- (1.) This appeal by special leave arises from the judgment dated 19-3-1980 passed by the learned Single Judge of the High court of Allahabad in SA No. 1940 of 1977
(2.) The admitted position is that one Hari Das owned considerable properties situated in Town Khair of Aligarh District which is part of Schedule 'b' attached to the plaint. He constructed a temple, by name Shri Jugal kishore ji Maharaj Mandir. Therein, the principal deity is Lord Krishnaand Radha. He endowed all his properties to the Mandir. During his lifetime, he was in charge of the temple as de facto trustee and he did seva (service) and pooja to the deity. After the abolition of the estate under the U. P. Zamindari Abolition and Land Reforms Act, 1950, bhumidhari rights in the properties were conferred on the deity, Lord Krishna and Radha. Hari Dass left behind him four chelas by name, Narain Das, Bansi Dass, Manohar Dass and0 Ram Dass alias Ram Chander. Appellant 1 Rambir Dass and his brother Har Govind Das are sons of Ram Dass. Bansi Dass, the last serving chela, had executed a Will, Ex. B-19 on 9/2/1955 whereunder he nominated the plaintiff and his brother as Shebaits of the Mandir. During his lifetime by Deed of Adoption dated 6/1/1966, Ex. A-45 cancelled the Will and adopted Defendants 1 and 2 as his chelas. Bansi Dass died on 3/2/1969. Thereafter, the disputes arose between the appellants and the respondents as to who would be entitled to succeed to the shebaitship of the Mandir. It is not necessary to dilate upon the proceedings that went on in the criminal court and in the suit. Suffice it to state that the appellant had sought a relief of declaration of succession as a Shebait to the Mandir, possession thereof and consequential perpetual injunction against the respondents from interfering with his shebaitship and possession and enjoyment of the property as a Shebait of the temple. The trial court granted the decree. On appeal, it was confirmed. In the second appeal, the learned Single Judge held that the cancellation of the Will in the Adoption Deed is valid for the reason that Rambir Dass had married and thereby he ceased to be a bairagi. His brother Har Govind Dass having become insane, was disqualified to be a Shebait. The defendants-respondents being minors, nomination in that behalf is invalid in law. As a consequence, the property became escheat; he directed the Advocate General to take action for possession of the properties. Thus, this appeal by special leave and cross-appeal
(3.) The primary question for consideration is whether the appellant's claim to be a Shebait of the Mandir is valid and sustainable in law. In Tagore Law Lectures 1936 published in Hindu Law of Religious and Charitable Trust, Justice B. K. Mukherjea, the former chief justice of this court, stated at page 216 as under: "As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in the founder, it follows the line of founder's heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder. In the matter of appointment of a Shebait, the discretion of the founder is unfettered. No Hindu would indeed think of appointing a person as manager of a temple who is a follower of a different religion, but there is nothing in law which prevents him from appointing as a Shebait a person of different or inferior caste. " It is further stated at page 217 thus: "As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship. The Supreme court of India has held very recently that shebaitship is 'property' within the meaning of the Hindu Women's Right to Property Act; consequently, in a case to which the Act applies, the widow and the son of the last Shebait would succeed jointly to the shebaiti rights held by the latter. It has been held further that even if the expression 'property' in the Hindu Women's Right to Property Act is to be interpreted as meaning property in its common or accepted sense and is not to be extended to any special type of property which 'shebaitship' admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu law to the extent that it has been modified by the Hindu Women's Right to Property Act would also be attracted to devolution of shebaiti rights. " At page 227, it is stated thus: "As there is always an ultimate reversion to the founder or his heirs, in case the line of Shebaits is extinct, strictly speaking no question of escheat arises so far as the devolution of shebaitship is concerned. But cases may be imagined where the founder also has left no heirs, and in such cases the founder's properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a Shebait for the debutter property. It cannot be said that the State receiving a dedicated property but escheat can put an end to the trust and treat it as secular property;