PETITIONER:
BADRI NATH & ANR.
Vs.
RESPONDENT:
MST. PUNNA (DEAD) BY LRS & ORS.
DATE OF JUDGMENT15/02/1979
BENCH:
KOSHAL, A.D.
KRISHNAIYER, V.R.
DESAI, D.A.
CITATION:
1979 AIR 1314 1979 SCR (3) 209
1979 SCC (3) 71
ACT
Hindu Succession Act, 1956-S. 4-Scope of-Share of a baridar (turnholder) in the offerings of a temple-if a heritage right nature of office of baridar-Custom that offerings should go to specified sub-castes-if valid.
HEADNOTE
The plaintiff’s (respondent’s) father and the defendants (appellants) were entitled to receive a defined share in the offerings made at a holy shrine. On her father’s death the plaintiff claimed his share in the offerings alleging that both under the law of inheritance and by virtue of her father’s will executed in her favour, she was entitled to his share; but the defendants interfered with her right to collect that share.
In the plaintiff’s suit the defendants contended that only members belonging to four specified sub-castes were entitled to receive the offerings and the plaintiff having lost her sub-caste by reason of her marriage outside those sub-castes she was not entitled to her father’s share. But this argument was rejected by the trial court which held that on the death of the baridar (turnholder) his heirs inherited his right to receive offerings just as they inherited his other property and that therefore, the plaintiff was entitled to the offerings both under the Hindu Succession Act and the will executed by her father.
On appeal a Division Bench of the High Court held that where offerings were received by persons independently of any obligation to render services, they were alienable and attachable and that the custom which restricted the right to a share in the offerings only to members of the four specified subcastes, could not be given effect to in view of the provisions of the Hindu Succession Act and that therefore, the plaintiff was entitled to succeed to the right though she did not belong to any of the sub-castes.
On further appeal to this Court it was contended on behalf of the appellant that (1) the right of the baridar was not a transferable right and (2) the right to a share in the offerings and the duties attached to it must be regarded as an office like that of a shebait and cannot be regarded as heritable property.
Dismissing the appeal, ^
HELD: The right of the baridar was a transferable right.
1. To begin with, the right to a share in the offerings, according to the settlement record prepared for the village and a resolution passed by the Dharmarth Committee, was restricted to the four sub-castes, and similarly the baridars did not perform any duties in return. Sometime later, however, certain obligations, such as to provide permanent servants, to look after visitors and the like, were superimposed on that right. Though the right to receive a share in the offerings was subject to the performance of those duties none of them 210 was in nature priestly or required a personal qualification. All of them were of a non-religious or secular character which could be performed by the baridar’s agents or servants incurring expense on his account. When the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of personal nature, (such as officiating the worship) such a right is heritable as well as alienable. [217 B-H]
Balmukand & ors. v. Tula Ram & ors., AIR 1928 All. 721 approved.
2. (a) The right of the baridars cannot be equated with the right and duties of a shebait. The baridars were not managers of the shrine in the sense that a shebait is in relation to a temple in his charge. The overall management of the temple vested in the Board of Trustees known as Dharmarth Committee. [218 E]
(b) It is not correct to say that shebaitship is neither more nor less than an office and is not heritable property. Shebaitship cannot be described as a mere office. In addition to certain responsibilities it carries with it a definite right to property. It is well-established that in the concept of Shebait, both the elements of office and property, duties and personal interest are mixed up and one element cannot be detached from the other. Old texts as courts have recognised heriditary office of shebaitship as immovable property. [218 F; 220 A-B]
Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125; Ram Rattan v. Bajrang Lal & ors. [1978] 3 SCR 963 followed.
3. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act in supersession of all customs to the contrary in view of s. 4 of that Act. [220 H]
In the instant case, in the light of s. 4 of the Hindu Succession Act the requirement that the right could not be exercised by a person not belonging to any of the four subcastes becomes ineffective. [220 H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1118 of 1972
(Appeal by Special Leave from the Judgment and Order dated 18-1-72 of the Jammu and Kashmir High Court in L.P.A. No. 6 of 1969.)
L.N. Sinha, Satish Gupta, K.J. John and P.P. Singh, for the appellant
R.K. Bhat and D.C. Anand for respondent 1B-1K.
The Judgment of the Court was delivered by
KOSHAL, J.-This appeal by special leave has arisen out of a suit brought by Smt. Punna, respondent No. 1, against the two appellants and respondent No. 2 for the issuance of a perpetual injunction restraining the three defendants from interfering with her right to recover her father’s share of six annas in a rupee in the offerings made 211 at the sacred shrine of Shri Vaishno Devi Ji which is situated on the Trikutta Hills. The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge, in a second appeal by a learned Single Judge of the High Court of Jammu & Kashmir and in a Letters Patent Appeal by a Full Bench of that Court. It is the judgment of the Full Bench (which is dated the 18th of January, 1972) that is impugned before us.
2. The averments made in the plaint may be summarised thus. The plaintiff is the daughter of one Bagu who died in or about the year 1959. During his life time Bagu and the three defendants were entitled to receive the offerings made at the shrine of Shri Vaishno Devi Ji on certain days falling within every seventh Bikrami year so that Bagu would have 6/16th share therein and the defendants collectively a similar share. After the death of the plaintiff’s father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019, the plaintiff having succeeded to the share of her father both under the law of inheritance and by virtue of a will executed by him in her favour. The plaintiff had to resort to the suit as the defendants had started interfering with her right to collect her share of the offerings.
3. The defendants contested the suit. They challenged the will set up by the plaintiff as a forged one and further pleaded that only members of four sub-castes namely, Khas Thakars, Darora Thakars, Manotra Thakars and Samnotra Brahmins were entitled to receive the offerings and that while Bagu was entitled to a share in the same, the plaintiff was not as she had lost her original sub-caste by marriage outside the four sub-castes mentioned above. The offerings, according to the defendants, were also not liable to devolve by inheritance or demise.
4. The findings arrived at by the trial court were these:
(i) On the death of a baridar (which expression, when
literally translated, means turn-holder) belonging
to any of the aforementioned sub-castes, his heirs
inherited his right to receive offerings just as
they inherited his other property.
(ii) Under section 4 of the Hindu Succession Act, any
custom or usage inconsistent with the provisions
of that Act becomes ineffective.
(iii)Even under section 6 of the Hindu Succession Act
read with the Schedule appended therto the pro- 212
perty of Bagu would devolve on the plaintiff in
case Bagu died intestate.
(iv) Gagu executed a valid will in favour of the
plaintiff devising to her the right to receive the
offerings, apart from other properties.
(v) The plaintiff was entitled, in view of the above
four findings to inherit the right to receive
offerings not only by reason of the provision of
sections 4 and 6 of the Hindu Succession Act, but
also because of the will.
(5) At the hearing of the Letters Patent Appeal by the Full Bench, the following four contentions were raised on behalf of the defendants:
(i) The chance of future worshippers making offerings
to the deity is a mere possibility of the nature
referred to in clause (a) of section 6 of the
Transfer of Property Act and is not property which
can be transferred or inherited.
(ii) The right to receive offerings is not a
transferable or heritable right.
(iii)The provisions of the Hindu Succession Act do not
apply to the case in hand.
(iv) According to the custom governing the shrine of
Shri Vaishno Devi Ji, only the abovementioned four
subcastes were entitled to share the offerings.
All these contentious were rejected by the Full Bench as untenable. In regard to the first of them the Full Bench followed Balmukand and Others v. Tula Ram and Others in which it was held that the right to receive offerings when made is a definite and fixed right and does not depend on any possibility of the nature referred to in clause (a) of section 6 of the Transfer of Property Act, because the fact that offerings whether large or small are bound to be made is a certainty.
In relation to the second contention, the Full Bench noted the contents of paragraph 422 of "Principles of Hindu Law" by Mulla which states, inter alia, that where offerings, though made to idols, are received by persons independently of any obligation to render ser- 213 vices, they are alienable and attachable. Reference in this connection was also made to Balmukand and Others v. Tulla Ram and Others (supra) wherein the following passage occurs:
"but when the right to receive the offerings made
at a temple is independent of an obligation to render
services involving qualifications of a personal nature,
such as officiating at the worship we are unable to
discover any justification for holding that such a
right is not transferable. That the right to receive
the offerings when made is a valuable right and is
property, admits of no doubt and, therefore, that right
must, in view of the provisions of section 6 of
Transfer of Property Act, be held to be transferable,
unless its transfer is prohibited by the Transfer of
Property Act or any other law for the time being in
force." In view of these observations which were adopted and followed in Nand Kumar Dutt v. Ganesh Dass, the Full Bench, being in agreement therewith, proceeded to determine whether the right to receive the offerings in the present case was or was not independent of services of a priestly or personal nature. The following translation of an extract from the Wajib-ul-Arz relating to village Purana Daiur wherein the holy shrine is situated, was then taken up for consideration :
"Leaving aside cash, whatever is the ’Charatth’ at
the temples of ’Ad Kanwari’ and ’Sri Trikutta Devi’ the
entire Darora community distributes that among itself
and of (?) other attached areas of Pangal, Sarron,
Batan, Kotli, Gran, Parhtal etc. according to
hereditary shares. And the castes ’Thakar Khas’ and
’Minotra’ are included in it. Darora caste take two
shares and Manotra and Khas castes also take one equal
share of Charatth’. That is divided as per hereditary
shares. There is no service in lieu thereof. Only it is
described as the blessings of Goddess. Rupees twenty
one hundred (two thousand one hundred rupees) go to the
Government. Every baridar keeps his man present in the
temple who receives the ’Charatth’. Pujaries get pay
from us." and it was interpreted to mean that the right to share in the offerings made at the holy shrine had no connection with any priestly functions or with other services involving qualifications of a personal nature and therefore was a heritable as well as allenable right. This very con- 214 clusion was reached by the Full Bench on a consideration of the deposition of the Patwari of the concerned circle and the Ain-i-Dharamarth which purports to be the constitution of a Board of Trustees appointed by the State to manage the shrine.
In relation to the third contention, the Full Bench noted that the properties to which the Hindu Succession Act does not apply are only those which find enumeration in section 5 thereof, that the right to share the offerings is not one of those properties and that, therefore, such a right could not but be governed by the provisions of the Act.
In repelling the last contention the Full Bench relied upon the provisions of the Hindu Succession Act which overrides all customs or usage being part of the Hindu Law as in force immediately prior to the commencement of the Act and concluded that the custom of the right to share in the offerings being restricted to members of the four sub-castes abovementioned could not be given effect to and that the plaintiff was fully entitled to succeed to that right in spite of the fact that she did not belong to any of those sub-castes.
It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench.
6. At the very outset Mr. L.N. Sinha, learned counsel for the appellant, has drawn our attention to the fact that the extract from the Wajib-ul-Arz taken note of by the Full Bench of the High Court relates not to the temple of Shri Vaishno Devi Ji but to a couple of other temples situated in its vicinity, namely, the temples of ’Ad Kanwari’ and ’Sri Trikutta Devi’ and has urged that the extract could not possibly relate to the temple of Shri Vaishno Devi Ji which was the main temple in the complex and a reference to which could not have been omitted from the extract in case it was intended to apply to that temple also. A careful perusal of the extract shows that Mr. Sinha’s contention is wellfounded because there is not so much as a hint to the main temple in the extract. According to Mr. Sinha, the duties to which the right to share the offerings is subject are detailed in the settlement record prepared for village Daiur (Shri Vaishno Devi Ji) for the year 1965-66 Bikrami and a resolution passed by the Dharamarth Committee on Sawan 27, 1983 Bikrami. These documents may be set out in extenso:
Settlement Record
"In the column of ownership, the State is entered
as owner; in the column of possession-Dharmarth Trust
entered as in possession. ’Mandir Gupha’ situate on
land compris- 215
ing 7 marlas bearing Khasra No. 166 and ’Bhawan’
situate on land comprising 4 marlas bearing Khasra No.
167. The sub-caste Thakar Darora, Manotra, Khas, and
Brahmin Samnotra have been sharing the offerings
according to the shares mentioned below from the very
beginning. Thakar Daroras and Brahmin Samnotra are
entitled to three shares and one share respectively out
of 2/3 of the total offerings whereas Thakar Manotras
and Khas are entitled to share equally in the rest 1/3
of the total offerings.
"Darora Thakars are sub-divided into further four
subcastes namely; (i) Darora Sunk (ii) Darora Jaga
(iii) Darora Pai and (iv) Darora Deoch and each one of
them has one equal share. Similarly Brahmin (Samnotra)
have also divided their share into four shares which
are received as under:
Samnotra Brahmins from the branch of ’Darya’ one
share, Brahmins from the branch of ’Bairaj’ one share;
Brahmins from the branch of ’Gobind’ one share; and
Brahmins from the branch of ’Ganesh’ one share.
Therefore ’Darora Sunk’ and Samnotras from the branch
of ’Bairaj’ have their turn together in the one year
and they divide the offerings for that in the
proportion of 3.1 (i.e. 3 shares of Darora Sunk and 1
share to Samnotras from the branch of Bairaj).
Similarly Brahmins from the branch of ’Darya’ have
their turn with ’Darora Jaga’ Brahmins from the branch
of ’Ganesh’ with ’Darora Parath’ and Brahmins from the
branch of ’Ganesh’ with ’Darora Deoch’ and Brahmins in
each case receive 1/4th share and Darora Thakars have
3/4th share.
"In the beginning nothing was taken from these
persons (baridaran) in consideration of their receiving
the offering. But because the Sadhus would often go to
the shrine and due to the mismanagement of their stay
and meals over there, there were always riots at the
shrine. Therefore, in the year 1907 Bikrami during the
regime of Maharaja Gulab Singh an amount of Rs. 1150/-
was fixed as ’Aian’ to be paid by the baridars for the
management of stay and meals for Sadhus at the shrine.
The said amount was to be deposited in the State
Treasury. Thereafter in 1920 Bikrami another hundred
rupees were added to the above said amount and
thenceforth Rs. 1250/- were fixed per annum which was
being deposited in the State Treasury. After 1940
Bikrami the said 216
amount of Rs. 1250/- was being deposited with the
Dharmarth Trust and this continues till today. The said
amount is recovered from Thakar sub-castes. Besides
this, so many other things (such as silk chunis etc.)
are received from the said Thakar baridars. Thakar
baridars are also liable to provide three permanent
servants and six more peons during the season and will
be liable to pay them. The said Thakars are liable to
arrange the carriage and pay for the ’Parshad’, etc.,
from Katra to Vaishno Devi temple. With regard to the
cattle kept by the Dharmarth Trustees, the said Thakars
are liable to arrange for taking them from one place to
another. If any Government servant visits the shrine
the said Thakars will be liable to arrange for the
carriage of his luggage, etc. The said Thakars are also
liable to perform the following duties:
(1) Cleanliness of the Gupha (Vaishno Devi
temple) and the compound appurtenant thereto.
(2) To carry Puja material inside the Gupha
(temple along with the Pujari.
(3) If during mela season there is any trouble to
any pilgrim or he becomes, sick, etc, the
said Thakars are liable to make proper
arrangements for the removal of any such
trouble."
RESOLUTION OF THE DHARMARTH COMMITTEE
"(a) Dharmarth Trust shall charge its usual Aian
(rent) from the baridaran which shall be paid by them
before they distribute their share of the offering. The
baridar who refuses or avoids the payment of rent to
Dharmarth shall not be entitled to receive his share of
the offering and the same shall be attached and
deposited with the manager, Dharmarth Trust. The
baridar whose share has been thus attached can receive
his share on payment of the rent due to the Dharmarth
Trust."
"(b) Unanimously it is passed that the strangers
or persons other than baridars (i.e. four sub-castes)
shall have no right to get the Puja performed in the
shrine."
"(c) In case any baridar or his legal
representative, due to any reason, cannot attend in
person then it will be the duty of other co-sharer to
deposit the absentee’s share with 217
the Manager, Dharmarth Trust and when that baridar
comes present, the Manager, Dharmarth Trust shall,
after deducting the due, if any, from him to the
Dharmarth, pay his share to him. The baridaran shall be
bound to perform the duties (such as Kah, Kunda, Argi
etc. as being performed by them previously)."
According to these documents the right to share the offerings is restricted to members of the four sub castes abovementioned, and although to begin with baridars did not perform any duties in return, certain obligations were superimposed on the right from the year 1907 Bikarmi onwards. Those obligations are:
(a) A duty to deposit a fixed annual sum with the
Dharmarth Trust to be spent on arrangements
for lodging and boarding of Sadhus visiting
the shrine.
(b) To provide three permanent servants, in
addition to six peons, during the "season".
(c) To pay for the ’prasad’ and to arrange its
transport from Katra to Vaishno Devi temple.
(d) To arrange for the cattle owned by the
Dharmarth Trust being taken from one place to
another.
(e) To arrange for the carriage of the luggage of
Government servants visiting the shrine.
(f) To keep the temple and the compound
appurtenant thereto in a state of
cleanliness.
(g) To carry inside the temple the material
required for worship by the priest.
(h) To look after visitors to the shrine who fall
ill and to make proper arrangements for the
restoration or their health.
There is thus no doubt that the right to receive a share in the offerings is subject to the performance of onerous duties. But then it is apparent that none of those duties is in nature priestly or requiring a personal qualification. On the other hand all of them are of a nonreligious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense. If the baridar chooses to perform those duties personally he is at liberty to do so. But then the obligation extends merely to the making of necessary arrangements which may be secured on payment 218 of money to others, the actual physical or mental effort involved being undertaken by those others. The right is, therefore, a transferable right as envisaged in the passage above extracted from Balmukand and other v. Tula Ram and others (supra) which has not been challenged before us as erroneous and which we regard as laying down the law correctly. The contentions raised by Mr. Sinha to the contrary is thus repelled.
7. Another challenge made by Mr. Sinha to the impugned judgment is that the right to share offerings coupled with the duties to which it was subject must in its totality be regarded as an office (like that of a shebait) only and not as property and that therefore no question of its heritability could arise. In this connection reference was made to the following observations made by Mukherjea, J., who delivered the judgment of the majority of this Court in Angurbala Mullick v. Debabrata Mullick.
"In a Hindu religious endowment on the other hand
the entire ownership of the dedicated property is
transferred to the deity or the institution itself as a
juristic person and the shebait or mahant is a mere
manager."
There is nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge. On the other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and it would not be correct therefore to look at the right of the baridars in the light of the rights and duties of a shebait. However, it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right to property. This is a proposition on which emphasis was laid by this Court in Angurbala’s case (supra) itself. Mukherjea, J., observed in this connection:
"But though a shebait is a manager and not a
trustee in the technical sense, it would not be correct
to describe the shebtaitship as a mere office. The
shebait has not only duties to discharge in connection
with the endowment, but he has a beneficial interest in
the debutter property. As the Judicial Committee
observed in the above case, in almost all such
endowments the shebait has a share in the usufruct of
the debutter property which depends upon the terms of
the grant or upon custom or usage. Even 219
where no emoluments are attached to the office of the
shebait, he enjoys some sort of right or interest in
the endowed property which partially at least has the
character of a proprietary right. Thus, in the
conception of shebaiti both the elements of office and
property, of duties and personal interest, are mixed up
and blended together; and one of the elements cannot be
detached from the other. It is the presence of this
personal or beneficial interest in the endowed property
which invests shebaitship with the character of
proprietary rights and attaches to it the legal
incidents of property. This was elaborately discussed
by a Full Bench of the Calcutta High Court in Monohar
Mukherji v. Bhupendra Nath Mukherji and this decision
of the Full Bench was approved of by the Judicial
Committee in Ganesh Chunder Dhur v. Lal Behary, and
again in Bhabatarini v. Ashalata. The effect of the
first two decisions, as the Privy Council pointed out
in the last case, was to emphasise the proprietary
element in the shebaiti right, and to show that though
in some respects anomalous, it was an anomaly to be
accepted as having been admitted into Hindu Law from an
early date. "According to Hindu law," observed Lord
Hobhouse in Gossamee Sree Greedharreejee v. Rumanlollji
Gossammee "when the worship of a Thakoor has been
founded, the shebaitship is held to be vested in the
heirs of the founder, in default of evidence that he
has disposed of it otherwise, or there has been some
usase, course of dealing, or some circumstances to show
a different dealing, or some circumstances to show a
different mode of devolution." Unless, therefore, the
founder has disposed of the shebaitship in any
particular manner-and this right of disposition is
inherent in the founder or except when usage or custom
of a different nature is proved to exist, shebaitship
like any other species of heritable property follows
the line of inheritance from the founder."
Angurbala’s case was followed by this Court in a recent decision reported as Ram Rattan v. Bajrang Lal & Others wherein Desai, J., who delivered the judgment of the Court observed: 220
"In the conception of shebait both the elements of
office and property, duties and personal interest are
mixed up and blended together and one of the elements
cannot be detached from the other. Old texts, one of
the principal sources of Hindu law and the commentaries
thereon, and over a century the Courts with very few
exceptions have recognised hereditary office of shebait
as immovable, property, and it has all along been
treated as immovable property almost uniformly. While
examining the nature and character of an office as
envisaged by Hindu law it would be correct to accept
and designate it in the same manner as has been done by
the Hindu law text writers and accepted by courts over
a long period. It is, therefore, safe to conclude that
the hereditary office of shebait which would be enjoyed
by the person by turn would be immovable property."
These observations as also those made in Angurbala’s case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing more or less than an office and is not heritable property.
8. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of section 4 of that Act, Sub-section (1) of which state:
(a) Save as otherwise expressly provided in this
Act-any text, rule or interpretation of Hindu
law or any custom or usage as part of that
law in force immediately before the
commencement of this Act shall cease to have
effect with respect to any matter for which
provision is made in this Act:
(b) any other law in force immediately before the
commencement of this Act shall cease to apply
to Hindus in so far as it is inconsistent
with any of the provision’s contained in this
Act." The requirements of the custom relied upon by the appellants to the effect that the right could not be exercised by a person who is not a member of any of the four sub-castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the 221 order of succession laid down in Chapter II of the Hindu Succession Act under which the right devolves on the plaintiff-respondent.
7. The only contention raised by Mr. Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to a decree. This contention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point.
9. In the result the appeal fails and is dismissed, but the parties are left to bear their own costs throughout. P.B.R. Appeal dismissed. 222