RAM SINGH Vs. RANA SINGH

JUDGEMENT

(1.) This second appeal has been filed by the plaintiffs. The suit of the plaintiffs had been decreed by the trial Court for a relief of declara tion that the sale deed dated 13th Sept 1965 executed by one Smt. Sona, widow of Hukmi was ineffective and illegal and did not legally convey the rights of Sewa, Pooja and offerings of the temple of Deviji installed in the temple at Samari. On appeal, however, the decree was upset and thus the plaintiff has come up before this Court in second appeal. As mentioned earlier, the plaintiffs had filed a suit for declaration that the sale deed dated 13th September 1965 by which Smt. Sona purported to transfer her alleged rights in the sewa. pooja and offering of the temple of Deviji Maharani at Samari was ineffective and illegal. One Kadera was the common ancestor of the parties who had three sons. Plaintiffs are the heirs of Kanha and Narru and Hukmi's wife is Smt. Sona, defendant No. 5. It is alleg ed that one Ajeeta and ancestor of the parties had established a temple of Deviji several centuries ago. The right of sewa, pooja and offering at the said temple as shebaits devolved on the Thakurs of four villages as successors of the original shebaits and they have been exercising this right of Sewa, Pooja and offerings by yearly turns. The share of the parties was 1/5 in shebaits rights of sewa, pooja of their turn. On the death of Kadeia, the plaintiffs claimed to have become entitled to 2/3 of this right though Hukmi's widow Smt. Sona did not have any right but her name was got mutated over 1/3rd in order to give her consolidation, as Hukmi had died quite young. It is alleged that Smt. Sona did not have any transferable interest in the property. She illegally purported to transfer 1/2 share in the said interest to the other defendants which is alleged to be illegal and ineffective. The defence was that Kadera had two wives, from one wife Kanha and Narru were born and from the other wife Hukmi was born. The division among them was on the basis of a custom of partition per wife known as Bahubat. "according to this 1/2 share went to Kanha and Narru and the other half to the widow of Hukmi the executant. It was further alleged that Smt. Sona had a right to transfer the right and she had validly transferred the same in favour of the other defendants. The trial Court held that after the partition among the brothers each of them had 1/3 share in the offerings and right of sewa, pooja (spiritual function ). It also held that Smt. Sona had no transferable interest and, therefore, the transfer made by her was illegal. On appeal the lower appellate Court held that according to the entries in the wazibul arz Ex. A-4 there was a prevailing custom of Bahubat in the village and as such Smt. Sona got 1/2 share in the share of Kadera's 1/5 share that is 1/10 in the entire offering and the right of sewa pooja. The lower appellate Court further held, relying on 1936 A. L. J. , 409 that the right of Smt. Sona were transferable right and, therefore, the sale' deed was valid. In view of this, appeal was allowed and the suit of the plaintiffs was dismissed. Aggrieved, the plaintiffs have come up in second appeal. It may be stated at the very outset that if the answer of the question that the rights of Smt. Sona were not alienable is in favour of the appellants the second question about the share would not be relevant at all. In order to decide the transferable nature of the rights, it is necessary to come to the conclusion about the exact nature of the rights possessed by Smt. Sona. According to the case of the parties, they had the right to render sewa pooja (spiritual function) to the deity installed in the temple and to share the offering. The right of service to the deity is a right as a shebait coupled with the right to share the offerings. The question is whether these two rights are intermingled and intimately connected with each other or whether these rights are separate rights, having no connection with each other. It has been held in Balmakund v. Tula Ram and others (1928 A. L. J. 185) that an emolument attached to a priestly office is not transferable but the right to collect offerings made at a temple when dissociated from priestly office is not a mere "possibility" within the meaning of Section 6 (a) of the Transfer of Property Act but is a definite right which can be transferred". Could Smt. Sona Devi have a share in the offerings without she also possessing at the same time, the right to perform service to the deity ? The bring out this distinction the learned judge who decided the above case, made a reference to the case of Manchu Ram v. Pran Shankar (I. L. R. 5 Bom. 298) and quoted the following paragraph from that case: "if such property were subject to attachment and sale, the purchaser might be a Mohammadan or a Christian, who would be both unwilling and incompetent to perform the service of the idol, and in the case of Dubo Misser v. Srinibas Misser (15 W. R. 409), Mr. Justice Mitter further observed that he might be unfit to prepare food for the idol. . . . . . such an alienation to an improper person would defeat the object of the endowment and in some cases. . . . . . . . . it might be inconsistent with the presumed intention of the founder of the endowment. " The example mentioned in the above decision, clearly goes to show that if the two rights i. e. one of performing religious and spiritual functions to the deity and the other of getting share in the offering are so intimately connected that it is not possible to separate the two i. e. to transfer one right to one party and the other right to some other then the two rights have to remain vested in one and the same person and none of them can be parted with. This has been consistently held to be a demand of public policy that a restraint should be put on the right of a shebait to transfer his rights of she-baitship so that it may not fall in the hands of the person who may be incom petent to perform religious or spiritual functions before the deity or may be otherwise disqualified and unless such a restraint on these rights was put the very purpose of the endowment was likely to fail. In Kali Pad Chakraborti v, Smt. Palani Bala Devi and others (A. I. R. 1953 S. C. 125), the Supreme Court had occasion to deal with this aspect of the matter and it held as under; "whatever might be said about the office of a trustee which carries no beneficial interest with it, a shebaitship combines in it both the elements of office and property. As the shebaiti interest is heritable and follows the line of inheritance from the founder, obviously, when the heir is a female, she must be deemed to have, what is known, as widow's estate in the shebaiti interest. It is quite true that regarding the power of aliena tion a female shebait is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir. " Similarly in the case of Bhikari Pnisti v. Madan Mohan Jiu Thakur and others (A. I. R. 1953 Orissa 73) also the alienation of rights of shebaitship were in question. The learned single Judge of Orissa High Court held as under; "there are only two exceptions for the purposes of validating the transfer of marfatdari rights (i) if there be a custom to that effect and (ii) if there be a condition in the deed itself validating such transfers. The mere fact that the transfer is with the intention of making proper management for the worship is not alone sufficient to validate an aliena tion of Marfatdari rights in favour of a stranger. Further, the mere position that the transferee was taking interest in the endowment or that he had made some contributions previously cannot make him entitled to all the privileges in respect of Marfatdari rights which belong to the members of the line of succession of the Marfatdars. " It may be stated that in Orissa Marfatdari is almost akin to the shebait and the same considerations apply to that. In Mst. Rajkali Kuer v. Ram Rattan Pandey (A. I. R. 1955 S. C. 493) the question arose whe ther the office of pujari with duties attached could be succeeded by a female and she could discharge the religious duties through a substitute. In that connection the Supreme Court had an occasion to review the entire case Jaw on the subject regarding the rights and liabilities of a shebait and the rights of pujari. In that connection the Supreme Court held that the religious office could be hereditary and that the right to such an office is in the nature of pro perty under the Hindu Law, is now well established. On the view that shebaiti right is property, Supreme Court has also recognised the right of a female to succeed to the religious office of shebait ship. On the same analogy as that of a shebaiti right, the right of a heredi tary priest or pujari in a temple must also amount to property where emolu ments are attached to such an office. Now there can be no doubt that while in one sense the right to such a religious office is property it involves also substantial elements of duty. Both the elements of office and property of duties and personal, interest are blended together (in. such office) and neither can be detached from the other. In res pect of such offices specially where they are attached to public institutions, duties are to be regarded as primary and the rights and emoluments are only apportents to the duties. If, therefore it is found that the recognition of a female's right to succeed to the hereditary office of pujari in a temple held by her husband is incompatible with due discharge of the duties of the office, her right to succeed must be negative. There is no legal prohibition against a woman holding a mutwalliship when the trust, by its nature involves no spiri tual duties such as a woman could not properly discharge in person or by deputy. The question, therefore, that requires consideration is whether the office of the pujari and Panda in a temple involves such duties as could not be discharged, by a female in person and if so, whether she is also incompetent to get the same discharged by a deputy. " In the case of E. Venkates Archagar and another v. E. Ekambara Archagar and others (I. L. R. 1966 (1) Mad. 374) again the similar question arose in respect of the rights of Archaka or Dharma Kartha. In that case three temples were dedicated to the village deities and some lands had been endowed in their favour. The descen dants of the original Archaka continued to be in the management and enjoy ment of the property and performed worship in the temples. One of the "descendants transferred his rights in favour of a stranger for valuable consi deration. On the death of the vendor his daughter refused to accept the transfer and questioned its validity. It was held by a Division Bench of the Madras High Court that a religious office like that of an Archaka or Dharma-kartha would not be alienated for value. This principle was based on public policy viz the prevention of trafficking in these offices and to disable the hol ders of the office to let in undesirable and disqualified persons into the office. It was manifest that an alienation of the office of the Archaka or trustee for value to a person who did not stand in the line of succession, was invalid, being opposed to public policy. If the alienor received any pecuniary advan tages from the alienor, even if the latter happened to be either a member of the family to which the alienor himself belonged, the transaction would be opposed to public policy and as such inoperative and ineffectual. In this connection the latest view is to be found in the case of Kali Kinor Ganguli v. Panna Banerjee and others ( (1974) 2 S. C. C. 563 ). The two questions that came up before the Supreme Court were: 1. Whether a shebaiti right being both an office as well as species of right of property can be transferred in certain circumstances ? and 2. Is it permissible for the benefit of the idol or any other pressing necessity to execute a sale deed in respect of shebaiti right ? On a consideration of a large number of cases the Supreme Court expressed as under: "the rule against alienation of shebaiti right, has been relaxed by reason of certain special circumstances. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transfer or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interest of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanction ing 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 reasons why transfer in favour of the next shebait or one in the line of succession or a co-shebait is permissible is that if anyone of the shebaits intends to get rid of the duties, the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. However, transfer by will is impermissible. In the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer is illegal for the principal reason that neither the temple nor the deities nor the shebaiti rights can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception. " From the above discussion, one thing is apparent and it is now indeed almost concluded that rights of shebait are not mere rights of a trustee for they include certain duties also attached to the office. They have beneficial interest attached to it which is not the case with a trustee. On public policy it has been found that the rights of shebaitship should not be made transferable as such a course was likely to create complications of a nature which will undo the very purpose for which the shebait is appointed. Applying the above principles set out in the aforesaid cases by the Sup reme Court and High Court to the facts of the present case, we find that admittedly Ajeeta was the founder of the temple and it is his descendants who are now spread over four villages and the rights of shebaitship have become vested in them. By a mutual arrangement the right of shebaitship is being enjoyed by the Thakurs of the four villages, by turn but due to this only management part of the duties of the shebait comes to be exercised by Tha kurs of one village every four years, the right as shebait of course remain vested in them at all times. Admittedly Kadera had 1/5 share in the shebaiti rights vested in the Thakurs of village Garhi Daddi. Kadera had three anna, the plaintiffs being the heirs from the first wife while Hukmi was his son from the second wife whose widow is Smt. Sona, Smt. Sona has transferred by the she baitship rights by means of sale deed dated 13-9-1965 in favour of Ram Singh son of Lal a Ram. The question is whether she had a right to transfer the rights of shebaitship or not. The lower appellate Court has held that no harm will be caused in the performance of the duties of shebaitship because the transferee is himself the Pujari who actually performs the worship at the temple. As held in Mst. Rajkali Kuer v. Ram Rattan Pandey (supra) a female can become shebait by succession although she cannot herself offer worship and perform the spiritual and religious functions of the deity yet she could get these functions performed through some one else. The same principle applies even to the male shebaits. They can either themselves perform the duties and. functions of the shebait by personally performing the pooja and other spiritual functions or they may employ another person to perform those functions and the shebait himself may manage and supervise the performance of these func tions. The mere facts, therefore, that the defendants had been working as pujaris and carrying on the spiritual functions of the deities does not necessa rily mean that the shebaiti rights can be transferred in their favour without causing any offence to the rights of the shebait. The lower appellate Court completely missed this aspect of the matter while considering whether Smt. Sona had a right to transfer the shebaiti rights or not. The performance of the religious functions is only one small aspect of the total rights and duties of a shebait which in law could be got performed even through a substitute. The learned Civil Judge ought to have basically considered as to what was the na ture of the rights of a shebait which I roust say he has failed to do. In my view, and in view of the various cases already referred to earlier the right of a shebaitship though heritable is not transferable because it includes certain personal rights and duties also which by their very nature are not alienable. There are certain exceptions but they too are conditional e. g. There can be a surrender of rights in favour of next descendant of another shebait who is next in point of succession but that too has to be without any monetary considera tion. In this case, the sale deed is for a consideration of Rs. 1,000/- and this by itself is sufficient to invalidate the same, apart from the fact that the trans feree is not a member of the family of the shebaits and is an utter stranger although he may be a pujari who is actually performing pooja before the deity. In view of the above I am inclined to accept the appeal and to set aside the judgment and decree of the lower appellate Court and to hold that the sale deed dated 13th September 1965 was invalid and inoperative and that Smt. Sona widow of Hukmi had no right to transfer the shebaiti rights vested in her. The appeal is accordingly allowed and the suit of the plaintiffs is decreed with costs throughout. .