Bimalabala Sinha vs Deb Kinkar Ghosh

Fazl Ali, J.—The question to be decided in this appeal is, whether the plaintiff is entitled to a declaration that he is the sole shebait of a certain idol and whether the defendant who claims to be a co-shebait with the plaintiff should be restrained from interfering with the management of the debuttar property. It appears that of the five properties dedicated to the idol, three were endowed by one Gobind Charan Ghose, the common ancestor of the parties and two by his son Madhusudan Ghose. It is common ground that Gobind Charan Ghose was the first shebait of the deity and was as such in possession of all the five properties during his lifetime. He was succeded by his son Madhusudan Ghose and upon the death of the latter his two sons, the plaintiff and one Chitannya Prasad Ghose, became shebaits. When Chaitannya died, the defendant, his only unmarried daughter who was a minor at that time, was recorded as a shebait in respect of two of the properties and the plaintiff who was then acting as her guardian supported her claim.

In 1925 however when the defendant applied for registration of her name in respect of the other three mauzas, the plaintiff contested her application and stated that he had allowed her name to be recorded in respect of the two properties under a misapprehension of law. His contention was overruled and so he brought this suit for a declaration that he was the sole shebait of the deity and prayed that the name of the defendant be removed from the Collectorate register and that the defendant be permanently restrained from interfering with the management of the debuttar properties. The suit was dismissed by the first two Courts, but it was decreed on appeal to this Court by Ross, J., against whose decision this appeal has been preferred.

It appears to me that the result of the appeal depends entirely upon the construction of a document (Ex. 2), dated 20th February 1863 by which Gobind Charan Ghose dedicated two of the endowed properties, as it is the only document in which some mention is made as to how the dedicated properties are to be managed. The important passage in this document runs thus:

First of all the Government revenue having been paid through me and after me through my sons, heirs, representatives, the entire produce thereof shall be spent on daily puja...and the other necessary items and feeding sadhus, saints and Brahmins by me as the sevak and after my death by my sons, heirs, representatives. My heirs and representatives shall have on no account any right to sell the said mauza dedicated to the said temple. I and after me my sons, heirs, representatives, shall take care of all the things mentioned above, sadar and mofussil, appertaining to the said mauza and the temple.

The document is written in Urdu and the words which occur repeatedly in it are, pisran, warisan, kayammokamian" which may be translated as sons, heirs, representatives. The view taken by Ross, J., is that the word "pisran" or sons must have been used by the founder of the trust with some object and his conclusion is that this word indicates that the latter preferred the male line of descendants to occupy the office of the shebait. He is also of opinion that the three words used in the document represent gradually widening classes from whom the shebaits were intended to be chosen and that these classes have to be exhausted in succession. In other words, if the male descendants were not available, then the shebait was to be chosen from among the heirs and lastly from among the legal representatives of the donor. Now, it may be conceded at once that it is not very easy to construe the document especially as it was drafted by one who was not a lawyer and who did not know the Urdu language well. Taking how ever all the circumstances into consideration I am inclined to agree with the interpretation put upon the document by Ross, J. There is no doubt that the use of the word "sons" must have some significance and the founder of the endowment would not have used three words where two of them were sufficient to convey his meaning. I am also not prepared to accept the suggestion that the donor simply meant to provide as to who should succeed him as a shebait immediately after his death and that he left the office to devolve according to the ordinary rule of succession afterwards. As Ross, J., points out the use of the plural pisran (sons) was strictly speaking inappropriate to the circumstances of the donor''s family inasmuch as he had actually one son; but even apart from this there is no reason to assume that, while the donor showed some concern about his immediate successor, he should have been entirely indifferent as to whether the shebaits to be appointed in after generations were fit to hold the office or not. How is then the direction in the deed to be construed ? The word "pisar" is a Persian word meaning a son, and although, strictly speaking, the word in its Persian sense does not include a grandson, yet that was the only word available to a scribe to be used in a document written in Urdu and he may have well used it to convey the sense which is usually conveyed by the term "putra" which is the Sanskrit word for a son. Dr. Gour says in his Hindu Code that sons include paternal grandsons and great grandson and adds the explanation:

The term "putra" is used in the Sanskrit texts in that generic sense as comprising the next three male descendants.

This proposition is not contested by the learned advocate for the appellant, and if the word "sons" is construed in this broad sense, the plaintiff evidently has a preferential claim to the shebait ship of the donor as his grandson. He is also admittedly an heir of the donor and thus if the word "pisar" is construed in its strict sense, he would succeed as a representative of the wider class referred to in the document as "heirs." The appellant''s claim in this case is based mainly upon the fact that she is the heir of Chaitannya who was a coshebait with the plaintiff. That circumstance however will not help the defendant because as Ross, J., pointed out, there is no question of an estate of inheritance in this case. Here there was a gift out and out to the deity and the office of the shebait is to devolve in accordance with the intention of the donor so far as it can be gathered from the document. Mr. Ray has referred to a number of decisions which have only re-affirmed the view taken in G. M.Tagore v. U. M. Tagore [1870] 4 B.L.R. 103. This view was expressed thus by Sir Barnes Peacock:

A gift to a man and his sons and grandsons or to a man and his sons'' sons would in the absence of anything showing contrary intention passes a general estate of inheritance according to Hindu law.

But the directions given by the founder of a religious endowment as to how the office of the shebait is to devolve are not to be construed on the same principle as the gift of property. The most obvious distinction is that the founder of a trust is generally concerned about the fitness of the person who is to carry on the trust after his death, but no such considerations generally arise in the case of a gift to a private individual. When the intention of the donor is clearly expressed, there can obviously be no difficulty in construing the document and no extraneous evidence would be admissible for the purpose. Where however the words used in the document are not very clear, the intention of the executant may, I take it, be construed not only in the light of the surrounding circumstances, but also of such considerations as are generally present in the mind of a Hindu founder of a trust. In this view Ross, J., was in my opinion quite justified in referring to the fact that a daughter who might be married anywhere cannot look after the debuttar properties so well as his son. To the same effect are also the following observations made by Madgavkar, J., in Ranchhod Mayaram Vs. Bai Jayanti, , in the following passage:

The respondent''s claim really rests upon the right now in question being treated as a heritable right in exactly the same manner as ordinary property under Hindu law. But both by reason of the grant being in favour of the Goddess and particularly the third condition of inalienability by way of gift or deed of inheritance, the right to officiate and to enjoy the net profits cannot be placed absolutely on a par with the rights to succession in ordinary Hindu property. The vahivat in the grant was in our opinion meant to be assigned to the family of Dayaram; and the moment any descendant passed out of the family, as for example by adoption or by marriage, the right ipso facto ceased. Any other view such as the one for which the respondents contend would not only widen the succession beyond undue bounds, but would lead to difficulties in carrying out the worship for which in this particular case access to the joint family house is necessary.

It appears to me therefore that on the construction of the document the plaintiff is entitled to succeed and in this view I consider it wholly unnecessary to go into the other questions which were discussed at the Bar, namely, whether the defendant would have been entitled to be a co-shebait or not in the absence of any direction by the founder of the trust and whether or not by reason of the fact that the plaintiff was a co-trustee he would become the sole trustee after the death of his brother by survivorship. It was contended by the learned advocate for the appellant that this decision should govern only the two properties which are covered by Ex. 2 and not the others. But the case appears to me to have been tried throughout on the footing that all the properties are incorporated in the same trust and I do not think that it was the intention of anyone that there should be one class of shebaits in respect of some of the properties and a different class of shebaits in respect of the others. There is another point which deserves a passing notice. It is said that the plaintiff himself having admitted the claim of the defendant in the Land Registration proceedings in respect of two of the endowed properties is estopped from questioning her right to be a co-shebait with him now. It has been held in Jagwant Singh v. Silan Singh [1899] 21 All. 285 and certain other cases that an admission on a point of law is not an admission of a thing so as to make the admission a matter of estoppel within Section 115, Evidence Act. To adopt the language used in that case: "it is not the case of a person who knows or must be deemed to know the real state of things creating by his representation a belief in the mind of a person who does not know the real state of things; for, quite apart from any representation made by the plaintiff, the defendants must be deemed to have known what their legal rights were. "

In my judgment this appeal should be dismissed with costs.

Courtney-Terrell, C.J.

I agree.