Authored By : Mookerjee, Charu Chander Ghose, Mitter, RaiSurendra Nath Guha, M.C. Ghose

Mookerjee, J.

1. The appeal, in connection with which this Reference hasbeen made, has arisen out of a suit for the construction of a will, forestablishment of title to shebaitship of a debattar estate and for otherincidental reliefs. The will concerned was executed by one Jagamohan Mukherji,in 1247 B.S. ( = 1840 A.D.). By it, Jagamohan made a testamentary dispositionof all his properties and created a debattar in respect of some of them. Asregards the office of shebait, he directed, in effect, that his eldest son shouldbe the first shebait and, after the death of the said eldest son, his othersons in the order named, successively, and, after the death of all his sons,the eldest male member of the family amongst the sons, sons sons and so on,from generation to generation, daughter or daughters son being excluded, solong as there would remain any male member as aforesaid, would be shebaits. TheAppellant, Manohar Mukherji, is the eldest male member of the family and wasthe first Defendant in the suit. The Plaintiff Bhupendranath Mukherji is a sonof Raja Pyarimohan, who was a. grandson of the testator Jagamohan by his eldestson Jaykrishna. He disputes the right of Manohar to succeed to the shebaitshipunder Jagamohans will. For the purposes of this Reference, it is not necessaryto refer to the pleadings or the points in controversy in the suit, beyond whatmay be gathered from the questions formulated for consideration, which are thefollowing:-

(1) Whether the founder of a Hindu debattar is competent tolay down rules to govern the succession to the office of shebait

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

(3) Whether rules for the succession to the office ofshebait are rendered invalid by reason that they provide for the office to beheld by some one among the heirs of the founder to the exclusion of others in asuccession differing from the line of Hindu inheritance

(4) Whether Sreepati Chatterjee v. Krishna Chandra Banerjee(1924) 41 C.L.J. 22. was correctly decided in so far as it was in that caseheld that the rule laid down in Tagores case (1872) 9 B.L.R. 377 ; L.R. IndApSup. 47. prohibiting a Hindu from creating a line of succession unknown toHindu law does not apply to the appointment of a shebait of a family Thakur

(5) Whether Promotho Nath Mukherjee v. Anukul Chandra Banerjee(1924) 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 founders lifetime, adirection could not validly be given by the founder in his will that the personsenior in age among the heirs of the first shebait should succeed to the officeof shebait and

(6) Whether the provision contained in the will of JagamohanMukherj to the effect that the eldest male member of his family should be thesole shebait, is in law ineffectual to entitle the Appellant Manohar Mukherjito the office, in view of the fact that he was not in existence until after thetestators death

2. The provisions in the will, which have given rise tothese questions are the following:

From the profits of the Collectorate taluks, patni taluks,and rent-free lands, etc., which I specify in No. 5 of the schedule at the footof this will and set apart for meeting the expenses of the sheba of the deitiesSridhar Thakur and Gopaleshwar Shiba Thakur established by me and the annualDurga Pooja and sradh, etc., of the ancestors and other pious acts, the shebaand pooja, etc., of the said Thakurs shall be performed and the surplus moneyshall be devoted to the suitable maintenance of the childless widows in the familyand the construction of roads, etc., for public use and excavation of tanks andother pious acts ; but as a provision against drought and other providentialcalamities money sufficient for the payment of one years revenue shall begradually accumulated from the surplus money, and Government promissory notesshall be purchased therewith and kept in stock and then the surplus shall beapplied suitably to the construction of roads, etc., and other pious acts. Iappoint my eldest son Jaykrishna Mukherji, and Haranath Chatterji, a residentof Uttarparha, as "attorneys" for the performance of duties of theshebaits of the said deities. The said "attorneys" shall makesettlements and hold possession of all the said properties as maliks thereof,and shall carry into effect the above terms. And neither they nor their heirsshall be competent to alienate the said properties by sale or gift. After thedeath of Jaykrishna Mukherji, Rajkrishna Mukherji shall be appointed in hisplace. After the death of the said Rajkrishna, his stepbrother NabakrishnaMukherji and after the death of the said Naba-krishna, his step brotherBijaykrishna shall be appointed to the office of attorney." After thedeath of my sons, Jaykrishna and others, amongst their sons, sons son and soon in succession, the eldest male member in the family shall alone be appointedas "attorney" for the time being and shall perform the abovementionedDeb-sheba and other pious acts. As long as there will remain any male childliving in this family no daughters son or daughter shall be appointed to theoffice of "attorney" for the performance of the said acts. Again,Haranath Chatterji the other "attorney" of the said fund, shallcontinue as "attorney" during his lifetime and acting in concert withthe other "attorney" my son shall perform the said sheba and otheracts. After the death of the said Chatterji "attorney" his heirsshall have no concern with the said office of "attorney." My sons andtheir heirs in succession do the duties in the manner aforesaid.

3. The group of properties described in item No. 5 of theschedule were thus made a debattar mehal; and it was also provided that certainother properties detailed in item No. 4 of that schedule would also be includedin the said debattar mehal if a certain contingency happened.

4. In Tagore v. Tagore (1872) 9 B.L.R. 377 (394); L.R. IndApSup. 47., their Lordships of the Judicial Committee laid down that a privateindividual who attempts by gift or will to make property inheritable otherwisethan the law directs is assuming to legislate, and the gift must fail and theinheritance take place as the law directs, that all estates of inheritancecreated by gift or will, so far as they are inconsistent with the general lawof inheritance, are void as such, and that by Hindu law, as a generalprinciple, a person who is to take must, either in fact or in contemplation oflaw, be in existence at the time when the gift or bequest is to take effect,and the estate to be taken must be an estate recognised by that law. TheirLordships, in dealing with the case, observed:-

The questions presented by this case must be dealt with anddecided according to the Hindu law prevailing in Bengal, to which alone theproperty in question is subject. Little or no assistance can be derived fromEnglish rules or authorities touching the transfer of property, or the right ofinheritance or succession thereto. Various complicated rules, which have beenestablished in England, are wholly inapplicable to the Hindu system, in which property,whether moveable or immoveable, is, in general, subject to the same rule ofgift or will, and to the same course of inheritance.

5. The questions referred to the Full Bench, therefore,mainly depend on the question whether shebaitship in Hindu law is property ofany kind, to which Tagore v. Tagore (1872) 9 B.L.R. 377 ; L.R. IndAp Sup. 47.(supra) may apply, or is merely an office to which the founder of an endowmentis competent to appoint or nominate persons in any order of succession, whichmay have the effect, so far as the founder is concerned, to use the words ofLord Justice Turner in Soorjeemoney Dossee v. Denobundoo Mullick (1857) 6M.I.A. 526, 555., of "creating a "new form of estate or altering theline of succession "allowed by law, for the purpose of carrying out his"own wishes or views of policy.

6. For a correct appreciation of the incidents of the officeof a Hindu shebait, a slight digression is necessary into the history of Hindureligious institutions and endowments. Literature bearing on them is somewhatscanty. Nevertheless, a study of such materials as are available enables one toform a reasonably clear idea of the general characteristics of the powers andduties, or rights and obligations, of shebaits or persons holding offices moreor less analogous to those of shebaits.

7. Dealing with a case from Southern India, the particularinstitution concerned in that case being a math of which the head used to becalled the Panddra Sannadhi or Matathipathi (Vidya Varuthi Thirtha v. BalusamiAyyar) (1921) I.L.R. 44 Mad. 831 (839); L.R. 48 IndAp 302 (311), theirLordships of the Judicial Committee had occasion to consider the general natureof Hindu religious institutions. Their Lordships said thus:-

It is also to be remembered that a " trust " inthe sense in which the expression is used in English law, is unknown in theHindu system, pure and simple. Hindu piety found expression in gifts to idolsand images consecrated and installed in temples, to religious institutions ofevery kind, and for all purposes considered meritorious in the Hindu social andreligious system ; to brahmans, goswamis, sanyasis, etc. When the gift was to aholy person, it carried with it in terms or by usage and custom certainobligations. Under the Hindu law, the image of a deity of the Hindu pantheonis, as has been aptly called, a juristic entity," vested with thecapacity of receiving gifts and holding property. Religious institutions, knownunder different names, are regarded as possessing the same " juristic" capacity, and gifts are made to them eo-nomine. In many cases inSouthern India, especially where the diffusion of Aryan Brahmanism wasessential for bringing the Dravidian peoples under the religious rule of theHindu system, colleges and monasteries under the names of math were foundedunder spiritual teachers of recognised sanctity. These men had and have amplediscretion in the application of the funds of the institution, but alwayssubject to certain obligations and duties, equally governed by custom andusage. When the gift is directly to an idol or a temple, the seisin to completethe gift is necessarily effected by human agency. Called by whatever name, heis only the manager and custodian of the idol or the institution. In almostevery case he is given the right to a part of the usufruct, the mode ofenjoyment and the amount of the usufruct, depending again on usage and custom.In no case was the property conveyed to or vested in him, nor is he a "trustee," in the English sense of the term, although, in view of theobligations and duties resting on him, he is answerable as a trustee in thegeneral sense for maladministration.

8. This decision removed a misconception that the powers andduties of the holders of the office referred to above were very similar to, ifnot in all respects the same as, those of "trustees" in the Englishsense, which had till then prevailed in India and had found expression innumerous decisions of the Indian courts. Words used in some of the previousdecisions of the Judicial Committee, wrongly understood, contributed in nosmall measure to encourage such misconception. In Vidya Varuthis case (1921)I.L.R. 44 Mad. 831 ; L.R. 48 IndAp 302. (supra), their Lordships referred totheir earlier decision in Ram Parkash Das v. Anand Das (1916) I.L.R. 43 Calc.707 ; L.R. 43 IndAp 73., in which their Lordships had described the Mohunt ofan asthal or math as one holding the properties in trust for the math, andobserved that they had used the term "trustee" in a. general sense,as in previous decisions of the Board, by way of a compendious expression toconvey a general conception of the obligations attaching to his office, butthat they did not attempt to define the term or to hold that the word in itsspecific sense was applicable to the laws and usages in this country. TheirLordships further pointed out that it was, in view of this fundamentaldifference between the juridical conceptions, on which the English law relatingto trusts is based and those which form the foundation of the Hindu system,that the Indian legislature in enacting the Indian Trusts Act (II of 1882)deliberately exempted from its scope the rules of law applicable to Mussalmanwakf and Hindu religious endowments. But this decision of the Judicial Committeeis still more important for the purposes of the questions which we are nowconsidering, because in it a definite pronouncement was made, as will appearfrom the portion of the decision quoted above, that so far as religiousinstitutions are concerned, they possess a juristic capacity and gifts are madeto them eo-nomine and the persons who are heads or superiors of theinstitutions have ample discretion in the application of the funds of theseinstitutions subject to certain obligations and duties governed by custom andusage, and that, in the case of a gift directly made to an idol or a temple,the seisin, to complete the gift, is necessarily completed by human agency, andthat the manager or the custodian of the idol of the institution is, in almostevery case, given the right to a part of the usufruct, the mode of enjoymentand the amount of usufruct depending again on usage and custom. Thispronouncement; clearly shows that the idea of a manager or custodian of theidol or its endowed property having a right to a part of its usufruct far frombeing repugnant to the Hindu notion of a religious endowment, is but a normalfeature of it.

9. In Vidyd Varuthis case (1921) I.L.R. 44 Mad. 831 ; L.R.48 IndAp 302. (supra), their Lordships referred to certain Madras cases which,though they are not cases of gift to idols, have brought this feature of Hindureligious endowments prominently to relief and are, therefore, not whollyirrelevant. To some of these and a few others I shall now refer. In SammanthaPandara v. Sellappa Chetti (1879) I.L.R. 2 Mad. 175, 179., it was observed:-

The property is in fact attached to the office and passes byinheritance to no one who does not fill the office. It is in a certain sensetrust property; it is devoted to the maintenance of the establishment but thesuperior has a large dominion over it, and is not accountable for itsmanagement nor for the expenditure of the income, provided he does not apply itto any purpose other than what may fairly be regarded as in furtherance of theobjects of the institution * * *. We do not of course mean to lay down

that there are not mattams which may have been establishedfor purposes other than those we have described, nor that the property may notin some cases be held on different conditions and subject to differentincidents. We have described the nature of the generality of such institutionsand the incidents of the property which is devoted to their maintenance.

10. In Giyana Sambandha Pandara Sannadhi v. KandasamiTambiran (1887) I.L.R. 10 Mad. 375., the learned Judges pronounced that thehead of the institution held the matham under his charge and its endowment intrust for the maintenance of the math, for his own support, for that of hisdisciples and for the performance of religious and other charities inconnection therewith according to usage. In the case of Vidyapurna Tirtha Swamiv. Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435., Subrahmania Ayyar J. andBhashyam Ayyangar J., in two very learned judgments and after an elaborateexamination of English institutions, which they conceded to be analogous toHindu maths, held that while the dharmakarta or custodian of temple is a meretrustee and has no beneficial interest in the endowment but occupies thefiduciary position of a mere trustee, in the case of maths, though there areidols connected therewith the worship of which is quite a secondary matter andthe principal purpose of such an institution being the maintenance of a line ofcompetent religious teachers, the swami or spiritual teacher or acharjya is areal owner or a life-tenant and not a mere trustee. [See in this connectionSrinivasa Chariar v. Evalappa Mudaliar (1922) I.L.R. 45 Mad. 565 ; L.R. 49 I.A.237.]. Vidyapurnas case (1904) I.L.R. 27 Mad. 435. (supra) was considered tobe in conflict with the two earlier ones cited and, accordingly, a referencewas made to a Full Bench in the case of Kailasam Pillai v. Nataraja Thambiran(1909) I. L. R. 33 Mad. 265, 286, 287. Two of the Judges constituting the FullBench held that the incidents attaching to the properties of the endowmentdepended in each case upon the conditions on which they were given or whichmight be inferred from long-continued and well-established usage and! custom ofthe particular institution and it is on them that one could say whether thehead of the math was a trustee or a life-tenant. The third Judge, Sankaran NairJ., pointed out that, in the case of these maths,--

Any surplus, therefore, that remains in the hands of thePandara Sannadhi, he is expected to utilize for the spiritual advancement ofhimself, his disciples or of the people.

* * *

He is not accountable to any one and is not bound to utilizethe surplus. He may leave it to accumulate.

11. And the learned Judge also observed:-

It is also true in my opinion that he is under a legalobligation to maintain the math, to support the disciples and to performcertain ceremonies which are indispensible. That will only be a charge on theincome in his hands and does not show that the surplus is not at his disposal.

* * *

.

In the absence of evidence to the contrary, the PandaraSannadhi, as such, is not a trustee. He is not also a life-tenant for thereasons already given.

12. In Muthusamier v. Sreemethanithi Swamiyar Avergal (1913)I.L.R. 38 Mad 356., Miller J. said that a mathathipathi (head of a math), beingthe owner of an inheritance is not a tenant for life but is in the position ofone who, though in certain sense is owner in fee simple, yet in many respects,has the powers of a tenant for life; and Sadasiva Ayyar J. observed that theposition of a mathathipathi is neither that of an absolute heir as he cannotordinarily alienate the corpus, nor that of a mere tenant for life as herepresents fully the ownership of the matham properties for certain purposes,and is, therefore, in many ways, analogous to that of the estate of a Hindufemale heir to a males estate. Another case referred to is the case SathianamaBharati v. Saravanabagi Ammal ILR (1894) Mad. 266, 276., in which a village hadbeen granted to the head of a goswdmi math to be enjoyed from generation togeneration and the deed of gift provided that the grantee was to improve themath, maintain the charity and be happy; the office of the head of the math washereditary; and from usage it was found that the trusts of the institution werethe upkeep of the math, the feeding of pilgrims, the performance of worship,the maintenance of a water-shed and the support of the descendants of thegrantee. Muttusami Ayyar J., Best J. concurring, observed as follows:-

The evidence does not show that at each generation thevillage was divided subject to the obligation of contributing to the cost ofmaintaining the charities, or that any portion of the village was specially setapart as trust property and the rest as partible property as would ordinarilybe the case if the villages were granted for the personal benefit of thegrantee and his heirs, subject to the fulfilment of certain trusts annexed tothe grant. The conclusion to which we come is that the village was granted asan endownment for the math and the charities connected with it, and that whatmight remain after due execution of those trusts was intended to be applied tothe maintenance of the grantee or his descendants. * * * The Subordinate Judgeconsiders that only money payments should have been made and that no landsought to have been allotted. We do not concur in this opinion ; whethermaintenance is provided by an assignment of land or paid in cash from time totime, there is no difference in principle, provided the allotment is purely byway of providing maintenance.

13. The cases referred to above deal exclusively with theposition of the superior of a math in relation to its endowment. But theirLordships in Vidya Varuthis case (1921) I.L.R. 44 Mad. 831 ; L. R. 48 I. A.302. (supra) also referred to certain other decisions respecting the powers ofthe managers of religious institutions generally. Amongst them one was the caseof Mahomed v. Ganapati (1889) I.L.R. 13 Mad. 277, 280. in which Shephard J.(Muttusami Ayyar J. concurring) held as regards the dharmakarta of a temple,that he does not derive his title from his predecessor and is not bound by hisacts and that:

Subject to the law of limitation, the successive holders of anoffice " enjoying for life the property attached to it are at liberty toquestion " the dispositions made by their predecessors.

14. In support of this proposition the learned Judge reliedupon Papaya v. Ramana (1883) I.L.R. 7 Mad. 85. (lands attached to and formingthe emoluments of the office of a karnam), Jamal Saheb v. Murgaya Swami (1885)I.L.R. 10 Bom. 34. (lands attached to a math but forming the service emolumentof the jangam or presiding lingait priest of the math) and Modho Kooery v. RamChunder Singh (1882) I.L.R. 9 Calc. 411. (lands appertaining to a ghatwalimehal).

15. These cases sufficiently show that some amount ofpersonal interest, wherever it is permissible either by the terms of the grantor by custom or by usage of the institution, has never been regarded asmilitating against the essence of a Hindu religious endowment. Indeed, such a.position is not merely not in conflict with, but, on the other hand, is inentire conformity with Hindu notions. The religion of the Vedas differs widelyfrom the present popular religion of the Hindus and the forms of worship thatprevailed in the Vedic age were also widely different from those prevailing atpresent under popular practice. Max Muller says:-

The religion of the Vedas knows of no idols. The worship ofidols in India is a secondary formation, a later degradation of the moreprimitive worship of ideal Gods.

16. Dr. Bollensen is prepared to question the correctness ofthis assertion on the ground that the texts of the Vedic hymns contain clearreference bo images of the gods. But as Pandit Prannath Saraswati has pointedout,--

It is not necessary to enter into any detailed examinationof these texts, but it will be sufficient to say that they do not necessarilyand irresistibly lead to the desired conclusion, but are quite susceptible ofthe meaning, quite in harmony with the traditions of oriental commentators andwith the opinion deliberately expressed by so eminent an authority on the Vedasas Max Muller. The gods are described in the hymns with many humanattributes,--a necessity of the human mind and language,--but it does notnecessarily follow therefrom that images of these gods clothed in such humanattributes were artificially prepared and worshipped. (Tagore Law Lectures,1892, page 36.)

17. The learned Pandit has said, however, that in laterVedic literature there is unequivocal evidence of the existence of images ofgods and temples raised for their accommodation (ibid page 38). Another learnedcommentator on Hindu law, Mr. J.C. Ghose, whose commentaries on Hindu law haveoften been referred to in Indian decisions and were also relied upon by theJudicial Committee in Vidya Varuthis case (1921) I.L.R. 44 Mad. 831 ; L.R. 48I.A. 302. (supra), has said,--

It is only from the time of Buddha that we find mention oftemples monasteries, hospitals for men and beasts, and of endowments forreligious and charitable purposes * * * There were no images of Buddha duringhis lifetime. But after his death, the introduction of Tantrikism both inBuddhism and Hinduism led largely to the erection of temples and setting up ofimages. (Tagore Law Lectures, 1904, Volume II, page 19.)

18. Whatever might have been the exact forms of Hinduendowments at different periods of history, what Mr. Mayne appears to have saidin his Hindu Law and Usage (paragraph 393) las their origin, namely that giftsto religious and charitable purposes were naturally favoured by the Brahmins asthey are everywhere by the priestly class, can hardly be maintained. It hasbeen demonstrated by Hindu jurists of eminence that the present system of Hinduendowments is the evolutionary product of the religious history of the peoplefrom the most ancient times and its roots can be traced back even to the Vedas.Their genesis may be traced to a more natural source, that is to say, thecommon feelings of human nature, namely, charity, and the desire to acquirereligious merit. The sages of yore made a distinction between ishta orsacrificial gifts, and purta or charity, and they said that the former led toheaven and the latter to salvation (ishtena lavatey swarga purtena mokshamapnyuat) and in that way. placed charity on a higher footing than religiousceremonies and sacrifices. The distinction between religious and charitable endowments,so far as the State and the courts were concerned, is of comparatively modernorigin. In one of the cases already cited [Vidyapurna Tirtha Swami v.Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435.] a distinction was drawnbetween temples and maths, it being held that the custodian of a temple is amere trustee, the property being deemed vested in the presiding God treated asa juristic person, but the head of a math is not a mere trustee but a"corporation sole" having an estate for life in the permanentendowments of the math and an absolute property in the income derived from itsofferings, subject, only to the duty of maintaining the institution. Juristshave pointed out that the idea of corporate bodies or "corporationsole" is not to be found in the Smritis, though in West and Buhlers HinduLaw (see pages 185, 201, 553, 556) it is said that Hindu law, like Roman lawand those derived from it, recognises not only corporate bodies with rights ofproperty vested in the corporation apart from its individual members, butjuridical persons or subjects called foundations. See also Manohar GaneshTambekar v. Lakhmiram Govindram (1887) I.L.R. 12 Bom. 247. Unfortunately, incourts which are familiar with doctrines of western jurisprudence, Roman legalconceptions and English notions of trust permeated a good deal too freely intothe law of Hindu religious endowments, taking, of course, the expression toinclude charitable endowments as well.

19. Endowments and trusts were unknown in early times, andyaga, which, according to the Mimansa, is the parting of a thing that it mightbelong to the deity, was all that one cared for, offering it to the fire towhich was entrusted the duty of carrying it to the gods after making themfragrant. Gifts to charities were made out and out. And as Mr. J.C. Ghose hasobserved,--

When this once universal practice of the fire fell intodisuse, and images of deities came into vogue, the performance of their dailyworship became an object which had to be secured by those who set it up. It wasnecessary to preserve the property dedicated and not to throw it to the fire,and endowments had to be created. But originally there were no trust deeds.Certain ceremonies were prescribed for making the offering or dedication,amongst which the pouring of a libation of water was indispensible among Hindusand Buddhists. (Tagore Law Lectures, 1904, Volume II, page 91.)

20. In later times, Hindu law made property dedicated forpious uses, impartible. Of this, reference is to be found in various texts andauthorities which are found collected in Pandit Prannath Saraswatis Hindu Lawof Endowments (Tagore Law Lectures, 1892, pages 177-179) and there is also tobe found there a discussion as to the meaning of the expression yoga kshemam, inManu IX, 219, about which there is a considerable conflict, --some authoritiesmaintaining that the expression indicates the notion of a fund for religious orcharitable purposes and others denying that that is the meaning of theexpression. It is unnecessary to go into the details of this controversy here.

21. Religious endowments or debattar are of two kinds,public and private. In a public endowment, the dedication is for the use orbenefit of the public. But when property is set apart for the worship of afamily god, in which the public are not interested, the endowment is a privateone. Courts have given effect to results logically following from such adistinction. For instance, in Doorganath Roy v. Ram Chunder Sen (1876) I.L.R. 2Calc. 341 ; L.R. 4 IndAp 52., the Judicial Committee observed:-

When the temple is a public temple the dedication may besuch that the family itself could not put an end to it; but in the case of afamily idol, the consensus of the whole family might give the estate another direction.

22. Chatterjea and Page JJ., in the case of Chandi CharanDas v. Dulal Chandra Paik (1926) I.L.R. 54 Calc. 30., held that, in order toconvert the absolute debattar property of a family Thakur into secularproperty, it is necessary and that a consensus of all persons interested in theworship of the deity including all the members of the family, male and female,should be obtained, but doubted whether Doorganath Roys case (1876) I.L.R. 2Calc. 341 ; L.R. 4 I.A. 52. (supra) was not incompatible with the true spiritthat moves a pious Hindu to make such a debattar. And in Mr. GolapchandraShastris well-known book on Hindu Law (page 778) it has been cynically put, asa corollary following from this decision of the Judicial Committee, that if allthe members of the family renounce Hinduism and choose to throw the family godinto the waters of the Ganges, and themselves enjoy its property, no outsidercan raise any objection, the endowment being a private one. That the family godis not so very helpless has, fortunately, been held by the Judicial Committeein Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) I.L.R. 52 Calc. 809; L.R. 52 I.A. 245. This distinction, however, is not to be found in theoriginal texts of Hindu law and is a distinction of comparatively recentorigin, based, no doubt, on sound principle and necessitated presumably bychange of social conditions.

23. To find out the real incidents attaching to sheaditshipone must investigate into the question as to what is the true effect ofdedication of property in Hindu law. The principles underlying the dedicationare the same both in the case of institutions and in the case of idols, thoughthe details of the rituals are different and diverse. The two cardinalessentials are the sankalpa or the formula of resolve and the utsarga or therenunciation, By the dedication, the donor divests himself of his proprietaryrights absolutely, but so long as there is no appropriation of the property forthe purpose for which it is dedicated there is an obligation on him to see toits preservation, and, accordingly, a corresponding right of control so long asthe property itself exists. The erudite scholar Mandalik in his Hindu Law,Appendix II, page 337, on public charities, says thus:-

The repair and control of the things thus dedicated, and theownership of which has been renounced, generally vest with the renounceraccording to the usage of the country. Mitra Misra in the Viramitrodaya,Vyavaharadhyay, in discussing the ownership remarks as follows:-But ownership,so far as protection is concerned, does exist in the donor even when hisownership, consisting of the power of disposition at pleasure, has beenwithdrawn (by renunciation) until the final accomplishment of the purpose ofthe donor, who seeks a certain merit according to precepts (on gifts); for theact imported by the word gift will not be complete until the ownership ofanother has arisen. The ownership will in this instance (exist) in the same wayas (it does in) the case of substances sacrificed lest sin arising out of theprohibitions about their being touched by prohibited (animal or person) shouldstick (to the sacrifice). In this way (i.e., on the above hypothesis), thepossibility of a stranger appropriating (a thing given in the former case) andof the forbidding (an unclean touch) being precluded (in the latter case) willnot arise, although the ownership of another (viz., the donee) has not arisenin the thing given. The practice of the learned too, in both cases in respectof protection is based on that (limited kind of ownership which has beenreferred to before).

The above supports the usage of the country as to thededicators rights I in regard to a sort of guardianship over the thingdedicated.

24. The dedicator no doubt gives up all his rights, so muchso that, in the case of a tank which is dedicated, some say that the water,which has been renounced, should be given up by the renunciator and not used byhim, like the agneya purodasa (a certain portion of the boiled sacrificialrice), but others say that since the renunciation has been in view of allbeings including himself, and, therefore, he is one of the objects indicated,the non-inclusion of ones self would lead to hie love for the work being lostand therefore he should use the water; and the same is the case with fruitsproduced in a renounced grove (Ibid page 336, quoting Mayukha). As regards anidol, after it has acquired existence as a juridical personage, the sankalpa orthe resolve makes the deity himself the recipient of the gift, and the utsargadivests the donor of his proprietorship, though by judicial decisions it is nowsettled that the principle of Hindu law, which invalidates a gift other than toa sentient being capable of accepting it, does not apply to a bequest totrustees for the establishment of an image and the worship of a Hindu deityafter the testators death and does not make such a bequest void. See BhupatiNath Smrititirtha v. Ram Lal Maitra (1909) I.L.R. 37 Calc. 128. Deeds not beingin use it was one form of dedication that applied to all endowments, public andprivate, the effect whereof was to transfer the property dedicated from thedonor to the donee, the deity. But this analogy of a, human transfer need notbe carried too far, for the deity is not in need of property, nor does it holdany: what is given to the deity become available to all.

25. The deity is the recipient of the gift only in an idealsense; the dedicated property belongs to the deity in a similar sense; inreality the property dedicated is in the nature of an ownerless thing. Inancient times, except in cases of property dedicated to a brotherhood ofsanyasis, all endowments ordinarily were administered by the founder himselfand after him his heirs. The idea of appointing a shebait is of more moderngrowth. When a. Hindu creates an endowment, its management is primarily in himand his heirs, and unless he appoints a shebaitr he himself fills that officeand in him rests that limited ownership,--notwithstanding that, on the onehand, he is the donor and, on the other, the recipient on behalf of the deity,the juridical person,--which has to be exercised until the property offered tothe deity has been suitably disposed of. The true principle of Hindu law iswhat is mentioned in the Chhandogya Upanishada, namely, that the offerings tothe gods are offerings for the benefit of all beings (Chap. 5, p. 24, K. 2-5).And Raghunandan has quoted a text of Matsya Sukta which says:-

Having made offerings to a God, the sacrificial fee alsoshould be given to the god. The whole of that should be given to a Brahmin,otherwise it is fruitless.

26. In the distribution of prasad and matters of thatcharacter, the shebait has, in practice, a very large discretion. Thediscretion must necessarily, from the very nature of things, be much larger inthe case of a private than in the case of a public debattar. This idea oflimited ownership is the essence of the position of the manager or custodian ofa. dedicated property, by whatever name he may be called. That this idea is theonly basis on which decisions of the highest authority as regards the rightsand powers of shebaits may be justified will be seen hereafter when some ofthese decisions will be referred to.

27. But, before referring to these decisions, it will beconvenient to deal with an argument which has been put forward on behalf of theAppellant and which has got to be very carefully considered. The argument isthat, under Hindu law, property is either bhu (land), nibandha (translated ascorody) and drabya (thing); that slaves, inasmuch as they go with land, areclassed with bhu, which is land or immoveable property; that drabya is moveableproperty, and certain hereditary offices carrying emoluments are classed undernibandha; but that the office of a shebait, which carries no emolument at all,cannot be classed within the category of nibandha. Certain texts fromYajnavalkya and Dayabhaga were cited in support of this contention, and somecases also have been referred to.

28. The cases may be dealt with first. In Keshavbhat v.Bhagirathiadi (1866) 3 Bom. H.C.R. (A.C.) 75., which was a suit by the widow ofone of the descendants of the grantee of a varshasan or annual allowance paidfrom the Government treasury for the performance of religious service in aHindu temple to recover the arrears due to her husbands branch of the familyfrom another descendant who had received the whole stipend, all that wasdecided and has any bearing on the question before us was that, by the usage ofthe family, the duties of the office had been performed in rotation and thestipend distributed amongst the descendants of the grantee in certain fixedproportions and that it was not competent to the Defendant to raise thequestion of nondivisibility of the varshasan. In Raiji Manor v. DesaiKallianrai Hukmatrai (1869) 6 Bom. H.C.R. (A.C.) 56., it was held, followingMaharana Fatesangji v. Desai Kalyanraya (1867) 4 Bom. H.C.R. (A.C.) 189., whichwas the case of a todagiras hak and was good law till then, that where a hak isnot charged upon or payable out of land, a suit for its recovery must bebrought within 6 years from the last payment made on account of it. The hak inthat case was a pagdi allowance which was not payable out of land. The questionin that case was whether the hak was money or immoveable property for thepurposes of limitation prescribed by Act XIV of 1859. In Krishnabhat binHiragange v. Kapabhat bin (1869) 6 Bom. H.C.R. (A.C.) 137., a similar questionof limitation arose and it was held that, in a suit between Hindus, the officeof hereditary priest to a temple, though not annexed to or held by virtue ofownership of any land, yet, being by Hindu law classed as immoveable property,should be held to be immoveable property within the meaning of the LimitationAct. The authorities, in the shape of Sanskrit texts, cited before us, onbehalf of the Appellant are referred to in the judgments of Couch C.J. andGibbs J., in that case. In Balvantrav T. Bapaji v. Purshotam Sidheshvar (1872)9 Bom. H.C.R. 99., a similar view was taken as regards fees payable to theincumbent of an hereditary office of a village joshi. The case was decided by aFull Bench over which Westropp C.J. presided and the meaning of the termimmoveable property as used in Hindu law was elaborately discussed by him. InGovernment of Bombay v. Gosvami Shri Girdharlalji (1872) 9 Bom. H.C.R. 222., itwas held that, in considering with reference to prescription whether anallowance not being incidental to hereditary office is or is not immoveableproperty, the Bombay High Court had generally followed the test, --"Is oris not the allowance *** a charge upon land "or other immoveable property In all these cases the subject-matter was brought within the meaning of theword "nibandha", which in Hindu law ranks with immoveable property.The subject-matters of these cases, however, were either allowances orhereditary offices to which emoluments are attached. Maharanas case (1873) 13B.L.R. 254 (264); L.R. 1 I.A. 34 (51). (supra) went up to the JudicialCommittee. It was heard in 1873, after all the aforesaid cases of the BombayHigh Court had been decided, and their Lordships observed thus:-

Whether a toda giras huq be nibandha within the strict senseof the term is, in their Lordships opinion, a question not free from doubt.The original text of Yajnyavalkya, which is the foundation of all the otherauthorities, cited by Chief Justice Westropp implies that the subject renderedby the word corody in 2 Colebrookes Digest, placitum XXXIV, is sometimescreated by royal grant. This, too, is included in Professor Wilsons definitionof nibandha. That the word in the subsequent glosses on Yajnya-valkyas text isused in a wider sense may be due to the want of precision for which Hinducommentators are remarkable. It is, however, unnecessary to consider this pointbecause their Lordships are of opinion that the question whether toda giras huqis an interest in immoveable property within the meaning of Act XIV of 1859, isone which ought not to be determined by Hindu law.

29. Subsequent to the decision of the Judicial Committee,quoted above, a question of limitation again arose in the Bombay High Court[See Collector of Thana v. Krishnanath (1880) I.L.R. 5 Bom. 322.] in connectionwith an annuity granted by a Hindu Sovereign, the Peishwa, to a Hindu templewhich was not made a charge upon the land. The two learned Judges in that casediffered in their interpretation of the observations of the Judicial Committeein the aforesaid case. Sargent J. was of opinion that the question should bedetermined upon the meaning of immoveable property as understood in Hindu lawnotwithstanding the decision in Mahdrdnds case (1873) 13 B.L.R. 254 (264);L.R. 1 I.A. 34 (51). (supra), while Melvill J. took a contrary view. Thisdifference does not concern us. But Sargent J. held that it is the fixed andpermanent character of the allowance, from whatever source derived, which byHindu law entitles it to rank with immoveables and if the grant could be deemedto be one in perpetuity and the fund out of which the perpetual allowance wasderived forms a permanent source the allowance has all the characteristics ofpermanency and durability which is essential to bring it, according to Hindulaw, within the term immoveable property. He held that such allowances camewithin the meaning of the word nibandha. Melvill J. referred to the propositionlaid down by the Judicial Committee in Maharana s case (1873) 13 B.L.R 254(265); L.R. 1 I.A. 34 (52). (supra):-

Their Lordships think that the applicability of particularsections of this general Statute of Limitation must be determined by the natureof the thing sued for, and not by the status, race, character or religion ofthe parties to the suit.

30. And then observed,--

But there may be cases in which the test prescribed by therule fails, or is very difficult of application; and then will come in theoperation of the exception to the rule, and it may become the duty of a courtto seek for guidance in some arbitrary definition contained in the religiouslaw of the claimant. Conspicuous among such cases (and, indeed, it is the onlycase in which the Judicial Committee has expressly approved of the applicationof the exception) is an instance of a hereditary office in Hindu communityincapable of being held by any person not a Hindu. It is clear that this is akind of incorporeal hereditament which it would be very difficult to classifywith reference to the connection of a particular hereditary office with land. Sucha classification may be possible in rare instances in which questions regardinghereditary offices or dignities may arise in England (Company Litt. 20a); butthe multiplication of hereditary offices of every description is a peculiarityof Hindu communities, and most of them are of such a character that it would bescarcely possible to say whether they savour of the realty or not. In everyconsiderable Deccan village there are, at least, twelve such offices; and acourt might well find it impossible to determine, upon general principles, andwithout reference to Hindu law, whether the office of a hereditary blacksmith,potter or astrologer, is or is not immoveable property.

31. With all deference to the argument based on theauthority of these cases, I must say I do not see that such an argument leadsus anywhere. Assuming that a hereditary office, to which no emolument isattached or to which no emolument arising out of land is attached is notnibandha under the Hindu law, and so, on that ground, is not immoveableproperty under that law, what has yet to be considered is whether the right ofa shebait is property in the sense in which property is understood in Hindulaw.

32. Macnaghten in his principles and precedents of HinduLaw, Volume 1, page 1, says,--

Property according to the Hindu law, is of fourdescriptions, real, personal, ancestral and acquired. I use the term real andpersonal, in preference to the terms moveable and immoveable, because althoughthe latter words furnish a more strict translation of the expression inoriginal, yet the Hindu law classes amongst things immoveable property which isof an opposite nature, such as slaves and corodies or assignments of lands.

33. He has quoted Jagannatha, Digest, Volume II, where it issaid, following, the nyaya doctrine, that,-

Ownership is a relation between cause and effect, attachedto the owner who is predicated of a particular substance, and subsisting in thesubstance by connection with the predicable.

34. An unlimited or an unrestricted power to deal with or ofdisposal over the thing is not necessarily an incident of the right to propertyin Hindu law. On the other hand, as Strange in his Elements of Hindu Law, 1825Edition, Volume 1, page 14, has pointed out,--

The principle that seems to pervade the Hindu law is thatall property is held in trust not for the exigencies of the State merely, butfor those of a mans family, in so much that proprietary right cannot be saidto be inherent in a Hindu, but with considerable limitation and restriction.

35. Though the element of limitation or restriction iscarried to a greater degree in the case of that kind of right which the head ofan endowment or a shebait exercises over endowed property, the right is nonethe less a kind of property, which the Hindu law, as far as may be gathered,has never refused to recognise. Whether a restricted or a wider meaning shouldbe given to the word nibandha is a matter which we need not enquire into, for,on that point, opinions differ and differ very considerably. But I can find noauthority for the proposition that the limited ownership which a shebait, inordinary cases, exercises over debattar property is not property in the eye ofHindu law. On the other hand, there is ample authority the other way. In ElberlingsTreatise on Inheritance, page 96, paragraph 205, it is said:

Privileges and rights belonging to the family are generallyheritable and divisible amongst the heirs, like other property. Endowed landsand property given to pagodas, Thakurs, or for other religious and publicpurposes are not heritable, as the property belongs to the debata of theinstitution ; such property cannot therefore be divided, and if a division hasbeen made, it is void. But the surplus of the income, after all proper and necessaryexpenses have been defrayed may be divided by the heirs according to theirrespective shares.

36. It has already been observed that the distinctionbetween public and private debattar is a thing of comparatively modern growth.

37. In Stranges Hindu Law, 1825 Edition, Volume II, page302, is to be found the opinion of Mr. Colebrooke:-

The hereditary privileges of the family, with the incomearising from them, axe divisible amongst heirs like other patrimony, under thegeneral rules of inheritance. At most of the religious establishments of theHindus, and at their great temples, the various offices attached to them areconsidered as hereditary, together with perquisites belonging to them.

38. The question as to what is the nature of the rightswhich the founder of a religious endowment or his heirs are competent toexercise over the property of the endowment appears to have been canvassed insome of the earlier decisions of this Court, e.g., Elder Widow of Chutta Seinv. Young Widow of Chutta Sein (1807) 1 Mac Sel. Rep. 239., Juggut Chunder Seinv. Kishwanund (1814) 2 Mac. Sel. Rep. 160., Radha Bullubh Chund v. JuggutChunder Chowdree (1826) 4 Mac. Sel. Rep. 192., Kissnonund Ashrom Dundy v.Nursingh Doss Byragee (4). Not much assistance can be derived from thedecisions in these cases. In Radha Bullubh Chunds case (3), an investigationwas seriously started to find out the exact nature of the rights, buteventually it came to nothing, because the opinions of the pandits who wereconsulted were conflicting and the Court, suspecting that the Hindu law wasentirely silent on the subject, preferred to decide the case under theRegulations and the previous Vyavasthas. In Kissnonunds case (1863) 1 Marsh.485., it was observed that it was competent to persons, upon whom themanagement of lands dedicated to religious purposes devolved, to separate bymutual consent and form distinct religious establishments and that it was nobreach of the trust for religious purposes, if the manager with the funds inhis possession formed an independent religious establishment. It was said thatsuch an act may have been, an infraction of. the rights of property, but didnot amount to the seizing of the subsistence of priests within the meaning ofthe text of Adi Purana cited in Colebrooks Digest, Book 2, Chapter 4, Section2, Article 1, xxxvii. It was observed that the manager as shebait, may not havepossessed an estate in the property of the original foundation sufficient toenable him to bind his successor by a gift but the question between hissuccessor on the gadi and the shebait of the newly formed establishment was amere question of property.

39. The decision last mentioned, in my opinion, sufficientlynegatives the contention that shebaitship in Hindu law is a mere office and noproperty and, on the other hand, sufficiently establishes that, having regardto the rights which ordinarily attach to the office of a shebait the office andthe property of the endowment go together and that when it is a questionbetween two persons one claiming and the other disputing a right to be theshebait, the question is a question of property.

40. To pass on to later cases, a suit for the partition ofthe right to perform the religious services of an idol has always been regardedas a suit for partition of property. Couch C.J. in the case of Mitta KunthAvdhicarry v. Neerunjun Audhicarry (1874) 14 B.L.R. 166, 169., said:-

I think that the reasons for which it has been held that oneof such joint owners of property is entitled to a partition apply to this case.The circumstance that it is a right to perform the worship of the idol is notone which deprives any of the joint owners of the right to a partition, whichcompels the Court to say that they shall be obliged to perform the servicejointly, and to undergo the many inconveniences which might arise from such astate of thing.

41. Another passage from the judgment of Couch C.J. in thiscase has been quoted with approval by the Judicial Committee in the case ofPramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) I.L.R. 52 Calc. 809;L.R. 52 I.A. 246. It runs thus:-

The suit is founded on the right of the Plaintiff, asproperty, to a partition. No doubt the Plaintiff is entitled to that.

42. The religious office itself, of course, cannot be theobject of sale, and jewels and other materials used in religious worship, tocustody of which the alleged vendor is entitled and to the careful custody ofwhich he is bound, are by all systems of law and by the Hindu law more emphaticallythan by any other, absolutely extra commercium. [See Varma Valia v. Kottayath(1873) 7 Mad. H.C.R. 210.) In the absence of custom or usage to the contrary aright of management of a religious or charitable endowment or a religiousoffice attached to a temple or any other endowment cannot be alienated by theholder. [See Vurmah Valia v. Ravi Vurmah Kunhi Kutty (1876) I.L.R. 1 Mad. 235;L.R. 4 I.A. 76. and Ors. cases cited in the judgment of this Court in MahamayaDebi v. Haridas Haldar (3).] But palas or turns of worship may be by customheritable, divisible and bequeathable, the heir who inherits being male orfemale, and they may also by custom be transferable with certain restrictions,as in the case of the shrine at Kalighat where the custom of such transfers isconfined to the co-shebaits or the members of families to whom a shebait cangive his daughter in marriage. (See Mahamaya Debi v. Haridas Haldar (1914)I.L.R. 42 Calc. 455, 461. (supra).] It is the essence of a family endowmentamongst Hindus that no intruder shall be permitted to intrude himself into themanagement of the endowment and on the death of a member who enjoys the rightwithout heirs, his right to a turn of worship and other privileges devolve onthe other surviving members of the joint family. Ukoor Doss v. Chunder SekhurDoss (1865) 3 W.R. (C.R.) 152. In a family governed by the Mitakshara law aperson on his birth becomes entitled jointly as shebait of debattar propertyheld by the family. Ram Chandra Panda v. Ram Krishna Mahapatra (1906) I.L.R. 33Calc. 507. Gifts of shebaitship in favour of a co-shebait has been recognised[Radharani Dasi v. Doyal Chand Mullick (1920) 33 C.L.J. 141.], though this isnot allowed except on the ground that such a transfer is for the benefit of theendowment. Gobinda Kumar Roy Chowdhury v. Debendra Kumar Roy Chowdhury (1907)12 C.W.N. 98. And in the case of Tripurari Pal v. Jagat Tarini Dasi (1912)I.L.R. 40 Calc. 274; L.R. 40 I.A. 37., Lord Macnaghten spoke of a clause in awill that he had to construe, as meaning an absolute gift of the shebaitship,though the words in the will were only these: "My present begotten son"Mukunda Murari will be shebait for the performance "of theceremonies." His Lordship overruled the interpretation which the HighCourt had put on the document that a right to shebaitship for life was meantand held that the absolute gift was not cut down by anything that followed. Theright of management may form the subject-matter of a family arrangement and ifthe manager has taken its benefit the arrangement is upheld by the Court;Ramanathan Chetti v. Murugappa Chetti (1906) I.L.R. 29 Mad. 283; L.R. 33 I.A.139. The right to the office of a shebait may, no other difficulties standingin the way, for all practical purposes be acquired by adverse possession. As aninstance of this may be cited the case of Jagan Nath Das v. Birbhadra Das(1892) I.L.R. 19 Calc. 776. which was a suit to oust a shebait from his officethe appointment to which had! been made by nomination and in which Prinsep andBanerjee JJ. held that if no suit is brought within the period prescribed byArticle 120 of Schedule II to the Limitation Act, the shebait would, by reasonof his holding the office for that period, acquire a complete title for thepurpose of any litigation, or anything connected with affairs of the endowment.The right to the land such as a shebait has is only secondary to and dependenton his office and if the right to recover the office is barred the right torecover the land is also barred. [Tammirazu Ramazogi v. Pantina Narsiah (1871)6 Mad. H.C.R. 301., Kidambi Ragava Chariar v. Tirumalai A sari NallurRagavachariar (1902) I.L.R. 26 Mad. 113.] It is in the shebait and not in theidol that the right of suit in respect of the endowed property vests and he itis whose minority counts for the purposes of the law of limitation. JagadindraNath Roy v. Hemanta Kumari Debi (1904) I.L.R. 32Calc. 129; (1902) I.L.R. 26Mad. 113 : L.R. 31 I.A. 203.

43. Broadly speaking, there are three kinds of endowmentsthat may be had in respect of a private debattar: (1) where the whole propertyand its income are dedicated to the idol; (2) where properties are dedicated tothe idol but a portion of the usufruct is given to the beneficiaries includingthe shebait; and (3) where the secular property is charged with the expenses ofthe worship of the idol. The extent of the right which a shebait enjoys inrespect of each of these classes of endowment is different, but I venture tothink that the nature of the right in respect of all these classes isfundamentally of the same character. In some cases the shebait has a largerdiscretion than in others, and in some cases, again, he has also a proprietaryright to the usufruct or a part of it upon the very terms of the endowmentwhich he has not got in others but in all such cases he has, as such shebait,certain rights of a limited character in the endowed property. It is not quiteeasy, in all cases, to determine within which of the three classes aforesaidthe endowment falls. A gift may be addressed to a particular person and it maybe provided that out of the income of certain properties, he should perform theworship of certain family idols. In such a case, if no provision for apermanent arrangement has been made, it may be inferred that there was no gift,express or implied, to the idols. See Gopal Lal Sett v. Purna Ghandra Basak(1921) I.L.R. 49 Calc. 489. L.R. 49 I.A. 100. Speaking of the nature of theseprivate endowments, Sir Arthur Wilson in his judgment in the case of JagadindraNath Roy v. Hemanta Kumari Debt (1904) I.L.R. 32 Calc. 129 (140, 141) ; L.R. 31I.A. 203 (209). observed:

There is no doubt that an idol may be regarded as ajuridical person capable as such of holding property, though it is only in anideal sense that property is so held. And probably this is the true legal viewwhen the dedication is of the completest kind known to the law. But there maybe religious dedication of a less complete character. The cases of Sonatun Bysack v. Juggudsoondree Dossee (1859) 8 M.I.A. 66. and Ashutosh Dutt v. DoorgaChurn Chatterjee (1879) I.L.R. 5 Calc. 438; L.R. 6 I.A. 182. are instances ofless complete dedications, in which, notwithstanding a religious dedication,property descends (and descends beneficially) to heirs subject to a trust orcharge for the purpose of religion. Their Lordships desire to speak withcaution, but it seems possible that there may be other cases of partial orqualified dedication, not quite so simple as those to which reference has beenmade, * * * *.

But assuming the religious dedication to have been of thestrictest character, it still remains that the possession and management of thededicated property belongs to the shebait. And this carries with it the rightto bring whatever suits are necessary for the protection of the property. Everysuch right of suit is vested in the shebait not in the idol.

44. It is not the words of the deed of endowment but ratherits effect that one has to construe in trying to find out to what extent thededication is intended to be complete or absolute, and no fixed rule can belaid down as applicable to the construction of endowments. In a case in whichthere was no deed, namely, the case of Ram Parkash Das v. Anand Das (1916)I.L.R. 43 Calc. 707; L. R. 43 I. A. 73., their Lordships said,--

But these rules, so to be inferred, must not in theirLordships view be inconsistent with or repugnant to the very nature andpurpose of the en-dowment.

45. For instance in the case of Jadu Nath Singh v. Thakur SitaRamji (1917) I.L.R. 39 All 553 (55 560); L.R. 44 I.A. 187 (190, 191, theJudicial Committee, while holding that the deed in that case should be readjust as it appeared, observed:-

If the income of the property had been large, a questionmight have been raised, in the circumstances as throwing some doubt upon theintegrity of the settlors intention, but as the entire income is only 800rupees it is obvious that the payment to these ladies is of the most triflingkind and certainly not an amount which one would expect in a case of this kind.* * * There is, in the beginning, a clear expression of an intention to applythe whole estate for the benefit of the idol and the temple, and then the restis only a gift to the idol sub modo by a direction that of the whole which hadalready been given, part is to be applied to the upkeep of the idol itself andthe repair of the temple, and the other is to go to the upkeep of the managers.There was no reason why the disposer should not nominate the members of hisfamily as his managers, as he has done so. And there is nothing in that whichmilitates against the propriety of his ear-marking a certain part of the moneyto remunerate them as managers so long as they should so continue.

46. So in the case of Har Narayan v. Surja Kunwari (1921)I.L.R. 43 All. 291; L.R. 48 I.A. 143., their Lordships said that in determiningwhether the will of a Hindu gives the testators estate to an idol subject to acharge in favour of the heirs of a testator, or makes the gift to the idol acharge upon the estate, there is no fixed rule depending upon the use ofparticular terms in the will; the question depends upon the construction of awill as a whole; and that the circumstance such as that the ceremonies to beperformed were fixed by the will and would absorb only a small proportion ofthe total income may indicate that the intention was that the heirs should takethe property subject to a charge for the performance of the religious purposesindicated. This case, in my opinion, is a clear authority for the propositionthat notwithstanding a dedication in favour of an idol of an entire estate areservation of a portion of the income of the endowed estate for theremuneration of the manager will not invalidate the endowment either as a wholeor as to the extent of the income so reserved. So also, it has been held by theJudicial Committee in the case of Gnanendra Nath Das v. Surendra Nath Das(1920) 24 C.W.N. 1026., that a provision for the residence of the shebait in apart of the endowed property set apart for the family idols is a perfectlyvalid and reasonable provision. In an unreported judgment of this Court citedin Mr. J.C. Ghoses Hindu Law, Volume I, page 936, Banerjee J. said on aconstruction of a grant, that though--

It is true that the grant in one place says that the villageis made debattar property of the idol, and though it is also true that thedocument further provides that if it is discovered that the grantee isneglecting the sheba he will be dismissed, when one looks at the substance ofthe thing one finds that the enjoyment of the usufruct is left with the granteeand his successors and so the property was held to be the property of thegrantee and his successors subject to the performance of certain duties.

47. That even though a grant is not a personal grant but oneprimarily intended for the maintenance of a religious endowment, there can be abeneficial interest in the grantee and his heirs by whom the endowment isadministered is sufficiently recognised in the following decisions:-Kolandai v.Sankara (1882) I.L.R. 5 Mad. 302., Rupa Jagshet v. Krishnaji Govind (1884)I.L.R. 9 Bom. 169 [LQ/BomHC/1884/48] ., Bishen Chand Basawat v. Nadir Hossein (1887) I.L.R. 15Calc. 329; L.R. 15 I.A. 1., Bhuggobutty Prosonno Sen v. Gooroo Prosonno Sen(1897) I.L.R. 25 Calc. 112., Mahim Chandra Sarkar v. Hara Kumari Dasee (1914)I.L.R. 42 Calc. 561., and other cases too numerous to mention. Of course, ifthere are specific trusts, the shebait will have to carry them out to theletter, or if any specified amounts are to be spent for some particular itemsof worship they too have to be spent in the manner directed, but if the onlyprovision is that the worship is to be carried on, the shebait, so long as bedoes carry them on, in accordance with the usage of the particular debattar orsuch custom as may have attached thereto, and has not committed acts which mayamount to maladministration or mismanagement, must, naturally have a very largediscretion as to what to spend and in what way. The expenses to be incurredmust, of course, be consistent with the dignity of the endowment. The deitywould not take or consume anything; and to take an extreme case, if, offeringthe income to the worship of the deity, the shebait distributes it amongst thebeneficiaries, there is hardly any reason to say that he has not discharged hisduty. This is why in the case of family endowments of the present nature, ithas sometimes been said that an account from the shebait is impossible. An ideaof the extent to which shebaits can think of going may well be gathered fromwhat was claimed on behalf of the shebaits of a public endowment in thewell-known Dakor case [Manohar Ganesh Tambekar v. Lakhmiram Govindram (1887)I.L.R. 12 Bom. 24] and was fortunately overruled by West J., though on theanalogy of the law of trusts, I am not suggesting for a moment that thedecision is not absolutely correct even apart from the law of trusts, but onlyquoting an extract from the judgment to show the character of the claim:-

The Defendants take the position that they, as a body, arethe owners, for all secular purposes, of the idol, whom, in the spiritualsense, they serve. The offerings made at the shrine, the cattle, and even theland presented by devotees are, they assert, their property free from anysecular obligation, as none has ever in practice or in the intention of thedonors been annexed to the gifts by which religious merit was sought andgained. They held the properties thus acquired, and have for centuries held it,as a sort of sacred guild with hereditary succession to the several members. Itis not held on any trust for the support of ceremonies or with any obligationannexed to it that can be enforced in any secular court. The duty of providinga regular worship of the deity is of a purely moral kind, which they dischargemerely to satisfy their consciences only, the nature and limits of which havenever been settled otherwise than by their own will and judgment.

48. I should not, however, be understood as suggesting thateven the shebaits of a private endowment can ever be permitted to go so far.

49. Nowhere have the duties of a shebait in his relation tothe worship of the deity been more vividly enumerated than in the judgment ofMookerjee J. in the case of Rambrahma Chatterjee v. Kedar Nath Barterjee (1822)36 C.L.J. 478, 483. He says:-

We need not describe here in detail the normal type ofcontinued worship of a consecrated image--the sweeping of the temple, theprocess of smearing, the removal of previous days offerings of flowers, thepresentation of fresh flowers, the respectful oblation of rice with flowers andwater, and other like practices. It is sufficient to state that the deity is,in short, conceived as a living being and is treated in the same way as the masterof the house would be treated by his humble servants. The daily routine of lifeis gone through with minute accuracy: the vivified image is regaled with theneces-saries and luxuries of life in due succession, even to the changing ofclothes, the offering of the cooked and uncooked food, and the retirement torest.

50. He is the manager of the idols properties and is theministrant and custodian of the idol itself.

The person founding a deity and becoming responsible forthese duties is de facto and in common parlance called shebait. Theresponsibility is, of course, maintained by a pious Hindu either by thepersonal performance of the religious rites or as in the case of svdras, * * ** * by the employment of a Brahmin priest to do so on his behalf. Or thefounder, any time before his death, or his successors likewise, may confer theoffice of shebait on another [Pramatha Nath Mullick v. Pradyumna Kumar Mullick(1925) I.L.R. 52 Calc. 809 (816); L. R. 62 I. A. 246 (251).]

51. Appointed by the founder of the endowment in whom andwhose heirs all these duties lie he is but an "attorney," and notunhappily is that word used in the will that is under consideration. As wassaid by Lord Hobhouse in Gossami Sri Gridhariji v. Romanlalji Gossami ILR(1889) Cal. 3 (20); L.B. 16 I.A. 137 (144).:-

According to Hindu law, when the ownership of a Thakur hasbeen founded,, the shebaitship is held to be vested in the heirs of thefounder, in default of evidence that he has disposed of it otherwise, or therehas been some usage, course of dealing, or some circumstances to show adifferent mode of devolution.

52. And as the Judicial Committee has pointed out in thecase of Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) I.L.R. 52 Calc.809 (816); L.R. 52. I.A. 245 (251)., a similar principle appears in JagannathPrasad Gupta v. Runjit Singh (1897) I.L.R. 25 Calc. 354., Sheoratan Kunwari v.Ram Pargash (1896) I.L.R. 18 All. 227., and Jai Bansi v. Chattar Bhari Singh(1870) 5 B.L.R. 181. That this rule must, from the very nature of the right, besubject to the condition that the devolution in the ordinary line of descent isnot inconsistent with or opposed to the purpose the founder had in view, inestablishing the worship, is emphasised by the decision of the JudicialCommittee in the case of Mohan Lalji v. Gordhan Lalji Maharaj : (1913) I.L.R. 35 All 283. In the case of Ramanathan Chettiv. Murugappa Chetti(1906) I.L.R. 29 Meal 288 (289); L.R. 33 I.A. 139 (144.), in which the officeof manager of a Hindu temple was vested by inheritance in eight maledescendants of the last holder by his two wills, four by each, Lord Macnaghtensaid:-

The manager of the temple is by virtue of his office theadministrator of the property attached to it. As regards the property, themanager is in the position of. a trustee. But as regards the service of thetemple and the duties that appertain to it, he is rather in the position of theholder of an office or dignity which may have been originally conferred on a singleindividual, but which in course of time has vested by descent in mere than oneperson.

53. It has now been held by all. the Indian courts that whenthe shebaitship does revert to the heirs they have the right to nominate afresh shebait, presumably on the ground that the right of nomination isappurtenant to the right of management. See Boidyo Gauranga Sahu v. Sudevi Mata(1917) I.L.R. 40 Mad. 612.. Where, however, a course of devolution has beenproved which makes it certain that the usage has not been according to theordinary rules of Hindu law, a Plaintiff seeking to be declared a shebaitcannot succeed under such rules. Janoki Debi v. Gopal Acharjia Goswami (1882)I.L.R. 9 Calc. 766; L.R. 10 I.A. 32.

54. Shebaitship, in its true legal conception, involves twoideas: the ministrant of the deity and its manager; it is not a bare office butan office together with certain rights attached to it. A shebaits positiontowards the debattar property is not similar to that in England of a trusteetowards the trust property: it is only that certain duties have to be performedby him which are analogous to those of trustees. In Prosunno Kumari Debya v.Golab Chand Baboo (1875) 14 B.L.R. 450 (459); L.R. 2 I.A. 145(152)., theirLordships did not say that the powers of a shebait are in all respects the sameas those of the manager of an infant heir, as defined by Knight Bruce L.J. inHunoomanpersaud Panday v. Babooee Munraj Koonweree (1856) 6 M.I.A. 393, 423.,but only this that, in this respect, namely, in respect of the power to bindthe idols estate by making a loan, such power was analogous to that of themanager of an infant heir. And their Lordships further said:-

It is only in an ideal sense that property can be said tobelong to an idol and the possession and management of it must in the nature ofthings be entrusted to some person as shebait, or manager. It would seem tofollow that the person so entrusted must of necessity be empowered to dowhatever may be required for the service of the idol, and for the benefit andpreservation of its property at least to as great a degree as the manager of aninfant heir.

55. Sufficient has already been said before to establishthat the shebait deals with the property in his custody or management as if hehas some property, though not the full rights of property, in it, the legalproperty vesting in the idol. Though he cannot alienate the property of thedeity except for legal necessity, he may create proper derivative tenures andestates conformable to usage [ Shibessouree Debia v. Mothooranath A charjo(1869) 13 M.I.A. 270.] and an alienation without necessity will enure only forthe period of the tenure of his office [Abhiram Goswami v. Shyama Charan Nandi(1909) I.L.R. 36 Calc. 1003 ; L.R. 36 I.A. 148., Palaniappa Chetty v.Devasikamony Pandara Sannadhi (1917) I.L.R. 40 Mad. 709 ; L.R 44 I.A. 147.,Vidya Varuthi Thirtha v. Balusami Ayyar (1921) I.L.R. 44 Mad. 831 (855); L. R.48 I. A. 302 (327).] as though he were a limited owner. It is in him and not inthe idol that the right of suit is vested, and it is his minority that countsfor the purpose of limitation [Jagadindra Nath Roy v. Hemanta Kumari Debt(1904) I.L.R. 32 Calc. 129; L.R. 31 I.A. 203.]. In the case of Gossami SriGridhariji v. Romanlalji Gossami (1889) I.L.R. 17 Calc. 3 (22); L.R. 16 I.A.137 (146), in which a person, as Plaintiff, claimed to be a rightful shebaitand, as an incident thereto, claimed the things which had been offered to theidol and the possession of a temple in which the idol had for some time beenlocated, Lord Hobhouse said,--

Even apart from the sixth and seventh paragraphs of theplaint which expressly put forth his spiritual character as the foundation ofhis claim, the nature of the suit is for the proper conduct of the Thakurs worship.It rests quite as much on the right of the Thakur to have the conduct of hisworship and his own custody placed in the right hands, as upon the personalright of the Plaintiff to the properly.

56. The endowment we are now considering was before theJudicial Committee in the case of Peary Mohan Mukerji v. Manohar Mukerji (1921)I.L.R. 48 Calc. 1019 ; L.R. 48 I.A. 258. and the office of the shebait of thisendowment was in that case described by their Lordships as an office made up ofthe close intermingling of duties and personal interest. Peary Mohans case (7)(supra) was one of the cases cited before the Judicial Committee in the case ofSrinivasa Chariar v. Evalappa Mudaliar (1922) I.L.R. 45 Mad. 565 (581); L.R. 49I.A. 237 (251)., which was the case of the dharmakarta of a temple. TheirLordships said,--

The position of dharmakarta is not that of a shebait of areligious institution, or of the head of a math. These functionaries have amuch higher right with larger power of disposal and administration and theyhave a personal interest of a beneficial character. In the very learnedjudgments delivered in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami(1904) I.L.R. 27 Mad. 435., the distinction between these functionaries isexplained.

57. Such being the nature of the right of a shebait in Hindulaw, it is impossible to regard it as anything else than property within themeaning of that law. In the case of Trimbak Bawd v. Narayan Bawa (1882) I.L.R.7 Bom. 188, 190. the learned Judges of the Bombay High Court, while dealingwith a question of limitation, said:-

We think that in endowments of this nature, where thefounder has vested in a certain family the management of his endowment, eachmember of such family succeeds to the management, to use technical language,per formam doni, his right being unaffected by what his predecessor does.

58. This doctrine was examined by the Judicial Committee inthe case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23Mad. 271 (279); L.R. 27 I.A. 69 (77). The facts of that case would appear fromthe judgment of the Madras High Court reported in Velu Pandaram v.Gnanasambanda Pandara Sannadhi (1895) I.L.R. 19 Mad. 243, 244. From the factsas reported there the following appears:-

The charity in question was alleged to have been founded bythe ancestors of the Plaintiff and second Defendant and the lands described inthe plaint schedule attached to it were granted by them for the use of thecharity in order that the income thereof might be appropriated and employed forthe worship and the celebration of certain festivals. It was further allegedthat it had been arranged that the management of this charity and the propertyso granted should vest in the members of their own family from generation togeneration.

59. It does not appear that there were any emolumentsexpressly attaching to the office of the manager. Shortly put, the claim of thePlaintiff was to get rid of two alienations each of a half share of themanagement,--one made in 1860, by the mother and guardian of the secondDefendant Chockalingas father, in favour of the predecessor-in-title of thefirst Defendant Gnanasambanda, and the other made by his own father Nataraja,in 1869, in favour of the said first Defendant. Nataraja died in 1884, leavingthe Plaintiff, his son, a minor. The Plaintiff was born in 1873 or 1874, 4 or 5years after the sale by Nataraja, and attained majority in 1891. The Plaintiffsued the two Defendants to establish his right to the management of an endowmentconnected with a temple and to the possession of the lands forming itsendowment either absolutely or jointly with Chockalinga. The Plaintiffscontention was that the endowment had been founded by the ancestors of himselfand of the second Defendant, that it was arranged that only the members oftheir family should hereditarily hold the properties, that he did not derivehis rights from or through his father Nataraja, that on the death of Nataraja,in 1884, a fresh right to sue accrued to him and limitation began to run fromthat date or rather from the date on which he attained majority. The trialCourt held that the Plaintiff was entitled to recover his fathers half sharein the management but that his claim to the other half share which had belongedto the second Defendants father was barred. That court passed a decree givingthe Plaintiff joint possession of the management and property with the firstDefendant. On appeal, the High Court held that the right of the Plaintiffaccrued on the death of his father and not before and in that view made adecree in his favour entitling him to the sole management and possession of theendowment and its properties. On appeal to the Judicial Committee, theirLordships first of all premised the position that notwithstanding theassignments, title remained with Chockalinga and Nataraja, but the possessionwhich the purchaser had taken was adverse to them. This necessitated aconsideration of the question of limitation. They first of all took up thequestion of Chockalingas title and held that, under Article 124 of Schedule IIof Act XV of 1877, Chockalinga had 12 years from the date of the assignment or3 years from his attainment of majority to sue for the office, and that he hadnot done so, and so his title was extinguished. They then said,--

Their Lordships are of opinion that there is no distinctionbetween the office and the property of the endowment. The one is attached tothe other but if there is, Article 144 of the same schedule is applicable tothe property. That bars the suit after 12 years adverse possession.

60. Up to this point their Lordships were dealing withChockalingas title, and they held that Chockalinga had lost his title to theoffice under Article 124, and as he could not recover the office he could notalso recover the property because the one is attached to the other, but if thetwo are not attached to each other and are separate then also he could notrecover the property by reason of Article 144. Their Lordships then said thatNataraja also was barred and his right was extinguished. It is clear that theonly way in which the Plaintiff Velu could succeed was by showing that he didnot claim through his father Nataraja. On his behalf reliance was placed onTrimbaks case (1882) I.L.R. 7 Bom. 188. (supra), in which the view was takenthat when the founder of an endowment has vested in a family the management ofit, each member succeeds to the management per formam doni, and if thisprinciple be correct, Velu could found his right to the management on hisfathers death not as having been inherited by him from his father butindependently of him and say that though Chockalinga and Nataraja were barred,he was not. Their Lordships proceeded to deal with this position. They heldthat as the origin of the endowment is not known it was to be assumed as havingbeen by a gift from the founder. They held that as it was a gift and Tagorecase (1872) 9 B.L.R. 377 ; L. R. I.A. Sup. 47. applying to it, the Hindu lawdid not permit the creation of successive life estates in it, and so Veluscontention as well as the view propounded in Trimbaks case (1882) I.L.R. 7Bom. 188., on which it was founded, namely, that each successive holder mightclaim per formam doni, could not prevail. So far, there was no decision intheir Lordships judgment as to what was the correct position for Velu to takeunder the Hindu law, namely, whether he took from his father or whether he tookfrom the founder. So far, their Lordships had only said that under the Hindulaw he could not possibly say that he took through his father because such anestate in him would contravene Tagore v. Tagore (1872) 9 B.L.R. 377; L.R. IndApSup. 47.. Then their Lordships proceeded to say:-

The Respondent Velu can only be entitled as heir to his fatherNataraja and from and through him and consequently his suit is barred byArticle 124. In their Lordships opinion the ruling in Tagore v. Tagore (1872)9 B.L.R. 377; L.R. I.A. Sup. 47. is applicable to an hereditary office andendowment as well as to other immovable property.

61. The question is what does this pronouncement mean TheOrder of Reference takes the view that "their Lordships do not* more thanput a construction "on the Limitation Act and apply Article 124 to the"case of an office which is hereditary in the ordinary "Hindusense." With very great respect, I venture to think that the passage inthe decision just quoted goes further than that: in my opinion, it means thatthe only title which would be a good title in Velu would be one claimed by himas heir of his father and from and through him, but that to such a claimArticle 124 was a bar. And I think their Lordships made it further clear bypointing out that Tagore v. Tagore (1872) 9 B.L.R. 377; L.R. I.A. Sup. 47. wasapplicable to an hereditary office and endowment as well as to any otherimmovable property, thus negativing the possibility of a title per formam donibeing set up. In my judgment, this decision directly decided that the rule inthe Tagore case (1872) 9 B.L.R. 377; L.R. I.A. Sup. 47. applied to such anoffice as that of a shebait and it is not reasonable to read it merely asdeciding a question of limitation.

62. There is no doubt whatever that the aforesaid decisionof the Judicial Committee has always been understood as meaning that Tagore v.Tagore (1872) 9 B.L.R. 377; L.R. IndAp Sup. 47. is applicable to such an estateas is involved in a hereditary office attached to an endowment. A few decisionsof this Court only may briefly be referred to in this connection. Gopal ChunderBose v. Kartick Chunder Dey (1902) I.L.R. 29 Calc. 716., in which, ininterpreting a will, Macpherson and Hill JJ. negatived a contention before themthat they were merely considering an appointment of persons to superintend anendowment and not dealing with an actual bequest or gift of immoveableproperty, saying that it would appear from Gnansambandas case (1899) I.L.R. 23Mad. 271; L.R. 27 I.A. 69. that the ruling in the Tagore case (3) is applicableto a hereditary office and endowment, as well as to other immovable property.And Lord Macnaghten, in affirming that decision, observed that the High Courthad given a perfectly correct interpretation of the will and no otherinterpretation was possible. Tagore v. Tagore (1872) 9 B.L.R. 377; L.R. IndApSup. 47. was not applied in the case of an endowment in Manorama Dassi v. KaliCharan Banerjee (1903) I.L.R. 31 Calc. 166., not because it was not applicablebut because the contingency which would make the disposition bad had not yetcome to pass. In Ram Chandra Panda v. Ram Krishna Mahapatra (1906) I.L.R. 33Calc. 507., Ganasambandas case (2) was relied upon, in the case of the shebaitof a Mitakshara debattar, as indicating that the same rule applies to anhereditary office as to the family property. In the case of Bisseswar PrasannaSen v. Bhagabati Prasanna Sen (1906) 3 C.L.J. 606., while it was affirmed thatunder Gnanasambandas case (2), Tagores case (3) applied to a hereditaryoffice such as that of a shebait, on the facts, as they actually stood, theprovision did not offend the rule. It was applied in Kunjamani Dassi v. NikunjaBihari Das (1915) 20 C.W.N. 314., a case of a family debattar, holding thatGnanasambandas case (2) was an authority for its application. In RambrahmaChatterjee v. Kedar Nath Banerjee (1922) 36 C.L.J. 478., it was held that ashare in the bhoge or food offered to the deity was not an interest in propertyand so the rule did not apply. In Promotho Nath Mukherjee v. Anukul ChandraBanerjee (1924) 29 C.W.N. 17., on a review of many of the previous decisions itwas affirmed that Gnanasambandas case (1899) I.L.R. 23 Mad. 271; L.R. 27 I.A.69. was a distinct and clear authority for the application of the rule. Thereare only two decisions in which a different view has been taken of theapplicability of the rule. In the case of Mathura Nath Mukherjee v. LakhiNarain Ganguly (1922) I.L.R. 50 Calc. 426, 434, 437., while considering thatthe managership of an endowment is "property" a distinction was madeon the ground that "it was "property of a special kind; the managerhas in "theory no beneficial interest in the endowment," and a viewwas taken that "the rule in Tagores case (1872) 9 B.L.R. 377; L.R. I.A.Sup. 47. "was a general rule to which there may be exceptions," andthat the nomination of shebaits was an exception to that general rule. Thejudgment was delivered by Richardson J., who got over Gnanasambandas case (2),as being a decision on the question of limitation only, and observed:-

The observation [meaning in Gnanasambandas case (2)] haslittle or no bearing on the question with which we have to deal. We are notdealing with the nature of the estate which a shebait takes in his office butwith the question whether the widow could lawfully appoint the first Defendantto be her successor.

63. With the utmost respect, I venture to think that thedistinction is unauthorised and I also confess that I do not follow what thelast portion of the observation quoted above exactly means. In the case ofSreepati Chatterjee v. Krishna Chandra Banerjee (1924) 41 C. L. J. 22.,Chakravarti J., Greaves J. concurring, expressed the view that the shebait hasno right to the property but is merely an officer with the rights andlimitations applicable to the guardian a minor and that the rule in Tagorescase (4) does not apply to the appointment of shebait of a family Thakur. Thelearned Judge was to a considerable extent pressed by a text which he referredto in support of the proposition that a gift to a Thakur cannot be misappropriated.In Colebrookes Digest, Vol. II, Chapter IV, Section II, Article I, xxxvii, thetext appears thus:-

But he who seizes the subsistence of priests, whether givenby himself or by another, is born of a reptile in ordure for fifty-thousandyears.

64. Colebrookes comment on it is as follows:-

It is shown by the texts cited in the Ekadasitawa (xxxviiiand xxxix) that a man seizing holy property is guilty of crime equal to themurder of a priest; and seizing the property of a Kshatriya and the rest he isguilty of a crime equal to the murder of a soldier and so forth.

65. The text, in my judgment, has no application to the caseof a shebait who fails not to perform the duties attached to his office butwho, after performing the worship of the deity with gifts made in His favour,takes such temporal benefits out of them as is not forbidden by law but issanctioned by usage or custom. The text, as already stated, was referred to inthe case of Kissnonund Ashrom Dundy v. Nursing Doss Byragee (1863) 1 Marsh. 485.

66. As observed by the Judicial Committee, in the case ofVidya Varuthi Thirtha v. Balusami Ayyar (1921) I.L.R. 44 Mad 831 ; L.R. 48 I.A.302., there are two systems of law in force in India, both self-contained andboth wholly independent of each other, and wholly independent of foreign andoutside legal conceptions and it would be a serious inroad into their rights ifthe rules of Hindu and Mahomedan laws were to be construed with the lights oflegal conceptions borrowed from abroad, unless where they are absolutely, so tospeak, pari materia. The necessity of keeping apart the provisions of Hindu lawas regards gifts has also been emphasised by the Judicial Committee in variousother cases, amongst which may be referred Tagore v. Tagore (1872) 9 B.L.R.377; L.R. I.A. Sup. 47., and also the case of this very debattar, in PearyMohan Mukerji v. Manohar Mukerji (1921) I.L.R. 48 Calc. 1019 ; L.R. 48 I.A.258.. And in the case ...of Muhammad Rustam Ali v. Mushtaq Husain (1920) I.L.R.42 All. 609 ; L.R. 47 I.A. 224., Lord Buckmaster was very careful to point allthat arguments based upon a supposed position that heads of religiousendowments--in that case a mutawalli--makes a strong appeal to those who areaccustomed! to administer the English law with regard to trustees. Thequestions raised, therefore, have to be decided on notions of Hindu law. Andgiving them the best consideration I can, I have come to the conclusion thatthe questions referred to us should be answered as follows:-

Q. 1.-- A. Yes, but subject to the restriction that hecannot create any estate unknown or repugnant to Hindu law.

Q. 2.-- A. Yes.

Q. 3.-- A. Yes.

Q. 4.-- A. No.

Q. 5.-- A. Yes.

Q. 6.-- A. Yes.

Charu Chander Ghose, J.

67. I was a party to the order of reference in this case;but, having had an opportunity of hearing the fuller discussion that has takenplace before us and having had the advantage of reading the judgment preparedby my learned brother Mr. Justice Mukerji, I agree with him in the answerswhich he proposes to give to the questions set out in the order of reference.

Mitter, J.

68. I have had the pleasure and advantage of seeingbeforehand the judgment of my learned brother Mr. Justice Mukerji which hasjust been read. I concur with him that the answers to the questions referred tothe Full Bench should be as he has stated and I agree with the reasons uponwhich he has based those answers. The questions referred to the Full Bench areinvolved in some difficulty. The difficulty is partly occasioned by the factthat principles which at first sight seem to be in conflict have to beinterpreted and reconciled. The language used in some of the cases indescribing a shebait as a trustee has also contributed to the diffieulty. Thewords shebait and trustee are used as synonymous and convertible terms not onlyin early decisions but also in the observations made by such great authority onHindu law as Mr. Mayne; the difficulty is further enhanced by the paucity ofHindu law texts as to the true nature of the office of the shebait of a Hindudeity. But notwithstanding the difficulties to which I have referred!, on thestate of the authorities which have been discussed in very great detail by mylearned brother Mr. Justice Mukerji, it is impossible to arrive at any otherconclusions than those reached by him. I desire to draw prominent attention tothe fact that the nature of the office of shebait of this very debattar estatecreated by Jagamohan Mukherji, in the year 1840, was described by theirLordships of the Judicial Committee of the Privy Council in terms which wouldgo to show that a shebait of a Hindu deity is not a bare trustee in Englishsense of the term. Lord Buckmaster, who delivered the judgment of the JudicialCommittee in the case, expressed himself thus:-

The grounds for removing a shebait from his office may nothe identical with those upon which a trustee would be removed in this country.The close intermingling of duties and personal interest which together make upthe office of shebait may well prevent the closeness of the analogy.

69. See Peary Mohan Mukerji v. Manohar Mukerji (1921)I.L.R.48 Calc. 1019 (1027); L.R. 48 IndAp 258 (264).. As has been observed in VidyaVaruthi Thirtha v. Balusami Ayyar (1921) I.L.R. 44 Mad. 831 ; L.R. 48. I.A.302.,--

When the gift is directly to an idol or temple, the seisinto complete the gift is necessarily effected by human agency. Called bywhatever name, he is only the manager and custodian of the idol or theinstitution. In almost every case he is given the right to a part of theusufruct, the mode of enioyment and the amount of the usufruct depending againon usage and custom.

70. From these observations of their Lordships of theJudicial Committee, it would seem to follow that a shebait has some sort ofbeneficial interest in the endowment or the debattar estate. I agree,therefore, that the right of a shebait is some sort of property under the Hindulaw, although it is not necessary on the terms of the reference to determinethe precise nature of the property. The office of shebait in the present caseis an hereditary office and the ruling in Tagore v. Tagore (1872) 9 B.L.R. 377;L. R. I. A. Sup. 47. has been made applicable to an hereditary office andendowment as well as to other immovable property by their Lordships of theJudicial" Committee of the Privy Council in the case of GnansambandaPandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23 Mad. 271 ; L.R. 27 I.A. 69..The rule of succession, therefore, to the shebaitship laid down by JagamohanMukherji, in so far as it created an estate unknown to the Hindu law, must beregarded as ineffectual in law.

Rai Surendra Nath Guha, J.

71. I agree entirely with my learned brother Mr. JusticeMukerji in the answers he has given to the questions referred to the Full Bench.I also agree with the reasons stated by my learned brother and the conclusionsarrived at by him1 in his judgment.

M.C. Ghose, J.

72. I agree with the judgment of my learned brother Mr.Justice Mukerji.

73. Per Curiam. The case will now go back to the DivisionBench with the answers returned by the Full Bench. As regards the costs of thehearing before the Full Bench we are of opinion that there should be no orderas to costs.

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Manohar Mukherji vs.Bhupendranath Mukherji (19.08.1932 -CALHC)