Smt. Padamabati Sen and Another vs Sri Prem Chand Sen

Amal Kanti Bhattacharjee, J.—The appeal is directed against a decree dated 31.5.91 by a Single Judge of this Court. The aforesaid suit was initiated on the basis of an originating summons taken out by the respondent-plaintiff Prem Chandra Sen on the 7th November, 1990 for determination of certain questions relating to a claim of shebaitship on the basis of a trust deed executed by one Kshetra Mohan Sen. By the said deed he created certain debuttar properties for the worship of his family deity Shir Shri Gopi Chand Ralla and for making provisions for this family Kalipuja. In the said deed he also fixed the line of devolution of the debutter properties to two classes of shabaits of his choice. The relevant portion of the Trust deed properties the Line of succession in the office of the sebaitship is as follows :-

I the said Kshetra Mohan Sen appoint myself during my life time as the sole trustee and shebait of the said deities for and during my pala or turn of worship to look after and manage the sheba of the said deities during my pala or turn of worship also to perform the Kali Puja year by year and every year and also to look after (and) manage the estate hereby dedicated to the said deities and I further direct that after my death my wife Sreemati Saumini Dasi jointly with Bonomally Sen and Brojo Kishore Sen or survivor or survivors of them to act as joint trustees and sebait of the said deities for and during their life time during my pala or turn of worship last aforesaid and also to perform the Kail Puja every year as I have been doing now and do all such things as might be deemed necessary by them for the better management of said estate and after the death of any of the said trustees the survivor or survivers of them shall be and act as such shebalut and trustee for and during their respective life time and after their death my grandsons with their respective mothers who will survive my said sons and their heirs male in succession act jointly as such shabeit trustee as last foresaid.

The following is the geneological table of the family of late Kshetra Mohan Sen as given in the affidavit affirmed by Prem Chand Sen in support of the originating summons.

According to the respondent in terms of the trust deed the last trustee and shebait was Dulal Chand Sen who died on the 18th January, 1990. The plaintiff, therefore, claims that in terms of the dead he became the sole shebait and trustee of the trust estate. He further states that he has been performing the sheva puja of the deity according to the terms of the trust deed and that the appellant Padmabati although initially cooperated with him handing over the ornaments and utensils of the deity has subsequently refused to deliver the documents of the trust estate. He has also alleged that Padmabati Sen and Sreemati Saraswati. Sen have created inconvenience in the matter of realising rents from the tenant. He has accordingly prayed that he should be held to be the sole trustee and shebait of the estate being the only surviving male their and descendant of the propounder Kshetra Mohan Sen and that as such he is entitled to have the custody of the documents, namely, the original trust deed, rent bills etc. of the trust estate.

The suit was contested by Padmabati and Saraswati by filing a counter affidavit in which they had denied the allegations of Prem Chand Sen so far as his claim of shebaitship is concerned. They have, however, not set up any positive claim of shebaitship themselves.

Before the Trial Court it was, however, contended that respondent''s father Jugal Kishore having not been made a shebait along with his other two brothers, it was intended that his Sen, although a grandson, was not to be a shebait. The Learned Trial Court however, on an analysis of the recitals of the trust deed held that the intention of the propounder could not be to appoint any female shebait to the exclusion of the grand sons and that right to collect rents and profits etc. was left to the male members of the family. He accordingly answered the questions raised in the originating summons as follows:

Question No. 1 : Prem Chand Sen being the only surviving male heir has become the sole trustee and shebait of the estate of the deity in question.

Question No. 2 : Prem Chand Sen has become the sole trustee and shebait of the trust estate and as such he is entitled to have the custody of the documents mentioned in question No. 2.

Question No. 3 : Prem Chand Sen has become the sole trustee and the shebait of the trust estate and is legally entitled to have the custody of the documents of the trust estate and also he is further entitled to realise all rents and profits of the trust properties from the tenants, lessees and/or occupiers.

Aggrieved by the decision of the Lower Court this appeal has been filed by the appellants on various grounds. It appears that for the first time before the Appeal Court it has been contended that Prem Chand Sen could not be a shebait as claimed by him in the trust estate as the trust created by Kshetra Mohan Sen was hit by the law against perpetuity as propounded in the well known case of Tagore vs. Tagore, (9B.L.R 377). Among the other grounds relied on by the appellants one is that the questions raised in the originating summons cannot be decided in the summary procedure under Chapter 13 Rule 1.3 and 4 of the Original Side Rules. Another ground of appeal is that Kshetra Mohan Sen being himself a paladar for a fixed period of the year could not create a trust deed. Yet another ground of appeal is that without making the deity a party the suit cannot proceed.

Having regard to the nature of the objections raised before the Trial Court it appears that the appellants were not serious in contesting the suit there. In the said Court they only made bare denial of the allegations made by Prem Chand in his affidavit. They could not cite any firm ground on which it could be said that Kshetra Mohan Sen intended to make them shebaits in place of the male heirs. From the deeds it would appear that the propounder Kshetra Mohan Sen made himself the sole trustee at the first instance. On his death he appointed his wife Sewdamini along with his two sons Banamali and Brajakishore or their survivors as joint trustees said joint trustees were, however, allowed to act as such trustees during their life time. After the death of the last surviving trustee among Sowdamini, Banamali and Brajakishore the direction in the trust deed was that Kshetra Mohan''s grand sons with their respective mothers who will survive the two sons Banaamali and Brajakishore and their heirs male in succession shall be trustees and shebaits. As regards the collection of rent it was directed the deed of trust that the eldest son Banamali and after his death the next son Brajakishore if he survives him, shall collect the rent issues and profits of the estate and after their death the eldest in heirs among the male members of the family shall have power to do so. It thus appears that he made two classifications for shebaitship and collecting rents. It is also clear that the intention of Kshetra Mohan Sen was to make the male descendants of the family on their attainment of majority to be the trustees and shabails. Judging from the intention of the propounder, therefore, the decision of the Lower Court is substantially correct.

But the main question is if the line of succession suggested by Kshetra Mohan Sen in the office of the shebaitship is tenable as it offends against the rule of perpetuity which has been settled in the famous case of Tagore vs. Tagore. It is strange that this ground not taken in the Trial Court and that in none of the affidavits this point was raised. The opposition raised before the Lower Court was of a most trivial nature and was not serious enough to contest a claim made in the originating summons. Normally if any point affecting the merits of the case is not taken in the Lower Court the same cannot for the first time be raised before the Appeal Court, particularly if the point involves any question of fact. After hearing the arguments before the Appeal Court it appears to us that the point raised is purely a point of law and that the same ought to have been considered in the Lower court also. We therefore, propose to examine the legal objection raised in this case with due seriousness.

The famous case of Tagore vs. Tagore (9 B.L.R 377) is a land mark in the history of transfer of property by a Hindu. This case brings the law of perpetuity within the domain of the Law of Transfer of property by Hindus. Under the Hindu Law, this law of perpetuity was not noticeable. In Tagore vs. Tagore the judicial Committee held that for making a valid gift under the Hindu Law the donee must be a sentiment being in existence at the time of the gift. In other words, there cannot be a gift in favour of an unborn person under the Hindu Law. This restriction has, however, been modified by subsequent legislative changes. Thus under the Hindu Disposition of Property Act, 1916, the bar of transfer in favour of an unborn person has been lifted subject, however, to the limitation that the disposition by transfer intervivos shall be bound by the provisions of Chapter II of the Transfer of Property Act, 1882 and disposition by will shall be subject to the provisions of sections 113, 114, 115 and 116 of the Indian Succession Act, 1925. As thus the provisions of Chapter II of the T.P. Act were made applicable to disposition of property by transfer by Hindus, it became necessary to amend clause (d) of section 2 of the said Act by removing the reference to Hindu Law from the relevant portion of the said clause which made Hindu and Mohammedan Laws inapplicable to the provisions of Chapter II of the Act. The effect of the statutory charges mentioned above is that the provisions referred to in Chapter II of the Transfer of Property Act are now applicable to Hindu disposition of property by transfer intervivos.

As regards the nature of the office of shebaits created by Hindu endowments, although there were divergences of opinion by different Courts as to whether the office of the shebait should be treated as property, the controversy has been set at rest by a Full Bench decision of this Court in Monohar Mukherjee vs. Bhupendra Nath Mukherjee (37. C.W.N. 29). The following questions referred to the Full Bench were answered by the Bench as follows :-

(1) Whether the founder of a Hindu debutter is competent to lay down rules to govern the succession to the office of shebait ?

Ans. Yes.

(2) Whether a person succeeding to the shebaiti under such rules is a grantee or donee of property and whether his right to succeed to the office is subject to the rule that a gift cannot be made by a Hindu to a person not in existence at the time of the gift ?

Ans. Yes.

(3) Whether rules for succession to the office of shebait are rendered invalid by person that they provide for the office to be held by some among the heirs of the founder to the exclusion of others in a succession differing from the line of Hindu inheritance ?

Ans. Yes.

(4) Whether Sripati vs. Krishna (L.J. 22) was correctly decided in so far as it was in that case held that the rule laid down in Tagore''s case prohibiting a Hindu from creating a line of succession unknown to Hindu law does not apply to the appointment of a shebait of a family Thakur ?

Ans. No.

(5) Whether Pramatha v. Amar (29 C.W.N. 17) was correctly decided in so far as it was in that case held that as regards persons not in existence in the founder''s lifetime a direction could not validly be given by the founder in his will that the person in age among heirs of the first shebait should succeed to the office of shebait ?

(6) Whether provision contained in the will of Jago Mohan Mukherjee to the effect that the eldest male member of his family should be the sole shebait is in law ineffectual to entitle the appellant. Monohar Mukherjee to the office in view of the fact that he was not in existence until after the testator''s death ?

Ans. Yes.

The aforesaid decision was accepted by the Privy Council in Bhabatarini vs. Ashalata (ILR 1943 2 Calcutta 137). In this case one Shital Chandra Banerjee, a Hindu established in his lifetime 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 Panchanan should be the shebait. The deed further provided that if Panchanan died during the life of his father the seniormost of his male descendants would be the shebait and if such eldest male descendant happens to be a minor at that time, the eldest of the daughter''s son of Shital would act as temporary shebait during the period of his minority. The further recitals in the deed were that if Panchanan died without a son the seniormost of his daughter''s sons shall be the shebit. There were other directions also in the deed binding the succession to shebaitship. The wife of Shital died first and then Shital died leaving a daughter Bhabatarini and son Panchanan. Panchanan had three daughters, Ashalata, Kanaklata and Diptilata. Panchanan then died leaving his wife and daughters. The question was as to who as between Bhabatarini and Ashalata would be entitled to shebaitship after the death of Panchanan. Justice Khandakar sitting singly decided in favour of Bhabatarini as she was nearest heir of the founder when Panchanan died. On appeal the decision was reversed by Derbyshire, C.J. and Mukherjee, J. Mukherjee, J held that as Panchanan had not the shebaiti right absolutely vested in him, the residuary right still remained in Shital and his heirs and as Panchanan was the sole heirs of Shital both the limited and the residuary rights were united in him. On appeal to the Privy Council the judgment of the Appeal Bench was affirmed. The view of the Privy Council was that as there was no provision for devolution of shebaitship after death of Panchanan, the residuary right remained from the begining in Shital the founder and it went on devolution as a specis of heritable property on his successors in the order laid down by the Hindu Law.

It will thus be seen that shebaitship is not a mere office but a property as well and it cannot be transferred contrary to the rules of disposition of property in Hindu Law. Stressing on the points decided in Manohar Mukherje''s case it is, therefore argued that the devolution of shebaitship on the unborn grandsons and their "heirs male in succession" to the exclusion of others is against the law of succession recognised in Hindu Law and, therefore, offends against the law of perpetuity. u/s 14 of the Transfer of property Act (which is applicable to Hindu as stated above) no transfer of property is possible to create an interest which is to take effect after the life time of one or more persons living at the date of such transfer and the minority of some person who shall be in existence at the expiration of that period. In the instant case the limited life Interest created by the trust expired on the death of the last survivor among Saudamini, Banamali and Braja Kishore. Among them Braja Kishore died last in 1959. According to the terms of the trust deed the shebaitship devolved jointly on the grandsons and their mothers who survived Braja Kishore if the said grandsons were in existence at Braajo Kishore''s death. After the end of this joint shebaithsip further succession to shebaitship as directed in the trust deed failed as it offended against the law of perpetuity. So following the decision of the Privy Council in Bhabatarini''s case the residuary right remained from the beginning in Kshetra Mohan, the founder of the trust and it would go on devolution to his successors as a heritable property.

From the genealogy given in paragraph 2 above it appears that all the grandsons of Kshetra Mohan except the respondent Prem Chand are dead. Their mothers are also dead. So shebaitship is normally to devolve on the last surviving grandson.

A cloud has been cast as to whether Kshetra Mohan intended to exclude any of his grandsons from the office of shebaitship. This recitals in the trust deed do not suggest any such exclusion. The precise terms are " and after their death my grandsons with their respective mothers who will survive my said sons and their heirs made in succession act jointly as such shebait trustee as last aforesaid". " My said sons obviously refer to Banamali and Brajo Kishore and naturally the third group of shebaits, namely grandsons along with their mothers shall assume office after the death of the said two sons (and also their mother Soudamini). So apparently there is no bar to Prem Chand''s being a shebait.

As regards the other objections, namely, that a paladar cannot make the any property debattar for the sheba puja of the deity during his pala and that the suit filed by the respondent was not maintainable without making the deity a party, they have no substance. Hence they are rejected. In the result this appeal falls. The judgement and decree of the lower court are hereby affirmed. The receiver appointed herein Is discharged. There will be no order of costs In this appeal.

All parties to act on a signed copy of the minutes of operative portion of this Judgment on the usual undertaking.

Bhagabati Prasad Banerjee, J.

I agree.