Siddheswar Das and Others vs Smt. Maya Das and Others

Girish Chandra Gupta, J.—This appeal is directed against decree dated 22.9.1988 passed by the learned Trial Judge. The facts giving rise to the present appeal briefly stated are as follows :

One Srinath Das an eminent vakil of this court governed by Dayabhaga School of Hindu Law died on 13.9.1907 leaving a Will whereby he created a Debutter and dedicated the following properties to the family idols Sri Sri Laxmi Janardan and Sri Sri Mangal Chand which were located at No. 10, Srinath Das Lane, Calcutta:

(i) Premises No. 10, Srinath Das Lane, Calcutta.

(ii) Premises No. 1, 4, 9 and 17, Srinath Das Lane, Calcutta.

(iii) No. 14, Wellington Street, Calcutta.

(iv) Premises No. D 47/209. D 47/210. D 47/210/1-A and D 47/ 210/1-B. Rampura, Varanasi, U.P. with furniture and fittings.

(v) Various immovable properties in Khulna, Jessore and Faridpur (now in Bangladesh).

The testator had 5 sons one of whom died issueless long before the death of the testator. The testator appointed shebaits. The relevant portion of the Will where provision for appointment of shebaits is made reads as follows:

"I appoint my youngest sort Rajendra Nath Das as Shebait, after him my eldest grandson Jogendra Nath Das alias Udoy Kumar Das in the male line, if legally fit and entitled to do the work, after him my next grandson in the male line Jatindra Nath Das alias Arun Kumar Das, if legally fit and entitled to do the work and so on my grandsons in the male line by my two sons Surendra Nath Das and Rajendra Nath Das according to seniority in age shall be successive shebaits. In default of my grandsons in the male line my great-grandson in the male line shall be successive shebaits in the manner stated above and go on for every one grade after another."

Rajendra Nath Das died on 25.1.1930. After his death Jogendra Nath Das became the Shebait. He died on 21.5.1972. Jatindra Nath Das died before Jogendra Nath Das. It appears, after his death, Bhuban Mohan Das assumed office of a Shebait. Although in the Will Jatindranath Das has been referred to as the youngest grandson of the testator, it has not been disputed by the parties that the said Bhuban Mohan Das was born during the life time of the testator. After the death of Bhuban Mohan Das, Dhirendra Nath Das the defendant No. 1, son of Jatindranath Das. staked claim to shebaitship on the basis that he is the eldest male member of the family. Bhuban Mohan Das by his Will dated 16.9.1981 has purported to appoint Sri Kanchan Kumar Das who is the defendant No. 9 as the next Shebait. The plaintiffs being some of the other great grandsons of the testator have presented the Originating Summons contending that (a) the line of succession laid down by the testator insofar as the same related to the persons who were not in existence at the time of his death is invalid; (b) after the death of Bhuban Mohan Das the office of Shebait has reverted to all the heirs of the testator; (c) that female descendants or male descendants through female descendants are not concerned with the subject matter and as such they were not made parties; and (d) that the plaintiffs and the defendants being the surviving great-grandsons of the testator are his heirs in accordance with the Hindu Law of succession obtaining at the time of the death of the testator and are the joint shebaits of the Debutter estate.

On the basis of the aforesaid contention the plaintiffs have prayed for determination of the questions and have claimed relief as follows

(a) Whether after the death of the said Bhuban Mohan Das the office of the Shebait has reverted to the heirs of the said Srinath Das;

(b) if the answer to question (a) is in the affirmative, whether, the plaintiffs and the defendants being the surviving great-grandsons of the testator are his only heirs and joint shebaits of the Debutter estate;

(c) If the answers to questions (a) and (b) above are in the affirmative, the plaintiffs submit that in view of the large number of shebaits. a scheme should be framed by the Hon''ble Court and/or directions therefore be given and/or such order and/or such other direction be given for proper management and administration of the Debutter estate as the Hon''ble Court may deem fit;

(c) Perpetual injunction restraining the defendant No. 1 and his servants and agents and each of them from intermeddling with the Debutter estate exclusively to the prejudice of the rights of the other parties to the suit;

(e) Interim temporary injunction pending the final disposal of this Originating Summons in terms of clause (iii);

(d) Interim Receiver of the Debutter estate;

(g) Costs."

The defendant No. 1 has disputed that the line of succession laid down by the testator is invalid in law and has further claimed that he is entitled to become the sole Shebait in terms of the will. He has disputed the contention that the female descendants or male descendants through the female descendants of the testator are not entitled to be heirs or heiresses of the testator. He has also questioned the maintainability of the suit due to non-joinder of the necessary parties.

The learned Trial Judge has determined the questions and granted relief as follows:

"In the result, my answer to question No. (a) is as follows:

After the death of Jogendra Nath Das and not after the death of Bhuban Mohan Das the office of the Shebait reverted to all the heirs of Srinath Das. the testator as on 21.5.1972.

Regarding the question No. (b) my answer is that the plaintiffs and the defendants and other female heirs of late. Srinath Das are the joint shebaits of the Debutter estate.

Regarding the question No. (c) my answer is that in this Originating Summons all the parties not having been impleaded it would not be proper to frame any scheme for which the shebaits, if they feel it necessary, may file appropriate suit or legal proceedings.

Regarding the question No. (d) I restrain the defendant No. 1 and his servants and agents from exclusively performing the seba-puja of the deity excluding the other shebaits of the Debutter estate. I declare that all the shebaits shall act jointly for the seva-puja of the deity till an appropriate scheme is framed by a competent court of law.

All parties shall bear the respective costs of this Originating Summons themselves. Receiver shall continue till 31-12-1988 liberty to the shebaits to apply for framing of scheme by impleading all the shebaits." The plaintiffs have preferred this appeal.

Mr. Das appearing in support of the appeal did not assail the finding of the learned Trial Judge insofar as the answer to question (a) is concerned. His contention briefly stated is that the office of Shebait shall revert to the heirs of the testator as on the date of his death. His further contention is that as on the date of the death of the testator, a female was not considered an heir and therefore no female has any right to join the office of a Shebait. He has prayed for framing of a scheme and has also prayed for a direction that costs of the litigation should come out of the Estate. The learned Advocate appearing on behalf of the respondents/defendants has not assailed the finding of the learned Trial Judge insofar as the answer to question (a) is concerned. He has also prayed for framing of a scheme.

Therefore, the question for our determination really is who are the heirs of the testator?" Answer to this question will be crucial for determination of question (b). Once the question (b) is answered, the rest of the questions and relief prayed for would follow automatically. The learned Trial Judge has held that "the question of devolution of shebaits under the Hindu Law opened only in 1972. When Hindu Succession Act has already come into force, the shebaitship would therefore devolve upon all the male and female heirs living on 21.5.1972." It is the finding of the learned Trial Judge which is under challenge which requires our consideration. Mr. Das wants us to exclude all the female members from the right of shebaitship on the specious plea that the sons living as on the date of death of the testator should be treated as the heirs and the law obtaining as on that date i.e. 1907 should determine the question as to who are the heirs of the founder. It is true that sons living as on the date of death of the testator were his heirs and the residuary right was vested in them. It is however not correct to state that the law obtaining in the year 1907 will determine the question as to the persons in whom the residuary interest was vested either in the year 1972 or in the year 1986.

Dr. Bijan Kumar Mukherjea, the Ex-Chief Justice of the Supreme Court of India, in August 1951 delivered Tagore Law lectures which were published in the form a comprehensive text-book under the caption "Hindu Law of Religious and Charitable Trust". In the 5th Edition of the said text-book at page 212 the learned author after discussing a long catenna of cases has stated the law in this regard as follows:

"It must be taken to be settled by the decision of the Privy Council that when the founder makes only a limited grant of shebaitship, the residue still remains in him and his heirs as an estate of inheritance. When the limited shebaitship ends, the next Shebait would be the person in whom this residuary estate of the founder was vested at the date of the termination of the limited shebaitship. In Bhabatarini vs. Ashalata, ILR (1943) Cal. 137 : LR 70 IA 57) the material facts were as follows : S, a Hindu, established in his life time certain family idols and dedicated to them certain properties by a deed which provided that he and his wife would be the first joint shebaits, and on the death of the survivor among them their son P should be the Shebait. There were further provisions relating to succession of shebaitship after the death of P but they were invalid in law. The wife of S died first, and then S died leaving a daughter B, and his son P. P then died leaving his wife A, and three daughters. The question was as to who as between D and A would be entitled to shebaitship after the death of P. Mr. Justice Khundkar sitting in the original side of the Calcutta High Court decided in favour of B as she was the nearest heir of the founder when P died, and the learned Judge relied entirely upon the decision in Kwyamoni vs. Nikunja (22 CLJ 404) referred to above. On appeal the decision was reversed by Derbyshire, CJ. and Mukherjea, J. Mukherjea, J. expressed the view that as P had not the Shebaiti right absolutely vested in him, the residuary right still remained in S and his heirs, and as P was the sole heir of S, both the limited and the residuary rights were united in him. His position therefore was that of an absolute Shebait, and after his death, his heirs and not the heirs of the founder would be entitled to succeed as shebaits. On appeal to the Privy Council, the judgment of the appeal bench was affirmed, though Their Lordships somewhat broadened the ground upon which the decision of Mr. Justice Mukherjea was based. The view of the Privy Council seems to be that as there was no provision for devolution of shebaitship after the death of P. the residuary right remained from the beginning in S, the founder, and it went on devloving as a species of heritable property on his successors in the order laid down by Hindu Law. When P died, this residuary right was vested in A, his widow, and the office which terminated with P would then revert to A as the nearest heir of the founder.

The expression "heirs of the founder" would, therefore, mean not the persons who would have the right to succeed if S had died at that moment, but it would mean those in whom the residuary Shebaiti right, which was in the founder from the very beginning, had come to vest at that time by successive devolutions under the Hindu law of inheritance."

It would, therefore, follow that the residuary Shebait right was vested in Srinath Das, the founder, which upon his death vested in his four sons two of whom died issueless. But the other two sons of the testator did have issues in whom the residuary Shebaiti right vested upon the death of those two sons of the testator. It is significant that all the sons of the testator died before 1937 when the Hindu Women''s Right to Property Act, 1937 came into existence. It is in this way that the successive devolution according to the Hindu Law of inheritance prevailing at the relevant time has to be traced in order to ascertain the body of the shebaits. Therefore, the submission of Mr. Das that the law obtaining as in 1907 should determine the body of heirs is wholly incorrect

In the light of the aforesaid view which we have taken the question (b) must be answered in the negative considering the admitted position in paragraph 9 of the petition that there are in fact female descendants who have neither been impleaded as parties to the suit nor have they been included in the genealogical table, appearing at page 69 of the paper book.

To this extent the answer to question (b) given by the learned Trial Court is varied and/or clarified. Rest of the determination and directions issued by the learned Trial Judge are retained by us for the reasons indicated above.

Before we part with this judgment we must make it clear that the order passed by the learned Trial Judge is a decree within the meaning of Rule 19. Chapter XIII of the Original Side Rules. The impugned order should have been drawn up by the Registrar as a decree and not as an order. Therefore, this is an appeal from a decree and not from an order. Court fees are accordingly payable. We, therefore, direct the Registrar, Original Side, to assess the appropriate court fees in exercise of power under Chapter VI-A of the Original Side Rules and to take steps for recovery of the same. Certified copy should not be issued to any of the parties until payment of the deficit court fee, if any. In the result the appeal is dismissed. There will be no order as to costs.

Ashok Kumar Mathur, C.J.

I agree.