NANDLAL Vs. KESARLAL

JUDGEMENT

(1.) THIS second appeal by the plaintiffs is directed against the judgment and decres of the District Judge, Bhilwara. dated 24-8-66 where by he accepted the appeal of the defendant-respondent Kesarlal and reversed the judgment and decree of the Civil Judge, Shahpura dated 26-2-65.

(2.) THE relevant facts which are no longer in dispute may briefly be stated as follows THE parties to the appeal consist of two appellant and nine respondents. All of them are descendants of a common ancestor Radha Kishan. THE Former Me war State in ancient times appointed Radha Kishan and one Sitaram as shebaits of the temples of Chaturbhuj ji alias Charbhujaji and Mahadeoji Maharaj situated at Village Dhod. THE Former Mewar State also allotted certain agricultural lands to these deities and it is common ground between the parties that those lands were divided in equal shares by Radha Kishan and Sitaram. THE Sewapuja of the deities was performed by pali system in alternate months, that is, Sewapuja for one month was performed by the descendants of Radha Kishan and in another month by the descendants of Sitaram. THE offerings during the month used to be received by the shebaits as per turn of the Sewa-puja. THE last descendant of Sita Ram was Bhuralal. On 29-12-61 Bhuralal by means of a gift-deed transferred his right of she baitship and the lands possessed by him described in para 6 of the plaint, in favour of the defendant Kesarlal who is, as already stated above, one of the descendants of Radha Kishan. Kesarlal thus stepped into the shoes of Bhuralal. He took possession of the lands described in para 6 of the plaints. He also commenced performance of Sewa-puja of the deities and received offerings just like Bhuralal from the date of the gift-deed, that is, 29-12-61. Bhuralal expired issueless some-time in February 1962. THE appellants Nandlal and Bansilal then instituted the present suit on 22-10-62 against Kesarlal and his father Badrilal claiming the following main reliefs ************* On an objection by the defendants, the remaining descendants of Radha Kishan were impleaded as defendants Nos. 3 to 9 the main allegation as disclosed in the plaint was that Bhuralal had no right to execute the gift-deed and transfer his right of shebaitship and the lands possessed by him in favour of Kesarlal. THE suit was contested by the defendants Kesarlal and Badrilal. THE trial court framed as many as 13 issues and after evidence decreed the suit holding that Bhuralal had no right or authority to alienate his right of shebaitship under the gift-deed dated 29-12-61. On appeal by the contesting defendants, the learned District Judge, Bhilwara, set aside the decree passed by the trial court and dismissed the suit on three-fold grounds. In the first instance, he held that the suit was not triable by the civil court as it related to the agricultural lands. Secondly, it was held that Kesarlal being in exclusive enjoyment of the share of Bhuralal in respect of the worship of the deities and the agricultural lands, the plaintiffs who are not in any way related to Bhuralal, have no right to bring the suit, inasmuch as none of the right of Bhuralal devolved upon the plaintiffs. , It was further held that even if Kesarlal is treated as trespasser, he can be ousted by the true owner, namely, the State which is the founder of the religious endowment and not by any body else. Lastly, since the plaintiffs did not claim relief for possession of the agricultural lands possessed by Kesarlal, the suit for mere declaration is barred under sec. 42 of the Specific Relief Act (Old ). THE plaintiffs have now preferred this second appeal.

(3.) IN S. M. Sovabati Dassi vs. Kashi Nath Dey (1), Masud J. has summarised the different views expressed by the various High Courts in INdia in para 8 of his judgment which runs as under : " On the question of transfer of a shebaiti right the learned judges in the past have expressed different views on the matter which may be enumerated as follows (a) A shebaiti right cannot be transferred inasmuch as such transfer would mean delegation of the duties of the delegated authority and as such, contrary to public policy : vide Rajah Varmah vs. Ravivarmah 1876, 4 INd. App. 76 (PC ). (b) A shebait is not bound to accept his office and he can transfer his right to the shebait-ship in favour of his next heir by way of "renunciation" "surrender", "resignation" or "abdication" of his entire interests : vide ILR 53 Cal. 132 (AIR 1926 Calcutta 490), Panchanan Banerji vs. Surendranath AIR 1930 Cal. 180 and AIR 1951 Cal. 490. (c) A shebaiti right can be transferred if there is a valid and reasonable custom allowing such transfer: vide AIR 1915 Cal. 161 (2), Alr. 1957 Cal. 685. (d ). A shebaiti right can be transferred to a person in line of succession who is not otherwise disqualified or unfit to perform the religious or spiritual duties } vide 1946, 50 Cal. W. N. 272. (e) Alienation of the office of shebait inter vivos in favour of a closely connected member of the family who seems to have more interest in the worship of the deity and without any idea of personal gain is valid : Nirod Mohini Dassi vs. Shibadas Pal, 1909 ILR 36 Cal. 975. (f) Sale of a shebaiti right for valuable consideration is invalid unless such sale was made in favour of all the immediate successor shebaits : vide 1869, 6 Bom. H. C. R. 250. The transfer in the case was held to be valid also on the ground of custom. (g) A shebaiti right can be transferred by gift inter vivos on the basis of the doctrine of necessity or benefit of deity only: vide 1908 ILR 35 Cal. 226. The decision was also justified on the special circumstances in that case following 1890, ILR 17 Cal. 557. (h) the transfer of a shebaiti right by will has also been held valid in law even in favour of a possible successor shebait : vide 1882 ILR 6 Bom. 298. " Masud J. in the aforesaid case expressed his opinion on the character of shebaiti right and also on its alienability. He observed in para 9 as under : " IN my view, as stated above, Shebaitship comprises a distinctive category of property, the transfer of which is permissible unless such transfer is repugnant to the principles of Hindu Law. Shebaitship, being an amalgam of office and property, it will not be correct to say that it is absolutely alienable like by other properly or that it is not alienable under any circumstances. The general limitations under which such transfer is permissible may be set out as follows (a) The transfer of a Shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the Deed of Endowment unless an ancient or reasonable custom or usage has been followed to the contrary. (b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his Deed of Endowment a particular shebait cannot change the line of succession by any Deed of transfer unless the shebait transfers the totality of his rights in favour of the succeeding shebait or shebaits during the lifetime. (c) A transfer of a shebaiti right is also permissible for the benefit the idol or the deity or for imperious necessity under special circumstances. " I entirely agree with the principles laid down by Masud J. in Sovabati Dassi's case. Applying the said principles to the facts of the present case, I hold that Bhuralal has lawfully transferred his shebaiti right along with the lands possessed by him under the gift-deed dated 29-12-61. The gift-deed shows that Bhuralal alienated his entire right and interest in favour of Kesarlal who is admittedly one of the co- shebaits. It is not in dispute that Kesarlai is a person who is in no way disqualified from holding the office of the Shebait.