- (1.) THIS second appeal by the plaintiffs is directed against the judgment and decres of the District Judge, Bhilwara. dated 24-8-66 where by he accepted the appeal of the defendant-respondent Kesarlal and reversed the judgment and decree of the Civil Judge, Shahpura dated 26-2-65.
(2.) THE relevant facts which are no longer in dispute may briefly be stated as follows THE parties to the appeal consist of two appellant and nine respondents. All of them are descendants of a common ancestor Radha Kishan. THE Former Me war State in ancient times appointed Radha Kishan and one Sitaram as shebaits of the temples of Chaturbhuj ji alias Charbhujaji and Mahadeoji Maharaj situated at Village Dhod. THE Former Mewar State also allotted certain agricultural lands to these deities and it is common ground between the parties that those lands were divided in equal shares by Radha Kishan and Sitaram. THE Sewapuja of the deities was performed by pali system in alternate months, that is, Sewapuja for one month was performed by the descendants of Radha Kishan and in another month by the descendants of Sitaram. THE offerings during the month used to be received by the shebaits as per turn of the Sewa-puja. THE last descendant of Sita Ram was Bhuralal. On 29-12-61 Bhuralal by means of a gift-deed transferred his right of she baitship and the lands possessed by him described in para 6 of the plaint, in favour of the defendant Kesarlal who is, as already stated above, one of the descendants of Radha Kishan. Kesarlal thus stepped into the shoes of Bhuralal. He took possession of the lands described in para 6 of the plaints. He also commenced performance of Sewa-puja of the deities and received offerings just like Bhuralal from the date of the gift-deed, that is, 29-12-61. Bhuralal expired issueless some-time in February 1962. THE appellants Nandlal and Bansilal then instituted the present suit on 22-10-62 against Kesarlal and his father Badrilal claiming the following main reliefs ************* On an objection by the defendants, the remaining descendants of Radha Kishan were impleaded as defendants Nos. 3 to 9 the main allegation as disclosed in the plaint was that Bhuralal had no right to execute the gift-deed and transfer his right of shebaitship and the lands possessed by him in favour of Kesarlal. THE suit was contested by the defendants Kesarlal and Badrilal. THE trial court framed as many as 13 issues and after evidence decreed the suit holding that Bhuralal had no right or authority to alienate his right of shebaitship under the gift-deed dated 29-12-61. On appeal by the contesting defendants, the learned District Judge, Bhilwara, set aside the decree passed by the trial court and dismissed the suit on three-fold grounds. In the first instance, he held that the suit was not triable by the civil court as it related to the agricultural lands. Secondly, it was held that Kesarlal being in exclusive enjoyment of the share of Bhuralal in respect of the worship of the deities and the agricultural lands, the plaintiffs who are not in any way related to Bhuralal, have no right to bring the suit, inasmuch as none of the right of Bhuralal devolved upon the plaintiffs. , It was further held that even if Kesarlal is treated as trespasser, he can be ousted by the true owner, namely, the State which is the founder of the religious endowment and not by any body else. Lastly, since the plaintiffs did not claim relief for possession of the agricultural lands possessed by Kesarlal, the suit for mere declaration is barred under sec. 42 of the Specific Relief Act (Old ). THE plaintiffs have now preferred this second appeal. The main point which arises for decision in this appeal is whether a shebait can lawfully alienate his right of shebaitship by gift under the Hindu Law. Mr. Surolia, the learned Advocate for the plaintiff-appellants, has argued that under the Hindu Law, no alienation of shebaiti right by gift is permissible and therefore the gift-deed executed by Bhuralal in favour of Kesarlal is void. Mr. Lodha, on behalf of the respondents, has argued that a part from the fact that the plaintiffs are not the heirs of Bhuralal and as such they are not entitled to shebaiti rights of Bhuralal, there is no absolute bar to alienate shebaiti right under cer-tain limitations. According to him, in the circumstances of the case, the alienation of shebaiti right in favour of defendant Kesarlal, who is none else than one of the descendants of Radhakishan, is valid The law on the subject is well discussed by Mr. P. B. Mukherjea in his book "the Hindu Law of Religious & Charitable Trusts," 3rd Edition. Reference may be made to his observations in the said treatise at page 178 : " Although shebaiti right is heritable like any other property, it lacks the incident of proprietary right, viz. the capacity of being freely transferred by the person in whom it is vested. The reason is that the personal proprietary interest which the shebait has got is ancillary to and inseparable from his duties as a ministrant of the deity, and a manager of its temporalities. As the personal interest cannot be detached from the duties, the transfer of shebaitship would mean delegation of the duties of the transferor which would not only be contrary to the express intentions of the founder but would contravene the very policy of law. A transfer of shebaitship or for the matter of that of any religious office has no where been countenanced by Hindu lawyers. " The learned author then discussed the general principles laid down in several decided cases. He then pointed out certain exceptions to the general rule against alienation at page 180. The relevant observations are : " Though the general proposition laid down in the cases referred to above has never been disputed, yet where are decisions of different High Courts in India, in which the rule against alienation of shebaiti right has been relaxed to some extent by reason of certain special circumstances. These circumstances may be conveniently grouped under three heads (1) Where the transfer is not for any pecuniary beneifit, and the transferee is the next heir of the transferor or stands in the line of succession of Shebaits and suffers from no disqualification regarding the performance of the duties. (2) When the transfer is made in the interests of the deity itself and to meet some pressing necessity. (3) When a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family. " The learned author then discussed various authorities on the above exceptions formulated by him.
(3.) IN S. M. Sovabati Dassi vs. Kashi Nath Dey (1), Masud J. has summarised the different views expressed by the various High Courts in INdia in para 8 of his judgment which runs as under : " On the question of transfer of a shebaiti right the learned judges in the past have expressed different views on the matter which may be enumerated as follows (a) A shebaiti right cannot be transferred inasmuch as such transfer would mean delegation of the duties of the delegated authority and as such, contrary to public policy : vide Rajah Varmah vs. Ravivarmah 1876, 4 INd. App. 76 (PC ). (b) A shebait is not bound to accept his office and he can transfer his right to the shebait-ship in favour of his next heir by way of "renunciation" "surrender", "resignation" or "abdication" of his entire interests : vide ILR 53 Cal. 132 (AIR 1926 Calcutta 490), Panchanan Banerji vs. Surendranath AIR 1930 Cal. 180 and AIR 1951 Cal. 490. (c) A shebaiti right can be transferred if there is a valid and reasonable custom allowing such transfer: vide AIR 1915 Cal. 161 (2), Alr. 1957 Cal. 685. (d ). A shebaiti right can be transferred to a person in line of succession who is not otherwise disqualified or unfit to perform the religious or spiritual duties } vide 1946, 50 Cal. W. N. 272. (e) Alienation of the office of shebait inter vivos in favour of a closely connected member of the family who seems to have more interest in the worship of the deity and without any idea of personal gain is valid : Nirod Mohini Dassi vs. Shibadas Pal, 1909 ILR 36 Cal. 975. (f) Sale of a shebaiti right for valuable consideration is invalid unless such sale was made in favour of all the immediate successor shebaits : vide 1869, 6 Bom. H. C. R. 250. The transfer in the case was held to be valid also on the ground of custom. (g) A shebaiti right can be transferred by gift inter vivos on the basis of the doctrine of necessity or benefit of deity only: vide 1908 ILR 35 Cal. 226. The decision was also justified on the special circumstances in that case following 1890, ILR 17 Cal. 557. (h) the transfer of a shebaiti right by will has also been held valid in law even in favour of a possible successor shebait : vide 1882 ILR 6 Bom. 298. " Masud J. in the aforesaid case expressed his opinion on the character of shebaiti right and also on its alienability. He observed in para 9 as under : " IN my view, as stated above, Shebaitship comprises a distinctive category of property, the transfer of which is permissible unless such transfer is repugnant to the principles of Hindu Law. Shebaitship, being an amalgam of office and property, it will not be correct to say that it is absolutely alienable like by other properly or that it is not alienable under any circumstances. The general limitations under which such transfer is permissible may be set out as follows (a) The transfer of a Shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the Deed of Endowment unless an ancient or reasonable custom or usage has been followed to the contrary. (b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his Deed of Endowment a particular shebait cannot change the line of succession by any Deed of transfer unless the shebait transfers the totality of his rights in favour of the succeeding shebait or shebaits during the lifetime. (c) A transfer of a shebaiti right is also permissible for the benefit the idol or the deity or for imperious necessity under special circumstances. " I entirely agree with the principles laid down by Masud J. in Sovabati Dassi's case. Applying the said principles to the facts of the present case, I hold that Bhuralal has lawfully transferred his shebaiti right along with the lands possessed by him under the gift-deed dated 29-12-61. The gift-deed shows that Bhuralal alienated his entire right and interest in favour of Kesarlal who is admittedly one of the co- shebaits. It is not in dispute that Kesarlai is a person who is in no way disqualified from holding the office of the Shebait. Mr Surolia urges that a Shebait cannot transfer his shebaiti right to one single Shebait when there are in existence more than one co-shebait. In other words, his contention is that the gift-deed is invalid because it is in favour of one of the descendants of Radhakishan, namely, Kesarlal had not in favour of all the descendants of Radhakishan. Reliance is placed on Bameswar Bamdcy vs. Anath Nath (2) where-in S. R. Das Gupta J. has expressed his view that the Shebait cannot transfer his shebaiti right, unless there is complete renunciation of his right in favour of all the succeeding shebaits A careful reading of the judgment in that case would show that the learned Judge made the said observation with reference to the facts and circumstances of that case. I may further add that the learned Judge followed the earlier decisions which were based upon the concept that shebait office is more a religious office than a property. A new situation, however, arose when a Full Bench of the Calcutta High Court in Manohar Mukherjee vs. Bhupendranath Mukherjee (3) expressly laid down that shebaiti right is a property. This principle was then fallowed by their lordships of the Privy Council and Supreme Court in Bhabatarini Debi vs. Ashalata Debi (4) and Smt. Angurbala Mallik vs. Debabrata Mallik (5) respectively. In may opinion, it is within the competence of the Shebait to make a gift of his office to a single person standing in the line of succession in exclusion to other successors provided he is not otherwise disqualified by personal unfitness. I am supported in my view by the decisions in Official Receiver vs. Smt. Jogmaya Dassi (9; and Nirode Mohini Dassi vs. Shibadas Pal (7 ). In this view of the matter, it is unecessary for me to deal with the reasons given by the learned District Judge in dismissing the suit I woulds however, like to throw light on one point. The learned District Judge has held that since the plaintiffs were not related to Bhuralal, none of the rights of Bhuralal had devolved on the plaintiffs and as such the plaintiffs have no right to bring the suit. That, in my opinion, is not the correct position of law. The plaintiffs, the defendants and Bhuralal were all co-shebaits of the deities The Shebaits of a deity when more than one form one body in the eye of law. See Sree Iswar Lakshi Durga Har Tatneswar vs. Surendra Nath Sarkar (8) and Nemai Chakrabarty vs. Benshidhar Ghakravarty (9 ). It therefore cannot be said that the plaintiffs had the right to bring the suit to challenge the validity of the alienation which, according to them, was invalid. ;