions of faith, dogma or ritual...."
2. E.g. The Bombay Public Trusts Act, 1950 (Bombay Act 29 of 1950); the Madras
Hindu Religious and Charitable Endowments Act, 1959 (Madras Act 22 of 1959)•
3. E.g. the Rajasthan Nathdwara Temple Act, 1959*
b. See Chapt. VIIA. Sec 56C of the Bombay Public Trusts Act, 1950 provides
that the provisions of the chapt VIIA are applicable to all temples, mosques
or endowments created for a public religious or charitable purpose.
5. Art. bb of the Constitution of India reads; "The State shall endeavour
to secure for the citizen a uniform civil code throughout the territory
of India."
 201

from the moment of its birth. But there should preferably be a uniform

statute dealxng with both private and public religious endowments.

Section 5 (a) PRIVATE ENDOWMENT AS A FUNCTION OF FAMILY MANAGEMENT;

(b) TERMINATION OF AN ENDOWMENT
a. private endowment as a function of family management

So far as public religious endowments are concerned, they are controlled

2
in most of the Indian states by the state statutes but private religious

endowments are not subject to those statutes. Even the voluminous’’Report

of the Hindu Religious Endowments CornmissiorP^has not dealt with private

4
endowments; it was mainly concerned with the working of the Indian Consti-

tution 5 in relation to temples and other public endowments. 6 It is extra

ordinary that no investigating body has yet been set up to see the way

private trusts are being administered. Perhaps it is supposed that Courts

are able to detect nominal debutters (above, R.163)i but this presupposes

litigation, which inevitably brings with it delay and chicanery.

Private endowments among Hindus are quite as common as public endowments

7
and they can usually be found in Northern India, especially in West Bengal.

The family shrine is extremely common in the South but it is uncommon for

landed property to belong to its deity or deities. In this connection it

may be pointed out that Hindu text-writers did not make any distinction

between a religious endowment having as its object the worship of a family

idol and a religious endowment, which is meant for the benefit of the

1. See below, sec. 6 of the 6th chapter.

2. Above, sec. 4. Derrett, Critique, 37^*

3- Op.cit., Ministry of Law, Delhi, 1962.

4. The Supreme Court generally approved the Report in K.A. Samajam v.

Commr., AIR 1971 S C ,891 where it dealt with the rights of hereditary
trustees.
5. On this point see a comment on the report by S.C. Bhat, "A Note on the
Report of the Hindu Religious Endowments Commission, AIR 1964 J'nl. ,
98-99-
6. Derrett, Critique, 37^-
7. P.R. Ganapathi Iyer, op.cit., CX III.
 202

public. "This distinction which obtains in English law with respect to

1
charities, is not to be found in the Hindu text-writers," This distinction
2
is of much later import. In all Hindu religious endowments, dedications
3
involve renunciation of property in favour of God and as we have seen
*+

they are meant for the good of the universe.

5
But the idea of the shebait and that of the trustee is a modern one.
The oft-quoted observation of West, J., that "Property dedicated to a pious
g
purpose is, by the Hindu as by the Homan law, placed extra commercium..."
and the principle involved in it seem to have been known to Hindus long

ago who, though not in all cases, taking advantage of the principle made

dedications not so much to satisfy their spiritual needs as to fulfil their

secular purpose by defrauding creditors or by evading various legal

provisions.

"Hindu family religious trusts were invented as a development of

the original religious endowment much on the pattern of Islamic
wakf, so that property might remain in the family immune from
creditors and rapacious tax-gatherers, and free for enjoy ment
among descendants and others irrespective of a, once customarily
harsh law of succession."7
It often happens, as we have seen, that religious endowments are created

only "for the purpose of defrauding creditors or for the purposes of defeating
g
the provision of the laws about descent and for preventing alienation."
Even through a valid endowment one can fulfil both the purposes of acquiring

religious merit and making secular investment perpetually for oneself and

one’s nominees. In case of a rich foundation

"the possession of large funds by the idol gives the shebaits for
the time being a disposition over funds which the personal law
and the fiscal law also would not have allowed them had it

1. Per Charles Sergeant, J. , Pupa Jagshet v. Krishnaji Govind ILR (188*0

9~Bom 169, 172.
2. G. Sarkar Sastri, op. cit.,7th ed.,862. 3» Derrett, IMKL, *+93*

*+. Above, p.133;I-T. Commr. v.' Jogendra Nath AIR 1963 Cal 370, 583*
3. J.C. Ghose, op.cit., 2?8.

6. Manohar Ganesh v. Lakhmiram ILR (1887) 12 Bom 2*+7, 26*+.

7. Derrett, "The Reform of Hindu Religious Endowments"?.or.cit,, 33*+.
8. J.C. Ghose, op.cit., 28*+.
 203

passed by succession. It is a perpetuity which grows in

value, if wisely administered, and is affine example of
religion and expediency joining hands."
The shebait of an idol is empowered to spend as much as he thinks fit for

carrying out the worship of the idol and to that effect he can spend at

his discretion the bare minimum on the idol's needs. In Kumaraswamy Asari
2
v. Lakshmana - Goundan a priest founded a temple and bought some lands in
the name of the deity and in his name out of the income from offerings

made by various devotees. He spent some of the income for the purpose of

the temple and the rest for himself. The same mode of expenditure was made

by his son and grandson. The Madras High Court ruled that the surplus income

as was used for the benefit of the Pu.jari was not illegal.

A founder of a public temple might allow, with some restrictions, members

of the public to enter a temple and might not end his and his family’s rights

altogether. The expenditure in a public temple largely depends on income

expected from the offerings of devotees. A rich foundation attracts gifts

and offerings, and even fees may be charged for worship in the sanctum.

Technically it is a public foundation but for all practical purposes it is

a device to earn income for the family to be enjoyed generation after

generation. The income is sometimes solely pecuniary in nature. "The

right to be a manager of such a temple is a valuable right. Small wonder

that attempts are made to sell it."^

Again, some temples are technically private but as a matter of fact

they are hardly distinguishable from public temples. For members of the

public are freely admitted in those temples so that shebaits may make profit
k
from offerings of the devotees. In Bhagwan Din v. Har Saroop members of
the public were allowed to visit the temple freely, they made their offerings

1. Derrett, RLSI, ^+91. 2. ILR (1930) 33 Mad 6o8.

3. Derrett, 1MHL, ^97-

k. AIR 19^0 PC 7.
 20*+

of worship which in reality were enjoyed by the members of the family

in whom the management of the temple was vested, yet the Privy Council,

as we have seen, ruled that the suit property was private property which

was not even debutter because of the technical reason that the suit property

was a private grant made to one Darya Gir to be enjoyed for generations.

But it must be pointed out that though the land in question was not dedicated

it was used as such to attract the members of the public so that money

could be made through their offerings. In my opinion, the decision in

Bhagwan Din's case (criticised above at p.189) must not be applied to the

facts of the cases of similar kind. For future examples may be set by

unscrupulous Hindus by establishing temples in their private lands, without

being dedicated, thus allowing members of the public who, in fulfilling

their religious needs, may make offerings of worship only to be enjoyed

subsequently by the founders and their families. The anomaly, it must be

stressed, lies not in the discrepancy between the dedication to the deity

and the founder’s absorption of the gift, but in the law’s failing to

protect eo nomine the institution, the legal person, namely, the deity.

As we have seen - and perhaps should be stressed - Hindu law admits that

the shebaits, priests, etc., may feed on the remnants of offerings to the

deity.

At this juncture it must be stressed that nobody has been in a position

to pinpoint the date when the institution of private endowment first came

into being; and the question as to why Hindus went in for private

endowments has been neither explained nor dealt with in detail by any

Indian text writer or in any judicial decision. But Derrett’s account of

the background and motives behind private endowments seems to be not only

plausible but also exhaustive. Thus the learned author observed that

1. AIR 19^0 PC 7.
 205

"long ago it was discovered that neither a grasping king, nor

selfish relatives or co-villagers would readily seize property
which, while under the control of a man's descendants and
representatives, was legally the property of a religious endow
ment. The concept of trust was not absent from the then Hindu
law. While the law of succession passed the residue of the
property to a particular relation who might maintain females
and other dependants inadequately, and the same difficulty might
arise when the local ruler escheated the estate for want of
male issue, a fund dedicated to the family idol was safe for
purposes of which the manager approved. In the case of family
idols the cost of their worship in clothes and ornaments, and
daily Puja by a Brahmin, could be (and still is) very small.
The idol's food consists in the savour of food cooked for the
family and placed before it. Its bath requires hardly any
expenditure, yet a fund of several thousands of rupees might
be dedicated to it. The manager was entitled to spend as much
in worship as he thought fit. If he chose he could attend to
the idol's "needs" at the meanest possible level, spending the
remainder of the income on himself and the members of the
founder's family at his discretion. The motives of dedication
to an idol were confirmed by the revenue laws and to this day
religious trusts are exempt from income tax. Thus such
foundations serve the same purpose as an investment, permanent
as to caoit al, and flexible as to employment of the income.
Small wonder that religious endowments, particularly private
endowments, figure largely in the law-reports and give rise .
to dubious transactions amounting in some cases^ to fraud.""
Derrett is not claiming at all that his remarks constitute the whole

philosophy behind all Hindu private religious endowments. What the learned

author is suggesting is that in a large number of cases of private endowment

unscrupulous Hindus make bogus dedications so that they and their families

can enjoy extra material advantages attached to religious endowments, as

opposed to secular investments, generation after generation. It is

therefore a sub-department of tax-planning and the legislation of 1961 has

by no means ended its raison d'etre.

Some temples in West Bengal are legally private but they are in practice

as good as public religious foundations. We have remarked on this above

(p.203). For example, the Kalighat Temple of Calcutta is still designated

as a private religious establishment in spite of the fact that the temple

1. For a case of fraud see Iswar v. Gopinath Das AIR i960 Cal 7k'\ . For acase
of forgery see Durgap-rosad "v. Sri Sri Rameswar Jew Siba ThakurAIR 19Sl Cal
92. In that case the Court at first instance accepted the plaintiff's
version that the document in question was fictitious.
2. IMHL, ^96. Emphasis provided. The author's remarks regarding revenue are of
course only partially untrue since 1961.
 206

attracts visitors from all over India. The expenditure of the temple

may well be met with surpluses from gifts to the goddess Kali. Yet a

part (pala) of the hereditary shebaiti was once mortgaged for a financial
2
consideration and the transaction was held valid on the basis of long
established custom to that effect. Though the name of the Kalighat temple
3
was not mentioned, the Ramaswami Aiyar Report aptly points out that
"It is relevant to observe in this connection that courts
and tribunals have refrained in most cases from
investigating and taking into account the basic idea
underlying the dedi cation of temples and mutts. They have
too often taken for granted that there can be private
temples to which the public contribute by way of offerings
and donations.... The trustees
of Tarakeswar Temple in West Bengal claim that institution is
entirely their private property and, though the trustees
receive donations and gifts from the public and public resort
to the worship of the image, thqyclaim that the image is
their private property and that they can withhold admission
to the public into the institution."^
The Report also mentions the Dakshineswar temple which claims to be a

private temple in spite of the fact that it receives offerings and donations

from the public. One point the Report omits to mention is that thetrustees

of the aforesaid temples, or temples of the kind willinvariably incline to

claim that their temples are private ones, because they fear that if it

is a public religious endowment, "it will be susceptible to governmental

control".^

From different law reports and journals we can see that the Supreme

Court and the different High Courts deal with as many private religious

endowments as with public religious trusts. In the vast majority of the

cases concerning private endowments, the dispute between the parties is

not so much regarding the way worship should be done as with the right to

1. The writer has personal experience about this.

2. Kahmaya v. Haridas, AIR 1915 Cal 16*1.
3. Report of the Hindu Religious Endowments Commission (1960-1962),op.cit.

h. Ibid., p. ^0.
5. R. Dhavan, "The Supreme Court and Hindu Religious Endowments", 19?S,
Journal of the Indian Law Institute, 52-102, 78.
 20?

manage the properties of idols. Shebaits are supposed to do seva to

the deities but they are in most cases found to fight for their rights

in the properties of the deities. "If the shebait is a man of unimpeachable

integrity, things would proceed quite alright, else under the mask of

1 2
juristic personality of the idol any kind of fraud may be committed."
It is suggested that urgent reform is needed in the sphere of private

endowment. Shebaits must not be allowed to maladminister religious

endowments to their material advantage and they must be compelled to use

them for religious purposes. This may have the effect of putting a stop

to the growth of new private endowments of secularising or enfranchising

existing endowments, but the state need not be concerned since the belief

that the deities control the weather, etc. is fading and there are enough

public temples. The state has made no difficulty about secularising funds

dedicated for the support of dancing girls attached to public temples.

If therefore the manager of a Hindu family decides to devote a legally-

acceptable proportion of the family surplus to a deity under family control

he will know that the income will not be available for ordinary family

purposes. To achieve this obviously a change in the law will be required

as well as some new form of implementing such a change. The present tendency

to submit such income to income-tax only touches the fringe of the problem,

while the eboHtion of the joint family as has occurred in Kerala cracks many

small nuts with a hammer/

• Terrm.nation of an. Endowment

The question whether an endowment of a family idol can be put an end to,

ie, enfranchised, is a controversial one and to that effect no uniform rule

1. See iswar v. Gopinath Das AIR I960 Cal 7 ^ In that case the shebait
granted a lease of the endowed property in fraud of the deity.
2. S.R. Baj, "Juristic personality of an Idol in Hindu Legal Philosophy",
(1963) 3 Jaipur Law Journal, 229-236, 233.

1 -
>-e.€ Kerala Joint Hindu Fapiily System(Abolition)
Act,1975 (Kerala Act 30 of 1976),
 208

covering the whole of India has yet been laid down in any decision of
1
the Supreme Court. It has been held in some decisions of different High
Courts that the consensus of the whole family might convert a private

debutter into a secular property. Such a conclusion would be wholly

consistent with the outlook of the average shebait. To fortify their

decisions supporting the view that a private endowment of an idol might

be terminated, the High Courts used an observation made by Sir Montague

2
E. Smith in the Privy Council in Konwur Doorganath Hoy v. Ram Chunder Sen.
In that case the main issue was whether or not the alienations by the

shebait for raising money for the benefit of the endowed property were

justified. Ruling in the affirmative on the said issue Sir Montague made

also an obiter remark that "Where the temple is a public temple, the

dedication may be such that the family itself could not put an end to it,

but in the case of a family idol the consensus of the whole family might

3 ^
give the estate another direction." This piece of guesswork appears to

have been based on a false analogy between members of the family and the

beneficiaries of a trust other than a trust for a class. Of course, as

with the case of an infant, the Court's permission would be ret|wrejl to

effect such a termination of the idol's interests or indeed the best friend

of the idol must be heard - a person not holding an interest adverse to

the idol.

The obiter dictum of Sir Montague was accepted and given effect to by
5
the Calcutta High Court in Govinda Kumar v. Debendra Kumar. In that case

1. Govinda Kumar v. Debendra Kumar(1908) 12 CWN 93; Tulsidas v. Siddhinath

(191^) 20 “ CLJ 315; Narayan v. Narasing AIR 1951 Cri 60; Senthi vel
v. Kulandaivel ILR (1970) 2 Mad 95*
2. (1876-7) ^ IA 52.

3. Ibid., p. 58.
4. I am told by prof. Derrett that the late Prof. S.E. Vesey FitzGerald,
QC, strongly objected to this obiter dictum from his knowledge 01 Hindu law
acquired in India.
5. (1908) 12 CWN 93.
 209

a major point for determination was whether the suit properties were

originally debutter and had ceased to be so. The finding of the Court

was that the properties in question were at one time debutter but later

on they were converted into secular properties by the consensus of all

the members of the family. Relying on the said obiter remark of Sir Montague

E. Smith and referring to G.C. Sarkar Shastri’s and Mayne's books on Hindu

law, Eampini, C.J. and Sharfuddin, J. of the Calcutta High Court held that

the debutter "properties can become secular by consensus of the whole

family, if the dedication was to the worship of the family idol." The

2
same view was held by the same High Court in Tulsidas v. Siddhi Nath wnen
it accepted the findings of its lower Courts that the land in question was

originally debutter "but the shebaits put an end to its debutter character
3
by consent."
k
But the aforesaid view asexpressed inGovindaKumar's case, based on
the obiter dictum of thePrivy Council case, wasnot followed in anydecision

of the Calcutta High Court ever since it was rejected in the decision in
5
Chandi Charan Das v. Dulal paik. In that case the appeal in the High
Court arose^ out of a suit for partition and other reliefs. The main issue

to be decided was whether the endowment in question was absolute debutter

or a mere device for the benefit of the family. Chatterjea, J. referring

7
to an observation an Sri Sri Gopal Jew Thakur v. Radha Binode Kondal

1. (1908) 12 CM/AM01.'
2. (191*0 20 C U 315.

Ibid.> P« 315*

k. (1908) 12 CWN 98.

5. AIR 1926 Cal 1083 = (1926) k k C U 479.
6. Earlier in Sripati v. Krishna (192-5) *+1 C U 22, it was held that once
the property was dedicated to an idol* the dedication was irrevocable.
It was also ruled that the shebaits jointly could change rules for the
benefit of the endowment but without affecting the rules of the founder
in any vital matter.
7. (1925) **1 C U 396 *= AIR 1925 Cal 996.
 210

pointed out that the issue whether the consensus of all members of the
1
family might put an end to a family endowment was not decided by the
2
Judicial Committee in Konwur Doorganath's case. However, in the decision

of the same case Page, J. refusing to accept the principle as laid down

in the obiter dictum of the Privy Council, held in his separate judgement

that "it must not be taken that I should be prepared to hold that if all

persons interested in the worship of the deity are agreeable they can

validly convert debutter into secular property, or that such a doctrine

3
can be sustained as being in accordance with Hindu law."

The same view (apparently highly consistent with English notions of a

trust) as held by Page, J. on the issue was expressed by Rankin, C.J.

forcefully in Surendra Krishna Ray v. Shree Shree Iswar Bhubaneswari

k
Thakurani which dealt with the interpretation of the terms of a deed. In

that case, a question was also raised whether the debutter character of

the suit properties was validly terminated by the nominees of the founder.

His Lordship observed that

"I am not prepared to hold on the strength of the well-known

passage in the case of Konwur Doorganath Roy v. Ram Chunder
Sen that there is in Hindu law any warrant for the proposition
that at any particular time by consent of all the parties then
interested in the endowment, a dedication can be set aside.
The passage so much relied upon, does not appear to me to be
intended as a considered opinion to that effect, and before
importing any such doctrine into Hindu law there is much to be
considered."5
In so far as the termination of a private Hindu religious endowment is

concerned the Calcutta case of Sukumar Bose v. Abani Kumar^ is by far the

1. (1926) H C U A79, ^85.

2. (1876-7) **IA 52.

3 . (1926) V+ C U ^79, ^8 9 . AIR 1933 Cal293 = ILR (1933) 60 Cal 3A.

5. ILR (1933) 60 Cal 71. 'In Ehabataxini Debi v. Ashmantara Debi, AIR
1938 Cal A9O, k99, where the main issue was related to the devolution of
shebaiti Khundkar, J. ruled to the effect that once the property is
absolutely dedicated to an idol, the consensus of the whole family could
not convert a debutter property into a secular one.
6. AIR 1936 Cal 308.
 211

most important one. The facts of that case were directly concerned with

the efficacy of the application of the principle as evolved from the

obiter remark of Sir Montague Smith. The dispute between the parties

was whether the suit property, once declared by the Court as absolute

debutter, continued to be so, in spite of the fact that the descendants

of the founder had partitioned the property as a secular one. Accepting

1
the view on the suoject as expressed m Chandi Charan's and Surendra Krishna
2
Kav's cases and relying on the principle as evolved in Kanhaya Lai v.
3 A
Hamid Ali and Prs.matha Nath v. Pradhyumna Kumar that when members of a

family would like to usurp the property of a family idol, the deity's

interest should be watched, when necessary, by the appointment of a dis

interested person, Das Gupta, J. pronounced that

"the principles of the necessity of protecting the deity's

interest by some disinterested person as laid down by the
Privy Council in 1925 PC 139^ (AIR) and 1933 PC 19&6 (I)
(AIR) and followed in numerous cases, cannot be disregarded
when the question is of the members of the family divesting a
deity of its property. In view of these later authorities,
the observation in 4 Ind App 52(PC) (A), cannot be taken any
longer to be good law."
It may be observed in passing that it is well known that where the deity

is fairly and properly represented the sale of the image and of the temple
9
may not be sanctioned by the Court in the deity's interest.

1. AIR 1926 Cal IO83. 2. AIR 1933 Cal 295.

3. AIR 1933 PC 198 A. AIR 1925 PC 139.

5. Pramatha Nath v. Pradhyumna Kumar AIR 1925 PC 139* Supra p. 138. o.
Kanhaiya Lai v. Hamid Ali AIR 1933 PC 198.
7. Konvar Dooganath's case (1876-77) A IA 52.
8. AIR 1956 Cal .308, 311.

9- 'Properties of an idol are normally inalienable, the alienation of a

temple is commonly regarded as. sacrilege, and procedure exists (for
example by the appointment in an appropriate case of a receiver to
receive rents and profits such as offerings) whereby the claims of the
decree-hoider can be met over a period of time. Since worship need not
be costly, necessity can never justify transactions which imperil the very
endowment itsdf" - Derrett, 1KHL, 502. See below pp..280~28l.
 212

In so far as the Calcutta High Court is concerned it seems that the contro

versy regarding ■ the obiter dictum of Sir Montague Smith is over, because

of the convincing arguments put forward against it by Das Gupta, J. in

1 2
his cecision m Sukumar Bose’s case. In panna Bannerjee v. Kalikinkor
where the subject-matter was alienation of debutter property Deb, J. held

that "with all respect I am against this obiter dictum of Sir Montague

Smith." But the view of the Calcutta High Court has strangely not been

accepted as settled law by other Indian High Courts.^

k
In Naraysn v. Karasing where the issue to be decided by the Orissa
High Court was whether a perpetual lease of a family endowment could be

created , legal necessity, it was observed that in case of a

family endowment the members of the family "could even withdraw the

endowment from the trust by their consensus^ as held in Konwur Doorganath

v. Pam Chunaer....

But in this context the most interesting case is the Madras case of

7
Senthivel v. Kulandaivel. In that case, the Madras High Court has shown

us the extent to which a Court can go on building premises on its owrn

from which it could deduce the conclusion to suit its own judgement. It

referred inter alia to certain decisions of the Calcutta High Court and

the obiter dictum of Sir Montague Smith. To support the view that the

consensus of all the members of a family interested in the worship of the

deity could turn a debutter into a secular property the Court referred to
g
Chandi Charan Das v. Dulal Chandra Paik. Thus it was observed that "In

1. AIP 195o Cal 308. 2. AIP 197^ Cal 126.

3. Radha Krishna Das v. Radharamana Swami AIR 19^9 Ori 1 *, Narayan v . ha
ran ing Charan AIR 1151 Ori 60; Bairagi Das v. Uday Chandra AIR 1965 Ori 2C1;
Senthivel v. Kulandaivel ILR (1970) 2 Mad 95*
k. AIR 1951 Ori 60.
5. To that effect the same view was expressed in Bairagi Das v. Uday Chandra
AIR 1965 Cri 201, 20h. 27-28. The case was concerned with the alienation
of deities with their properties under a deed of gift.
6. AIR 1951 Cri 60, 62. 7- ILR (1970) 2 Mad 95-

8. AIR 1926 Cal 1083 =ILR (1927) 5^ Cal 30.

 213

Chandi Charan Das v. Dulal Chandra Paik...the principle that debutter

property can be converted into secular property by the consensus of

the whole family and that consensus should be by all members, both male

and female, who are interested in the worship of the deity, was laid

1
down." With due respect, no principle as such was laid down in Chandi
2
Charan's case. The observation of Chatterjea, J. that
"even if the consensus of the whole family can convert an
absolute debutter property into secular property such consensus
must be of all the members, male and female, who are interested
in the worship of the deity...In the present case defendant N. A did not
join in the compromise...."^

is not the law that was laid down there but the principle of the case was

in the observation of Page, J. already quoted earlier, to the effect that

the consensus of all members interested in the worship of a family deity

could not convert a debutter into secular property. Again, in the present
case, a trust was created but the purposes for which it was created at its

inception were not known. The Court accepted it as a private trust. It

made a distinction betv'een the private religious trust in question where

there was no dedication in favour of an idol and the private family

endowment made in favour of a family deity. It may be pointed out that

k
Sir Montague Smith's dieturn in Konwur Doorganath's case was essentially
related to a private religious endowment made in favour of an idol but

strangely enough the Madras High Court held that "the case of a private

trust of the kind we are concerned which falls into different category to

which the observation of the Privy Council in Konwur Doorganath Roy v,

5
Ram Chunder Sen can still apply". It is the extension of a principle
which was net accepted by great judges of the Calcutta High Court. The

judgement in the present case referred to a principle as alleged to be

laid down in a Calcutta case (i.e. Chandi Charan Das v. Dulal Chancra Faik)^

1. ILR (1970) 2 Mad 95, 104. 2. AIR 1926 Cal 1083 = ILR (192?) 5^ Cal 30
3. AIR 1926 Cal 1083, 1086. ^ (1876-77)^ XA 52. Supra p.208.
5* Per Srinivasan, J., ILR (1970) 2 Mad 95, 111.
6. ILR (1927) 5^ Cal 30.
 21*+

which as a matter of fact, was not done in that case.

It should be remembered that the principle referred to in the obiter

remark of Sir Montague Smith was not really laid down in Sir Montague’s
1
dictum. It was pointed out by Chatterjea, J. in Chandi Charan*s case
2
when his Lordship pronounced m Konwur Doorganath*s case that "their
Lordships did not decide the question. There was in fact no question of

consensus of the whole family in that case, for their Lordships observed

in the next sentence "No question, however, of that kind arises in the

present case"."^

Now, when an endowment becomes impracticable as long as the general

charitable intention of the donor can be sifted out of the terms of an

endowment the Court can frame a scheme and apply the funds cy-pres. Eut

a problem may arise if the persons interested in the endowment no longer

follow the founder’s beliefs and if they want to apply the funds for
*+

purposes different from the original purposes of the endowment. If a

single person follows the faith of the founder and if he has an interest

in the endowment, then the original purposes must be taken as the guide.

For the endowment is a juridical person, not swallowed up in the character

of the family. The consensus of the whole community could however redirect

the endowment to different purposes of a different belief or different

objects of charity but as Derrett argues convincingly "Apart from statute,

however, there can be no question of even unanimous redirection which

5
amount to a breach of trust."
Again, if an endowed property is converted into a secular property by

the unanimous approval of all the members of a family, here the real question

is not the conversion of the debutter, but its usurpation, becausethe ownersh

1. (1926) ^ CLJ 479- 2. (1876-7) IA 52.

3. (1926) ^ C U *+79, **85.

*+. Derrett, IKKL, 5^9*

5. Derrett, ibid., p. 3^9*

 215

is vested in the deity. As is notorious, adverse possession will never

give title to the usurped trust funds. It is only the State which by

an Act of the legislature can take away individual ownership for social

needs, and the deity is not excepted.

It may be argued that though the principle involved in the well-known

obiter dictum of Sir Montague Smith cannot be supported, because it is

not in accordance with the present Hindu law, it might have served or may

be used to serve some social purposes. In cases where the principle was

accepted, the endowed properties involved therein, which could have been

free from the rules against perpetuity, became available on the market to

change hands and being secular properties became sources of revenue (e.g.

estate duty) for the State. However, in cases where the Courts gave a

verdict in favour of the families who converted the debutter properties

by their unanimous consent, they should not have ruled in favour of the

families, because the members of the families being disloyal to the wishes

of the founders made a clear breach of trust which should not have been

condoned by any legal system. If families are not interested in carrying

out the pu. poses of endowments then it is the State, not the families which

should own those endowed properties for the good of the community at large

and reform may be made to that effect.

In conclusion of this study it may be pointed out that if the Court

approves the view that a debutter property can become secular by consensus

of the whole family, a day may come when the shebait as an institution in

the field of private religious endowment may come to an end. The institution

of shebait can be conceived of only in relation to endowment. In other

words, the existence of the institution depends upon the existence of the

institution of tieHindu religious endowment. A founder may not want the

termination of an endowment but his-heirs being less interested in the

object than the founder himself might agree to terminate the endowment.
 216

It could be argued that founders actually relied on their remoter

descendants being held entitled to convert the foundations' assets by

unanimous consent! We must preserve two principles: (i) on the one

hand breach of trust must be repressed and the culprits made personally

liable; and to this end procedure should be devised even in the case of

private endowment for the deity to be protected notwithstanding negligence,

fraud, collusion, or misappropriation of the shebaits; while on the other

hand (ii) income surplus to actual expenditure on the idol's worship etc.

should be amenable to assessment to tax. The possibility that if these

principles were upheld private endowments would cease to be created is not

a matter which need concern the State.

 217

CHAPTER IV

SHEBAITI (MANAGEMENT) OF DEBUTTER

Section 1. WHAT IS SHEBAITI?

When a property is dedicated absolutely to a deity the property vests

1

in the deity as ajuristic person but the management of.the debutter is

entrusted to a person called amanager or a shebait. The "possession
2
and management of the property belong to the shebait". A shebait as the
human ministrant of the deity^ is empowered to do whatever is necessary

for its service and the preservation of its endowed property. For all

purposes he represents the deity.

In so far as debutter property is concerned the shebait is in a position

of a trustee but "as regards the service of the temple and the duties apper

taining to it, he is rather in the position of the holder of an office of

5
dignity". But it may be pointed out that a shebait is not a trustee in
the English sense of the term. The legal position of a shebait in contrast

to a trustee in the technical sense was pointed out in the decision in the

leading Privy Council case of Vidya Varuthi v. Balusami^ when Mr. Ameer Ali

1. B.K. Kukherjea, op.cit., Ath ed., 157*

2. Per Sir Arthur.Wilson, Jagadindra Nath v. Rani Hercanta Kumari (1903-0*0
IA~203, 210. '
3* Ram Rattan v. Bajrang La I AIR 1978 SC 1393, 1396. Infra, p. 2*0.
Kukherjea, op.cit., 4-th ed., 201.
A. Prosunno Kumari Debva v. Golab Chand Baboo (187*+-75) 2 IA 1*+5, 151-
152. This is the most important case for our topic on "alienation of
debutter"' in the .5th chapter of this thesis.
5. Per Lord Macnaghten, Ramanathan Chetti v. Murugappa Chetti (1905-06) 33~
IA 139, 1*0.
6. (1920-21) A8 IA 302. Supra, p; .139.
 218

pronounced for the Judicial Committee that

"when the gift is directly to an idol or a temple, the seisin

to complete the gift is necessarily effected by human agency.
Called by whatever name, he is only the manager and custodian
of the idol or the institution. In almost every case he is
given the right to a part of the usufruct, the mode of enjoy
ment and the amount of the usufruct depending again on the
usage and custom. In no case was the property conveyed to or
vested in him, nor is he a "trustee" in the English sense of
the term, although in view of the obligations and duties
resting on him, he is answerable as a trustee in the general
sense for malad ministration. "
2
Shebait is not a mere office, it is an amalgam of office and property.
3
In Gnanasambandha pandara Sannadi v. Velu Pandaram where the suit was brought

by the respondent Velu to establish his right to the possession and management

of the endowed property connected with a temple in Madras, Sir Richard Couch

pronounced for the Privy Council that "there is no distinction between the

office and the property of the endowment. The one is attached to the
other..."
5
It may be interjected that the Calcutta High Court in Sripati v. Khudiram
a somewhat old case in which the dispute centred on the right of shebaiti

of a deity, held that shebaiti was a mere office. Thus Chakravarti, J.

observed that "the shebait has no right to the property but was merely an

officer with the rights and limitations as are applicable to the guardian

of a minor.
But in so far as the legal meaning of shebaiti is concerned, unquestionably

7 8
Angurbala v. Debabrata is the leading case. It has the especial merit

of being decided by Indian judges of long experience of India. The

dispute

1. (1920-21) ^8 IA 302, 311.

2. Profulla Chorone v. Satya Choron AIR 1979 SC 1682, 1686; Badri
Nath v. Mst. Punna AIR 1979 SC 131**.
3- (1899-1900) 27 IA 69. **. Ibid., p. 77.
3. AIR 1923 Cal kb2.
6. Ibid., p. 4^5.
7. AIR 1951 SC 293 = (1951) SCR 1125.
8. "The leading case is now Angurbala Mullick v. Debabrata Mullick
(1951) SCR 1125” - J.D.M. Derrett, Critique, 383~*
 219

between the parties centred on the issues whether the plaintiff widow

was entitled, after her husband’s death, to shebaiti of the idol in question

either solely or jointly with her stepson, the defendant of the case. B.K.

Mukherjea, J. as he then was, pronounced for the Supreme Court that

"though a Shebait is a manager and not a trustee in the.

technical sense, it would not be correct to describe the
Shebaitship as mere office. The Shebait has not only duties
to discharge in connection with the endowment, but he has a
beneficial interest in the debutter property. As the judicial
Committee observed in the above case,^ in almost all such
endowments the hebait has a share in the usufruct of the
debutter property which depends upon the terms of the grant
or upon custom or usage. Even where no emoluments are attached
to the office of Shebait, he enjoys some sort of right or
interest in the endowed property which partially at least has
the character of a proprietary right. Thus, in the
conception
of Shebaiti both the elements of office and property, of
duties
and personal interest, are mixed up and blended together, and
one of the elements cannot be detached from the other. It
is
the presence of this personal or beneficial interest in the
endowed property which invests Shebaitship with the character
of proprietary rights and attaches to it the legal incidents
of property."3
The proprietary element in the shebaiti was emphasized long before
i+
Angurbala*s case and clearly shown in the Full Bench decision of the
Calcutta High Court in Monohar Mukherji v. Bhupendra Nath^ where the suit

was brought mainly to establish the title of shebaiti. Mukherji,

J. pro

nounced for the Court that the right of a shebait "is none the less a kind

of property, which Hindu law, as far as may be gathered, has never refused
6 7
to recognise." The decision in Monohar Mukherjifs case was approved by
g
the Privy Council in both Ganesh Chunder v. Lai Behary and
Bhabatarini v.
9
Ashalata; while the former was concerned with the validity of certain
provision relating to the succession of shebaits, the latter was connected

1. AIR 1951 sc 295, 29**.

2. Vidya Varuthi v. Balusami AIR 1922 PC 123. Supra, p. 217.
3. AIR 1951 SC 293, 296. **. Ibid.
5. ILR (1933) 60 Cal **52 (FB). 6. Ibid., p. **83.
7. ILR (1933) 60 Cal **52 (FB). 8. (1935-36) 63 IA, W
9. (19**2-**3) 70 IA 57, 63.
 220

with the devolution of shebaiti. In this regard it must be

stressed that the decision in Angurbala v. Debabrata was based

on the decisions in the aforesaid three cases of the Privy

Council and the Calcutta High

2
Court and the Supreme Court,apart from Vidya Varuthi's case,
specifically referred to the said three cases.^
Again the same learned judge emphasized the proprietary element of
k
shebait in Kalipada v. Palani Bala in which ’’the controversy between
the parties practically centres round one short point, namely, whether or
5
not the plaintiff’s suit is barred by limitation.” His Lordship
held that ’’Whatever might be said about the office of a
trustee, which carries
no beneficial interest with it, shebaitship,as is now well-settled,

combines in it both the elements of office and property.”^

In Commissioner of Hindu Religious Endowments v. Sri Lakshmindra Tirtha

7
Swamiar, Shirur, the view that shebaiti was a property was reiterated and

8
extended to the office of mahantship. Again in Raj Kali Kuer v. Ram Rattan

9
applying the principle in Angurbalafs case Jaganadhadas, J. observed for
the Supreme Court that ”0n the same analogy as that of a ’shebaiti'

right, the right of a hereditary priest or pujari in a temple must also

amount to property where emoluments are attached to such an office.”

The importance of Angurbala's case lies in the fact that it not only
12
spelt out categorically that shebaiti was a property but it also laid
down the law on the facts of the case that it was a property within the

13
meaning of the Hindu law of succession. It may be recalled that in

1. AIR 1931 SC 293. 2. AIR 1922 PC 123.

3. AIR 1951 SC 293, 296. k. AIR 1953 SC 125.
5. Ibid., p. 126. 6. Ibid., p. 130.
7. AIR 195^ SC 282. Supra, p. 16. 8. AIR 1955 SC ^93.
9. AIR 1951 SC 293. 10. AIR 1955 SC ^93, ^96.
11. AIR 1951 SC 293. 12. Ibid., p. 29 6.
13. Ibid., p. 298.
 221

that case the main question to be decided by the Supreme Court was the

question regarding the applicability of the Hindu Women's Right to Property

Act, 1937 (Act 18 of 1937)• The rule that shebaiti is a

2 3
property,^ it is a heritable property, and partible as laid
down in the case is a firmly
established rule. Because of this view of shebaiti, because Of the

restriction of testamentary disposition of shebaiti and because of

the

effect on the Hindu Succession Act, 1936 (Act 30 of 1956) (allowing unlimited

heirs to succeed to shebaiti) the issue of shebaiti has posed a great problem
5
which we will be discussing at the end of this chapter.

Section 2. CREATION OF SHEBAITI

In the conception of debutter the ideal personality of the deity as a

juristic owner is linked - with the natural personality of its manager or

6 7
shebait who is in possession and the management of the debutter.
As soon
g
as the deity is installed shebaiti remains in the founder and if he
does
not appoint a manager to look after the services of the deity he is himself

responsible for performing those services. It is his duty to see

that the
9
worship of the deity is performed.
After the deity is installed, if a founder chooses himself as -

the shebait of the deity, he can appoint a shebait any time before his

1. Anath Bandhu v. KristeaLal AIR 1979 Cal 168, 171.

2. Profulla Chorone v. Satya Choron AIR 1979 SC 1682, 1686, Badri Nath, AIR
1979 SC 13^ (above), Kalyan v. Rambir AIR 1980 NOC 123 (All).
3. It is obvious that shebaiti cannot be physically partitioned
like a plot of land. But it is legally partible in the sense that
heirs of equal degree can enjoy shebaiti by turn. See on this point
Ram Rattan v. Bajrang Lai AIR 1978 SC 1393, 1396.
4. We will be discussing this issue under the topic of "Alienation
of shebait" in sec. 4 of this chapter.
5 . On this point see Derrett's Critique, 386" 387 •
6 . B.K. Mukherjea, op.cit., 4th ed., 159*
7 . Mayne's Hindu Law, op.cit., 11th ed., .929*
8 . B.K. Mukherjea, op.cit., 4th ed., 205*
9. Derrett, IMHL, 498.
 222

death. If he does not exercise his power of appointing a manager before

2
his death, the power cam be exercised by his successors in whom shebaiti
3 4
becomes vested. In Pramatha Nath v. Pradhyumna Kumar referring to the
5
decision in Ratnbrahfiia. Chatterjee v.
Kedar Nath Chatterjee where the
ou
details about worship of Hindu family deity were given, Lord Shaw in his
A
observation showed us precisely the way a shebaiti was created when his

Lordship observed that

"The person founding a deity and becoming responsible for

these deities is de facto and in common parlance called
shebait. This responsibility is, of course, maintained by
a pious Hindu, either by the personal performance of the
religious rites or as in the case of Sudras, to which
caste the parties belonged - by the appointment of a
Brahmin priest to do so on his behalf. Or the founder any
time before his death, or his successor likewise, may
confer the office of shebait on another."6
The duty of a shebait is not that he himself should carry out the worship

of the installed deity but his. paramount duty is to see that worship is done.
7
So if he does not want to do it himself he can delegate his duty to a pujari,
g
a paid servant of the shebait, who has specialised in religious matters.
In so far as shebait is concerned there is no legal bar for a female to
Q 10
be a shebait and she is also entitled to a priestly office. In
Raj Kali

1. The same law was in force at least three centuries ago. See T. Mukherjee and
J.C. Wright, "An Early Testamentary Document in.Sanskrit" (1979) 42
(2) B.S.O.A.S. 297-320 where the authors discussed an old testamentary docu
ment made by the founder of a temple relating to succession to shebaiti.
2. Pramatha Nath v. Pradhyumna (1924-25) 52 IA 245, 251.
3 . Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee (1888-89) 16 IA
137, 144. See below, p.^A\
4. (1924-25) 52 IA 245. ■ 5. (1922) 36 C U 478, 483.
6. (1924-25) 52 IA 245, 251. 7. Derrett, IMHL, 498.
8. Kalimata Thakurani v. Jibandhan AIR 1962 SC 1329» ^333 where the
suit was filed for the purpose of framing a scheme.
9. Angurbala v. Debabrata AIR 1951 SC 293; Kalipada v. Palani Bala AIR
1953 SC 125, 130; Raj Kali Kuer v. Ram Rattan AIR 1955 SC 493, **96.

10. Annaya Tantri v. Ammaka Hengsu AIR 1919 Had 598 (FB). The majority of
the judges (Sadasiva Aiyar J.dissenting) of the Full Bench held that a
female was entitled to inherit a priestly office. The office in question in
that case was that of an archaka, a hereditary priest - see on this point
B.K. Mukherjea, op.cit., 4th ed., 223.
 223

1
Kuer v. Ram Rattan the question to be determined was whether the office
of a pujari involving religious duties could not be performed by a female

in person, and could then be discharged by a deputy. Jagannadhadas, J.

spoke for the Supreme Court that "the usage of a female succeeding to a

priestly office and getting the same performed through a competent deputy
2
is one that has been fairly well recognised." But it may be pointed out
that in West Bengal in every Hindu family, Brahmin or not, daily worship

of a deity or deities,^ whether or not formally installed through an

endowment, is performed by both males and females and moreover, it is

noticeable that it is the females who outnumber the males in such kind

of worship.^

Even if a shebait might hold different beliefs from the founder, he

cannot be removed from his shebaiti. In Iswar Radhakanta v Kshetra Ghosh^

1. AIR 1955 SC ^93- 2. Ibid., p. 503-

3. "Hindu homes in Bengal are usually the homes of several deities as
well. A prosperous, high-caste family may maintain a separate building
within the house as a temple for its clan deity (Kuladevata), normally
a form of Vishnu, in which images of Siva, Lakshmi, and perhaps other
gods and goddesses also receive the daily ministrations of a Brahman
domestic priest (purohita). In a less elaborate arrangement, a room in
the highest part of the house is set aside as 'gods' room' (thakur
ghar), where members of the family as well as the domestic priest
may worship the deities. An ordinary household of agriculturalists
might have only a deep niche in the thick mud wall of the house where
pottery vessels of Lakshmi, Ganesha, and, perhaps, a small brass Siva in
the form of a linga receive offerings of water, vermilion and flowers,
and an evening honorific display of light from the mistress of the house.
A less well-to-do home may contain one or two polychrome pictures of
deities hung on the wall - but these too are gods and receive some kind
of regular service; only the very poorest have none of these
representations of the gods in them, even those have one shrine in common
with those of the wealthiest and highest castes: this is the tulasl
manca, or 'pedestal of the sacred basil plant'" - R.W. Nicholas,
"Understanding a Hindu Temple in Begal" in A.C. Mayer (ed.) Culture and
Morality, Oxford University Press, New Delhi, 1981, 17^-190, 17^-175•
Though Nicholas has omitted to point out the fact that the homes of the
very poor Hindus have at least one or two old or new Bengali calendars
having in them the pictures of the deity or deities hung on the wall,
it must be admitted that he has given a good account of the
worship of deities in Bengali Hindu homes in general.
4. Personal experience of the writer suggests so.
5. AIR 19^9 Cal 233-
 22k

the shebait was a convert to Arya Samaj which does not believe in idol

worship. The Calcutta High Court had to deal with the issue whether

personal performance of rituals connected with idol worship was essential

to the succession of shebaiti. K.C. Chunder, J. delivering the judgement

for the Court held that "the defendant respondant has the right to remain

the shebait, though he must have the duties connected with the preparation

of the worship and actual worship performed by a competent

Brahmin...’*

Sometimes a founder may (very sensibly) appoint trustees for the

endowment in whom the endowed property vests for purposes of management

and investment and also a shebait for the purpose of carrying out the purpose

2
of the debutter. In Raikishori Dassi v. Official Trustee the endowed

properties vested in the trustees for their management and investment only
and they were directed by the testator's will to pay over a fraction of

the income to the shebait for the purpose of carrying out the worship of

the deity. Though the High Court refused to accept the said direction as

valid, it ruled that the endowment was the absolute debutter property of

the deity in question and it "is entitled to the entire income

thereof".^ Moreover, in so far as the management and the income of
the endowed property are concerned, the trustees are accountable
to shebaits but the latter not the former were responsible for the
worship of the deity. The
/ creation of shebaiti is related to the conception of debutter, but

it is not necessary to the worship of an idol. The worship of an idol

may be performed and is performed by many Hindus without creating any

endowments, so without appointing shebaits.

1 AIR 19^9 Cal 253* 25k. By statutein Keralathe managers of

.
aparticular public temple must take an oath that theybelieve
in idol worship. See
sec. 4, especially the implication of sec. 4(2)(1) of the Guruvayoor
Devaswom Act, 1978 (Kerala Act 14 of 1978). Below, Appendix II C.
2. AIR I960 Cal 235.
3. Per G.K. Mitter,J., ibid., p. 2k1.
 225

Section J>. ABSOLUTE AND LIMITED SHEBAITI

1
Shebaitship being property it can be disposed of by the founder
2 „
whether absolutely or for a limited period. if the founder disposes
of it absolutely it will be a case of hereditary shebaiti^ and a shebaiti
if
cannot be heritable unless the shebait has a personal interest in it.
If it is heritable then the ruling in Tagore v. Tagore^ that a Hindu

cannot create a line of succession which is not known to Hindu law, will

apply.^ In such a case if the grantee dies the heirs of the grantee, not
7
those of the founder, will be entitled to shebaiti.
g
In Tripurari pal v. Jagat Tarini Dasi the dispute centred on the claims
over the shebaiti of an endowed property. In that case the testator laid
down in his will that after his death his son, Mukunda, would be the shebait

but if Mukunda remained a minor when he died, his wife, Brajamati would be

1 Angurbala v. Debabrata AIK 1951 SC 293» 296. Supra, p. 218; Ram

.
Rattan v. Bajrang Lai AIR 1978 SC 1393» 1397* Infra,
p.2Vt; Prafulla
Chorone v. Satya Choron AIR 1979 SC 1682, 1686. Infra, pi252.
2. Panchanan v. Surendra (1929) 50 CLJ 382. In that case the testator laid
down in the will that his sons would be shebaits for their life time, i.e. for
a limited period. Bhabatarini v. Ashalata (19^2-43) IA 57i In that case the
settlor provided in the deed that after his and his wife’s death his son would
be shebait for his lifetime.
3. B.K. Mukherjea, op.cit., ^+th ed., 209-
k. Padmabati v. Biswanath AIR 1976 Cal 3^» 3^6. In that case, after
judging the background of the case and reading the scheme in question
the High Court of Calcutta held that the settlor did not intend that
shebaits should have pecuniary interest in the debutter.
5. (1872-73) IA Sup. vol. 47.
6. Gnanasambanda v. Velu (1899-1900) 27 IA 69» 78. Infra, p. 230.
In that case (at p. 7 8 ) Sir Richard Couch pronounced for the Privy
Council that ’’the ruling in Tagore v Tagore is applicable to the hereditary
office and endowment as well as to other immovable property”. The view was
relied on in Mcsnohar Mukherji v. Bhupendra Nath Mukherji ILR (1933)
60 Cal ^52 the decision of which was approved by the Privy
Council in Ganesh Chunder v. Lai Behary (1935-36) 63 IA kk&.
On the issue in question see below, sec. 5 of this chapter.
7* Tripurari Pal v. Jagat Tarini Dasi (1912-13) *K) IA 37; Kunjamani v.
Nikunja (1915) 22 CLJ 404.
8. (1912-13) *K) IA 37.
 226

the shebait until Mukunda attained majority. The settlor also made

provision that if Mukunda too died after his death Brajamati, mother of

Mukunda, would again take over shebaiti and after her death, her two

daughters would be shebaits. Now, after the death of the testator,

Brajamati acted as a shebait, because Mukunda was still a minor. Mukunda

took over shebaiti after he attained majority. But he died a premature

death. Brajamati reassumed shebaiti. The minor son of Mukunda through his

mother sued Brajamati and her two daughters for a declaration that he was

the sole shebait of the debutter in question. Overruling the decision of the

High Court, the Privy Council held that "There is, in their Lordships

view, an absolute gift of the shebaiti to the son Mukunda

Murari on his attaining majority and it is not cut down, as

far as they can see, by anything that follows."

But if the shebaiti of an endowment is given to a grantee for a limited

period, e.g. for his lifetime, the heirs of the founder but not those of

the grantee will be shebaits after the death of the grantee. In

Bhabatarini
2
v. Ashalata the Judicial Committee laid down the rule that if the founder

grants shebaiti to a person for a limited period, the grant does not ter

minate the founder’s or his heirs' interest in the shebaiti. On the expiry

of the limited period the shebaiti will revert to the founder or to his

heirs The relevant facts of the case are that the founder, one Sital, made

provision in the deed of dedication that "Sital and his wife Rajlakshmi

should be the first shebaits, and that on the death of Sital (who survived

his wife) Panchanan should be shebait in his stead...Upon the death of

Panchanan in 1932 the specific provisions validly made by Sital as founder

3
with respect to the succession to the office of shebait became exhausted."

1. Per Lord Macnaughten, (1912-13) *K) IA 37» *+0.

2. (19^2-43) 70 IA 57.
3. Ibid., p. 59.
 22?

Sital died leaving a daughter, Bhabatarini and Panchanan died leaving

his wife, Ashraantara and three daughters. Thus Sir

George Rankin

pronounced for the Privy Council that

"It must now be taken thatshebaiti is property, that it is

not a catena of successive life estates (Gnanasambanda's case)
but is heritable - heritable^w&LcSi yin the first instance
is vested in the founder. It must further be accepted that
the founder may direct that a designated person should hold
the office during that person's life, either immediately or
on the death of a previous holder, and that such directions
subject to the relevant conditions as to perpetuity,
whatever these may be - will be good although it carries no
right to the heirs of the grantee and does not amount to a
complete disposal of the shebaiti.
"If then, on the death of the grantee the shebaiti goes to the
founder or his heirs, this is because the right of the founder
is heritable and he has not completely disposed of the interest
which he has therein. It is impossible to represent this as
spes successionis. It is a right in the founder and his heirs.
It is the same estate of inheritance as the founder held at the
date of the grant. The grant did not exhaust it or terminate
the founder's interest. On the death of the grantee .the shebaiti
"reverts" because the heritable interest of the founder has
ceased to be qualified by the grant.
In this connection it may be pointed out that' the question as to "who

should be the first takers after those specifically nominated to the office

by the founder"^ was not fully settled until it was finally confirmed by

the decision of the present case. In the original side of the High Court

when the case came up the trial judge (Khundkar, J.), accepting the view of
k
Kunjamani v. Nikunja, held that after the death of Panchanan, Bhabatarini,
daughter of the founder, being the nearest surviving relative of the founder
5
would be entitled to shebaiti. In Kunjamani v. Nikunja the founder died
leaving a widow and six sons. His nominees to be shebaits after his death

were his widow and two sons successively and he did not give any other

direction. When all the nominated shebaits died it was held that "the

office vests in persons who at the time constitute the heirs of the founder,

1. The present case first came up to the Calcutta High Court in the
original side in Bhabatarini v. Ashmantara AIR 1938 Cal 490.

2. (1942-43) 70 IA 57, 66-67. 3. Ibid., p. 60.

4. (1915) 22 CLJ 404. 5. Ibid.
 228

1
provided the last shebait has not taken it absolutely..." So the then
four surviving sons of the founder were the heirs of the founder. But
p
on appeal the view of Khundkar, J. as expressed in Bhabatarini v Ashmantara
was not accepted by Derbyshire, C.J. and B.K. Mukherjea, J. as he then was,

of the Calcutta High Court. In the judgement of the Appellate Bench, B.K.

Mukherjea, J. argued that as shebaiti was not granted to Panchanan absolutely,

the residuary right was still in the founder, Sital and his heirs. But

Panchanan being the sole heir of the founder both the residuary and the

limited rights merged in him. "His position therefore was that of an absolute

shebaiti, his heirs and not the heirs of the founder would be entitled to

succeed as shebaits."^ The decision of the Appellate Bench was affirmed

by the Privy Council but the Judicial Committee added that as there was no

direction regarding devolution of shebaiti in the event of the death of the

last nominee, the residuary right remained in the founder from the beginning

and it devolved as a species of heritable property following "the line of

U
inheritance from the founder”.
The two issues of absolute and limited shebaiti are really the issues

concerning the subject of devolution which will be dealt with in detail in

section 5 of this chapter.

Section 4. ALIENATION OF SHEBAITI

5
Though shebaiti is heritable, it cannot be transferred like other
properties freely.^ Shebaiti being an amalgam of elements of both office

7
and property, the concept of property, in its application, is not to be

1. Per Sir Asutosh Mookerjee, J., (1915) 22 CU, 4o4, 408.

2. AIB 1938 Cal 490. 3* Mukherjea, op.cit., 4th ed., 211.
Per Sir George Rankin, Bhabatarini v. Ashalata (1942-43) 70 IA 57» 60.
See also Mukherjea, op.cit., 4th ed., 212.
5. MPnohar v. Bfrupendra Nath AIR 1932 Cal 791 (PB): Bhabatarini v.
Ashalata AIR 19^-3 PC 89; Angurbala v. Debabarata AIR 1951 SC 293.
6. B.K. Mukherjea, op.cit., 3rd ed., 1970, 178 » 4th ed. 205-
7. Gnanasambanda v. Velu (1899-1900) 27 IA 69• In that case,
(continued on next page)
 229

1
understood in its unqualified sense. It is a special kind of property,
alienability of which is very restricted and is not permitted except under

special circumstances. In the vast majority of cases the Court prevents

2
alienation for value. This is of great interest since it proves the State's
interest in the regularity and authenticity of the endowment and its

traditional function - while the Hindu notion that secular interests are

to be preserved behind a screen of religion is given less weight.

In Rajah Vurmah v. Ravi Vurmah,^ some important pronouncements on the

subject of alienation of shebaiti were made by the Judicial Committee. In

that

case, the appellant Rajah paid a certain amount to the four managers

( urallers ) of a religious foundation, a pagoda and its dependent institutions,

for satisfaction of their debts and also an extra sum personally to them.

So far as the pagoda and its dependent institutions are concerned, the

managers transferred all their rights to the Rajah under an assignment.

Though the Rajah gained possession of landed properties, he could not take

possession of certain jewellery belonging to the pagoda, and as a result, he

instituted this suit. The main issue to be decided by the Priyy Council was

whether the managers were entitled to assign the conduct of worship and to

transfer their right to manage property of the endowment to the Rajah of

Cherakel Kovilagom. The Judicial Committee held that the suit must fail

as the assignment was void in law. Such assignment of religious office for

pecuniary benefit was held to go against public policy and could not be

countenanced even on the score of custom. Sir James Colvile who delivered

the judgement of the Board observed that

(continued from previous page)

the Judicial Committee held (at p. 77) 'that "there is no distinction

between the office and property of the endowment. The one is
attached to the other."

1. Sovabati Dassi v. Kashinath, AIR 1972 Cal 95* 100.

2. But the right to recover shebaiti from adverse possession can be barred by
limitation. On this point see Lakshmana v. Vaidyanatha ILR (1956) Mad 1144.
3. (1876-77) 4 IA 76.
 230

’’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, 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 would increase 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.
The main objection was thus to the alienee and the terms of the alienation.

2
The rule as laid down in Rajah Vurmah's case, was reasserted in Gnanasam-
banda v. Velu? In that case, the hereditary trustees sold their right of management

of a religious endowment and transferred the endowed property. It was held

by the Judicial Committee that in the absence of a custom, the sale of the

right of management and that of the endowed property are not merely voidable
1*.
but strictly null and void.
The Judicial Committee have never questioned the principles enunciated

in the aforesaid two cases. Any alienation by a shebait in contravention

of the law, as laid down in those cases, is void,^ and may be declared void

at the instance even of the alienor.^ The post-Independence Courts in India

have loyally persisted in this view of Indian law.

7
The Supreme Court has not deviated. In Kali Kinkor v. Panna Banerjee,

1. (1876-77) **IA 76, 81. 2. ibid.

3. (1899-1900) 27 IA 69. *f. Ibid., p. 76.
5. Narayanan v. Lakshmanan AIR 1915 Mad 1196; Nagendra v. Rabindra, AIR
1926 Cal 490.
6 . Jugget Mohini Dossee v. Sokheemoney Dossee (1871) 17 WR 4l (PC).
7. AIR 197^ SC1932.
 231

a co-shebait purported to transfer her share in shebaiti to a stranger

by a deed of sale. The Supreme Court confirming the decision of the

Calcutta High Court held that the transfer of shebaiti by sale in such

2
circumstances Mis void in its inception”.
3
In Shrimati Mallika Dasi v. Ratanmani, the main point for consideration
was whether pala or turn of worship was transferable by way of mortgage.

if
Banerjee, J. referring to the cases of both the Privy Council and the
different High Courts observed: "It has been held in a uniform current

of decisions, both in this Court and in the High Courts of Bombay and Madras,
5
that a priestly office with emoluments attached to it is inalienable.”
In Mahamaya v. Haridas,^ the main issue to be decided was whether palas

or turns of worship of the Kalighat temple were transferable by way of

mortgage on the footing of custom in the limited market of hereditary shebaits

by blood and marriage, and the High Court of Calcutta held that according to

custom a pala of the Kalighat temple was transferable for value in the

limited circle of shebaits by blood or marriage. In that case, the main

issue was transferability of palas and Sir Asutosh Mookerjee, J. made

important observations on the issue of alienability of shebaiti. His

Lordship,
7
citing many cases on the subject, observed that ”in the absence of a custom

1. Panna Bannerjee v. Kali Kinkor, AIR 1974 Cal 126, see below, this section.
2. Per Ray, C.J., AIR 1974 SC 1932, 1936. 3- (1897) 1 CWN 493.
4. Juggernath v. Kishen Pershad (1867) 7 WR 226; Drobo Misser v. Srineebash
Misser (1870) 14 WR 409; Kalee. Churn v. Bunghsi Mohan (1571) 15 WR 339;
Rajah Vurmah v. Ravi Vurmah (187&-77) ^ IA 76; Mancharam v. Pranshankar

(1882) 6 Bom 298; Kuppa v. Dorasami TTR (1882) 6 Mad 76.

5. (1896-97) 1 C.WN 493, 496.
6. AIR 1915 Cal 161. In Hemanta Kumar v. Prafulla Kumar AIR 1957 Cal 685, the
principle in the Mahamaya case was extendedand it was held in that case that
poojaris or hereditary priests of the Kalighat temple would also be within
the competent class of transferees of palas under a custom.
7. For example, Drobo Misser v. Srineebash Misser (1870) 14 WR 409; Ukoor Doss
v. Chunder Sekur Doss (l865) 3 WR 152; Kalee Churn v. Bungshi Mohun (1871)
15 WR 339; Rajah Vurmah v. Ravi Vurmah (1876-77) 4 IA 76; Rama Varma v.
Raman Nayar ILR (1882) 3 Mad 89; Durga Bibi v. Chanchal Ram ILR (l8fl£)5 All
81 ; Kuppa v. Dorassami ILR (1882) 6 Mad 76; Kannan v. Nilakandan ILR (1884)
7 Mad 337; Narayana v. Ranga ILR (1892) 13 Mad 183; Subbarayadu v.
(continued on next page)
 232

or usage to the contrary or any term to that effect in the deed of the

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

1
other endowment, cannot be alienated by the holder.” This view of Sir
Asutosh Mookerjee, J. was the reassertion of the law as laid down by the

Judicial Committee in Raja Vurmah’s case, and the observation has often

since been quoted with approval in different decisions^ of the Calcutta

High Court.

But even apart from the consideration of custom, the High Courts in India
k
have recognised some exceptions to the rule that shebaiti is inalienable.
One view is that a transfer of shebaiti is valid if it is made in favour of

a person standing in the line of succession. Again there is authority for

the proposition that an alienation of shebaiti is valid only when it is

made in favour of a sole and immediate heir.^ Another view is that shebaiti

is alienable to an immediate or sole heir where the alienation is made by way

7
of renunciation or abdication. On the question of transfer of shebaiti,
(continued from previous page)
Kotayya ILR (1892) 13 Mad 389; Rangasami v. Ranga ILR (1893) 16 Mad
146; Trimbak v. Lakshman ILR (1895) 20 Bom 495; Alagappa v.
Sivaramasundara ILR (1896) 19 Mad 211; Shrimati Mallika v. Ratanmani
(l897) 1 CWN 493; Rajaram v. Ganesh ILR (1898) 23 Bom
131;Ghaiasambandhav. Velu (1899*1900) 2? IA 89; Lakshmanaswami Naidu v.
Rangamma ILR (1903) 26 Mad y \; Ramanathan v. Murugappa ILR (1904) 27
Mad 192; Rajeshwar v. Gopeshwar ILR (1907) 34 Cal 8287
1. AIR 1915 Cal 161, 164. 2.(1876-77) 4 IA 76.
3. Nagendra v. Rabindra, AIR 1926 Cal 490, 497; Manohar v. Bhupendra, AIR
1932 Cal 791 (FB) 807; Bameswar v. Anath AIR 1951 Cal 490, 495-
4. Prafulla Chorone v. Satya Chorone AIR 1979 SC 1682, 1687.
5. Si taram Bhat v. Sitaram Ganesh (1869) 6 BHCR 250, 253; Mancharam v. Pran-
shankar ILR (ld82) 6 Bom 298, 300; Annasami v. Ramakrishna ILR(1901) 24 Mad.
219 , 225; Nirad Mohini v. Shibadas ILR (1909) 3& Cal 975* 977; Prayag v.
Govindacharlu AIR 1935 Mad 220, 226; Official Receiver v. Jogamaya (1946)
50 CWN 272, 279; Nandlal v. Kesarlal AIR 1975 Raj 226.
6. Narayana v. Ranga ILR (1892) 15 Mad 183, 186; Muthukumaraswamia v.
Subbaraya AIR 1931 Mad 505* 508.
7. Nagendra v. Rabindra AIR 1926 Cal 490, 499; Bameswar v. Anath AIR 1951
Cal 490, 495.
 233

there is a controversial view according to which an alienation of shebaiti

can be held valid on the basis of the doctrine of necessity or benefit of

1
the deity.
The rule that the office of a shebait is transferable or alienable in

favour of a person standing in the line of succession to the office has

2
been laid down in Mancharam v. Pranshankar. In that case, the appellant's
(Mancharam's) predeceased brother's son bequeathed his right of worship

and that of receiving a share of offerings to his sister's son, the plaintiff

Pranshankar. Melville, J. who delivered the judgement of the case, observed

that

"if the alienation of priestly office is open to objection only

on the grounds that it would be contrary to the founder's
intention that the office should pass out of his family, and
that it would be incompatible with the due performance of the
duties of the office that it should be held by a person of a
different religion or caste, then (in the absence of any res
triction to a particular class of heirs, imposed either by the
founder or by usage) there would appear to be no reason why an
alienation should not be upheld, which is made in favour of any
person standing in the line of succession, and not'disqualified
by any personal unfitness."-^
The view that shebaiti is alienable only to a sole and immediate heir is

generally associated with the view of the Madras High Court, as expressed
i+
in Narayana v. Ranga. In that case, the right to the office of the hereditary
pujari was transferred to the plaintiff's father by his uncle. On the

finding that the plaintiff's father was not the sole heir, the Court held

that the transfer of the office of the pujari was invalid. So Mukherjea

observed that "opinion of the Madras High Court definitely is that in the

absence of a special usage, the alienation of a religious office would not

be valid, if made in favour of any person other than the sole and immediate

1. Khetter Chunder v. Hari Das ILR (1890) 17 Cal 537; Nirad v.'Shibadas ILR
(1909)36 Cal 973; Nirmal Chandra v. Jyoti Prasad AIR 19^1 Cal 5&2; Sova-bati v.
Kashinath AIR 1972 Cal 93; Jagannath v. Byomkesh AIR 1973 Cal 397.
2. ILR (1882) 6 Bom 298.
3* Ibid., p. 301.
k. ILR (1892) 15 Mad 183.
 23k

1
hear of the transferor.” But the view of the Madras High Court is by
2
no means settled because of the decisions in Prayag v. Govindacharulu,
and Annas ami v. Rarnakrishna,^ which held that an alienation of shebaiti

could be held valid if made in favour of a person standing in the line

of succession. Referring to earlier decisions of the same High Court

If
including the decision in Narayana v. Rangathe Madras High Court in
5
Prayag*s case pointed out that the High Court in those cases refused
only to apply the principle in Mancharam v. Pranshankar^ to transfers for

consideration or value or to transfers to strangers.

Again, B.K. Mukherjea places on the same footing the view of alienation

of shebaiti in the form of renunciation, to a sole and immediate heir, as

7
expressed by Page, J. in Nagendra Nath v. Rabindra, where his Lordship
made an elaborate treatment on the subject of alienation of shebaiti, and

the opinion of the Madras High Court on the question of transfer or

alienation of shebaiti when he said that

”A shebait like a trustee cannot delegate his duties to

another person, but he is not bound to accept his office, and
if he renounces his duties which he always can, then even if
the renunciation be in the form of a transfer in favour of
the next heir, it can be held valid in law. This is the view
of the Madras High Court, and exactly the view taken by Mr.
Justice Page in Nagendra Nath v. Rabindra.
9
It is submitted that there is a difference in views as expressed in cases
10 11
cited by B.K. Mukherjea and as expressed by Page, J. in Nagendra*s case.
The Madras High Court would hold a transfer of religious office as valid

if the transferee was the sole and immediate heir, even if that transfer

1. B.K. Mukherjea, op.cit., 3rd ed., 182.

2. AIR 1935 Mad 220. 3- ILR (1901) 2k Mad 219.
II£ (1892) 15 Mad 183. 5. AIR 1935 Mad 220.

6. ILR (1882) 6 Bom 298. 7. AIR 1926 Cal ^90.

8. B.K. Mukherjea, op.cit., 3rd ed., 183-I8*f * kth ed., 235-236.
9. Narayana v. Ranga ILR (1892) 15 Mad 183; Muthukumaraswaraia v.
Subbaraya AIR 1931 Mad 505.
10. B.K. Mukherjea, op.cit., 3rd ed., 182.
11. AIR 1926 Cal **90.
 235

was made under an assignment. Thus, in Narayana v. Ranga, the religious

office was transferred to the plaintiff’s father under an assignment,

and the transfer "was evidenced by a muktiarnama filed as an exhibit A".

The High Court of Madras would have held the transfer as being valid but

for the reason that he was not the sole and immediate heir to the

alienor] But Page, J. shared the view that the office of a shebait

could not pass under an assignment even to a sole and immediate heir.

Thus his Lordship observed that

"if it be assumed that a shebait is competent to abdicate from

his office, in my opinion, such an act would operate to trans
fer 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 to the assignee 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 any other person, for every such assignment,
in my opinion, is wholly void and inoperative."^
The view of Page, J. sounds more plausible on the subject of alienability

of shebaiti than the opinion of the Madras High Court, as expressed in

3 4
Narayana v. Ranga and Muthukumaraswamia v. Subbaraya.
Next, it seems that the authority for the proposition that an alienation

of shebaiti is valid if it is made on the basis of doctrine of necessity

or benefit to the deity, found its expression first in the important and
5
original decision in Khetter Chunder v. Hari Das. In that case, shebaits
of a family endowment being unable to carry on the worship of the idol with

the profits of the debutter, made over the idol together with the endowed

property to the plaintiff's predecessors. Since then the plaintiff's

predecessors and after them, the plaintiff had been holding the endowed

land and performing the worship of the deity. Though the Courts below

1. ILR (1892) 15 Mad 183.

2. AIR 1926 Cal ^90, ^99- My emphasis.
3. ILR (1892) 15 Mad 183.
k. AIR 1931 Mad 305. 5. ILR (1890) 17 Cal.357.
 236

ruled that the plaintiff's predecessors acquired the valid right as

shebaits of the endowment, the High Court,without giving any importance

to the finding of the lower Courts, held the transfer of shebaiti to the

plaintiff's forefathers as valid mainly for the reason that it was for

the benefit of the deity. The High Court purported to rely for its decision

on the two pronouncements of the Privy Council in Prosunno Kumari v. Golab

1 2
Chand and Konwur Doorga Nath v. Ram Chunder.

It should be noted that the Privy Council cases were concerned with the

question of the alienation of debutter. In Prosunno Kumari's case^, the

respondent obtained two decrees against the shebait of an idol for the bonds

made for repayment of money which was alleged to have been borrowed to be

spent for the expenses of the temple and the service of the idol. The

appellants as succeeding shebaits to the judgement debtor instituted the

suit to set aside the said decrees. The Judicial Committee held that the

decrees were binding on the succeeding shebaits. In Konwur Doorga Nath's

4
case the appellant instituted the suit to set aside certain alienations of
a "mehal" (estate) made by his grandmother, on the ground that the "mehal"

was debutter. The Judicial Committee held that the estate was not debutter

and also held that according to the admissions in the deeds, the sales were

justifiable, even if the property were dedicated to the worship of the idol.

It is to be observed that the aforesaid two cases had nothing to do with

the alienation of shebaiti. They were concerned with the question of alien

ation of debutter and no rule enunciated in those cases would be immediately

5
applicable to Khetter Chunder's case, because of its different subject-
matter. The rule ofnecessity asdeveloped and applied in the Privy Council

1. (1875) 2 IA 1^5* See above, sec. la of the 5thChapter.

2. (1876) 4 IA 52.
3. (1875) 2 IA 1^5.
4. (1876) k IA 52.
5. ILR (1890) 17 Cal 557.
 237

cases on the basis of the famous Hunoomanpersaud1s case, is to apply

to the corpus of debutter or to the estate or property of the deity.

2
The observation in Prosunno Kumari1s case, as made by the Judicial
3
Committee and relied on by Khetter Chunder's case is to the effect that
a shebait is entitled to alienate debutter lands only for the service of

the deity, e.g. for the benefit and preservation of the endowed properties.

It is submitted that this observation is related to and meant for the

preservation of debutter and for the service of the idol, and the rule of

necessity or of benefit of the deity had been laid down by the Judicial

Committee to be applied to the cases where the subject-matter is the alien

ation of debutter for the benefit of the idol, though (admittedly) transfers

of debutter lands are thereby authorised. Any attempt to apply the rule

in cases of differing subject matter will amount to a misapplication of the

law laid down by the Judicial Committee. In this case (Khetter Chunder*s
if.
case ) the rule was wrongly applied, because the issue there was the
alienation of the shebaiti, not the debutter.

Again, the statement of the Judicial Committee as quoted in Khetter

5
Chunder's case judgement is that ’’the consensus of the whole family might
give the estate another direction”.^ It is regretted that the sentence does

1. (1856) 6 MIA 393* ’’The shebait, or all the shebaits together where there
are more than one, have the power...to charge mortgage, or sell the property
of the idol, or to dispose of its income, for the necessity of the idol, for
example for its worship and for the repairs of the temple, or for the benefit
of the idol's estate. The rule in Hunooman persaud 1s case...applies here
also, and a third party dealing in good faith with the shebait after due
inquiry into the necessity pressing upon the idol, is protected against suits
on behalf of the idol” - Derrett, IMHL, 501. Again, B.K. Mukherjea
observes(at pp. 277-278)on the appli cation of the rule in Hunoomanpersaud *s
case, (1856 6 MIA 393i on Hindu religious endowments that "The transaction
in Hunoomanpersaud’s case was one by way of mortgage or charge for money
received as loan, but the same principle applies to other forms of alienation
like sale or permament lease. No sale or mortgage of the debutter property by
the shebait would be binding on the deity unless it is supported by legal
necessity or benefit to the idol" - op.cit., 4th ed.t
2. (1875) 2 IA 145. 3. ILR (1890) 17 Cal 557.
4. Ibid. 5. Ibid.
6. (1876) 4 IA 52, 58. The issue has been dealt with in detail in sec.
5(b) of the 3rd chapter of this thesis.
 238

not reveal the whole truth, and it must be read along with the next

sentence of the judgement of the Privy Council case (Konwur Doorga Nath's

case) when it says that "No question however, of that kind arises in the

present case", which operates as an admission by the Judicial Committee

2
that this observation obiter, as quoted in Khetter Chunderfs case, was
not called for to decide any issue of the Privy Council case. Moreover,

it was a case involving the issue of alienation of endowed property. The

High Court, in this case, not only misapplied a rule but also did not pay

attention to the correct ruling of the lower Appellate Court which rightly

decided that "even if the deed of gift was invalid, the plaintiffs had

acquired a title by twelve years' possession."^ On this finding of the

lower Court alone, the High Court could have dismissed the appeal, and the

obiter ruling was embarrassing as well as unsound.

k
In Ra.jeshwar v. Goneshwar the main point for consideration was
whether
hereditary shebaiti could be transferred by will. The decision of the
High

Court was in the negative. Though no necessity or benefit of the deity was

made out by the evidence in that case, Mitra, J. one of the Bench of three

judges, without citing any authority, had made a very short observation

that a shebait "had no power to alienate except for necessity or clear

5
benefit to the Thakur". B.K. Mukherjea rightly pointed out that much
importance could not be attached to an incidental observation^ of Mitra, J.

As the observation of Mitra, J. is irrelevant to the facts of the case, it

cannot be cited as authority for the proposition of law that an alienation

of shebaiti as distinct from alienation of debutter lands is justified on

the ground of necessity or benefit to the deity.

1. (1876) k IA 32, 58.

2. ILR (1890) 17 Cal 557- 3. Ibid., p. 559-
4. ILR (1908) 33 Cal 226. 5. Ibid., p. 321.

6. B.K. Mukherjea, op.cit., 3rd ed., 186.

 239

The recent decisions of the Calcutta High Court on the subject are
1
conflicting. Observations in some cases suggest that shebaiti can be
alienated on the basis of necessity or benefit of the deity. But in
Nemai
2
v. Banshidhar, the High Court of Calcutta relying on the decisions in
Iswar Lakshi Durga v. Surendra,^ and Nagendra v. R a b i n d r a , 4 refused to

allow transfer of pala to the defendant by a deed of gift in spite of the

finding of the Courts below ’’that there was absolute necessity for such

a transfer as the plaintiff under the circumstances was not in a position

to go on with seva puja and the transfer was in favour of a person who was

in the line of shebaiti."^

In Panna Banerjee v. Kali Kinkor,^ the main issues were whether a part

of a temple and a share of a shebaiti right as alienated for a financial

consideration were valid. The Calcutta High Court held that

"on an analysis of judicial opinion, there can harcUy be

any doubt that a shebaiti, even assuming that his temporal
and spiritual rights, duties and obligations can be
separated, cannot be sold even for legal necessity."?
The controversy regarding the question whether shebaiti can be alienated

on the ground of necessity or benefit of the deity is not yet settled. A

Supreme Court decision or at least a Full Bench decision is called for to

resolve the dispute and the decision should take into consideration the

view of Page, J. to the effect that the doctrine of necessity or benefit to

the deity is applicable to the case of a transfer of the debutter lands only

1. Nirmal Chandra v. Jyoti Prasad, AIR 1938 Cal 709; Sovabati v.

Kashinath, AIR 1972 Cal 193; Jagannath v. Byomkesh, AIR 1973 Cal 397.
2. AIR 1974 Cal 333.

3. (19^0-41) ^5 CWN 665.

4. AIR 1926Cal 490.

5. AIK 1971*Cal 333,33^.

6 . AIK 197^Cal 126.

7. Ibid., p. 135-
 2*4-0

and it does not extend to the case of"a transfer of an alienation of an

office of a shebait, as expressed in Nagendra v. Rabindra, The merit

of Page, J.'s view.is that if the doctrine is allowed to extend to

alienation of shebaiti as well then the shebait for the time being may,

with some excuse, invoke the doctrine to bargain his office with any heir

whether sole immediate heir or not for some pecuniary consideration. But

if he finny tnJy his office, there will not be any scope for him to

bargain with his office. In that case, his Lordship observed that

’’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 any alienation of spiritual rights and
duties, the fulfilment of which is the primary function of a
shebait. To apply such a rule to the spiritual duties of a shebait
would be to contravene a 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, 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', in my opinion, offends against the Common
Law of India, and is in conflict with the uniform rulings of the
Judicial Committee of the Privy Council.”^

Pala or Qsra

Next, where there is more than one shebait, the shebaits jointly are

entitled to shebaiti. The reasons which are applicable to the entitlement

of one of the several owners to the partition of a joint property are also

to be applied in the case of a joint right of performing the worship of an

idol. The joint owners are entitled (where they cannot agree) to a decree

for the performance of worship by turn. As the partition of shebaiti

’’cannot be effected by metes and bounds, the only way of effecting

it is by

5
fixing turns.” Hereditary religious offices were indivisible according to

1. AIR 1926 Cal 490. 2. ILR (1903) 27 Mad 435.

3. AIR 1926 Cal 490, 501-502.

4. Mitta Kunth v. Neeranjan (1875)14 BLR 166.
5. Per Deoki Nandan, J., Nagarwali Devi v. Girjapati Tiwari AIR 1982

All 80, 82. “ --------

 241

old Hindu law, but modern Hindu law sanctions partition of such an office

by means of performing the duties of the office by different shebaits by

turns.

"Hereditary offices, whether religious or secular, are no

doubt treated by the Hindu text writers as naturally indiv
isible; but modern custom, whether or not it be strictly in
accordance with ancient law, has sanctioned such partition
as can be had of such property by means of a performance of
the duties of the office and the^enjoyment of the emoluments
by the co-partners in rotation."
Moreover, shebaits are entitled to make their own arrangements without

the help of the Court, for performing their religious duties in such a way
2
as is "conducive to the due and orderly execution of the office." But in
the eyes of the law, shebaits remain one body and the deity is represented

by all of them collectively. None of them can be said to represent the deity

in part or to have any interest in a fractional share of the debutter. The

performing of religious duties by several shebaits in rotation is known as

4 5
pala in West Bengal. Shebaiti is partible. "There is also no question
that though probably religious offices were originally indivisible, they are

6 7
now deemed partible.’1 Pala is a divided or partitioned right of shebaiti

of one shebait where shebaiti of a religious foundation is vested in several

g
shebaits. It is called osra in North India.'
However, in this context it may be pointed out that aseriouscontroversy

centred round the question whether a pala or osra was aninterestinimmovable

9
property.

1. Per Melville, J., Mancharam v. Pranshankar ILR (1822) 6 Bom 298, 299.
2. Per Lord Macnaghten, Ramanathan v. Murugappa (1906) 33 IA 139* 1^4. See
also Alasinga v. Venkatasudarsana (1936; 70 M U 424.
3. Iswar LakshiDurga v. Surendra (1940-41) 45-CWN 665.
4. Jagannath v. Byomkesh AIR 1973 Cal 397,398.

5. Ram Rattan v. Bajrang Lai AIR 1978 SC 1393» 1396, seebelow ,thissection.

6. Per Sir Asutosh Mookerjee, J., Mahamaya v. Haridas AIR 1915 Cal 161, 167-
7. Jagannath v. Byomkesh AIR 1973 397 * 398.
8. Ram Rattan v. Bajrang Lai AIR 1978, 1393* ^396.
9. See M.L. Jain*s discussion on the point in "Is an Osra an Interest in
Immovable Property?" AIR ,1969 Jnl.., 80H-101.
 242

In Jagdeo v. Ram Saran where the plaintiff brought the suit inter alia

for the partition of the right to do worship the Patna High Court held that
2
a pala or a turn of worship was not an interest in immovable property. The
High Court did not give any reasons for its decision; it simply relied on

two Calcutta cases of Jati Kar v. Mukunda Deb^ and Eshan Chunder Roy v. Momnohini

4 5
Dassi. In Jati Kar*s case the suit was instituted by the plaintiff for

the recovery of possession of a turn of worship in a certain temple for

eight days in a month. The High Court of Calcutta relied on Eshan Chunder*s

6 7
case for its ruling that a pala was not an interest in immovable property.
g
The case of Eshan Chunder was involved with the main issue of the right of
the plaintiff worshipping two idols. As regards one of them the plaintiff

claimed her right of worship only during one-sixth of the year. The High

Court of Calcutta ruled that the right of worshipping an idol was not in the
9
nature of an interest in an immovable property. The High Court did not
.10
advance any reason for its decision. Again in Narasingha v. Prolhodman Tevari
where the suit was brought to enforce a mortgage of a pala or turn of worship

the High Court of Calcutta without any discussion simply relied on Eshan
11 12 i
Chunder Roy v. Monmohini Dassi and Jati Kar v. Mukunda Deb and held that
13
a turn of worship was not an interest in immovable property,

But the Bombay High Court held the reverse view on the question whether
a pala or turn of worship was an interest in the nature of an immovable
14
property. In Krishnabhat v. Kapabhat where the plaintiff, a hereditary

I. AIR 1927 Pat 7. 2. Ibid., p. 8.

3. ILR (1912) 39 Cal 227. 4. ILR (1879) ^ Cal 683.
5. ILR (1912) 39 Cal 227. 6. ILR (1879) ^ Cal 683.
7. ILR (1912) 39 Cal 227, 230. 8. ILR (1879) ^ Cal 683.
9. Ibid., p. 685. 10. AIR 1919 Cal 671.

II. ILR (1879)> Cal 683. 12. ILR (1912) 39 Cal 227-
13. AIR 1919 Cal 671, 671.
14. (1869) 6 BHCR * 137.
*"Nibandha" means corrody, pens ion. or allowance, for a

discussion see Kane-.op.cit., ’ ' ’# vol.3,575;

Derrett has fully explained the term : in ZVR 64
(1982),15-130.74-75 Nibandha has striking resemblance with
nivi, see Perrett .wHiviM.Vishehvarancl Iddological Jou^rnal.
,12(197^,x-2,89-95. A
 243

priest, brought the suit to establish his right to officiate and to take

a share of the proceeds of the ceremonies, the main question to be decided

by the Bombay High Court was whether the office of hereditary priest should

be held to be immovable property within the meaning of the Limitation Act

1839 (Act 14 of l859)* It was held that the office of hereditary priest
\cu
of a temple being by Hindu law classed as nibandha should be held as immovable
1 2
property. In Balvant Kay v. Purshotam
Westropp, C.J. in his judgement of
3 4
the Full Bench agreed with the view^ held in Krishnabhat v. Kapabhat but
5
earlier in the same case in a Division Court West, J. expressed doubt as
to the correctness of the decision in Krishnabhat v. Kapabhat.^ After an

exhaustive survey of Hindu law Westropp, C.J. pointed out in effect that

Hindu law was the proper source of information on the question whether the

right to an office of hereditary priest was an interest in immovable property.

The Privy Council approved both the Bombay High Court cases in Maharana
7
Futtehsangji v. Dessai Kullianraiji where the main issue to be decided was
8 i
whether a right to a toda giras hak, was an interest in immovable property.
10
Toda giras hak was held by the Privy Council as immovable. The Calcutta
11
High Court held in Raghoo Pandey v. Kassy Parey, a case where the suit
was brought for redemption of a share of Brit Jugmanka, that a right to

officiate as priest at funeral ceremonies "ranks amongst immovable property

12 13
according to Hindu law." The High Court referred with approval to the

aforesaid two Bombay cases and the Privy Council case.

lap-------------------------------------------------------
I. (1869) 6 BHCR . 137, 139. 2. (1872) 9 BHCR 99 (FB).
3. Ibid., p. .113. 4. (1869) 6 BHCR 137-
. 5. (1872) 9 BHCR 99 (FB), 101-103. 6. (1869) 6 BHCR . 137.
7. (1874) 21 WR 178(PC)
8. "Toda Giras" means "an annual fixed money payment in the nature of blackmail
..." See Sumbhoolal v. Collector of Surat (1869-61) 8 MIA 1.
9.- Ibid., note 'a* of p.2.
10. (1874) 21WR 178(PC} 182.
II. (1884) 10 Cal 73.
12. Ibid., p. 73. 13. Ibid.,pp. 73-74.
*/ a species of hereditary tenure in Bombay/Gujarat area,^*
 2kk

In this context the difficulty is that the distinction between movables

and immovables is applicable not only to material objects but also to

rights, the law recognises certain attributes which pertain to material

things only * "Every right over an immovable thing is itself immovable ...
1
The rights are situated where they are exercised and enjoyed.11 The right
to worship and to receive offerings is exercised and enjoyed in a temple and

since the temple is an immovable property the right itself is an immovable

property also.^

The controversy over the issue whether a pala or a turn in rotation for

worship in a Hindu temple is an interest in an immovable property has been

finally resolved by the judgement of the Supreme Court in Ram Rattan v.

3
Bajrang Lai in which the Court discussed the question at issue elaborately.
5
It referred inter alia to the decisions in Krishnabhat v. Kapabhat, Balvant
6 7 8
Rav v. Purshotam, Raghoo Pandey v. Kassy Parey and Angurbala v Debarata
and ruled that the right to worship by turn or pala or osra was immovable

property. Thus, Desai, J. pronounced that

"The hereditary office of shebait which would be enjoyed by the

person by turn would be immovable p r o p e r t y . " 9

Can Shebaiti be Transferred to a Stranger?

In Ram Rattan v. Bajrang Lai one Mst. Acharaj purported to transfer

her shebaiti right (pala) by gift to Ram Rattan, .the appellant. The facts

of the case reveal that Ram Rattan to whom shebaiti or pala was transferred

by Mst. Acharaj, was an outsider or a stranger to the religious office and

the dedicated property. Now, the most important question was whether

1. M.L. Jain, op.cit., 101. 2. M.L.Jain, ibid., p.101.

3. AIR 1978 SC 1393. k. Ibid., pp. 1395-1397.
3. (1869) 6 BHCR 137. 6. (1872) 9 BHCR 99 (FB).
7. ILR(188*0 10 Cal 73. 8. AIR 1951 SC 293. See above, p.218.

9. AIR 1978 SC 1393, 1397. 10. Ibid.

 245

shebaiti of a private or family endowment was transferable to a stranger

who had no relationship with the members of the family.

Though the Supreme Court did not hold the alienation of pala to the

appellant, Ram Rattan, as valid, on the technical ground that the instrument

of alienation by gift was not duly stamped, it pronounced that the hereditary

office of a shebait "appears to be heritable and partible in the strict sense

and it is enjoyed by heirs of equal degree by turn and transferable by gift

subject to the limitation that it may4not pass to a non-Hindu." The obiter

dicta of the Supreme Court are binding on all Courts except the Supreme Court

and this extraordinary statement of law can have unforeseen consequences. So

the law has been propounded by the Supreme Court that an alienation of

shebaiti by gift can be held valid if it is made to a stranger who is neither

the next heir, nor a possible hdr, or even a person related to the family,

and whose only qualification is that he is a Hindu! Then, the Supreme Court

would not have hesitated to hold the transfer of shebaiti by Acharaj to Ram

Rattan as valid but for the document not being duly stamped. No doubt the

Court may have been glad (as so often happens) to take advantage of a

technicality to avoid an embarrassing decision on the merits: but it is

far from clear that/plaintiff had merit and the obiter dicta are now

permanently in our books. It is submitted that the highest Court in India

has laid down as law something which has never found support in the uniform

rulings of the Supreme Court, the Judicial Committee and the different High

1. Per Desai, J. AIR 1978 SC 1393* ^396. Emphasis provided.

A quite inadequate statement for its background. One might wonder
whether, in the present case, the learned Judge of the Supreme Court,
ignoring the law on the subject, had at the back of his mind
the decision of the Madras High Court in T.V. Pillai Charities v.
Thavasiah (1976) 1 M U 185. In that case the Subordinate Judge, on an
application made by a descendant of the author of the trust
in question, modified the scheme in a way not even asked for by the
applicant. The learned Subordinate Judge "altered the scheme by intro ducing
the expression ’trustees professing Hindu religion* instead of 'trustees of
whom one shall be a Brahmin and the other two caste Hindus'u-Seep.
188. Upholding the ruling of the lower Court, Bao J. (at pp.187488) observed’
for the High Court that "Our country being secular and the Constitution not providing
for Such differentiation, on the basis of caste, the venture of the. learned
Subordinate Judge in having enterprisingly cast an amendment to Clause 5 of the scheme
decree, is beyond reproach and condemnations"*
 2k6

Courts on the question of alienability of shebait to a stranger.

2
In Rajah Vurmah's case Sir James Colvile’s observation that
"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 its
sole direction and might have no connection with the
families from which the trustees were to be taken,
had laid down as law that shebaiti could not be transferred to a stranger,

for a reason which is immediately intelligible and has never been contra
il-
dieted in India. The decision in Rajah Vurmah1s case, "has been followed
in numerous cases, the propriety of it on the actual facts of the case has

never been questioned in any subsequent decision."^ But the Supreme Court

has failed to apply the decision to the facts of the present case.

In Kuppa v. Dorasami^ a priest sold his right of performing worship in

certain temples to a stranger. The main point for decision was whether the

priest could make a valid alienation of his right to worship to an outsider.

Innes and Kindersley, JJ., observed that

"It is argued that in the present case the alienee is of the

same caste and sect as the alienor, and that no objection to
fitness to perform the worship exists in this case. But we

1. Ukoor Doss v. Chunder Sekur Doss (1865) 3 WR 152; Keyake-Ilata y. Yaddatil

(l888) 3 Mad HCR Rajah Vurmah v. Ravi V u r m a h 1576-77) *+ IA 76;
Narasimma v. Anantha HR (1881)4 Mad 391; Kuppa v. Dorasami ILR (1882) 6 Mad
78; Rama Varma v. Raman Nayar (Ayancheri v. Acholathil) ILR (1882) 5 Mad
89; Durga Bibiv. Chanchal Ram ILR (l8&2) 4 All 81; Mancharam y.Pran-
shankar ILR (1882) 6 Bom 298; Rajaram . v. Ganesh ILR (I898) 23 Bom 131»
Narayanan v.Lakshinanan AIR ,1913 Mad 1196, Rajram Bhattar v. Singarammal
AIR 1919 Mad 570; Panchanan v. Surendra Nath AIR 1930 Cal 180; Jogesh
Chandra v. Dhakeswari Mata AIR 1942 Cal 2 6 ; Bhagaban v. Narayana AIR 19^6
Pat 27. In that case, though the main issue to be considered was whether
the defendant Narayana acquired shebaiti for himself alone or for the
joint family of which he was a member, the High Court (p*29‘) in the context of
alienation of shebaiti, held that ’’the Courts should refuse to recognise
it as being against public policy, specially where the sale is made to a
stranger for the pecuniary benefit of the vendor.” The correct position
was therefore known in Patna as late as 19^-6.
2. (1876-77) ** IA 76.
3. Ibid., p. 81. Emphasis provided. 4. (1876-77) ^ IA 76.

5. B.K. Mukherjea, op.cit., 3rd ed., 179. 6. ILR (1882) 6 Mad 76.
 2k7

are not disposed to hold that this of itself will validate

such an alienation. To hold so would tend to public mischief
in inducing needy incumbents of hereditary religious offices
who desired to sell them to give a dishonest recognition to
qualifications which, in fact, were not the qualifications
demanded by the nature of the office.1’1
Moreover, if alienation is permitted to be made to a stranger having

no relationship with the family and the endowment, then the religious

office will be the subject of bargain and this will defeat the intention
2
of the founder. In Narayana v. Ranga, as the plaintiff's father was not
the sole and immediate heir, the High Court of Madras held that the transfer

of the office of the pujari (priest) to the plaintiff's father was not valid.

The Court arrived at the decision on the ground that "unless the aihsnee is

the sole heir, the alienor might be under temptation to make the office the

subject of bargain and thereby defeat the intention of the founder."^

The

reasoning is more applicable to the case of the alienation of religious

office to an outsider. For, a needy or greedy incumbent of a hereditary

office will transfer his office to the highest bidder, defeating the intention

of the founder.
if
In Rajairam v. Ganesh, the original owner of the property in dispute
transferred the property, including his right of worship, to the plaintiff

who was a stranger to the family. In the context of hereditary service in

temples, Ranade, J. observed that "Alienations to strangers are indeed not

5
favoured."
In Ukoor Doss v. Chunder Sekur Doss,^ one of the shebaits transferred

his shebaiti (turn of worship) without any consideration to the defendant,

a Brahmin, who was otherwise qualified to carry on the purposes of the

endowment. The transfer of shebaiti was held to be invalid beyond the life

time of the alienor and the Court held that "It is the essence of a family

1. ILR (1882) 6 Mad 76, 79. 2. ILR (1892) 15 Mad 183.

3. Ibid., p. 186. k. ILR (1899) 23 Bom 131.

5. Ibid., p. 135* 6. (1865) 3 WR 152.

 248

endowment amongst Hindoos, that no stranger shall be permitted to

1
intrude himself into the management of the endowment.” The dictum
2
in the Ram Rattan . case that shebaiti can be transferred by gift to
any Hindu is directly against the rule laid down in Ukoor Doss’s case^

that shebaiti is not transferable even without any consideration to any

outsider, whether he is a Hindu, a Brahmin or non-Brahmin.

4
In Ram Rattan's case, Ram Rattan was a stranger to the management of
the endowment and on that ground alone the suit could have been dismissed.

Then the Supreme Court would not have to waste time considering a relatively

unimportant issue whether the document of transfer of shebaiti should have

5
been received in evidence unstamped. In Panchanan v. Surendra Nath, the
plaintiff claimed to succeed exclusively to the office of the shebait after

an arrangement by which Mayabati, the widow of the previous shebait, Ramsevak,

gave up her claim to shebaiti in his favour. Rankin, C.J. dismissing the

plaintiff's claim, held that "In my judgement, the plaintiff is not entitled

to stand in the shoes of Ramsevak for this purpose. He is a mere stranger

to this religious office and dedicated property, and on that ground alone

his suit cannot succeed."^ In his judgement of the same case, C.C. Ghose, J.,

observed that "In my view, Mayabati still remains a shebait, then, so far

as the plaintiff is concerned, he is a mere stranger and he cannot step in

the shoes of Ramsevak and claim as shebait. This conclusion would be

sufficient to enable the Court to dispose of the plaintiff's suit by saying

7
that it is incompetent."
g
In Panna Banerjee v. Kali Kinkor it was held by the Calcutta High Court
that a transfer of shebaiti to a stranger had not got "the sanction of law
9
behind it." Again, it was observed in the same case that shebaiti could

1. (1865) 3 WR 152. 2. AIR 1978 SC 1593.

3. (1865) 3 WR 152. 4. AIR 1978 SC 1393.
5- AIR 1930 Cal 180. 6. Ibid., p. 1 8 5.
7. Ibid., p. 187. 8. AIR 1974 Cal 126. Supra, p.2 3 9.
9. Ibid., p. 136.
 2*+9

never be transferred by sale, because it was against public policy.

2
The Supreme Court in Kali Kinkor v. Panna Banerjee also shared the
same view with the High Court and ruled that the transfer of shebaiti

by sale was illegal and the sale was void in its inception.^

Again, shebaiti cannot be alienated to a stranger, even on the footing

of a custom. In Jogesh Chandra v. Dhakeswari Mata, a custom was established

according to which palas or turns of worship could be privately alienated

either to persons professing the Hiirb faith belonging to any of the three higher

castes or to sanyasis (fakirs). Mukherjea, J. who delivered the judgement

of the case, observed that

”In my opinion, the custom that is set up here is not

only prejudicial to the interests of the deity, but is
also against the presumed intentions of the founder. In
the case of a private debutter, the intention of the
founder undoubtedly is that the shebaitship should ever
remain in his family, or it would pass to such person or
persons as he himself had indicated. It cannot be his
intention that it should pass to a total stranger."!?
So the rule has been made clear in that case that shebaiti cannot be

alienated to a stranger, even on the footing of a custom, in spite of the

fact that he is a Hindu. The rule was again reiterated by the same learned

judge as a judge of the Supreme Court in Kalipada v. palani Bala^ in which

an alienation of shebaiti was made by sale in favour of a stranger. His

Lordship pronounced for the Highest Court that "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

7
on the footing of a custom".
It is regretted that the highest Court in India, without citing any case,

8
has laid down a law in Ram Rattan*s case which is directly opposed to the

firmly established view held by the Supreme Court, the Judicial Committee,

1 . AIR 197^ Cal 126, 1^5. 2 . AIR 19?k SC 1932. Supra, p.231.
3. Ibid., p. 1936. k. AIR 19^2 Cal 26.
5. Ibid., p. 31* Emphasis provided. 6 . AIR 1933 SC 125.

7. Ibid.. p. 127. Emphasis provided. 8 . AIR 1978 SC 1393.

 250

the Bombay, the Calcutta, the Madras and the Patna High Courts that

an alienation of shebaiti to a stranger is not valid. It is also

contrary

to the extremely careful Kali Kinkor v. Panna Banerjee case.

Section 5. DEVOLUTION OF SHEBAITI

The founder of an endowment has (as we have seen in sec. 2 of this

2
chapter) the right to appoint a shebait. It is open to the founder in
whom shebaiti is vested in the first instance^ to dispose of the shebaiti
if
right, a heritable property like any other species of heritable property.
"Shebaitship being property it devolves like any other species of heritable

property.”^

Before the commencement of the Hindu Succession Act, 1956 (Act 30 of

1956), if the instruction of a founder could not be traced, the custom of

6 7
the endowment ruled. Thus in Bhabatarini v. Ashalata it was held that
the mode of devolution prescribed by the ordinary law should give way to

let in the nominees of the founder.But now most customs are

abrogated by the Hindu Succession Act, 1956 and customary succession to

g
shebaiti ceased after the commencement of the 1956 Act.

1. AIR 1974 SC 1932.

2. Derrett, IMHL, 499.
3. N.R. Raghavachariar, op.cit., Vol. 1, 7th ed. ? 664.
4. Angurbala v. Debabrata AIR 1951 SC 293, 296; Kalipada v. Palani Bala
AIR 1953 SC 125, 130; Profulla Chorone v. Satya Choron AIK 1979 SC 1682,
1686; Kalyan Das v. Rambir Das AIR 19&Q NPC 123 (All). Shebaiti is not a
property when a shebait has not any personal interest in the endowed
property - see on this point Sri Raman Lalji v. Gopal Lalji ILR (1897)
19 All 428, 433; Padmabati v. Biswanath AIR 1976 Cal 344, 346. For the
(exploded) view that shebaiti is not a propertyat all see Sripati v.
Khudiram AIR 1925 Cal 442, 445.
5. Per Sarkaria, J., Profulla Chorone v. Satya Charon, AIR 1979 SC
1652, 1686. --------------------£-------
6. Derrett, IMHL, 499.
7. (1942-43) 70 IA 57, 65.
8. Derrett, IMHL, 499* Parameswaran Pillai v. Sivathanu Pillai (1976)
2 M U 19 (hereditary trustees entitled to material benefits).
 251

Section 4(1) of the Hindu Succession Act, 1956 (Act 30 of 1956)

provides that

’’Save as otherwise expressly provided in this Act, - (a) any

text rule or interpretation of Hindu law or any custom or usage
as part of that law in force immediately before the commencement
of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act; (b) any other
law in force immediately before the commencement of this Act
shall cease to apply to Hindus in so far as it is inconsistent
with any of the provisions contained in this Act...”
If a founder has not disposed of the shebaitship the devolution of the

office will take place in accordance with the line of inheritance from the
2
founder to his heirs. Again, undisposed shebaiti devolves on the heirs
of the founder and to this effect the principle had been enunciated in the

leading Privy Council case of Gossamee Sree Greedharreejee v. Rumanlolljee

3
Gossamee that
’’According to Hindu law, when the worship of a thakoor 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 circumstance to show a different
mode of devolution.”
But it must be remembered that at present in an endowment a founder can

do very little ”to provide for the devolution of the shebaiti otherwisethan

according to the scheme of succession set out in the Hindu SuccessionAct,

1956.” ^ "It is the general law of succession that governs succession to

shebaitship as well.”^ A founder must lay down (if at all) the line of
7
succession to shebaits consistent with the general law of succession.
The
mode of devolution of shebaiti must not be contrary to the provisions of
g
Hindu law. The law is directly derived from the traditional abhorrence of

1. See Derrett, IMHL, 578.

2. Ram Rattan v. Bajrang LaiAIR 1978 SC 1593* 1395*
3. (1888-89) 16 IA 137. 4. Per Lord Hobhouse,ibid., p.144.
5. Derrett, IMHL, 500.
6. Per Mukherjea, J., Augurbala v. Debabrata AIR 1951SC 293i 299* See
above , sec. 1 of this chapter.
7. Hiranbala v. Bishnupada AIR 1976 Cal 4o4, 405.
8. Raikishori Dassi v. Official Trustee AIR i960 Cal 235» 243; Anath Bandhu De
v. Krisha Lai Das AIR 1979 Cal 168; Sitesh Kishore v. Rnamesh Kishore AIR
198l^|at ^39» 3^3; Durga Prosad v. Sri Rameswar Jew Siba Thakur AIR 1981
 252

'i
unrecognised perpetuities.
Now, the general law of succession is not what it was at the time of

the decisions in so many cases of both the Supreme Court and the Privy

Council on the question of devolution of shebaiti before 17th June, 1956.

At present, the general law of succession must comprise the Hindu Succession

Act, 1956 (Act 30 of 1956). To

quote a relatively recent conjecture.: nPrima

facie all cases in which a shebait dies after 17th June 1956 must be governed

by the Hindu Succession Act and shebaiti will pass by survivorship or

2
succession as the case demands. 11
If there is no disposition shebaiti will devolve according to the ordinary

3 4
Hindu law of succession. In Profulla Chorone v. Satya Choron the
Supreme
Court very recently reaffirmed the famous rule in Gossamee Sree Greedhareejee’s
5
case and held that undisposed ’’shebaiti rights remained with the heirs of
the founder”^ and ordinary rules of succession would be applicable in case

7
of devolution of shebaiti.
Again, shebaiti being a property within the meaning of the Hindu law of
8
succession, in so far as succession to shebaiti is concerned the rules of
the Hindu Succession Act unquestionably, as we have seen, have an overriding

1. Ibid. Reliance is placed upon Tagore v. Tagore (1872-73) IA Sup.

vol. 47. See below p. 253*
2. Derrett, IMHL, 499- Illustrated at Parameswaran Pillai v. Sivathanu
Pillai (1978) 2 M U 19 (below) and Kalinath Mukherji v.
Santilata Devi AIR 1978 Cal 371.
3. Jagannath v. Byomkesh AIR 1973 Cal 397» 398. The case followed both Monohar
Mukherji v. Bhupendra Nath AIR 1932 Cal 791 (FB) and Ganesh Chunder v. Lai
Behary AIR 1936 PC 3 1 8, which held that succession to shebaiti would be
according to ordinary Hindu law of succession.
4. AIR 1979 SC 1682.
5. (1889) 16 IA 137.
6. Per Sarkaria, J., AIR 1979 SC1682, 1689. Illustrated at Anath Bandhu
De v. Krishna Lai Das AIR1979 Cal. 168.
7. AIR 1979 SC 1682, 1689.
8 . Angurbala v. Debabrata AIR 1951 SC 293.
 253

effect upon customs. There is nothing, therefore, to restrain the

frequent partitioning of shebaiti amongst distantly related heirs of

equal degree, or the featuring of debutter in family arrangements between

a whole concourse of heirs on an intestacy or deemed intestacy.

In Parames-
1
waran Pillai v. Sivathanu Pillai, a case concerning the succession of
2
hereditary trusteeship, Ramaprasad Rao, J., referring to sec. 4 of the
Hindu Succession Act, 1956, held that

"undoubtedly section 4 has an overriding effect. The

statute law having made marked inroads upon the personal
law of the parties, has provided that any custom or
usage immediately before the commencement of the Act
shall cease to have effect with respect to any matter
for which provision is made under this Act."3
Now a founder of a Hindu religious endowment is still competent to lay

down rules to govern the succession to shebaiti right but his powers to

dispose of shebaiti right are subject to the same restrictions which exist

in relation to disposal of any other property according to Hindu law.

In
if
Monohar v. Bhupendra Nath where an issue to be decided by the Full Bench
of the Calcutta High Court was whether a Hindu founder of a religious

endowment was competent to lay down rules to govern the succession to

shebaiti, Mitter, J. observed that the founder could lay down rules "but

subject to the restriction that he cannot create any estate unknown to

5
Hindu law." The High Court rejected the view voiced in Sripati v.
6
Khudiram
7
that the rule laid down in the famous case of Tagore v. Tagore
prohibiting
a Hindu to create a line of succession inconsistent with Hindu law did not

apply to the appointment of a shebait. The Judicial Committee approving the

8decisioninMonoharfscase 9
ruled in Ganesh Chunder v. Lai Behary ,a case

1. (1978) 2 M U 19.
2. Hereditary trusteeship is property - on this point see S.
Mudaliar v. State of Madras (1970) 2 SCJ 1311 132.
3. (1978) 2 M U 19, 26. 4. AIR 1932 Cal 791 (FB).
5. Ibid., p. 796. 6 . AIR 1925 Cal kk2.
7. (1872-73) IA Sup. vol. k?. 8 . AIR 1932 Cal 791 (FB).
9. AIR 1938 PC 318.
 254

relating to the question of validity of certain provisions of shebaitship,

1 2
that Tagore v. Tagore was applicable to the appointment of a shebait.

But the said rule in Tagore v. Tagore^ is not applicable to offices which

are not property. The office of a dharmakarta (manager) which has no

emoluments attached to it apparently does not come within the purview of

if
the rule. In Manathunainatha v. Sundaralingam the Madras High Court
dealing
5
with the correctness of the decision of an earlier case of the same
Court
held that the founder of a religious endowment has "the right to dispose of

the dharmakartaship in any particular way."^

In this context it may be pointed out that the issue as to whether a founder

can change the line of succession after it has been laid down in the instrument

of dedication is still a controversial one. The principle that unless

the

right of revocation of the line of succession to shebait is reserved in the

endowment the founder cannot subsequently change, revoke or alter the line

of succession as laid down in the endowment, was enunciated in Gouri Kumari

7
v. Ramanimoyi. In that case the founder became the first shebait of an

endowed property and in the endowment it was provided that after his death

shebaitship would devolve on his first wife. But later on he changed

his

mind and appointed his second wife sis shebait. Woodroffe, J. ruled
that

the founder "could not make any change in the order of succession of shebaits
g
unless he had made reservation to that effect in the deed..."
9
This decision was followed in many cases but it must be pointed out that

1. (1872-73) IA Sup. vol. 47. 2. AIR 1938 PC 318, 320.

3. (1872-73) IA Sup. vol. 47. 4. AIR 1971 Mad 1 (FB).
3. Manathunainatha Desikar v. Gopala (19*0) 1 MLJ *+34.
6. Per Natesan, J., AIR 1971 Mad 1 (FB), 14. Followed in V.R.
Santhanam Iyer v. V.S. Sundarathammal AIR 1981 Mad 244, 246.
7. AIR 1923 Cal 30. 8. Ibid.t.p.- 3 1. .
9» Lalit Mohhan v. Brojendra Nath-AIR 1926 Cal 5 6 1 , 563; Manorama Dasi v.
Dhirendra Nath AIR 1931 Cal 329» 331; Narayan Chandra v. Bhuban Mohini
AIR 1934 Cal 244, 246; Brindaban v. Sri Godamji Maharaj AIR 1937
All 394, 394; Radhika v. Amrita AIR 1947 Cal 301, 303» In
Brindaban v. Ram Lakhan,
(continued on next page)
 255

Woodroffe, J.'s observation was not an original one on the subject. The

principle as involved in his Lordship's observation had been laid down

long before in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee and

a clear exposition of the law in question was made later on in Narayan Chandra
2
v. Bhuban Mohini. Mukherjee, J. observed that
"The Judicial Committee in the case of Gossamee Sree
Greedharreejee v. Rumanlolljee^ has very clearly pointed out
that when the founder of an endowment dedicates properties to a
deity and appoints a shebait or lays down the order of
succession to shebaitship, he makes a gift with a condition
attached and that the deity or those who speak for him on earth
need not take advantage of the gift but that if the gift is
taken and the condition insisted on, it must be observed....
"When the gift to the deity has taken effect, the donor or founder,
in the absence of reservation to the contrary, ceases to have any
proprietary right in the properties, -the subject-matter of the
gift and such right thereupon vests in the deity.,,Zf
5
In Sripati v. Khudiram the issue in question did not arise directly but
Chakravarti, J. discussed the law in question at considerable length. Although
c
his Lordship did not refuse to accept the rule in Gourikumari's case, he
remarked that as the appointment of a shebait is an appointment toan office
of a peculiar nature the power of a founder to appoint a shebait "should be
7
presumed to exist unless expressly given up."
Again, even if the right of the founder is not reserved at the time of

laying down the mode of devolution in the endowment it was held that the

succession to shebaiti could be relaxed both in the interests of the deity

g
and justice. In Radheshyam v. M.K. Narain where the dispute was related

(continued from previous page)

AIR 1975 All 255i 25 8, though the Allahabad High Court did not
refer to Gouri JKumari1s case, AIR 1923 Cal 30, it followed
Brindabanv. Godamji Maharaj, AIR 1957 All 39*+♦ which applied the
decision in Gouri Kumari's case on the point in question.
1. (1888-89) 16 IA 137* 1^7. 2. AIR 1934 Cal 244.
3. (1888-89) 16 IA 137. 4. AIR 193*+ Cal 244, 249.
5. AIR 1925 Cal 442. 6 . AIR 1923 Cal 30.
7. AIR 1925 Cal 442, 446. 8. (1971) 69 A U 56 3.
 256

to the management of a temple and its properties in terms of an arbitration

award, Shukla, J. pronounced for the High Court of Allahabad that

"although the alienation in the line of succession to shebait

ship is generally irrevocable unless a contrary right has
been reserved by the testator, yet in certain circumstances
the rule permits of relaxation in the interests of justice...
notwithstanding the original line of succession of shebaitship
contained in the will, there is no rule of law which precludes
a shebait from not shouldering the responsibility himself and
allowing the other heirs to manage the temple properties and if
such management is entrusted, it neitheramounts to ouster of
the other heirs so as to extinguish their rights nor can such
entrust-ment be rendered legally void on account of being
inconsistent with the direction of the original will creating
an endowment and binding the shebaits."
So his Lordship’s observation is applicable only in exceptional circumstances,

and is suspect as introducing an element of unpredictability and uncertainty

into the law.

To conclude this study it. may be pointed out that so far as the devolution

of shebaiti is concerned, it must be consistent with the provisions of the

Hindu law of succession. If any provision in the instrument of dedication

regarding the succession to shebaiti is inconsistent with the provisions of

the Hindu Succession Act, 1956 (Act 30 of 1956), the provision of the

instrument must be held invalid. We have alluded to problems this

situation

creates and to these we now turn.

Section 6. MANIFEST PROBLEMS AND POSSIBLE SOLUTIONS

Virtually all the problems relating to shebaiti centred upon the two

accepted but incompatible theories that the idol as a juristic person^ is

3
the owner of any debutter and the shebait as a manager of an idol has not
J
only right in his office but also has a beneficial interest in the debutter.*

1. (1961) 69 A U 563, 568.

2. Monohar Ganesh v. Lakhrairam ILR (1887) 12 Bom 2^7; Pramatha v.

Pradhyunma AIR 1925 PC 139.
3. Vidya Varuthi v. Balusami (1921) ^8 IA 302; Kalanka Devi v. M.I.T.,
Nagpur AIR 1970 SC 439.
*+. Bhabatarini v. Ashalata (19^2-43) 70 IA 57, 65; An^urbala v
Debabrata AIR 1951 SC 295.
 257

Shebaiti being a property within the meaning of the Hindu succession

|<aw, the Hindu Succession Act, 1956 (Act 30 of 1956) has posed the biggest

problem relating to the proper administration of any endowed property because

of its indirect effect of causing shebaiti to be divided almost every time

2
a shebait dies. Now, when shebaiti as property passes, on intestacy, to

a large number of heirs both agnates and cognates, males and females, obviously

it will pass being fragmented among heirs some of whom may not be interested

in the worship of the idols.^ This effect of the succession law may
easily

raise the question of the validity of the rule that all shebaits must concur

in the management of the debutter including any alienation of debutter

property for the benefit of the idol. This rule may possibly be
abandoned

in favour of a rule to the effect that the decision of those shebaits who

are directly concerned with an endowment relating to a scheme of management

of the debutter should be binding on the idol in the same way as a family

arrangement and later on no other shebaits will be allowed to object to the

decision. The potential of the family arrangement to cope with such problems

is known,^ and the institution as such has been the subject of frequent

notice in the Supreme Court.^

Again, the problem relating to so many heirs of shebaiti may be solved

if the present provision regarding succession to shebaiti only should be

changed. It is not suggested that the property aspect of shebaiti should

be scrapped altogether as suggested in the Raraaswami Aiyar Report on Hindu

1. Angurbala v. Debarata AIR 1951 SC 293i above p. 218; Kalipada

v. Palani Bala AIR 1953 SC 125; Ram Rattan v. Bajrang Lai AIR
197& SC 1393; Prafulla Chorone v. Satya Choron AIR 1979 SC
1682; Kalyan Das v. Rambir Das AIR 1980 NOC 123 (All).
2. Derrett, Critique, 3 86.
3. Radha Charan v. Iswar AIR 19^2 Cal 295* In that case, it was held that the
ejectment notice served on the defendant tenant was not valid, because all
the shebaits did not join in serving the notice in question.
4. Derrett, Critique, 3&7*
5. Derrett, "Family arrangements..." ECMHL, Vol. 4, 258 ff.
6 . Derrett, ibid., p. 284.
 258

endowments. The rule of succession to shebaitship could be changed by

statute from the existing provision to a new provision of law to the

effect that shebaiti will always be vested in one person, say, the oldest

issue of the family of a particular endowment willing and fit to undertake

it. Then the problem concerning the rule that all co-shebaits must act

2
together relating to the management of a debutter could be avoided.
Shebaiti being a special kind of property? it is not by nature physically

divisible like immovable properties. If "property, which in its nature is

impartible, as a Raj or ancient Zemindary can...only descend to one of the

issues" why cannot a.shebaiti in its nature being impartible, be vested

in one person only? Yet the partibility as well as hereditability of

shebaiti is taken for granted in all our books.

In so far as a religious endowment is concerned the paramount consideration

is the fulfilment of the purpose of the endowment. So in the idol's

interest

and for the administration of a debutter at least the heirs who are directly

concerned with the endowment may be allowed to eliminate from managing the

debutter distant heirs or the heirs who are not interested in the worship

of the idol. Such a device will have the effect of reducing the number of
5
disputes over the right of management of the endowment property. The
distribution of the income after payment of tax may be a second consideration.

The problem regarding succession to shebaiti, especially relating to so

1. The Report of the Hindu Religious Endowment Commission (1960-62), 173“"*9^i see
specially page 19^ where it was specific about the proprietary
element of shebaiti; the same view was held by J.M. Jain, Right of
Property, 1968, 69-70, 307-308, cited in Derrett's Critique, 386,
footnote 6; See also R.N. Sarkar, "Has a Shebait or a Mahant Proprietary
Right in. Endowment", AIR 1954 Jnl., 93-9^ • The writer is of tie opinion
that a shebait might be appointed with a fixed remuneration.
2. Man Mohan Das v. Janki Prasad (19^-^3) ^9 OWN 193 (PC). In that case the
Judicial Committee pointed out in effect that in so far as the administration
of a debutter or that of a trust was concerned the office of co-shebaits and
that of co-trustees were on the same footing. To that effect the Privy Council
quoted Lewin's Law of Trusts: see pp. 201-202.
3. Sovabati Dassi v. Kashinath AIR 1972 Cal 93-
4. Mayne's Hindu Law, op.cit.,6th ed., 713* 3*Derrett, Critique,
387* 388.
 259

many heirs of a particular shebait, would not have been so acute but for

the reason that ’’transfer of shebaiti by will is almost unknown”. The

restriction on transfer of shebaiti may be lifted to the extent that the

distant heirs, who have not much beneficial interest in the endowment,

may be allowed to dispose of their shebaiti under assignments or by way

of family arrangement in favour of other heirs who have more interest in

the idol and its property. But the heirs who have a priority interest in

the endowment will not be permitted to dispose of their shebaiti right

by testament. Otherwise, shebaiti will be a marketable commodity of very

uncertain value and co-shebaits with some amount of interest may induce

each other to dispose of it for a consideration which may not be

disclosed to any third party. If, however, testamentary disposition is

to be allowed, it must be allowed within the family only. The

difficulties that have arisen are almost self-evident and more than a

quarter of a century has passed without an attempt to mitigate them.

The rule that the founder cannot change the line of succession after it has

2
been laid down in the instrument of dedication may be abandoned in favour of

the view that the power of a founder-shebait to appoint a shebait by

a testament should be presumed to exist unless he has expressly given it up.^

4
In Zabu Khima v. Amardas the Gujarat High Court dealt with a will where the

founder-testator laid down the line of succession to shebaiti. Bhagwati, J.

held that ’’the shebaitship of the temple in the present case was property

and the deceased himself being the founder of the temple was entitled to
5
dispose of the shebaitship by making a will.” The view of the Gujarat High

Court seems to be plausible. It can be assumed that a founder-shebait

1. Derrett, Critique, 387•

2. Gouri Kumari v. Ramanimoyi AIR 1923 Cal 30.
3. Sripati v. Khudiram AIR 1925 Cal 2kk.
4. AIR 1967 Guj 214.
5. Ibid., p. 217.
 260

being a founder of the religious endowment will always wish the object of

the endowment to be fulfilled. Moreover, it has been pointed out that

testamentary disposition of shebaiti by a founder was in vogue even three

hundred and seventy-five years ago in the state of Uttar Pradesh. The

founder of the Radhadamodara Temple in Vrindaban made a testament envisaging

posthumous implementation of its provisions relating to succession to

2
shebaiti of the temple. The "provisions of the will were in fact admitted

and carried out to the letter.... The subject-matter leaves no room for

suspicion of malpractice, and the codicil merely confirms that the

testator, now near death, has not changed his mind about the succession

to his 6hebait-ship." Now, the view that the power of a founder to appoint

a shebait should be presumed to exist has the practical merit that if

after the line of succession to shebaiti has been laid down, a founder

thinks that the immediate would-be shebait, as laid down in the line of

succession, is not competent to manage the affairs of the deity and the

debutter, the founder will have a chance to appoint a suitable shebait

instead who can manage the debutter after he dies. It is suggested that

it is in the idol's interest that a founder should have the power to

dispose of the shebaiti any time before he dies.

Nivi
At this juncture it may be interjected that it is surprising to see that

a trust concept called nivi , which is of Indian origin and was used in

ancient India, is apparently no longer in use in the field of Hindu

religious endowments. According to this concept, a fund for an endowment

was used to be deposited with a banker permanently on condition that a part

1. T. Mukherjee and J.C. Wright, "An Early Testamentary

Document....", op.cit., 297-3 2 0 .
2. Ibid., p. 297. 3« Ibid., p. 301.
k. . Derrett, "The Development of the Concept of Property..." ECMHL,vol.2,
6^ - 63*
of the income of the deposited fund would be paid to the beneficiary of

the nivi. MThis was an excellent method of providing for periodical

worship of a deity, or the maintenance of some long-lasting object of

1
charity.” A shebait or a mahant could not interfere with the fund placed upon
a permanent deposit with the banker and he could not have any proprietary
2
interest in the fund. The title of the depositary to the capital fund ’’was

nearly that of full owner, except that he could not alienate it so as to

3
impair its capacity to provide the income stipulated.” But the

present concept of shebaiti implying property is a well developed

concept evolved out of so many judicial decisions that it seems

impossible to change the concept overnight from its present position.

Again, the present position of the law is that the idol owns the endowment

k
and all the offerings made to it. But it is the shebait who

normally sees to the idol's interests and manages all its

properties. Now, the first charge which can be made on its property

and its income is its meals. "These are prepared, one will suppose,

to the taste of those who will eventually eat

5
them, namely those entitled to eat the idol's "leavings”, his attendants." A

shebait is not a legal owner and he is also not merely a manager like a bare

trustee because of the fact that he enjoys almost the same advantages as he

would do if he had the full ownership of the debutter. "If the manager were

treated as merely a bare trustee for the idol the purpose of many endowments

would be frustrated and the whole transaction might become unworkable."^ A

religious endowment serves as a mask under which a shebait enjoys personally

almost everything that he does for the idol and for the maintenance of the

debutter. Hindus make donations and offerings to the

1. Derrett, ECMHL, vol. 2, 63* ■ ■

2. Dhavan,.op.cit., 60. 3» Derrett, ECMHL, Vol. 2, 63*
J*. Manohar Ganesh v. Lakhmiram Govindram ILR (1887) 12 Bom 2^7, 2 3 8 ; Brijendra
Singhji v. Kishan Ballabh AIR 1981 NOC 131 (All).
5. Derrett, "The Reform of Hindu Religious Endowments", op.cit., 321.
6. Derrett, IMHL, ^+97.
 262

deities for religious merit but their desire to earn religious merit
1
is not affected by the dishonesty of shebaits. The remedy is not to
abolish the institution or to utilise the endowment for secular purposes as

2
suggested by a social thinker but is ”to bring in the account-book>k and£ the

t.3
ledger, and to call the refractory to heel by due process of law.'

If a new definition of shebaiti excluding its property aspect is formulated

and the position of a shebait is transformed in line with the positionof a

bare trustee then the institution of shebait might wither as we haveseen

earlier in Derrett's remark and in future there will remain very few private

endowments in North India especially in West Bengal where a private endowment

is generally made as a function of family management. But we

diould

find a remedy to prevent a shebait from misusing the income of a debutter.

Now, in so far as property of shebaiti is concerned a unique and realistic

suggestion has been made by Derrett. He observes that

’•In the context of the shebait's ownership the answer must be,
not that he owns nothing and the idol owns everything (which
is fantasy), but that the shebait or shebaits collectively own
the assets and that the assets are subject to a trust which
the court must supervise when called upon to do so by a com
petent person suing in the idol’s name and for its welfare,
or by the Advocate-General at the relation of interested
parties. The same solution would work well if applied to the
mahant or a manager of any endowment.”^
I t M t f j t h a t in relation to the proprietary interest of a

shebait, in a certain endowment, Derrett*s suggestion is at first

sight plausible. If all debutter lands were enfranchised and

subjected to a statutory charge

for the worship of the deity or deities, the shebait or shebaits could

dispose of the lands subject to the charge. But the objection to

this is

that by repeated transfers of fractions of the lands, through many hands,

with no control over alienations for the idol(s)' benefit or necessity as

1. Derrett, ’’The Reform of Hindu Religious Endowments”, op.cit., 321-322,

2. M.P. Chatterjee, Temples and Religious Endowments, B.N.Neogi, Calcutta,
1951i as cited in Derrett*s RLSI, 507-50fe, footnote 2 of 307.
3. Derrett, RLSI, 507-308. k. Critique, 38 3.
 263

exists at present, the identity of the trust would be lost, the idol,

(whose manager would have little or no funds at his disposal to finance

litigation) would find it impossible to enforce its rights, thus hopelessly

fragmented, and the State's present duty to protect endowments would become

a fiction and needless to say further endowments of this type would be

seriously prejudiced or totally discouraged.

However, considering all the circumstances in this

stion, just quoted is the only pragmatic solution at this juncture

kir
See post p. of this thesis
A
 26k

CHAPTER V

ADMINISTRATION OF DEBUTTER

SECTION 1

ALIENATION OF DEBUTTER PROPERTY

a, Alienation by lease, mortgage and sale

When a dedication to a deity is of an absolute character, the

1 2
property comprised in it belongs to the deity as a juristic person
but the management and the possession of the dedicated property vest
3
in its shebait whose duties are not only to see that the worship of
k
the deity is performed but also to manage and preserve debutter pro-
5
perty. Although a dedication to a deity may make no mention of a
particular person as shebait (as a wakif in Islamic law is not bound

to nominate a mutawalli [[managerJ for his new wakf ), the existence of

a debutter is wholly inconceivable without a shebait, because the ideal

personality of the deity is connected with the human personality of the

1. Mayne*s Hindu Law, op.cit,, 11th ed., 926.. See also

on this point Brijendra Singhji v. Kishan Ballabh AIR 1981 NOC 131 (All)
2. Deoki Nandan v. Murlidhar AIR 1957 SC 133, 136« See above,
Section 1 of the.3rd chapter.
3 . Maharaja Jagadindra Nath v. Rani Hemanta Kumari (1903-^0 31 IA 203,
210* See above, section'1 of the M;h chapter.
k. Derrett, IMHL, ^98. In the case of a family endowment the members of
the family have the right to see that the deity being the object of worship
is properly maintained and preserved. See Bhimasena v. Ramesh Chandra AIR
1978 Ori 139, 161.
5. B.K. Mukherjea, op.cit., *fth ed., 201-2 , where the'
author observes that the shebait "is the person entitled to
speak on behalf of the deity on earth and is endowed with
authority to deal with all its temporal affairs".
 265

shebait. Practically speaking, there "cannot be property dedicated to

2
an idol without a shebait to manage it". In other words, all the
interests of the deity and the debutter are attended to by the shebait

"who has the deity in his charge and who is in law its manager with all

the powers which would, in such circumstances, on analogy, be given to

3
the manager of the estate of the infant heirs". It is not in truly

practical terms but only in an ideal sense that the dedicated property

can be said to belong to the deity 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".
As a general rule properties given for religious purposes are inalien

able.^ This general rule was laid down by the Judicial Committee in

Maharanee Shibessouree Debia v. Mothooranath Acharjo^ where the main issue

to be decided was whether or not the grant of a mauroosee (hereditary)

tenure of debutter lands at a fixed rent was valid. In that case, it

had

been held expressly that lands devoted to religious purposes could not

1. B.K. Mukherjea, ibid., p.276. See also Vidya Varuthi v. Balusami

Ayyar (1920-21) 48 IA 302, 311» where Mr. Ameer Ali commented that
"When the gift is directly to an idol or a temple, the seisin to
complete the gift is necessarily effected by human agency".
2. Per Page, J. Nagendra v. Rabindra AIR 1926 Cal 490, 496. .
3* Per Lord Shaw, Pramatha Nath v. Pradhyumna Kumar, AIR 1925 PC 139*
140, supra, p. 13b.
4. Per Sir Montague Smith, Prosunno Kumari Debya v. Golab Chand Baboo,
ri5?4-75) 2 IA 145, 152. Infra, p.269.
5. Prosunno Kumari Debya v. Golab Chand Baboo (1874-75) 2 IA 145, 150 where
it was 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". See also Nagendra
v. Rabindra AIR 1926 Cal 490, 496 and B.K. Mukherjea op.cit. 4th ed. 276.
6. (1869-70) 13 MIA 270.
 266

be alienated by a shebait but he was empowered to create derivative

tenures and estates conformable to usage. Lord Chelmsford, in delivering

the judgement, pronounced that

1 2
"The talook itself, with which these jummas 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.
The Privy Council's ruling that the shebait was not entitled to alienate

the debutter by fixing an invariable rent of the lands in question was

based on a sound reasoning advanced by it that "To create a new and fixed

rent for all time, though adequate at the time, in lieu of giving the

endowment the benefit of an augmentation of a variable rent, from time

k
to time, would be a breach of duty in a shebait..." This observation of
Lord Chelmsford which made the general law that property dedicated to an

idol was inalienable has been reiterated by the Privy Council in a large

number of cases and the Supreme Court has not deviated from those decisions.^

In the recent case of Sridhar v. Shri Jagan Nath Temple,^ the original

1. It means tract of proprietary land in India. See The Concise Oxford

Dictionary, 5th ed., 1964, 1321.
2. The expression "jummas" means rents, see (1869-70) 13 MIA 270, 273*
3. (1869-70) 13 MIA 270, 273.
4. Ibid.p. 273-
5. Prosunno Kumari Debya v. Golab Chand Baboo (1874-75) 2 IA 145, 130; Seena
Pena Mayendi v. Chokkalingam Pillai (1903-4) 31 IA 83, 88, a case where the ex-
manager granted thecultivation right of the temple lands permanently. Abhiram
Goswami v. Shyama Charan Nandi (1908-9) 36 IA 148, 163 supra, p. 164; Palaniappa
Chetty v. Deivasikamony Pandara (1916-17) 44 IA 147, 13^1 Vidya Varuthi v.
Balusami Ayyair (1920-21) 48 IA 302, 325» supra, p.217; Niladri Sahu v. Mahant
Chaturbhuj (1923-26) 33 IA 233» 267, a case where the mahant mort gaged debutter
properties to get money to repay earlier loans. Sridhar v. Shri Jagan Nath Temple
AIR 1976 SC i860, 1866,

6 . AIR 1976 SC i860.

 267

plaintiff submitted that the site on which the two suit rooms stood was

granted to his ancestor on a permanent lease by the superintendent of

the temple concerned. Though the finding of the Court was that it was

a licence, not a lease as claimed by the plaintiff, Singh, J. delivering

the judgement for the Supreme Court pronounced that

"The present case is, in our opinion, fully covered by the

decision in Shibessouree Debia v. Mothooranath Acharjo,
(1869) 13 Moo. Ind. App 270 (PC) where it was laid down as
a general rule that apart from unavoidable necessity to
create a new and fixed rent for all time, though adequate
at the time, in lieu of giving the endowment the benefit of
an augmentation of a variable renj^ from time to time would
be a breach of duty in the mahant".
The principle as laid down in the above observation of his Lordship is

equally applicable to a case of shebait in management of a debutter of a

family deity as to that of a mahant in charge of a math property. In

2
Srimath Daivasikhamani Ponnambala Desikar v. Perjyannan Chetti where the
main question was related to adverse possession and limitation Sir George

Rankin observed for the Privy Council that

"It is clear that permanent lease or absolute alienation of

debutter property is beyond ordinary powers of management,
whether in the case of the head of a math, the shebait of a
family idol, or the dharmakarta of a temple: such alienations
can be justified only by proof of necessity for the
preservation of the endowment or institution."3
It may be pointed out that the expression "unavoidable necessity" made

in the said observation of Singh, J. or any term giving similar meaning

k
was not used in the judgement in Maharanee Shibessouree*s case. The
expressions "benefit of the deity","unavoidable necessity" or "legal
5
necessity" often made in the judgements in relation to alienation of

1. AIR 1976 SC i860, 1866.

2. (1933-36) 63 IA 261 = AIR 1936 PC 183.
3. (1933-36) 63 IA 261, 27b.k. (1869-70) 13 MIA 270.
5. For example, see G.V. Kalmath v. Vishnu Dev AIR 1973 Mys. 207, a case where
the manager gave some debutter lands on a permanent lease at a fixed rent, the
Mysore High Court in holding the rule that "unless it is shown that the
permanent lease evidenced by exhibit 85 was entered
into for legal necessity or benefit of the deity, the said lease
cannot be binding on the deity" referred (at p.211) inter alia to
Maharanee Shibessouree1s case.:', —
 268

debutter property originate not from the judgement in Maharanee Shibes-

1
souree’s case but from the decision in the celebrated case of
Prosunno
2
Kumari Debya v. Golab Chand Baboo.
The genesis of the expressions like ’’benefit of the deity” or ’’legal

necessity” may be found in the interpretation of an observation of Lord

3
Chelmsford in Maharanee Shibessouree*s casemade by the Privy Council
if
in Prosunno Kumari Debya's case. Before coming to lay down the original
5
rule that a shebait must of necessity be empowered to do the necessary
for the service of the idol and for the benefit and preservation of the

debutter, the Privy Council, in the latter case, seems to have built the

premises out of the meanings ascribed by it to the observation of Lord

£
Chelmsford in question. Thus in Prosunno Kumari’s case where the she
bait borrowed a certain amount of money by pledging the debutter for the

repayment of that amount, the Judicial Committee referring to Maharanee

7
Shibessourree’s case held that
’’this Committee, whilst considering that the grant of such
a pottah by a shebait would be prima facie a breach of trust,
expressed an opinion that if the grant had been affirmed by a
judgement, the succeeding shebaits would have been bound by
it, probably for the reason that after a judgement it must be
assumed either that such a pottah was warranted by the terms
of the original endowment, or by usage, orgwas in some way
beneficial to the interests of the trust”.
9
And then the Judicial Committee quoted the observation of Lord
Chelms
ford that "If the decree appealed against stood unreversed, the title

to hold at a fixed invariable rent would on the pleadings, and especially

on the judgements, be viewed as res judicata, binding on the parties and

10
those claiming under them”.

1. (1869-70) 13 M IA 270 2. (1874-75) 2 IA 145, 150.

3. (1869-70) 13 MIA 270 4. (1874-75) 2 IA 145

3. See above for the rule in the observation quoted.
6. (1874-73) 2 IA 145. 7. (1869-70) 13 MIA 270.
8. (1874-75) 2 IA 145, 151

9. For the observation of Lord Chelmsford see (1869-70) 13 MIA 270, 275
10. (1874-5) 2 IA 145, 151.
 269

So expressions like ’’legal necessity” cannot be traced to the

1
decision in Maharanee Shibessouree*6 casebut it can be ascribed to
2
the judgement in Prosunno Kumari Debya’s case (see below)
whose actual decision is based on the judgement of the Privy Council in

Hunoomanpersaud’s case,^ ’’the most celebrated of all the cases in Anglo-

i+
Hindu law”, which did not in fact concern a shebait or a mahant, but a
minor whose affairs were in the hands of a manager.

A shebait being a manager of the deity and being in possession of

the debutter is expected to do the necessary for the maintenance of the

purposes of the endowment. But if he is given the absolute right to

manage the deity’s property in whatever way he likes, an unscrupulous

shebait may misappropriate either the income of the debutter or the de

butter itself. Then not only the purpose of the endowment will be unful

filled but also the endowment itself will be in danger. But in the
course

of the administration of a shebait a situation may arise when the existing

income or the funds of the endowment may not be sufficient to meet that

situation, and to preserve the endowment itself the only recourse open to

the shebait may be to get extra funds by pledging or selling the deity’s

assets. The question whether a shebait is empowered to pledge the

deity’s property to meet exigencies for the preservation of the endowment

1. (1869-70) 13 MIA 270.

2. (1874-75) 2 IA 145.
3. Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1854-
57) 6 MIA 393- The suit was brought to recover certain lands and
to set aside a mortgage bond and to cancel the appellant’s name as
mortgagee in the records of the Collector.
4. Derrett, Critique, 425. See his excellent critique on Hunoomanper saud
’s case at 425-432 of that book. In Bhabatarini v. Ashalata
AIB 1943 PC 89, 931 ' referring to Hunoomanpersaud*s case, Sir
George Rankin commented that ’’perhaps the most often cited of
all the cases in the Indian reports...”.
 270

itself has been settled by the decision in Prosunno Kumari Debya v,

Golab Chand Baboo. Sir Montague Smith delivering the judgement for

the Privy Council held that

"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 an idol, in the 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".^
He made an analogy between the administrative power of a shebait to pledge

debutter and the authority cf the aaaager of an infant heir to charge the infant's

estate when Sir Montague continued that "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 judgement of

3 k
this Committee..." He quoted the famous observation of Knight Bruce,
L.J., and applied the principles involved in the observation of the Lord

Justice in Hunoomanpersaud's case^ defining the authority of a manager of

an infant heir to charge the infant's estate. Thus Knight Bruce, L.J.,

observed in Hunoomanpersaud Panday v. Mussumat Baboee Munraj Koonweree

that

"The power of the manager for an infant heir to charge an estate

not his own is, under Hindoo law, a limited and qualified power.7

1. (197^-75) 2 IA 2. (187^-75) 2 IA 1^5, 151-

3. Ibid.p.'131. 4. Ibid.pp.151-152.
5. (185^-57) 6 MIA 393. 6. Ibid. ■
7. It must be pointed out that this is not correct Hindu law but it has been
accepted as such. Thus Derrett comments in his Critique that "The case was
concerned with mortgages to pay debts incurred at an earlier period, some of
them to reduce the rate of interest payable. This is not the English law
regarding the powers of a guardian. It
was very much more limited... It is not the Hindu law, which emphatically
said that minors were liable for no debts until they reached majority,
and that guardians had no powers of alienation (without the consent,
we must understand, of the court). The Mitakshara text which suggests
(continued on next page)
 271

It can only be exercised rightly, in a case of need, or 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 bene fit to be
conferred upon it, in the particular instance, is the thing to
be regarded. But of course, if that danger arises or has
arisen from any misconduct to which the lender is or has been
a party, he cannot take any advantage of his own wrong, to
support a charge in his own favour against the heir, grounded
on a necessity which his own wrong has helped to cause.
Therefore the lender in this case, unless he is shewn to have
acted mala fide, will not be affected, though it is shewn that
with better management the estate might have been kept free
from debt.”1
2
Prosunno Kumari Debya laid down the guide lines about when and under
what circumstances a shebait is permitted to pledge the deity’s property.

In so far as the administration of a debutter, especially the authority

of a shebait to alienate the endowed property is concerned, the decision

in the Privy Council case is unquestionably a pioneer one. It must be

asserted, before we go further, that no one can mortgage an estate unless

the latter is capable of being permanently alienated.

Again the ruling that the power of a shebait to borrow money or ”to

incur debts must be measured by an existing necessity...”^, was explained

if
by the Privy Council in Niladri Sahu v. Mahant Chaturbhuj Das where the

(continued from previous page)

that a manager may alienate the family property for minors as well
as major members (subject to the consent of the latter) speaks of
the necessities arising from distress, the benefit of the family,
and religious purposesI This is a wider power, not ultimately
directed to the interests of minors, but concerned to enable a
joint-family to be a viable social and economic unit. It is a wider
power than that stated by Knight Bruce, L.J., and it is clear he,
and his fellow Privy Councillors, did not have that passage in
mind... No one can suggest that the rule has been calamitous, or
misconceived. It has worked very well. It was not a direct
importation from London. Whence did it come then?
’’...Some of my readers will be astonished at my reply. This
is Roman law”. See pp. ^28-^29.

1. (185^57) 6 MIA 3931 ^23-^. • 2. (187^-73) 2 IA 1^5.

3- Prosunno Kumari Debya v. Golab Chand Baboo (187^-75) 2 IA 2^5, 151*
k. (1923-26) 53 IA 253.
 272

raahant mortgaged debutter properties to raise the money for paying the

debts already incurred by him for the construction of a lodging house.

In that case it was held that ”it was the immediate cause not the remote

cause, the causa causans, of the borrowing which was to be considered.

The immediate cause of the borrowing was the math’s need of money to
1
carry on and pay for its services”.
It is now a well settled law that in the course of his administration of

a debutter a shebait is entitled to alienate property for the benefit and

2
the preservation of the endowment itself. Innumerable
decisions have
been made to that effect.
3
In Prasanna Kumar v. Sri Jagannath, the Full Bench of the Orissa High
Court, dealing with the interpretations of different phrases of the Orissa
L
Hindu Religious Endowments Act, 1952 (Act 2 of 1952), held that ”It is
well settled that a permanent lease of temple land at a fixed rent or rent-

free for a premium whether the lands are agricultural or building site is
5
valid only if made for the necessity of the institution”. Referring to

1. Per Lord Atkinson (1925-26) 53 IA 253, 267.

2. For example , Prasanna Kumar v. Sri Jagannath AIR 1971 Ori 246, (FB), 254,
G.V. Kalmath v. Vishnu Dev AIR 1973 Mys 207, 210-211, Sridhar v. Shri Jagan Nath
Temple AIR 1976 SC i860, 1886. But see Phani Bhusan v. Kenaram Bhuniya AIR 1980
Cal 255♦ 258 where the High Court referred to Hunoomanpersaud's case (1854-57) 6 M
IA 393» to justify its ruling that legal necessity was not required in case of
alienation of partial debutter. It is surprising to note that it has not mentioned
Prosunno Kumari’s case (1874-75) 2 IA 145. Earlier the same Court in Offl.
Receiver v. Iswar Baldev Jiu, AIR 1963 Cal 647, 662, referred to the same Privy
Council case only to hold that alienation of debutter was
not permissible in absence of unavoidable necessity. In that case (at p.662),
Mallick J. observed that ’’Ever since Hunoomanpersand's case reported
in 6 Moo Ind App 393 (PC), the courts have held that a manager of an
infant's or debutter estate has no power to alienate minor's property
or debutter property ’except in the need or the benefit of the
estate'.” - the least informed ruling I have come across in my
research.A judge sitting in a Bench of the High Court dealing with a
case of Hindu religious endowment is assumed to know that in the
circumstances concerned it is the reference to the decision in Prosunno
Kumari's case (1874-75) 2 IA 145, but not to that in Humoomanpersaud's
case, 1(1854-57) 6 MIA 393 which is indispensable.
3. AIR 1971 Ori 246 (FB).
k. Now superseded by the Orissa Hindu Religious Endowments Act,
1969 (Orissa Act 2 of 1970).
5. AIR 1971 Ori 246 (FB), 254.
 273

1
Palaniappa Chetty v. Deivasikamony Pandara the Full Bench also

2
pointed out that in the absence of necessity permanent
alienation of debutter property is not permitted even if it is
sanctioned by custom or the practice of the institution]
It is interesting to note that in case of necessity the shebait is

held to be entitled to alienate debutter property even if there is a

condition in a deed of dedication that he shall not alienate or encumber

the debutter property. Thus in Ramchandraji Maharaj v. Lalji Singh^

where the deed in question imposed a limitation on the power of

the shebait (mahant) to dispose of the debutter properties and where some

debutter properties were disposed of by the shebait on a perpetual lease

for meeting pressing necessity, holding the alienation of the suit proper

ties as valid Kanhaiya Singiy^J* pronounced for the Patna High Court that

"It is well settled law that a mahant or shebait has power to incur debts

and alienate the dedicated property either by sale or mortgage" in case

of need or for the benefit of the estate. "It is therefore, recognised

that for unavoidable necessity the mahant or the shebait in

charge of the property for the time being can create even a

5
permanent lease of the debutter property."

But it may be pointed out that a shebait’s alienation of debutter

property without any legal necessity is not void but it holds good as

long as he is alive or holds the shebaiti.^ In Abhiram Goswami

v. Shyama
7
Charan Nandi where the mahant claiming the debutter to be his own
property granted permanent leases of substantial portion of the debutter

1. AIR 1917 PC 33 = (1916-17) ^ IA 1^?.

2. AIR 1971 Ori 246' (FB), 254. 3- AIR 1939 Pat 305-
4. Ibid., p. 30 9 . 3 . Ibid., p. 3 0 9.
6 . Vidya Varuthi v. Balusami Ayyar (1920-21) 48 IA 304, 327; Ponnambala
v. Periyanan AIR 1936 PC 1 83, 186, Derrett, IMHL 301, B.K. Mukherjea,
op.cit., 4th ed. 2 7 9*
7. (1908-9) 36 IA 148 supra, p.
 274

without any legal necessity, the Privy Council held that "the leases

... were valid only during the lifetime of the mahant by whom they
1
were granted..." The same principle was reiterated and laid down
2
in Ram Charan v. Naurangilal where the question for determination
was whether the plaintiff's suit was barred by limitation. Lord
Russell

pronounced for the Privy Council that "a mahant las power (apart from
any

question of necessity) to create an interest in property appertaining

to the mutt which will continue during his own life, or to put it perhaps

more accurately, which will continue during the tenure of office of

mahant of the mutt".^

Unless a grant of permanent lease of a debutter property by a shebait

is made for unavoidable necessity, the act of the shebait will be held

as a breach of duty on his part. Thus in Palaniappa Chetty v. Deivasikamony

4
Pandara, Atkinson, J. held that "it is a breach of duty on the part of
a shebait, unless constrained thereto by unavoidable necessity, to grant
5
a lease in perpetuity of debutter lands at a fixed rent...." For grant
ing a lease of debutter lands in perpetuity at a fixed rent by a shebait,

"however adequate that rent may be at the time of granting", will deprive

the endowment "of the chance it would have, if the rent were variable,

of deriving benefit from the enhancement in value in the future of the

lands leased."^ An alienation of a debutter will not be valid beyond the

1. (1908-9) 36 IA 148, 167.

2. AIR 1933 PC 75 = (1932-33) 60 IA 124.
3. AIR 1933 PC 75* 77. The same view was held by the Privy Council in
Mahadeo Prasad Singh v. Karia Bharti (1934-35) 62 IA 47, 52-53* which was
related to a village forming a part of a debutter estate.
4. (1916-17) 44 IA 147. 5. Ibid., pp. 155-156.
6 . (1916-17)44 IA 147, 156. This ruling was based on the
observation of Lord Chelmsford (quoted above p. 266) in
Maharanee Shibessouree's case (1869-70) 13 MIA, 270, 275.
 275

1
life of the shebait unless it is made of unavoidable necessity.
However, if the validity of an alienation is called into question

after a long period from the alienation, the Court will assume that

the alienation was made for legal necessity. In Iswar Gopal v. Pratapmal
2
Bagaria where the suit was concerned with the estate of a deity installed
at Chinsurah in West Bengal, Fazl Ali, J. observed for the Supreme

Court that

"It is now well settled that where the validity of a

permanent lease is called in question a long time after the
grant, although it is not possible to ascertain fully what
the cir cumstances were in which it was made, the Court
should assume that the grant was made for necessity so as
to be valid beyond the life of the grantor".^
An alienation of debutter property on a permanent basis is not valid beyond
if
the tenure of the office of a shebait unless it is of legal necessity.
Yet alienations by a permanent lease made without legal necessity or

benefit of the deity or foundation itself may give valid title to the
5
lessee by adverse possession.
An alienation of a debutter property by a sale or by a permanent lease

is governed by the same rule^ in the sense that to make it binding on

1. Chocklingham Pillai v. Mayandi Chettiar ILR (1896) 19 Mad 485; Bawa

Magniram v. Kasturbai' AIR 1922 PC 163, 165; Iswar Gopal v Pratapmal
Bagaria AIR 1951 SC 214, 216.
2. AIR 1951 SC 214. 3. Ibid., p. 216.
4. Ram Charan v. Naurangilal (1932-33) 60 IA 124, 130 = AIR-1933-PC 75,-77.

5« Mahadeo Prasad Singh v. Karia Bharti (1934-35) 62 IA 47, 53; Ponnambala

v. Periyanan AIR 1936 PC 183, 1b6-1b8; Derrett, IMHL 501-502.
6 . In Ram Charan v. Naurangi Lai, AIR 1933 PC 75, Lord Russell (at p.7
8), referring to his own observation that "a mahant is at liberty to
dispose of the property of a mutt during the period of his life and
that a grant purporting to be for a longer period is good to the
extent of the mahantfs life interest..." held that "the statement is
in no way confined to the grant of a lease, but covers the case of a
purported out and out grant of the property"
 276

the endowment, unavoidable necessity must be proved and the onus of

proving such necessity or justifying such alienation lies with the

alienee.^

Now any decree of judgement passed against a shebait binds not only

the shebait for the time being but also his successors.^ In Prosunno
4
Kumarifs case the Judicial Committee laid down the law that ’’judgements
obtained against a former shebait in respect of debts so incurred should

be binding upon successive shebaits, who, in fact, form a continuing

5
representation of the idol's property."
Moreover, a shebait has power to compromise inherent in his right as

a manager^ of the deity and he "may validly enter into a compromise which
7
will bind the deity without the prior consent of the Court", but that
\

compromise must be beneficial not prejudicial to the interests of the

8 9
deity. A decree based on a compromise is binding on the endowment
10
and the succeeding shebaits are also bound by the same decree.
Though a shebait is entitled to do whatever is necessary for the benefit

or the preservation of the debutter, he "maynot undertake anything with

11
regard to the endowment which is speculative." In Manohar Das v.
Tarini

1. B.K. Mukherjea, op. cit., 4th ed. 292.

2. G.V. Kalmath v. Vishnu Dev AIR 1973, Mys 207,211; Vijay Chand v.
Thakurji Radha Krishna AIR 1979 NOC 154 (All).
3* Derrett, IMHL, 501; B.K. Mukherjea, 4th ed., 273*
4. (1874-75) 2 IA 145. 5* Per Sir Montague Smith, ibid.,p.152.
6 . B.K. Mukherjea, op.cit., 4th ed., 274.
7* Derrett, IMHL, 501.
8 . Sri Ram v. Chandeswar Prasad AIR 1952 Pat 438, 444.
9. Sudhindra v. Budan ILR (1885) 9 Mad 80, 8 3 ; Chintaman Vithoba v.
Chintaman Bajaji ILR (1898) 22 Bom 475, 481; Manikka Vasaka v. Bal-
agopalakrishna ILR (1906) 29 Mad 553, 555.
10. Hossein Ali v. Mahanta Bhagaban ILR (1907) 34 Cal 249, 2 56.
11. Derrett, IMHL 501. On this point see also B.K. Mukherjea, op.cit., 4th ed.
280.
 277

Charan, a case where the mahant alienated the debutter property by

way of lease which, though it was done without necessity, resulted in

profit to the debutter as a whole, Graham, J. pronounced for the

Calcutta High Court that the expression "benefit to the deity” "must

be interpreted in its special meaning and cannot be construed in such

a way as to cover any and every contract or lease which may bring

2
some sort of financial benefit to the estate”.

At this juncture, it might be interjected that there is a judicial

divergence in opinion regarding the issue whether unproductive or unmanage

able debutter properties could be disposed of by the shebait without any

3
legal necessity. In Baidyanath Prasad v. Kunja Kumar, where the shebait

sold a debutter land situated at a distant place which could not be looked

after properly and did not yield any reasonable profit, Narayan, J. refer-
Zf
ring inter alia to two Allahabad cases held that the phrase 'benefit to the

deity' "may be held to apply to such a transaction as the sale of

inconveniently situated, encumbered and unprofitable property, and the

purchase in its stead of other property was undeniably a sound investment."^

But Derrett comments on the decision of the Patna High Court that "The Court

has, in any case, no jurisdiction to enlarge the shebait's powers

at Hindu law - there is no analogy with the manager of a

minor's estate in this instance..."^

But the view of Page, J. that "the shebait's power's of alienation

must be exercised for purposes of defence and not of aggrandisement; as

1. (1929-30) 3^ CWN 135.

2. Ibid., p. 137*
3. AIR 19^9 Pat 75.

Das AIR 1928 All (FB). The analogy was the power of a manager of
a joint Hindu family.
5 . AIR 1949 Pat 731 76. 6. IMHL, 302.
 278

a shield not as a sword" seems to have been accepted in Laxmidas

2
Mathuradas v. Jitendra Mullick where the shebaits purporting to sell

a certain debutter property entered into an agreement with the would-

be buyer. Harris, C.J., discussing different cases where the phrase

"for the benefit of the estate” was dealt with, did not accept the wider

3 *+
meaning given to the phrase in Hossein Ali Khan1s and Krishna Chandra’s

cases. Accepting the restricted meaning of the phrase and referring

5
inter alia to Raghumani Roy v. Bibhuti Bhusan Roy and the Privy
Council
case of Raja Kandukuri v. Gade Subbaya^ where the phrase, "for the benefit

of the estate" has been given meaning synonymously with the meaning of

the phrase "legal necessity" and as alternative to legal necessity

respectively, held that "It is not enough to show that as a result of the
7
transaction the vendors might receive a somewhat larger income". The
same principle was reiterated by the Bombay High Court in Chintaman v.
g
Narayan Maharaj where the founder of a religious institution borrowed
a large amount of money with the intention of establishing a permanert source of

income of the institution in question. It was held that the power of a

shebait to render liable the estate for the institution "can only be

exercised for protective purposes and not for enhancing the estate of
9
the institution". There is thus a clear distinction between the powers
of a shebait and those of a manager of a joint Hindu family, who has a
10
greater power of initiative.

1. Nagendra v. Rabindra AIR 1926 Cal ^90, 501.

2. ILR (1952) 2 Cal 352. 3- ILR (1907) 3>k Cal 2^9-
k. (1915-16) 20 CWN 6^5 . 5 . AIR 1936 Cal 256 = (1936) 6k C U 6 5 .
6 . (1936-37) V CWN 18 (PC).
7. ILR (1952) 2 Cal 352, 357.
8 . AIR 1956 Bom 553. 9. Ibid., p. 555.
10. For a detailed discussion on the subject see below, section 2 of
the next chapter.
 279

It is submitted that the expression "benefit of the estate" should

be given a restricted meaning, in the sense that unless there is

unavoidable or imperative necessity for disposing of debutter property

the Court should not allow an alienation as a valid transaction. For

there will not be any want of showing so-called grounds of necessity

to justify an alienation of a debutter property for the material benefits

of the manager. It is suggested that strict adherence to restricted

meanings to the phrases of "the benefit of the deity" and "unavoidable

necessity" must be maintained. If the Court becomes too liberal in this

respect then the shebait in collusion with a third party may dispose of

the debutter property with the pretext of legal necessity or benefit of

the deity at a price much lower than the market price of the property. In

Behari Lai v, Radha Ballabhji the contention of the defendant was that

the suit property (a house) was in a dilapidated condition and it was

sold for the benefit of the deity of the estate. But in fact the property

was not in a delapidated condition; it needed only repairs.

The disputed property was sold by the shebait at far below its market

price. The Allahabad High Court did not hold the transaction as valid.

It might be pointed out that there was a strong possibility that in the

aforesaid case the shebait might have colluded with the buyer to see the

transaction go through on a so-called ground of benefit of the deity.

1. AIR 1961 All 73* Similar rules are well understood in reference to
the manager's power of alienation of joint family property. See Ram
Charan Lonia v. Bhagwan Das Maheshri (1925-26) 53 IA 1^2 where the Privy
Council remarked obiter that in the case of joint family property the
manager could alienate the entire immovable property for necessity
"provided (that) the property was not sacrificed
for an inadequate price..." p. 1^6. Therefore adequacy of consider
ation is an important element in respect of a manager's alienation
of joint family property. See also Kailash Nath v. Tulshi Ram
ILR (19^6) All 457, *f60; Dudh Nath v. Sat Narain Ram AIR 19&6
All 315 (FB), 316; Durga Prasad Bhagat v. Marchia Bewa (1967)
33 CLT628, 633-636; Gopalakrishnan v. Balasubramania Chettiar
(1969) 1 M U 537, 5^0.
 280

It may be noted that we have seen cases of illusory endowments but

the Allahabad case is not a case of illusory endowment but it was an

illusory transaction in respect of a valid endowment representing

possibly a large number of cases which do not come to the Courts

and

find their way into law reports, and so escape our notice.

Alienation of the whole of an endowment

In this context it must be added that though a shebait is entitled to

sell debutter property or to alienate it by a permanent lease, his power

to sell or dispose of such property is limited in the sense that he is

never entitled to dispose of the whole of the endowed property. He

can
1
only alienate certain items of an endowment. An alienation of the
whole
2 3
of an endowed property is void. In Ram Charan v. Naurangilal
where the
issue to be determined was whether the suit was barred by limitation,Lord

Russell of Killowen pronounced for the Privy Council on the point at issue

unambiguously that
’’Their Lordships...must point out that the cases in foanasambanda
Pandara v. Velu Pandaram... and Damodar Das v. Lakhan Das... were
both of them cases in which the assignment or the disposition
consisted of an assignment or disposition of the mutt and its
properties. Such an assignment was void and would in law pass no
title, with the result that the possession of the assignee was
perforce adverse from the moment of the attempted assignment...”
5
In Ram Charan’s case the subject-matter was related not to the whole of
6theendowmentasinGnanasambanda1s 7
and Damodar’s ' cases but the Privy

Council has been clear in its exposition of the law at issue.

Though some items of a debutter may be disposed of on the grounds of

1. B.K. Mukherjea, op.cit. *fth ed., 279*

2. Gnanasambanda Pandara v. Velu Pandaram (1899-1900) 27 IA 69i
76; Damodar Das v. Lakhan Das (1909-10) 57 IA 2V?, 151; Ram
Charan v. Naurangi Lai AIR 19551 PC 75* 77; Bairagi Das v. Udai
Chandra AIR 1965 Ori 201, 203-
3. AIR 1935 PC 75- k. Ibid., p. 77.
5. AIR 1955 PC 75- 6. (1899-1900) 27 IA 69.
7. (1909-10) 37 IA 2^7.
 281

1
necessity and benefit of the deity, items like idols and a temple
can never be transferred for pecuniary considerations even on the grounds

legal necessity.^
3
In Panna Banerjee v. Kali Kinkor it was observed that
"An idol can never be the subject-matter of commerce. The
sale of an idol is prohibited by Hindu law... A deity is not
a chattel but a juridic:,al person. No custom can ever vali
date a sale of any deity. The legalnecessity of the deity cannot
destroy the very existence of the deity by selling it in the open
market... It is against public policy... It is so repulsive to
the judicial mind that ©rery Court is bound to strike it down in
limine.
5
In Mukundji Mahraj v. Persotam Lalji the property in dispute was
half of the temple with the installed deity in it, which was bought at

auction by one Goswami Purushottam Lalji. Agarwala, J. of the

Allahabad

High Court observed that"a temple cannot be sold in execution of a decree

obtained by a creditor on the basis of a loan taken by a mahant even if

it be for legal necessity".^ The credit of the deity is obviously vitally

affected by the law thus stated.

Now, the decision in the above Calcutta case was affirmed on appeal
7
by the Supreme Court in Kali Kinkor v.Panna Banerjee. where Ray, C.J.
delivering the judgement of the Supreme Court pronounced inter alia that

the transfer of either a temple or the deity TTby sale is void in its

inception".^

1. Khetter Chunder v. Haridas ILR (1890) 17 Cal 557, where it was

held that "the Hindu law prohibits the sale of an idol" - 559
Bairagi v. Uday AIR 1965 Ori 201, 205; Panna Banerjee v. Kali
Kinkor AIR 1974 Cal 126, 159.
2. Mukundji Mahraj v. Persotam Lalji AIR 1957 All 77, 80.
3. AIR 1974 Cal 126.
4. Per Deb,J. Ibid p.139**Selling the deity'1 is a picturesque
expression not of course to be taken literally.
5. AIR 1957 All 77 = ILR (1956) 1 All 421.
6 . AIR 1957 All 771 80 (my emphasis). Referring to the decision in
the Allahabad case Derrett comments that "it was urged with
great plausi bility that even for legal necessity, for
example to pay debts binding upon the idol it was legally
impossible for the temple itself to be sold" - IMHL, 502.
7. AIR 1974 SC 1932.Supra, p. 249. 8 . Ibid.,p. 1936.
 282

It is true that the law prohibits alienation of idols or a temple

by any means and the idol cannot be sold as a chattel.. But can such

a law stop an idol being sold as a chattel? As long as the present

1
Indian law of limitation is applicable to the case of a debutter
specially to all cases of private debutter; my answer is no. An

acquirer of an idol by adverse possession may gain a valid title

of ownership of a consecrated idol by a lapse of certain period

as provided in the Limitation Law; the idol becoming a secular

property of the possessor may be treated as a chattel. It is

urged that in case of a debutter the Law of Limitation should not

be applied and a new law incorporating the ancient rule that

2
’’the property of gods could never be acquired by lapse of time”

should be introduced and applied. Hiere is, of course, no perfect

precedent for this in the personal laws of modern South Asia.

b . Alienation as a Result of Shebait*s Execution of Promissory Notes

The law is unquestionably settled that a shebait or all co-shebaits

together have the power to charge, mortgage, even sell the property of

the idol or to dispose of any income of the debutter for the benefit or

the necessity of the deity,^ but the law is not at all clear whether the

shebait is empowered to borrow money for the necessity of the idol by

executing promissory notes and in this respect if we are to go by the

4
latest decision on the subject then the law is that he is not
entitled to do so.
In V.K. Kombi Achan v. C.K. Chidambara Iyer^ a trustee of a temple

1. The present law is provided by the Limitation Act, 1963

(Act 36 of 1963)* Relevant sections for our purpose are Secs. 92-
96. See below, Appendix IIA.
2. Derrett, Critique, 378.

4. V.K. Kombi Achan v. C.K. Chidambara Iyer, 1966 KLT 597-

5. Ibid.
 283

1
the Viswanathaswami Temple, executed a promissory note for its purpose.
2
Following the decisions in Palaniappa Chettiar v. Shanmugam Chettiar
a case where a trustee executed a promissory note purporting to bind

a fund of a charitable character, Swaminatha Aiyar v. Srinivasa Aiyar^

in which a trustee executed a promissory note on his personal credit

for debts for the purposes of a trust and Rama Variar v. Ananthanarayana

Pattar, a case where urallers (managers) of a devaswom borrowed money

executing promissory notes for a proper and necessary purpose of the

foundation the Kfcrala High Court ruled that a trustee of a temple could

not bind the idol by executing a promissory note incurring a debt for
5
the necessity of the idol. The Kerala High Court also accepted the view
that an idol was a permanent minor. Mr. Justice Madhavan Nair delivering

the judgement of the Court ruled on the issue in question that

"The law appears well settled that in a suit on a

promissory note executed by the guardian of a minor the
latter's estate cannot be made liable, and that the
consecrated idol in a temple being for legal purposes, a
permanent minor (vide 4 IA 32) the same principle applies
to a promissory note executed by its trustee".^
It is rightly pointed out by Derrett that the cited case of Konwur Door-

ganath Roy v. Ram Chunder Sen (1876) 4 IA 52, in the said observation of

Nair, J.,

1. See the illuminating critique of Derrett on the case in "Promissory Notes

executed by Shebaits" in 1966 KLT Jnl 101-104. In that article Derrett
enquires why the textbook writers like Mayne, Mulla, Mukherjea, Gupte, Gour
and Raghavachariar did not deal with the topic at issue and the cases dealing
with a shebait's power of borrowing money by executing promissory notes. The
learned author himself finds out the answer
for all of us when he points out that "The answer is simple. People tend
to divide up the topics of law with mental scissors. These cases fall
under the law of negotiable instruments and will be found mentioned in
treatises on that subject. Since they fall on that side of the line and
headnotes and indexes index them under that heading it does not occur to
any writer on Hindu law to use them". See p. 103.

2. ILR (1918) 41 Mad 815. 3. (1916) 32 M U 259.

4. (1950) 2 M U 636.
5. See on this point Derrett, "Promissory N o t e s . o p . c i t . , 101-102.
6. 1966 KLT 597, 597.
 284

’’Laid down nothing of the kind and was not concerned with
a promissory note. What was observed in that case (at
p.6*0 as has been in many another case dealing with
religious
endowments, namely thatas regards the powers of the shebait
to bind the idol by his alienations he may be regarded as
limited . analogously with the manager for an infant heir,
so that the rule in Hunoomanpersaud Panday v.Mussamut
Babooee 6 MIA 423 is applicable to alienations by a trustee
of a temple (Prosunno Kumari v. Golab Chand 2 IA 151)*
This rule, which is notorious, does not amount to a
propo sition that the idol is a minor”.^
2
Similarly Mukherjea also expresses categorically that a Hindu idol

is not a perpetual minor. In support of the view that an idol is not a

permanent minor the learned author cited^ Surendrakrishna v. Shree
4
Shree Bhubaneswari ILR (1933) 60 Cal 54, where it was observed refer
ring to the doctrine that an idol was a perpetual minor, that it was an

extravagant theory contrary to the judgement of the Privy Council in

5
cases like Damodar Das v. Lakhan Das.
Again Ameer Ali, J. dealt specifically with the point of analogy

between the deity and a minor in Ananta Krishna Shastri v. Prayag Das.^

His Lordship pronounced that

"To my way of thinking, their nature is essentially different.
Their practical incidents differ, for instance, in the case
of a minor he is being protected and his properties saved so
that he can enjoy it to the full upon attaining majority. In
the case of a deity no such thing can happen: he is a major,
he is born major, there is no future time at which he becomes
major and then enjoys the property. He is not incapable. He
is under no inherent disability... On the other hand he is
all powerful. He owns property but for quasi-physical
reasons cannot make his own contracts. Therefore, he has to
rj 7
make contracts through a human agency".'
So it is obvious tbat in the presence of so many authorities cited above

1. Derrett, "Promissory Notes...",

op.cit.,.101-102, Emphasis
provided.
2. Ibid., 102 where he quoted B.K. Mukherjea on thepointextensively.
3. B.K. Mukherjea, op.cit., 4th ed. 236.
4. ILR (1933) 60 Cal 54, 73*
5. (1909-10) 37 IA 147.
6. ILR (1937) 1 Cal 84.
7. Ibid., p. 97.
 285

*1
the rule laid down by the Kerala High Court in V.K. Kombi Achan*s case

that a Hindu idol was a minor, is wrong. But the actual decision in the

case that a trustee could not bind the idol by executing a promis sory

note incurring debts for the purpose of the idol seems to be correct in

the sense that they are supported by previous decisions. Whetherthe

rule itself is correct may be tested when we examine those decisions

evolving and accepting the rule that a shebait could not bind the

debutter executing a promissory note.

2
Let us consider first Swaminatha Aiyar’s case. Rahim and Spencer J.J.
following three cases,^ two of which were English cases which had nothing

to do with Hindu religious endowments, came to the conclusion that a

trustee could not bind the debutter if he borrowed money executing a

promissory note for the purpose of the endowment itself. Their Lordships
4
referred to a Calcutta case which was ironically related to a hotel
under a trust and in the Calcutta case the judgement debtor was a trustee

of a hotel called the Adelphi Hotel.They did not accept the authority

of the Hindu law specially related to the point at issue based on a

decision in a case of Hindu religious endowment in spite of the fact

that they discussed the case.^ The case was Shrimat Daivasikamani v.

Noor Mahamad Rowtham.^ It was not related to any debt of a shebait of

a Hindu religious endowment; it nevertheless laid down the rule that

debts contracted by the head of a math for the purposes of the math

would bind the math. A decree regarding such debts might be passed

against the succeeding head charging the income of the debutter in

spite of the fact that such debts were not charged on the income of

the math.

1. 1966 KLT 597. 2. (1917) 32 M U 259-

3. Strictland v. Symons (1884) 26 Ch.D 245, In the matter of
Johnson, Shearman v. Robertson (1880) 15 Ch.D. 548 and In the
matter of M.A. Shard ILR (1901) 28 Cal 574.
4. In the matter of M.A. Shard ILR (1901) 28 Cal 574.
5. See (1917) 32 M U 259, 261-262. 6 . ILR (1908) 3*1 Mad 47.
 286

In Palaniappa Chettiar v. Shamnugam Chettiar, in laying down

the rule that a trustee of a temple or a charity drawing a hundi or a

promissory note or a bill of exchange could not bind the religious or

charitable institution even in respect of debts incurred for the purposes

of an institution, the Madras High Court applied the rule of English law

about bills made by churchwardens, overseers and others, in their official

2
capacities. Wallis C.J. came to his conclusion only when in the facts of

the case nothing was found to justify that the trustee "intended to draw

the hundi on behalf of any body e l s e . S o

If
Palaniappa cannot be the authority for the proposition that the
act of a trustee borrowing money by executing a promissory note for

the purposes of the religious foundation could not bind the

foundation. In that case it was not proved that the borrowed money

in question was actually spent for the purposes of the endowment.

5
Now, the decision;in Rama Variar v. Ananthanarayana Pattar
was not
correct because it was based on the decisionsin Palaniappa^ and Swamin-
7
atha'srcases and neither of those cases, as we have seen, can be
relied on for the proposition that a trustee could not bind the deity

by execut ing a promissory note borrowing money for the purposes of

the deity.

But many cases dealing with a shebait’s power to borrow money by

executing a promissory note or bills for the purposes of the deity

in effect laid down the rule, which, it may be submitted, is a

correct one - that a shebait could bind the idol for the debts

incurred for the idol's purposes by executing a promissory note.

1. ILR (1918) 4'1 Mad 815.

2. Ibid,pp.820-821 where Wallis, C.J. referred to and quoted
from Byles on Bills, 16th ed., p. 86.
3. ILR (1918) Mad 81 5, 821. V Ibid.
5. (1950) 2 M U 636. 6 . ILR (1918) **1 Mad 815.
7. (1916) 32 M U 239.
 287

In Laksmindratheertha v. Raghavendra Row, the head of a math

incurred debt borrowing money for the necessary purposes of the math.

Sadasiva Ayyar, and Spencer, J.J. held that the head of a math incur

ring debts for the purposes of the math bound the math property.
A

suit to recover money could be brought during the lifetime of the

incumbent or against his successor. Sadasiva Ayyar J also pointed out

a distinction between a sannyasi head of a math and a lay trustee of a

charitable or religious foundation. In his opinion an analogy could

not be drawn between a head of a mutt and an administrator or a lay

2
trustee of a religious or charitable institution. Referring inter
alia to Shankar Bharati Svami v. Venkapa Naik^ where it was observed

that a head of a math might presumably have no private property and must

be presumed to pledge the credit of the math when incurring debts he

incurred for the purposes of the math, Sadasiva Ayyar, J. pronounced

that

"I am clear that a Hindu Sanyasi has no personal credit

whatever of a monetary or proprietary character, and that it
is a contra diction in terms to state that any loan was made
to a sanyasi on his personal credit. I would therefore hold
that Swaminatha Aiyar... and the other cases referred to, do
not apply when the question of the liability of the mutt or
other institution for the debt incurred by a Sanyasi as head
of the institution comes into question."
In his judgement in the same Madras case, Spencer J. referred inter

alia to Daivasikamani v. Noor Mahamad^ and approved it and ruled that in

all the cases "in which the head of a math, either directly or by impli

cation, pledged the credit of the math in incurring debts for purposes

necessary for the maintenance of the institution ... (*) there is

no presumption that the head of the mutt... intended to make himself

1. ILR (1920) 43 Mad 795- 2. ILR CL920) 43 Mad 795, 798.

3. ILR (1885) 9 Bom 422. 4. ILR (1920) 43 Mad 795, 799-
3. ILR (1908 )31 Mad 47. See above, this section.
 288

1
personally liable”.
But Sadasiva Ayyar, J.*s comments on the decisions in Swaminatha
2 3
Aiyar v. Srinivasa Aiyar, Chidambaran Pillai v. Veerappa Chettiar
if
and Parvathi Ammal v. Namagiri Ammal are the most revealing ones on
the issue in question. His Lordship observed that

’’The principle underlying these decisions is that such a

trustee, or other person in the position of a trustee, has
got his personal credit to pledge and the presumption should
be that when he incurred a debt without charging the trust
properties, the creditor lent the money on such personal
credit and could look to that credit alone and to the prin
ciple of subrogation for recovery of his l o a n ” .5
It may be interjected here that there must be a distinction drawn between

a lay trustee and a shebait - between a trustee of a hotel as we have

seen in the Calcutta case and a trustee of a religious endowment dedi

cated to a deity.

Moreover, in Niladri Sahu v. Mahant Chaturbhuj Das^ where the mahant

borrowed money from moneylenders on notes of hand not for the necessary
7
purpose of the math and Vibhuda Priya v. Laksmindra where the
mahant
borrowed money for the benefit of the math, the Privy Council laid down

the rule that a decree could be passed to realize in discharge of debts,

incurred for the purposes of the math, the beneficial interest of the

mahant in the endowed property, and the decree would bind the succeeding

mahant as well. Relying on the said Privy Council decisions the Madras
g
High Court held in Venkatabalagurumurthi Chettiar v. Balakrisha Odayar
that the creditor was entitled to recover the value of goods from the

assets of the temple when goods were bought by the trustee for the purposes

of the temple.

1. ILR (1920) Mad 795, 799.

2. (1917) 52 M U 259,cited above in this section.

3. (1917) 6 LW 6^0 as cited at 798 of ILR (1920) Mad 795.
k. (1917) 6 LW 722 as cited at 798 of ILR (1920) Mad 795*
3. ILR (1920) 43 Mad 795, 798. 6. (1925-26) 53 IA 253.
7. (1926-27) 5^ IA 228. 8. (1931) 60 M U 90, 96.
 289

In Sudaresan Chetty v. Viswanatha Pandarasamadhi, Krishnan, J. on the

finding that the trustees of the temple in question had agreed to repay

the loan out of the temple funds which was borrowed for temple purposes,

2
granted a decree charging the funds of the temple. In that case,
the
trustee of a temple borrowed money on a bond for the purposes of the

temple in question. In this context it may be pointed out that his

Lordship not only granted a decree charging the funds of the temple but

also laid down the general rule that where a trustee borrowed money for

the purposes of a temple without charging the funds of the institution

expressly, a decree could be granted to the creditor charging the funds

of the institution. Thus His Lordship ruled that "Turning now to the

main question argued, whether in the absence of an express charge on the

temple properties a decree could be given against!’temple properties or

thelike,"it seems to me the learned District Judge’s view that it

coul not be given is not correct on the facts of the case".^

d
k
But in this context Manikka Vasaka Desikar v. Balagopalakrishna Chetty

is in point. In that case the head of a math purchased goods for the

necessary purposes of the math by executing a promissory note.

Following
5
the decision in Sudindra v.Budan which was based on the
decision in
Prosunno Kumari Debya*s case^ the Madras High Court, in spite of the fact

that the head of the math against whom the decree was passed for the

recovery of the money gave up his position of the head, held that

"a decree passed against the trustee of a mutt is binding

on his successor upon whom lies the onus of coming
forward and taking steps to set aside a decree, which as
it stands is bind ing upon the mutt as represented by
him, and that in execution proceedings he cannot be
allowed to dispute the correctness of the decree".?

1. (1922) MU 1^7. 2. Ibid., p. 152.

3. Ibid., p. 1^9. * ILR (1906) 29 Mad 553.
5. ILR (1885) 9 Mad 8 0 . 6 .(187^-75) 2 IA 1*»5. Supra, p. 2?0.
7. ILR (1906) 29 Mad 553, 555-
 290

It is submitted that the above ruling of the Madras High Court should be

the law relating to the cases where shebaits borrow money by executing

promissory notes for the purposes or the benefit of the deity. Moreover,

it must be pointed out that in the presence of a ruling, as laid down in

Manikka Vasaka1s case the later decisions of the Madras or any other

High Court should not have departed from the law on the

2
subject at issue. V.K. Kombi Achan v. Chidambaran Iyer or
Palaniappa Chettiar v. Shamnugam Chettiar^ must not be taken
as authorities on the point at issue because of their wrong
basis, as shown above.
On the merits of the matter, if a debutter can be alienated for the

necessity of the deity by way of sale, mortgage or permanent lease, then

there should not be any bar for a shebait to borrow money by executing

a promissory note for the benefit of the deity. Again, it may be pointed

out that dealings of secular properties of minors by their managers or

guardians cannot be compared to the dealings of shebaits and debutter

properties. A shebait like a manager of an infant estate is empowered to

do whatever is necessary for the preservation of the endowment but his

power to deal with the debutter is not the same as that of a manager of an

infant estate and the Privy Council in formulating the rule in Prosunno

Kumari*s case never held like that. It drew a

broad analogy between a

shebait and a guardian of a minor and this is the only interpretation which

may be made from Sir Montague's observation that "It would seem to follow

that the person so entrusted must of necessity be empowered to do whatever

may be required of the idol, and for the benefit and preservation of its

5
property, at least to as great a degree as the manager of an infant heir".

1. ILR (1906) 29 Mad 553, 555* 2. 1966 KLT 597.

3. ILR (1918) 41 Mad 8 1 5. k. (187^-75) 2 IA 1^5.
5. (l8'7^-75) 2 IA 1^5, 152, emphasis provided.
 291

The underlined phrases, "at least to as great a degree as the manager

of an infant heir", obviously mean that he has at least the power of

a guardian of a minor but in no way do they mean that he has powers

equal with those of a guardian of a minor. So, whatever law is applic

able to limit the power of guardian of an infant is not necessarily

applicable to a shebait of an idol. The representative capacity of a

guardian of a minor is contingent and does not pass to his heirs but

the case of a shebait is different because "succeeding shebaits ...

2
form a continuing representation of the idol's property". And the
holder of a promissory note will know that he can sue any of the shebaits

either the incumbent or the future one, who form a continuing represen

tation of the debutter and the idol's property will be bound if it is proved

that money was borrowed for the purposes of the idol.

In my opinion the restriction which is imposed by law on a manager of

an infant estate in relation to his execution of promissory notes for

borrowing money for minor's purposes must not be there in case of a

shebait of an idol who intends to borrow money by executing promissory

notes to save the deity's interests and the money so borrowed by a she

bait should be realised from the debutter and if necessary a portion of

debutter may be transferred or alienated either by sale or mortgage or

lease whichever suits the deity's interests.

It may be argued that it is extremely inconvenient that a promissory

note's validity should depend on the contingency of the borrowing having

been, at its inception, supported by, e.g. legal necessity. India is,

however, familiar with defeasible titles and the proposition is not so

wildly anomalous as it appears. Acceptors of such notes must acquaint

themselves with the facts or lose their remedy.

1. Derrett, "Promissory Notes...", 2. (187^-75) 2 IA 1^5, 152.

op.cit., 101.
 292

SECTION 2

SHEBAIT fS DUTY AND RIGHT OF SUIT :

MANDAMUS a. Duties of a shebait
The ownership of a dedicated property belongs to the deity but the
1
deity owns the property only in an ideal sense. The deity by
its
nature cannot manage its own affairs and its ideal nature is connected

2
with the natural personality of its shebait who is in charge of the

management and in possession of the deity's property.^ But "the

duties

and privileges of a shebait primarily are those of one who fills a sacred

office... The main concern of shebait, therefore, is to duly

4
carry out the sacred duties of his office."
In relation to debutter property a shebait is empowered to discharge
5
his duties in such a way as he thinks proper. But he "by virtue of
his
office can never possess adversely to the idol, whatever steps he takes

in a.manner hostile, it might appear, to the idol's interests".

This

disability of a shebait is assumed to exist in any person who stands in

7
a fiduciary relation to others.
g
In Venkatanarasimha v. Gangamma where the scheme for the
management
of a public temple was challenged by the archakas of the temple, Ramaswami,

J. held for the Madras High Court that the "principle that a trustee

1. Prosumro Kumari Debya v. Golab Chand Baboo (1874-75) 2 IA 145, 152.

2. "An idol can hold property and obviously it can sue and be
sued in respect of it. But the idol is the owner of the debutter
property only in an ideal sense, its ideal personality is always
linked with the natural personality of the shebait." B.K.
Mukherjea op.cit., 4th ed., 256.
3. Jagandindra Nath v. Rani Hemanta Kumari (1903-4) 31 IA 203, 210. A
very important case for the purpose of this section.
4. Per Page, J. Nagendra v. Rabindra AIR 1926 Cal 490, 495. Supra p. 240.
5. Jagannath v. Byomkesh AIR 1973 Cal 397, 398.
6 . Derrett, IMHL 503*
7. B.K. Mukherjea, op.cit., 4th ed., 3^3*
8 . AIR 1934 Mad 258.
 293

cannot acquire title by adverse possession of the trust property,

applies equally to 'quasi’ or constructive trustees, the managers

of religious endowments and in fact to all persons who stand in a

1
fiduciary relation to others." Again in Sree Sree IshwariSridhar Jew
2
v. Sushila Bala affirming the view held by Rankin, C.J. in Surendra-
3
krishna Roy v. Shree Shree Iswar Bhubaneswari Thakurani that
there
could not be adverse possession of the debutter by any Shebait, Bhagwati,

J. held for the Supreme Court that "no shebait can, so long as he con-
4
tinues to be the shebait ever claim adverse possession." But a
stranger, or even the donor, can hold both theidol and thedebutter

adversely to the deity or theshebait andprevent theshebait from the

management and possession of both the deity^ and its property.^

Under

the Limitation Act, 1963 (Act 36 of 1963) he can acquire title

to the

idol's property, for 'he can prescribe for the estate against the idol

itself.'^
At present the period of limitation for perfecting title to an endowed

property by adverse possession or to recover possession of that property

•o
is governed by Articles 92-96 of the Limitation Act. Whether to
perfect

1. AIR 1934 Mad 238, 261.

2. (195*0 5 SCR 407, 417.
3. ILR (1933) 60 Cal34, 78.
4. (1934) 5 SCR 407, 417.
5 . "Adverse possession against the idol in respect of property
dedicated can be acquired either by a total stranger or by
the donor himself" Varadachari, op.cit>, 2nd ed., 303»
6. Derrett, IMHL, . 303•

7. Derrett, IMHL, 503* See also Gossamee Sree Greedhareejee

Rumanlolljee Gossamee (1889) 16 IA 137 as cited by the author, see
especially p. 146 of the cited case.
8. See below, Appendix IIA. An elaborate discussion on the
subject has been dealt with in Mukherjea's book, 4th edition,
pp.298-313* But there are some printing mistakes at p. 312 relating
to the limitation period of movable properties. It should be three
years, not twelve years as inserted on that page.
 29k

title to a debutter in adverse possession or its shebaiti, the

limitation period is twelve years. "The idol may lose the whole
or

a portion of its properties in case its shebait through laches suffers

a trespass for more than 12 years." and in these circumstances even the

idol itself might get lost.

2
In Iswari Bhubaneswari Thakurani v. Brojo Nath Roy the deity lost

title to half cf its property due to adverse possession for more than
3
twelve years. But in Damodar Das
v. Lakhan Das the junior chela
(disciple) perfected his title by adverse possession not only to the

debutter but also to the deity itself.

Even the founder can acquire a good title of a debutter by adverse

possession. In Dasami Sahu v. Param Shameswar, the founder appointed

his mother as the shebait of the endowment. Two years after

the dedi

cation the founder and his mother revoked the dedication and then the

founder treated the property as his own for more than twelve years.

Holding that the founder acquired title by adverse possession, the

Allahabad High Court held that "the same principle applies whether the

adverse possession is exercised by a total stranger or by the donor

himself.
It is suggested that a property dedicated in the name of God or in

favour of any religious foundation should not be subject to the Law of

Limitation.Public sentiments never acquiesce that the ownership of a

1. Varadachari, op.cit., 2nd edn., 303-

2. (1937-38) 6^ IA 203, 213-21^. The judgement of the Privy
Council affirmed the decision of the Calcutta High Court in
Surendra Krishna Roy v. Shree Shree Ishwar Bhubaneswari
Thakurani, ILR (1933) 60 Cal W -
3. (1909-10) 37 IA 1^7, 151.
4. AIR 1929 A11 313* The case is cited and discussed at pp.
303-30^ of Varadachari*s book, 2nd edn., but no
critique of the case has been made there.
5. AIR 1929 All 315, 318.
 295

religious property may be taken away because of its adverse possession

for a certain period. The deity’s property is more vulnerable to adverse

possession than a secular property, because it is by its nature incapable

of preventing a trespasser, and the law does not protect the deity even

if adverse possession is maintained with the collusion of the shebait, as

we have seen in the Allahabad case. The present position of law cannot

be acceptable by any religious or moral standard and gods' properties must

be saved by introducing the ancient rule, as we have already suggested

in the previous section, that the title to a debutter could never be

1
acquired by lapse of time. Moreover, the general rule that a debutter
property is inalienable sounds ludicrous when we find the effect of limit

ation on an endowed property in adverse possession. It seems that

on one

hand we are giving protection to the deity by the rule of inalienability

of its property, but on the other hand we are withdrawing that protection

by making debutter subject to the law of limitation. The limitation

law

and the rule of inalienability relating to debutter are a contradiction

in terms. This contradiction must be removed by making an exception to

the limitation law that a debutter must not be in the purview of the

Limitation Act.

Now the duties of a shebait in respect of the idol had been succinctly
2
pointed out by Lord Shaw in Pramatha Nath v. Pradhyumna Kumar when his
Lordship observed for the Judicial Committee that

"It must be remembered in regard to this branch of the law that

the duties of piety from the time of the consecration of the
idol are duties to something existing which, though symbolising
the Divinity, as in the eyes of law a status as a separate
persona. The position and rights of the deity must in order to

1. Derrett, Critique, 378. Above, p. 282.

2. AIR 1923 PC 139 = (1924-23) 52 IA 245. Supra p. 138.