Kali Charan Gupta vs Smt. Prag Devi and Others

K.C. Agrawal, J.—This is an appeal u/s 299 of the Indian Succession Act (hereinafter referred to as ''the Act''), against a judgment of the learned Additional District Judge, Agra. By the said judgment, the learned Additional District Judge rejected the application filed by Kali Charan Gupta, the Appellant, u/s 276 of the Act. It appears that one Lala Bhagwan Das was the last surviving trustee of Mangal Sen Dharamshala Trust. The Dharamshala belonged to the aforesaid charitable trust established in 1912. Bhagwan Das executed a document, which purports to be a Will, on 22-2-1965 nominating the aforesaid Kali Charan Gupta as an executor. In the said Will he enunciated the aims and objects of the trust and laid down the scheme of management in respect of the same. Bhagwan Das died on 14-8-1968. Kali Charan Gupta, thereafter, filed an application u/s 276 of the Act for obtaining a probate on the basis of the aforesaid Will. He asserted that the said Will was the last testament executed by Bhagwan Das and as he has been nominated as an executor in the same, he was entitled to obtain a probate.

Two objections were filed to the grant of probate, one by Subhash Chand and another by Baijnath Kaushal. Both the objectors asserted that Bhagwan Das did not execute any Will nominating Kali Charan Gupta as an executor, and that the document on the basis of which the probate was being claimed by him was a fabricated one.

The Court below framed a number of issues on the various controversies which arose for decision between the parties. The application was ultimately, rejected on 28-10-1972. Aggrieved by the same, the present appeal has been filed by Kali Charan Gupta.

The first question that arises for determination in this appeal before us is whether the document dated 22-2-1965 was a Will. ''Will'' has been defined in Section 2(h) of the Indian Succession Act, which reads as follows:

''Will'' means the legal declaration of the intention of a testator with respect to his property which he desires to carried into effect after his death.

A reading of the aforesaid definition shows that the fundamental idea of a Will is that a testator should dispose of his property under it. In the present case, what has been disposed of by the Will is a right of trusteeship.

The question, therefore, for consideration before us is whether trusteeship is a property. It is indisputable that in some cases trusteeship may be a property whereas in some other cases it may not be. In the case of a Shebaitship or in the case of a Mahantship it may be that a Shebait or a Mahant may have proprietary interest in the properties of the trust. In that event he will not be limply discharging his duties as a trustee, but he will also have a beneficial interest in the trust. Such a right to receive beneficial interest may be considered to have created proprietary interest therein. There is, however, another variety of trusteeship where the trustee may not have any interest in the property or right to receive any benefit out of the same. In that event he would be a bare trustee to look after the management of the trust property and to perform his duties having occupied his office in that capacity. In the case falling in the second category, the trustee will have no proprietary interest in the property of the trust. In such an event, any disposition made by him of his office will not amount to disposition of the property. As stated above, the case of a Shebaitship or Mahantship will be different where he does not only dispose of his right in the office but also the right to receive the benefit in the property. The distinction pointed out by us above is supported by the discussion made by the Gujrat High Court in the case of Bai Zabu Khima v. Amardas Balakdas AIR 1967 Guj 214. A Division Bench of the Gujrat High Court was considering the question who ther the right of Shebaitship was merely a religious office without any beneficial interest in the endowed property. In that connection, the Gujrat High Court held as below:

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.

We respectfully agree with the distinction pointed out by the Gujrat High Court in the above case and hold in agreement with the same that the office of trustee in the present case could not be regarded as property. The same view has been taken by the Patna High Court in Ram Nath Das Vs. Ram Nagina Choubey and Others, . The Supreme Court in Angurbala Mullick Vs. Debabrata Mullick, , had an occasion to deal with the right of a Shebait in respect of the properties belonging to the debutter. In that connection, the Supreme Court held that a Shebait has an interest in the debutter properties and he is not only required to perform his official duties. The distinction made by the Supreme Court also establishes that a case of bare trustee is different than that of a Shebait and a Mahant where such a Shehait or Mahant has an interest in the property of the debutter or Math as the case may be.

Learned Counsel for the Appellant invited our attention to a decision in Banku B. Das v. Kashi N. Das AIR 1963 Calc 85. This was a case where the testator had not only transferred the right of a trustee, but also the right of Shebaitship. The Calcutta High Court on the background of these facts was required to consider whether the transfer made in that case amounted to execution of a Will. The Calcutta High Court held that as the right of Shebaitship was ''property'' therefore, the document executed in that case was a Will within the meaning of Section 2(h) of the Act. The law laid down in the said case does not support the contention of the learned Counsel for the Appellant at all. The other authority, on which reliance was placed by him, was Ram Chandra Upasni v. Bholanath Gir 1962 AWR 613. In this case, the question considered by this Court was whether the right of a Mahant to hold his office was a property which could be disposed of by means of a Will This Court took the view that the right of a Mahant is property. The law laid down in this case as well will not support the contention of the learned Counsel for the Appellant The next authority on which reliance was placed by the learned Counsel for the Appellant was Tulsidas Kilachand Vs. The Commissioner of Income Tax, Bombay City I, . This again was a case where the controversy was quite different than one which arises for decision in the present case. We are not concerned with the question which arose for decision before the Supreme Court in the above case. In this way, all the cases cited by the learned Counsel for the Appellant are distinguishable.

For the reasons given above, we hold that the court below rightly held the disposition in the present case was not property which was capable of being the subject-matter of the impugned Will.

The second question which was decided by the trial court was that the document dated 22-2-1965 was a forged one and that it had not been executed by Bhagwan Das. As we have held that the said document was not a Will on the basis of which probate could be granted to the Appellant, it is not necessary for us to express any opinion on the aforesaid question.

In the result, the appeal fails and is dismissed with costs.