BAI ZABU KHIMA Vs. AMARDAS BALAKDAS ALIAS AMARSHI BECHAR
LAWS(GJH)-1966-3-2
HIGH COURT OF GUJARAT
Decided on March 23,1966

BAI ZABU KHIMA Appellant
VERSUS
AMARDAS BALAKDAS @ AMALRSHI BECHAR Respondents

JUDGEMENT

P.N.BHAGWATI, M.U.SHAH - (1.) This appeal arises out of an application made by the applicant as the universal legatee of the estate of one Bechar Dunger alias Maharaj Balakdasji (hereinafter referred to as the deceased) for obtaining letters of administration with a copy of the will annexed. The deceased was originally a resident of Khoda and was carrying on worship of his Thakorji at that place. In Samvat Year 1979 he purchased land bearing Plot No. 98 admeasuring 2 0 square yards at Jorawarnagar and built a temple on the said land and installed the image of his Thakorji in the said temple. He thereafter shifted to Jorawarnagar and performed the worship of Thakorji and managed and looked after the temple. One Sadhu named Maharaj Shri Karsandasji gave him a `Kanthi and initiated him in the order of a Sadhu and since then he came to be known as Maharaj Shri Balakdasji. He dedicated the land and the temple standing on it to Thakorji and carried on management of the temple and per formed worship of Thakorji as a shebeit. It appears that some part of the property constructed on the land was let out and income was being received from tenants in respect of such part and the deceased took the entire income consisting of rent and offerings for himself and maintained himself out of such income. The deceased already had one wife but he took another wife named Bai Zabu on 20th December 1946. Thereafter he made a will dated 5th November 1947 disposing of in favour of the applicant who was initiated by him as his Chela during his lifetime the right to manage the temple and to worship Thakorji and to take the income of the temple including rent and offerings for his own maintenance The will was signed by the deceased in the presence of two witnesses namely Bhikhalal Oghadbhai and Govubha Zhala who attested the signature of the deceased on the will. The deceased thereafter died some time in 1949. Now at the date of the death of the deceased the applicant who was the universal legatee under the will of the deceased was a minor and he therefore after attaining majority made the present application for obtaining letters of administration of the estate of the deceased with a copy of the will annexed. The application was filed on 1 September 1959 in the Court of the Civil Judge Senior Division Surendranagar and notice of the filing of the application was served on Bai Zabu. Bai Zabu filed her objections on 11th January 1960 and on the same day the applicant filed affidavits of himself and his witnesses of whom it is necessary to mention the names of only two namely Ratilal Chhotalal and Govubha Zhala and Bai Zabu also filed the affidavits of herself and her witnesses. The application was ultimately heard on 14th April 1960 when the witnesses who had made the affidavits on each side were cross-examined by the other side and after the cross-examination was concluded the arguments were heard by the learned Civil Judge. The learned Civil Judge by an order dated 30th April 1960 held that the applicant had succeeded in establishing the due execution of the will and he accordingly granted letters of administration with a copy of the will annexed to the applicant provided the applicant paid the requisite court fee stamps. Bai Zabu who was the opponent in the application thereupon preferred the present appeal in this Court.
(2.) The first contention urged by Mr. Padia learned advocate appearing on behalf of the opponent was that the learned Civil Judge had no jurisdiction to grant the letters of administration since a contention was raised on behalf of the opponent resisting the grant of letters of administration. It was only if the case was non-contentious that the learned Civil Judge could have jurisdiction to entertain the application and to grant letters of administration as a District Delegate under sec. 265 of the Indian Succession Act but as soon as the case became a contentious one on the opponent filing her objections to the grant of letters of administration the learned Civil Judge ought to have returned the application to the applicant in order that the same may be presented to the District Judge under sec. 288 of the Indian Succession Act. Now it is no doubt true that if the matter rested merely on a consideration of the provisions of the Indian Succession Act the contention of Mr. Padia would be well founded for it is clear that under sec. 265 a Civil Judge Senior Division within any district can be appointed by the High Court to act for the District Judge as delegate to grant letters of administration only in non-contentious cases and if in a case before the Civil Judge Senior Division a contention is raised the Civil Judge Senior Division must return the application with any document which may have been filed along with it to the person by whom the application was made in order that the same may be presented to the District Judge under sec. 288. Reading secs. 265 and 288 together it is manifest that a Civil Judge Senior Division cannot grant letters of administration in a case where a contention is raised against the grant of letters of administration. But the Saurashtra District and Sub ordinate Civil Courts Ordinance 1948 by sec. 28A subsec. (1) provided that the High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act 1925 and in exercise of the powers conferred under this section the High Court of Saurashtra issued a notification dated 30th July 1948 empowering all Civil Judges Senior Division within their territorial limits to exercise all the powers of a District Judge. The result was that though the Civil Judge Senior Division Surendranagar had no power under the Indian Succession Act to grant letters of a ministration in contentious cases such power was conferred on him under the High Court Notification dated 30 July 1948 issued under sec. 28A(1) of the Saurashtra District and Subordinate Civil Courts Ordinance 1948 Now this Ordinance was repealed by Bombay Civil Courts (Extension and Amendment) Act 958 on 1 April 1959 but the proviso to sec. 8 of that Act provided that any Notification issued under the Ordinance shall in so far as it is not inconsistent with the provisions of the Bombay Civil Courts Act 1869 be deemed to have been issued under the corresponding provisions of the Bombay Civil Courts Act 1869 and shall continue in force unless and until superseded by anything done or any action taken under the Bombay Civil Courts Act 1869 The Bombay Civil Courts Act 1869 contained sec. 28A which was in identical terms with sec. 28A of the Saurashtra District and Subordinate Civil Courts Ordinance 1948 and the High Court Notification dated 30th July 1948 therefore continued in force as if issued under sec. 28A of the Bombay Civil Courts Act 1869 notwithstanding the repeal of the Saurashtra District and Subordinate Civil Courts Ordinance 1948 until it was superseded on 4th September 1958 by a new Notification issued by the High Court of Bombay in exercise of the powers conferred under sec. 28A of the Bombay Civil Courts Act 1869 The High Court Notification dated 30th July 1948 was therefore in force at the date when the application in the present case was made by the applicant in the Court of the Civil Judge Senior Division Surendranagar and by virtue of the said Notification the learned Civil Judge was competent to entertain the application and to grant letters of administration to the applicant despite the fact that the case became a contentious one by reason of the opponent filing objections against the grant of letters of administration. This contention of Mr. Padia must therefore be rejected.
(3.) Mr. Padia next urged that what was sought to be disposed of by the deceased under the instrument dated 5th November 1947 was not property and that the instrument was therefore not a will of which probate or letters of administration with a copy of the will annexed could be granted. This contention is also in our opinion fallacious and cannot be sustained. Will is defined in sec. 2(h) of the Indian Succession Act to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is therefore indisputable that the instrument which is sought to be propounded as a will must contain the legal declaration of the intention of the testator with respect to his property. If what is sought to be disposed of by the deceased by the instrument in question is not property the instrument cannot be regarded as a will. It therefore becomes necessary to inquire whether the right which was sought to be disposed of by the deceased by the instrument sought to be propounded as a will was property. Now when we turn to the instrument we find that the deceased did not purport to dispose of either the temple or the land on which the temple stood. The recitals contained in the instrument showed that both the temple and the land on which the temple stood were dedicated by the deceased to Thakorji and that they were therefore properties belonging to Thakorji as a deity. The deceased was merely a Shebait having the right to worship the deity to manage and look after the temple and to appropriate to himself the income of the endowed property consisting of rent and offerings. The deceased declared by the instrument his intention that after his death this right of a Shebait should go to the applicant his disciple and that the applicant should have the right to manage the temple to worship the deity and to maintain himself from the rent and other income of the temple. What was bequeathed by the deceased by making the instrument was therefore the Shebaitship of the temple. The question is whether the Shebaitship of the temple could be said to be property. If it was property then clearly the instrument executed by the deceased would be a will for it would contain the legal declaration of the intention of the deceased with respect to his property namely the Shebaitship which he desired to be carried into effect after his death. But if it was not property then that being the only subject matter of the instrument the instrument would not be a will. Mr. Padia on behalf of the opponent strongly contended that the Shebaitship of the temple could not be regarded as property but it was merely an office and the instrument was therefore at the highest no more than an instrument appointing the applicant to the said office after the death of the deceased. We cannot accede to this contention. The Shebaitship of the temple we think was not merely a religious office which could not be regarded as property for the purpose of civil law. The Shebaitship no doubt involved the performance of religious duties such as performing worship of Thakorji but it also carried with it as an inalienable incident the right to appropriate the income of the temple. The Shebaitship was an office which brought income to the holder as a necessary concomitant of the office and it was there fore as much property as any other property known to law. If the Shebaitship were merely a religious office without any beneficial interest in the endowed property and not producing any income it might not have been possible to regard Shebaitship as property but when it entitled the holder of the office to the income of the endowed property as also to the offerings which might be made to the deity the Shebaitship must be regarded as property. This position indeed seems to be indisputable and does not need any authority to support it but if any authority were needed it is to be found in the decision of the Supreme Court in Angurbala Mullick v. Debabrata Mullic 1951 S. C. R. 1125 where dealing with the question whether Shebaitship was heritable property Mukherjea J. speaking on behalf of the Supreme Court observed: In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense it would not be correct to describe the Shebaitship as a 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 shebait 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 the 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 Shebait 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 endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji (60 Cal. 452) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary 63 1 A. 4668 and again in Bhubatarini v. Ashalata 70 I. A. 57. The effect of the first two decisions as the Privy Council pointed out in the last case was to emphasize the proprietary element in the shebaiti right and to show that though in some respects anomalous it was an anomaly to be accepted as having been admitted into Hindu law from an early date. According to Hindu law observed Lord Hobhouse in Goswamee Sree Geerdharreejee v. Rumanlalljee Goswamee 16 I. A. 137 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 circumstances to show a different mode of devolution. Unless therefore the founder has disposed of the shebaitship in any particular manner and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist Shebaitship like any other species of heritable property follows the line of inheritance from the founder. Having regarded to these observations of the Supreme Court it is clear beyond doubt or dispute 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 dispose of the Shebaitship by making a will. The instrument sought to be propounded as a will of the deceased therefore comes within the definition of will as given in sec. 2(h) of the Indian Succession Act and if the due execution of the will can be said to be established by the applicant the grant of letters of administration with a copy of the will annexed must be made to the applicant.;


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