S.C.R. SUPREME COURT REPORTS 1125

"provision · may be made in any enactment so extended

for the repeal or amendment of any corresponding

law

(other than a Central Act) which is for the time being

applicable to that Part C

State," is ultra vires the

Indian Parliament which

passed the Act.

Agent for the President

of India, the

State of "Bom­

bay, the State of Madras and the State of

Mysore : P. A. Mehta.

Agent for the State of Uttar Pradesh: C. P. Lal.

Agent for Capt. Deep Chand and Pt. Amarnath

Bhardwaj :

R. S. N arula.

Agent for the Ajmer Electric

Supply Co. Ltd. :

M. S. K. Sastri.

Agent for the Municipal Committee of Ajmer, the

Maiden's Hotel and Runglal Nasirabad

Rajinder

Narain.

Agent for Shri Munshi Lal and others : Shankar

Das.

ANGURBALA MULLICK

ti •

. DE BAB RAT A MULLICK.

[SA1Ym FAzL Au, MEHAR CHAND MAHAJAN,

MuKHERJEA AND CHANDRASEKHARA AIYAR JJ.]

Hindu Women's Rights to Property Act (XVIII of 1937), s. 3-

<, Right to shebaitship-Whether "property"-Applicability of Act­

Widow's right to joint shebaitship with son-Construction of deeds

-"Heirs of A," meaning of.

The word "property" as used in s. 3 (l) of the Hindu Women's

Rights to Property Act,

1937, includes shebaitship which is a

re­

cognised form of property under Hindu law, and there is nothing

in

any of the provisions of the said Act which excludes from the y scope and operation of the Act succession to shebaitship. Even

assuming that ·the word "property" in Act XVIII of 1937 is ·to

be interpreted in a narrower sense, inasmuch as succession to

shebaitship

follows succession to property in its ordinary or

secular sense and the Hindu Women's Rights to Property

Act,

1951

111 re

The Delhi

Larva A.ct, 1912,.

etc.

./Jose J.

1951

.Angurba/a

Mullick•·

Debabrata

Mullick

Mukherjea J.

1126 SUPREME COURT REPORTS [1951]

1937, fays down th~ law of. succession to property in general, the

devolution of shcba1tsh1p will also be governed by the said Ate .

Umayal Achi v. Lakshmi Achi [1945]

upon. Suryanarayanacharyulu v. Seshamma

103) approved.

F.C.R. I, commented

(A.LR. 1950 Mad.

A deed

of dedication of properties to a deity provided that the

scttlor shall during

her life-time be the shebait of the said deity

and that after her death, her son M shall be the shebait. It provid­

ed further that after M's death, M's wife K and after K's death,

the heirs of M shall be the shebaits. If M died without any issue or

without giving authority to his wife to adopt, M shall be compe­

tent to appoint a shebait by will, but in case M died without any

issue, the shebaitship shall, after the death of his wife devolve

upon his heirs under the Hindu law. M died in

1942 leaving a

son by his first wife K, and a second wife. In a suit by the

second wife for a declaration that she was entitled to the shebait­

ship as sole shebait or in any event as a

j"oint shcbait with her

step-son :

Held, that the Hindu Women's Rights to Property Act, 1937,

was applicable to the case and the plaintiff was entitled to ~oint

shebaitship with her step-son.

Held also, on the construction of the deed, (i) that the words

uheirs of the said M" occurring in the deed were not words -.>£ gift

but only words regulating devolution; and (ii) that heirs oi M

did not mean issue of M but his legal heirs and there

was nothing

in the deed to show that the son of M had

i right to succeed in

'~

preference to the widow. ,...

CIVIL APPELLATE JURISDICTION : Civil Appeal

No.

22 of 1951.

Appeal against the Judgment and Decree dated the

19th

May,

1950, of the High Court of Judicature at

Calcutta (Harries C.J ..• and Sinha J.) in Appeal No. 29

of 1950 arising out of a decree dated 9th February,

1949, in S~it No. 2481 of 1947.

Bakshi Tek Chand (S. Banerji, with him) for the

appellant. -

S. Bannerjee (B. Sen and S. C. Roy, with him}, for

the respondent.

1951. May 3. The Judgment of Fazal Ali,

Maha­

jan and Mukherjea JJ. was delivered by Mukhcrjca J.

Chandrasckhara Aiyar J. delivered a separate but

concurring judgment.

.(

S.C.R. SUPREME COURT REPORTS 1127

MuKHEKJEA J.-This appeal is directe.d against an

appellate judgment of the Calcutta High C.Ourt, dated

the 19th

May,

1950, which affirmed the judgment of a

single Judge of the Original Side of ~at C.Ourt passed

on 9th February, 1949, in Suit No. 2481 of 1947.

The plaintiff, who is the appellant before us, is the

widow

of one Mrityunjoy Mullick, a wealthy Hindu

resident

of Calcutta, while the· defendant, who is still

an infant,

is the only son of Mrityunjoy born of his

first wife Kiranbala, who died during the lifetime of

her husband. The controversy between the parties

centres round the short point

as to whether the plain­

tiff is entitled, after the death

of her husband, to act as

shebait of an idol named

Sree Sree Nitto Gopal Jew

founded by Mrityunjoy and his mother either solely

or jointly with the defendant, her step-son.

To appreciate the points that have been canvassed

before

us in this appeal , it will be necessary to narrate

a

few antecedent facts about which there is no dispute

between the parties. It may

be stated

her$:! that

neither

side adduced any evidence before the trial

judge during the hearing of the

case and the

questions

raised in the suit were argued as questions of law

turning on the construction

of the indenture which

created the endowment

as well as of the provisions

. of the Hindu Women's Rights to Property Act (Act

XVUI

of 1937 as amended by Act XI of 1938).

It appears that one Dhananjoy Mullick, who was

the adoptive father of Mrityunjoy, died on 28th of

August,

1907, leaving behind him, his widow Nitto

Sundari and the adopted son Mrityunjoy who was

then a minor. On February 11, 1 910, Nitto Sundari

obtained letters of administration to the estate of the

deceased Dhananjoy limited during the minority of

the adopted

son.

On June 13, 1920, the widow

purchased a

house property in the city of Calcutta­

being

premises No. 14, Syakrapara Lane-Qut of the

monies belonging to the estate of her hunsoand, and on

October 10, 1934, she conveyed the said property to

Mrityunjoy who had by that time attained majority.

1951

Angurbala

Mullick v.

Debabrata

Mullick

Mukherjea J.

19Sl

Angorbala

Mullick v.

.Debabrota

Mulliclc

Mukherjea I.

1128 SUPREME COURT REPORTS (1951]

On the very same day that this property was conveyed

to Mrityunjoy, Nitto Sundari and Mrityunjoy together

executed an indenture,

by which certain properties

described in

Schedules A and B of the document and

including premises No.

14, Syakrapara

Lane, were

dedicated to deity Nitto Gopal Jew. The indenture

recites that Nitto Sundari had, with the consent and

concurrence

of her son, established and consecrated

the

said idol and located it in premises No. 14

Syakra­

para Lane, and that she had been performing the

worship and periodical

festivals of the deity according

to Hindu rites. The document lays down in detail the

various rites,

ceremonies and festivals of the idol that

are to

be performed daily or at specific periods, and

the

way in which the expenses necessary for these

purposes are to be met from the income of the

dedi­

cated properties. A remuneration of 25 per cent. of

the net income of the debutter property has also been

provided for the shebait or

shebaits for the time being.

After declaring the various trusts, the indenture

pro­

ceeds to provide for appointment of shebaits and for

devolution

of shebaitship in the following manner :-

)

"That the said Sm. Nitto Sundari Dassi doth t-

hereby constitute and appoint herself the shebait of

the said Thakur for and during the term of her natural

life and doth hereby declare that after her death her

son the said Mrityunjoy Mullick shall become the she-

bait of the said Thakur and after his death his wife Sm. · Kiranbala Dassi and after her death the heirs of

the said Mrityunjoy Mullick shall be and act as the

shebait or shebaits of the

said Thakur and she doth

hereby declare him or them such shebait or

shebaits

accordingly and doth hereby direct and declare that

the daily worship and other periodical

festivals and

ceremonies

of the said Thakur should be performed by

such shebait or shebaits. Provided however that in

case the said Mrityunjoy Mullick . shall happen to die

without any

issue or without giving any authority to "'

his wife him surviving, to adopt, then in such case it

shall

be competent for the said Mrityunjoy Mullick to

appoint

by will or otherwise a shebait who would act

'

S.C.R. SUPREME COURT REPORTS 1129

as such after the death of his sai'd wife as aforesaid

hut in case the said Mrityunjoy Mullick shall happen

to die without

any issue the shebaitship

. of the said

Thakur after the death of his wife shall devolve upon

his heirs under the Hindu Law."

It is not disputed that Nitto Sundari acted as she.

bait till her death in 1938 and that after her death

Mrityunjoy

become the shebait. Kiranbala, the first

wife

of Mrityunjoy, who is referred to in the indenture

.as stated above, died on l4th January, 1942, leaving

her infant

son Debabrata, who is the defendant in the

suit.

Soon after her

death, Mrityunjoy married the

plaintiff Angurbala

as his second wife and within

five

months after this marriage Mrityunjoy died on the 4th

of

July, 1942.

· The present suit was filed in the

Original Side of the Calcutta High Court on 29th

August, 1947, by Angurbala and she prayed for a

declaration that

she was the sole shebait of the deity

under the terms

of the indenture or, in the alternative,

was entitled to shebaitship jointly with the defendant,

she being a co-heir of her stepson under the provisions

of the Hindu Wowen's Rights to Property Act. There

was a further prayer claiming a right of residence in

premises

No. 14. Syakrapara Lane.

The written statement that

was

filed on behalf of

the defendant denied the plaintiff's claim of shebaiti

right, either exclusively in herself or jointly

with the defendant,

and asserted that the defendant

was

the sole shebait under the terms of the deed of

endowment

as well as under law. The defendant also .

contended that the plaintiff

was not entitled to any,

right of

resi4ence in the premises mentioned above.

The learned trial Judge by his judgment dated 9th

of February, 1949, held that the plaintiff was neither

the

sole shebait of the deity nor was she entitled to

claim

shebaiti

rights jointly with the defendant and

that the Hindu Women's Rights

to Property Act was

inapplicable to devaluation of shebaiti, rights at all. It

was held further that as the plaintiff was not in law

the natural guardian

of the defendant, she could not

1951

A.ng11rbalo

Mullick v.

Debabrata

Mullick

Mukherjea J.

1951

Angur/Jala

Mullick

v.

Debab11t1ta

Mullick

Mukherjea I.

1130 SUPREME COURT REPORTS [19511

claim to exercise the rights of a shebait on behalf of

the defendant as his natural guardian so long as the

defendent remained a minor.

The learned Judge

held,

however, that the plaintiff's claim to a right of resi­

dence in premises No.

14, Syakrapara Lane, was well­

founded and she

was

held entitled to relief in that

respect. The result

was that save and except

givmg

the plaintiff a declaration of her right of residence in

premises No.

14, Syakrapara Lane, all the other

prayers of the

plaintiff were dismissed.

Against this decision the plaintiff preferred an appeal

which came up for hearing before

an appeal Bench of

the Calcutta High Court consisting of

Sir Trevor Har­

ries C.J. and Sinha J. The learned counsel appearing

in support of the appeal did not seriously challenge that

part of the decision

of the trial Judge which negatived

the plaintiff's claim to act

as a sole shebait either

under the terms of the indenture of endowment. or

as

a guardian of the defendant during the period of his

minority. The only question pressed was whether the

plaintiff was entitled

to be a joint shebait with the

defendant. The learned Judges rejected this conten­

tion of the appellant primarily on the ground that the

identical point was raised and considered

by the

Federal Court in

Umayal

Ac!zi v. Lakshmi Achi(1) and

it was held there that succession to shebaitship was

not in any way altered or affected by the provisions of

the Hindu \Vomen's Rights to Property Act. The

appeal was thus dismissed and the plaintiff having

obtained a certificate under article 133(1)(c) of the

Constitution has now come

up in appeal to this

Court.

The substantial contention raisc;d by Mr. Tek Chand,

who appeared on behalf of the plaintiff-appellant, is that

under the clause

in the indenture relating to devolu­

tion of shebaitship, the shebaitship

is to go to Kiran­

bala after the death of Mrityunjoy and after her death

it

is to vest in the heirs

of. Mrityunjoy. As Kiranbala

died during the life-time of Mrityunjoy, the grant of

the

shebaiti right in her favour

lapsed and the heirs

of Mrityunjoy arc, therefore, entitled to come in as the

(I) [1945] F,C.R.1.

r

'

S.C.R. SUPREME COURT REPORTS 1131

next shebaits after Mrityunjoy~s death. Who these

heirs are has. got to be determined according to the law

in force at the time when the succession opened

and under the Hindu Women's Rights

to Property

Act, which

came into force in the year 1937, the widow

of a propositus, who

dies intestate, would rank as an

heir along with the

son and would be entitled to the

same share as a ·son gets in the property of the deceas­

ed; It is said that as shebaitship is property, it wouW

devolve under section 3 of the Hindu Women's Rights

to Property Act upon both the plaintiff and the

defeadant jointly. Assuming, however, for argument's

sake, that the expression

"property", as used in the

Hindu Women's Rights to Property Act, tloes not

include

shebaiti right, it is argued

by the learned

counsel that it

is a well-established

proposition of law

that succession to shebaitship is governed by the

ordinary rules of inheritance in respect to secular pro­

perty under the Hindu law, and as the Hindu women'.s

Rights· to Property Act ·has amended the general law

of inheritance in certain matters, the same, alterations

must

be recognised in regard to succession to shebait­

ship

as well. A point was also raised by Mr. Tek

Chand-though it

was not pressed seriously...:...that the

language

of the indenture would go to suggest that in

the matter of succession to

. shebaitship the wife of

Mrityunjoy would have priority over other heirs. It

i.~ true that the document spe3ks only of Kiranbala,

the wife· of Mrityunjoy who is to. come as shebait

after . his death; . but it is argued that the . word

"Kiranbala" is merely descriptive of the word "Wife''

and whoever would happen to be the wife of Mrityun­

joy at the date of his death, would be entitled to

succeed to his shebaiti rights.

Mr. Shankar Banerjee appearing for the respondent

stated at the outset that he · would not dispute as a

proposition of

law that shebaitship is property of ~ some kind the devolution of which is governed, in the

absence of any direction to the contrary given by the

founder,

by the ordinary rule of succession under the

Hindu

law. He contended however, that the Hindu

26-3 S.C.India/68

t9Sl

A!fgurbala

Mullick

v.

Debabrata

Mullick

Mukhetjea

J.

1951

Angurbala

Mullick

v.

D~babrata

Mullick

MiJcher}ttl I.

1132 SUPREME COURT REPORTS [19511

Women's Rights to Property Act, which is a piece of

special legislation enacted for a special purpose, does

not use the expression "property" in a wide and

unlimited

sense; and it would appear clear from the

provisions

of the different sections of the Act that it

could not have had in contemplation, and does not

purport

to affect, the rules of

succession relating to the

special and somewhat anomalous type of property

which shebaitship admittedly

is. The learned counsel

referred in this connection to the provisions of

sec­

tions 3 and 5 of the Act as well as to the preamble

which sets out its object, and considerable stress was

laid upon the pronouncement of the Federal Court in

Umayal Achi v. Lakshmi Achi('). The other conten­

tion put forward by the learned counsel turns upon the

construction of the relevant clause in the indenture

referred to above which lay down the mode of devolu­

tion of the shebaitship, and his argument was that

reading the

clauses as a whole, it would

be clear that

the intention

of the executants of the deed was that

the

"issue" of Mrityunjoy would succeed to him as

shebaits in the first instance and that no other heir

of Mrityunjoy basing

his claim either upon general law or any special enactment would be entitled to

become shebait so long as any issue of Mrityunjoy was

alive. A further question relating to the construction

of the deed, raised

by Mr. Banerjee, was that the words "heirs of the said Mrityun;oy" occurring in the deed

arc

to be construed not as words of devolution but of

direct gift to the heirs under the deed and consequently

the expression

"heirs" must mean those who could

legally claim :is heirs at the time when the grant was

made : and any subsequent change in the law could

not affect the position.

We will first advert

to and examine the

prov1s1on•

of the Hindu Women's Rights to Property Act and see

whether the Act includes within its scope a property

of

such character as shebaitship is.

The exact legal position of

a shebait may not be

capable of precise definition but its implications are

(I) [194.5) F.C.R. 1.

f.

r

r

i,

S.C.R. . SUPREME COURT REPORTS 1133

fairly well established. It is settled by the pronounce­

ment

of the Judicial Committee in Vidya Varuti v.

Bal usami

(1) that the relation of a shebait in regard to

debutter property

is not that of a trustee to trust

pro­

perty under the English law. In English law the legal

estate in the trust property

vests in the trustee who

holds it for the benefit of

cestui que trust. In a Hindu

religious endowment on the other hand the entire

ownership of the dedicated property

is transferred to

the diety or the institution itself

as a juristic person

and the shebait or mahant

is a mere manager. But

though a shebait

is a manager and not a trustee in the

technical sense, it would not be correct to describe the

shebaitship

as a mere office. The shebait has not only

duties to discharge in connection with the endowment,

but

he has a beneficial interest in the debutter pro-

.

perty. As the Judicial Committee observed in the

above case, in almost all such endowments the she­

bait has a share in the usufruct of the debutter pro­

perty which depends upon the terms of the grant or

upon custom or

usage. Even where no emoluments

are attached to the

office of the shebait, he enjoys some

sort of right or interest in the endowed property which

partially at

least has the character of a proprietary

right;. Thus, in the conception of shebaiti both the

elements

of office and property, of duties and personal

interest, are mixed up and blended together;

and one

of the elements cannot be detached from the other. It

is the presence of this personal or beneficial interest in

the endowed property which invests shebaitship with

the character of proprietary rights and attaches to

it

the legal

incidents of property. This was elaborately

discussed by a Full Bench of the Calcutta High Court

in

Manohar

· Mukherji v. Bhupendra Nath Mukherji(

2

)

and this decision of the Full Bench was approved of

by the Judicial Committee in Ganesh Chunder Dhur v.

Lal Behary(8) and again in Bhabatari~i v. Ashalata(

4

),

The effect of the first two decisions, as the Privy

Couru:il pointed out in the last case, was to emphasize

(I) 48 I.A. 302. (3) 63 I. A. 448.

(2) I.L.R. 60 CaL 4S2.

27-3 S.C.lndia/68

(4) 70 I.A. 57.

1951

Ang_urb11la

Mullick v.

Debabrata

Mullick ·

Mukher}ea J.

1951

Angurbala

Mu//ick­

v.

· Dehahrata

Mullick

Mukhtrj.a J.

1134 SUPREME COURT REPORTS. [1951]

the proprietary element in the shehaiti right, and to

show that though in

some respects anomalous, it was

(

an anomaly to be accepted as having been admitted

into Hindu

law from an early date.

"According to

Hindu law," observed Lord Hobhouse in Gossamee

Sree Greedharreejjee v. Rumanlolljee Gossamee('),

'when the worship of a Thakoor has been founded, the

shebaitship

is held to be vested in the heirs of the

!-

founder, in default of evidence that he has disposed of

it otherwise, or there

has been some usage, course of

dealing, or

some circumstances to show a different

mode of

devolution." Unless, therefore, the founder

has disposed of the shebaitship in any. particular

manner-and this right of disposition is inherent in the

founder-or except when usage or custom of a different

nature

is proved to exist, shebaitship like any other

species of heritable property follows the line of r

inheritance from the founder.

Turning

now to the Hindu Women's Rights to

Pro­

perty Act, it will be seen that the object of the Act,

as set out in the preamble, is to give better rights to

women in

respect of property.

Section 2 lays down :-

"Notwithstanding any rule of Hindu law or

custom to the contrary, the

provisions of section 3

shall

apply where a Hindu dies

intestate."

Section 3( 1) then provides :-

"When a Hindu governed by the Dayabhaga

School of Hindu law dies intestate leaving any pro­

perty, and when a Hindu governed by any other school

r

of Hindu law ...... dies intestate leaving separate pro- ~

perty, his widow, or if there is more than one widow

all his widows together, shall, subject

to the provisions

of

sub-section ( 3), be entitled in respect of property in

respect of which he dies intestate to the same share as

a son:

Provided that the widow

of a predeceased son shall

--.

inherit in like manner as a son if there is no son sur­

viving of such predeceased son, and shall inherit in

(I) 161.A. 137.

S.C.R. SUPREME COURT REPORTS li35

like manner as a son's son if there is surviving a ·son

or son's son of such predeceased son;

Provided further that the same provts1on shall

apply mutatis mutandis to the widow of a predeceased

son of a predeceased son."

Sub-sections

(2) and ( 4) of section 3 ate not material

(

for our present purpose. Sub-section (3) lays down :-.

"Any interest devolving on a Hindu widow under

the provisions of this section shall

be the limited interest known as a Hindu woman's estate .......... "

Section 4 lays down. that the •Act is . not to operate

retrospectively. The only other section in the

Act

which has been referred to in the course of arguments

is .section 5 which runs as follows :-

"For the purposes of this Act a person shall be.

deemed to die intestate in respect of all property · ot

which

he has not made a testamentary disposition

which

is capable of taking

effect."

It will be seen that section 3(1) abrogates the general

rule

of Hindu law according to which a

·widow

succeeds to her deceased husband's property only in

default

of male issue and she is now entitled to the

.

same share as a son along with or in default of male

issue. Similar rights have been given by the two

provisos attached . to section 3 ( 1) to the widow of a

predeceased son and also to the widow of a predeceased

son of a predeceased son. Section 3(1) speaks of "any

property". The expression prima facie includes, unless

something to the contrary can

be spelt out

from the

other

provisions of the Act, all forms or types

of

interest answering to the description of "property" in

law. Of course, the property must be heritable pre>­

perty in respect to which alone. the question of

succession may legitimately arise.

Reliance has been placed f:iy Mr. Banerjee, first of

all, upon the object or purpose for which the statute

was passed. The object, as set out in the preamble, is

to give better rights to women in respect to property;

in other words, the object of the legislation is to confer

1951

Angurbala

Mullick

V.·

Debabrata

Mullick

Mukherjea i.

1951

Angurbala

Mul/itlt

v.

Debabrata

MuJ//clt

Muk/rerfea J.

1136 SUPREME COURT Rfil'ORTS [1951!

larger rights upon women in comparison to what they

enjoyed under the ordinary Hindu law. In our

opinion, the preamble

does not throw any light on

the

question as to whether the Act does or does not include

within

its ambit rights and interest of a shebait.

Mr.

Banerjee' next invokes in support of his conten

tion the provisions of sub.section (3) of section 3,

which lays down that the interest devolving upon a

widow under the

provisions of the Act

will be the limit­

ed interest known as the "Hindu women's estate''.

It

is argued that this distinction between the Hindu

woman's

estate and the unrestricted rights of a male

heir can be predicated only of ordinary secular pre>­

perty, but this distinction is unmeaning when applied

to shebaiti right, for the nature of the interest enjoyed

by a. male or a female shebait is exactly the same.

This argument does not appear to us to be at all con­

vincing. Precise! y the same thing happens when the

shebaiti right devolves upon a female heir under the

ordinary

law of inheritance. If a shebait dies leaving

behind him a widow and

no male issue, the widow

would

succeed to shebaitship under ordinary law but

her rights in

respect

oi the shebaiti would be restricted

in the

same manner as they would have been if the

successor was the son. This is because there are

certain limitations and restrictions attached to and

inherent in the

shebaiti right itself and they exist irres­

pective of the fact as to whether the shebaitship

devolves upon a male or a female heir. But although

as regards powers of alienation the disability of the

male and the female shebaits

may be identical,

then:

is yet a distinction between them as regards the other

limitation or characteristic

of a Hindu women's estate.

When a Hindu female heir succeeds to the property of

a

male propositus, she cannot transmit the interest

which

she inherits, to her own heirs upon her death.

The

property· goes after her death not to her heirs but

to the heirs of the last male owner. This rule applies

even when the right which devolves upon a widow is

the right of a shebait. After her death the sh~blliti

right would not pass to her stridhana heirs but would

r

(

S.C.R. SUPREME COURT REPORTS 1137

go to heirs of the last shebait(1). Sub-section (3) of

section 3, therefore, is of no assistance to Mr. Banerjee's

client.

Mr. Banerjee then contends that section

. 5 of the

Hindu Woman's Rights to Property Act affords a

clear

indication that the Act is intended to be applicable

only to property in respect to

which a testamentary

disposition is possible. This section, it may be noted

was added by the amending Act XI of 1938 and the

object apparently

was to explain what is meant by "dying intestate". It says that for the purposes of the

Act

-a person shall be deemed to die intestate in respect

of all property of which he has not made a festament­

ary disposition which is capable of taking effect. Mr. Banerjee would read the section as qualifying the

meaning

of the word

"property" as used in section 3(1)

or rather as engrafting a limitation upon it. What he

says is, that the language of the section would be

wholly inappropriate if the Act is applicable to pro­

perties in respect to which, as in the case of shebait­

ship, no testamentary disposition is possible. This

argument, in our opinion, cannot

be accepted as sound.

Section 2 of the Act which has been referred to above

makes the provisions of section 3 applicable only when

a Hindu

dies intestate. A person is ordinarily regard­

ed as dying intestate when he has left no will

dispos.­

'ing of his properties. A doubt might arise as to

whether this Act would apply when a will was actually

executed by a deceased, but for some reason or other

it

was incapable of taking effect and it was for the

purpose

of removing such doubt that this section was

added by the amending Act of 1938. The language of

section 5 of the Act is exactly the same as that of

section

30 of the Indian Succession Act and the object

underlying both

these provisions appears to be identi­

cal. Mere execution of a will is not enough to exclude

the operation

of the Act. The will must be an opera­

tive will and if the will is void or incapable of taking

effect, it would be deemed that the testator has died

intestate.

If the

property is "non-testamentable", as:

(I} Anurtlgi kuer v. Part1111a111md. t .. I. R. 1939 Pat. 1.

1951

A._ngurbala

Mullicki

v.

Debabrata1

Mullick ·

Mukherjea 1.

1951

Angurbala

Mullick

v.

Debabrata

Mul/ic/o

Mukherjea I.

1138 SUPREME COURT REPORTS (1951]

Mr. Banerjee puts it, no testamentary disposition of

such property is possible or could take effect in law

and the testator must in

such circumstances be deemed

to have died intestate in respect of such property.

Thus, there

is nothing in any of the provisions of the

Act from which an inference could

be drawn that the

expression

"property" as used in section 3( l) has a

limited or restricted interpretation and

is

not applic­

able

to shebaitship, which is recognised as property

in Hindu

law.

'

Reference may now be made to the decision of the

Federal Court in Umayal Achi v. Llkshmi Achi('),

upon which the learned appellate Judges of the High

Court practically

based their

decision. The facts of )

that case stripped of unnecessary details are that one

Arunachalam Chettiar who was a resident of Madras

and owned considerable properties,

moveable and

immoveable, both within and outside British India,

died leaving behind him two

widows and the widow

of a

predeceased son. The deceased had left a will

but the

legacies given

by the same exhausted only a

small portion of his

estate so that with regard to the

r

rest which was of considerable value he died intestate.

The deceased was in possession of several trust proper-

ties in regard to which there were certain religious and

charitable trusts and the direction in the will was that

the management of

these trusts should devolve upon

his heirs. The son's widow instituted a suit in the

Court

of the Subordinate Judge at Devakottai for

administration of the

estate and for partition and

,_

separate possession of a half share of the same, basing

her

claim upon the Hindu Women's Rights to Property

Act. The

suit was resisted by the two widows as well

as by the executqrs appointed under the will of the

deceased and it

was pleaded, intra alia, that the Hindu

Women's Rights to Property Act

was ultra

vi res the

legislature and that

in any event it was not applicable

as the propositus did not die intestate. The trial court

~

held first that the Act was not ultra vires and was

operative on all properties with the exception of

(I} [1945J F. C.R. I. ' . '

S.C.R. SUPREME COURT REPORTS 1139

agricultural lands and this finding was affirmed by the

High Court on appeal and

also on further appeal to the

Federal Court

by the majority of the Judges of the

Court. The

second finding of the trial Judge

was that the deceased died intestate with regard

to a considerable amount

of property and con­

sequently the plaintiff was entitled to a

· half share

thereof. The High Court

affirmed this finding with this

variation that her claim to moveable situated outside

British India

was not allowed but the Federal Court

reversed the decision

of the High Court on this point

and restored that of the trial Judge. The other point and

that

is the point with which we are concerned in the

·

present case, related to the devolution of the trust es­

tates which were held by the testator. Both the courts

~ below concurred in holding that these trusts should go

· to the heirs of the deceased under the ordinary Hindu

law and that the provisions

of the Hindu Women's

Rights to

·Property Act were not attracted to the

trusts. This

decision was upheld by the majority of

the Judges in the Federal Court and the point

was

actually dealt with by Varadachariar J. in his judg­

ment. The

view expressed by the learned Judge is

~ that the Hindu Women's Rights to Property Act was

intended to apply only to properties beneficially owned

by the propositus and it was not applicable to rights

in the nature

of trusteeship. It seems to us that,

properly construed, this decision

does not stand in the

way of the appellant. In the first place, we do

not

know at all what the nature of these trusts was. The

'i-learned Judge observed himself in his judgment . that

there

was little or no evidence as to the terms of the

foundations in respect

of any of the trusts

"managed"

by the deceased. This observation, taken along with

the terms

of the documents referred to in the judgment,

would

go to show that the deceased was a mere

man~ger of the trusts and in respect of some of them

~ at least he was. the manager jointly with other persons.

In the High Court, Sir Lionel Leach C. J. expressly

held that in no sense could the trust properties be

regarded as the separate property of the testator and

1951

Angurbala

Mullick

v.

Debabrata

Mullick

Mukherjea J.

1951

Angurbala

Mu/liclo

v.

Debahrata

Mullick

Mulcherjea J.

1140 SUPREME COURT REPORTS [1951]

consequentfy Act XVIII of 1937 could not apply to

such a

case.

V aradachariar J. observed with reference ~

to the documents relied upon by the . learned counsel

for the appellant that they

only provided for

"manage­

ment by his heirs." At any rate, we have no materials

to hold that in regard to the trusts that formed the

subject-matter of that suit the trustees had any

beneficial or personal interest in the trust properties. ~

the indications, on the other hand, are clearly in the

opposite direction. In

these circumstances, no question

arises in the present case of controverting the proposi-

tion

of law that

V aradachariar J. purported to lay

down, namely, that the Hindu Women's Rights to

Property Act could not govern succession to property

in respect

to which the propositus had no beneficial

enjoyment. It

is not possible, however, to enunciate

~

on the basis of this decision, a broad rule of law that

succession to shebaitship, in which an element of

beneficial or personal interest is normally involved

would not be governed by the provisions of the Act.

There are indeed

one or two observations

·of the learned

Judge in his judgment, not

very definitely expressed,

from which it is not impossible to draw an inference

in favour of the respondent, but we think that they

~

should be construed in the light of the facts and the

actual decision in the

case. The observation that

Hindu

law regards trusteeship as property for certain

purposes

is of a most general character and it has to

be noted that not only the word

"shebaitship" has not

been

used by the learned Judge but he does not even

confine his remarks even to religious trusts. Morever,

.;.

trusteeship is not certainly equivalent to shebaitship.

On the other hand, the reference made by the learned

Judge to the limited objective of the Act affords an

indication that he had in mind a trust of such a

character where the trustee had no personal interest in

the trust property. The object of the Act

as stated

above, is to give better rights to women in respect of

"­

property. If a trusteeship, evc;_n if it is regarded as

P.roP<:rty, carries with it no emoluments or any benefi-

cial interest for the trustee and consists of nothing else

S.C.R. SUPREME COURT REPORTS 1141

but a bundle of obligations and duties, it might pos­

sibly be said that the giving of a share iD-such rights

to a Hindu widow would not in any way improve her

position. But the position would be obviously differen.t

if there is a beneficial interest of a substantial kind

inseparably connected with· the duties of a particular

office. Then again, the learned Judge possibly used

the expression "private property" in a ·somewhat loose

sense as meaning personal property in respect to which

the proprietor

has a beneficial interest of his

own.· The

reference

to section 3(3) of the Hindu Women's Rights

to Property Ast

is, as we have indicated already, not

much helpful for the purpose of construing the Act.

After all,

we must take the decision as it stands and

it

is not right to call into aid a

particulaI1 reason assign­

ed by the learned Judge, for the purpose of carrying

the

decision beyond what it actually purports to. lay

down. We think that a very proper view of the effect

of this decision of the Federal Court has been taken

by a Division Bench of the Madras High Court in

P. Suryanarayanacharyulu v. P. Seshamma(1). There

the question

arose in connection with the rights

asso­

ciated with the office of archakatavam, which is a here­

ditary religious office and the holder or holders of it

for the time being

are beneficially entitled to enjoy

the income of the endowed property. It was held that

the principle laid down

by the Federal Court in

Umayal Achi v. Lakshmi Achi(2) has no application to

a case relating to the office ·of archak_atvan. It is

pointed out by the Madras High Court that though the

observations of the learned Judge in the Federal Court

are wide, the decision proceeded only . on the main

ground that the Act governs

succession to property

beneficially owned

by the propositus. In our opinion,

the same

reasons apply to the case of a hereditary

shebait of a private debutter, particularly where,

as

in the present case, 25 per cent. of the net income of

the endowed properties

has been given to the shebait

or shebaits for the time being as their

remun~ration.

Our conclusion, therefore, • is that there is nothing in

1(1) A.I .. 9SOMad. 103. (2) [1945] F.C.R. I.

1951

Angurbala

Mullick

v.

Debabrata Mullick

Mukherjea J.

19Sl

A._ngurbala

Mui/kl<

v.

Debabrata

Mullick

Mukherjea I.

1142 SUPREME COURT REPORTS [1951]

any of the provisions of the Hindu Women's Rights to

Property Act which excludes from the. s~ope a_nd

operation of the Act succession to shebaitship which

is a recognized form of property in Hindu law.

Assuming that the word "property" in Act XVIII

of

1937 is to be interpreted to

mean property in its

common and ordinarily accepted sense and is not to be

extended to any special or peculiar type of property,

even then we think that the other contention of

Mr. Tek Chand is perfectly sound. Succession to

shebaitship, even though there

is an ingredient of office

in it, follows succession to ordinary or secular property.

It is the general law of succession that governs

succes­

sion to shebaitship as well. While the general law has

now been changed hy reason of Act XVIII of 1937,

there does not appear to be any cogent reason why the

law as it stands at present should not be made applic­

able in the case of devolution of shebaitship.

The last contention

of Mr. Tek

Chand that under

the indenture itself the wife of Mrityunjoy and not

Kiranbala particularly has been given rights of succes­

sion to shebaitship prior to any issue of Mrityunjoy is

manifestly untenable and as the learned counsel was

not at all serious in pressing this point,

we consider it

unnecessary to

discuss it any further.

It remains for

us now to advert to and consider the

other contentions raised

by Mr.

B;merjee wi}ich depend

upon the construction of the refevant

clauses in the

indenture.

It may be stated at the outset that we are

not at all impressed by the argument of the learned

counsel that the words "heirs of the said Mrityunjoy"

occurring in the document are to be construed as words

not of inheritance but of grant. Such construction

would

be against the language and the whole tenor of

the document. It is to be noted that Mrityunjoy

was

the owner of the dedicated properties and the real

founder of the endowment. The mother

was associated

with him

in the act of dedication because

it was she

who consecrated and established the diety and was

looking after its worship and service since it was

installed. It was in the fitness of things therefore that

i

S.C.R. SUPREME COURT REPORTS 1143

Mrityunjoy should request his mother to become the

}' fi'rst shebait and this is exactly what is recited in the

indenture. After the death of Nitto Sundari,

Mrityunjoy, the founder, himself, was

to be the

shebaii:

and save and except the provision made in favour of

Kiranbala, his existing wife, the devolution

of shebait­

ship has been directed to

be in the line of heirs of the

r founder. There is no indication of any intention to

treat the heirs

as the objects of an independent gift.

It may be noted that this identical point was raised

before the Federal Court in

Umayal Achi v. Lakshmi

Achi(1) with regard to the devolution of trust estates.

The direction in the will in that case was that they

should

go to

the heirs. It was held by Varadachariar J.

that it was not reasonable to construe such words as

words of gift and not of devolution.

On the question of construction Mr. B~nerjee's main

argument

is that if the relevant provisions of the in­

denture dealing with devolution

of shebaitship are read

as a whole, it. will be manifest that the executants of

the deed intended that the

issue of Mrityunjoy were to

have preference

over other heirs in the matter of

succession to shebaitship; and that an heir who is not

an

issue could not come in

. so long as an issue remain­

ed

alive. The relevant portion of the document has

been set out already and it provides in the first place

that after the death

of Nitto Sundari, her son the said

Mrityunjoy Mullick, shall

become the shebait, after him

his

wife

Smt. Kiranbala Dassi, and after her death,

the heirs

of the said Mrityunjoy Mullick shall be and

act

as shebaits. Then there is a proviso to the effect

that if the said Mrityunjoy shall happen to die

witheut

any issue or without giving any authority

to his

wife; him surviving, to adopt, then in such

case it shall be competent for Mrityunjoy to appoint by

will or otherwise a shebait who would act as such

after the death

of the said wife; but in

case the said

Mrityunjoy Mullick shall happen to die without any

issue, the shebaitship of the said Thakur after the

death

of his wife shall devolve upon his heirs undet

(1) [1945]

F.C.R. 1.

~19Sl

Angurbala

Mu/lick

v.

Debahrata

Mullick

Mukherjea I.

19SI

Angurhala

Mullick

v.

Debabrata

Mullick

Mukherjea J.

1144 SUPREME COURT REPORTS [1951 l

Hindu law. Mr. Banerjee lays stress upon the pro­

viso, particularly the last portion of it and it contains,

according to him, a clear direction that it

is only on

the failure of issue that the heirs of Mrityunjoy can

come in

as shebaits. In order that the proviso

may

be reconciled with the clause that precedes it,

Mr. Banerjee invites

us to hold that the word

"heirs"

in the previous clause should be taken to mean only

the issue of Mrityunjoy.

We do not think that the interpretation suggested

by the learned consel

is the proper one. A proviso is

normally an excepting or a qualifying clause and the

effect

of it is to except out of the preceding clause upon

which it

is engrafted something which but for the

proviso would

be within it. The word

"heirs" cannot

normally

be limited to issue only. It must mean all

persons who are entitled to the property of another

under the law of inheritance.

So far as the main pr<>­

vision is concerned there is nothing in the language

or in the context to suggest that the word "heirs" has

not been

used in its ordinary or natural sense. Mr.

Banerjee argues that the proviso in that

case would

be wholly inexplicable whereas it is a sound canon of

construction that all the parts of a document should

be read together and no portion

is to be omitted. In

our opinion, the clause that precedes the proviso

lays

down the general rule relating to devolution of shebait­

ship.

The expression

"heirs" has not been used in any

restricted or limited

sense and extends to all persons

who are entitled to succeed under the law.

The proviso

engrafts an exception upon the general rule. What it

does

is to give a power to Mrityunjoy to appoint a

shebait, who would come

as such after his death in

the contingency of his dying without any issue and

without giving any' authority to his wife to .adopt a

son. It may be noted that the word "issue" includes

both son and daughter and the power of appointment

cannot

be

exer~ised by Mrityunjoy even if he has a

daughter living.

The proviso thus

qualifies the main

provision to this extent that if the particular conting­

ency . that is mentioned here is fulfilled, Mrityunjoy

•

-S.C.R. SUPREME COURT REPORTS 1145

would be entitled to appoint a shebait, although no

such power can

be deduced from the general clause.

In case the contingency does happen

l:iut the wife is

not given any power of adoption and no appointment

is also made by Mrityunjoy, the consequence woul_d

certainly be that the other heirs of Mrityunjoy woul(l

succeed as shebaits and this is what is laid down in

the concluding portion

of the proviso. The expression "his heirs" at the end of the proviso would certainly

mean heirs other than the

son and daughter of

Mrity­

·unjoy. As Mrityunjoy actually left a son, the contin­

gency contemplated by the proviso did not arise at all

and in these circumstances the proviso

is to be ignored

altogether for purposes

of construction and

·it is not

proper to attempt to spell, out of it,

by implication,

something which

is not only not in the main provisions

but

is contradictory to it. We think, therefore, that

this contention

of Mr. Banerjee also must fail.

The result, therefore,

is that, in our opinion, the

appeal

succeeds. The judgment and decree of both

the courts below are

set aside except the declaration

of the right of residence of the plaintiff which was

given by the trial court and not disturbed in appeal.

In addition to that, it will be decalred _that the

plaint­

iff is entitled to joint shebaitship with the defendant

in respect

of the debutter created by the indenture of October 10, 1934. We direct the taxed c0st.S of both

the parties in all the courts

to be paid out of the

debuttar

estate.

CHANDRASEKHARA A1YAR J.-1 agree with the

con­

clusion reached by my thi:ee learned brothers in the

judgment just now pronounced, but I would like to

add a few words on · two points on which I do not sec

eye to eye with them fully.

In support

of his

contention that the word "property"

in the Hindu Women's Rights to Property Act cannot

be construed so comprehensively as to include a she­

bai~ right, Mr. Bannerjee referred to sub-clause (3) of

secnon 3, which speaks of "any interest devolving on

a Hindu widow under the provisions of this

section

1951

Angurbala

Mullick

v.

Debabrata

Mullick·

Mukher}ea J.

•

1951

Angurbala

Mullick

...

Dehabrata

Mullick

Chandrasekhara

Ai'yar J.

1146 SUPREME COURT REPORTS (1951]

shall be the limited interest known as a Hindu woman's

estate"; and he urged that the conception of such an

estate as distinguished from an absolute interest

is

inapplicable to such a right of property. This is a

point that deserves

some attention. In dealing with

it, we are not thinking of any property endowed to the

Thakur or the deity and its intrinsic legal

characteris­

tics as constituting a religious endowment. We have

in mind the shebaitship itself

as a species of property.

Can it

be postulated with reference to the shebaitship

that a Hindu widow succeeding to the

office has only

what

is known as a

"Hindu women's estate" as con­

trasted with a full or absolute estate taken by a male

heir?

Does a male heir get higher rights than a Hindu

widow? and if

so, what are they?

So far as a shebait­

ship

is concerned, the office does not enure beyond the

lifetime of the holder, whether male or female, and

is generally inalienable. It is res extra commercium.

A male heir cannot alienate it any more than a female

heir. What limitations

exist or are imposed on alien­

ability arises out of the nature of the property and

not out of the nature

of the estate taken by the heir.

In the very nature of things, there can be no alienation

for necessity, surrender, acceleration of the estate in

favour of the next in

succession, etc. Plausible and

attractive

is this line of reasoning, and it lends support

to the view taken in

Umayal Achi v. Lakshmi Achi(')

by Sir Varadachariar, where, referring to sub-clause (3)

of section 3, he observes :-

"This provision will be appropriate enough in

relation

to private property

where the woman's estate

is different from the interest taken by a male heir. But

in respect of trusteeship or other similar

office the law

makes no difference between the interest taken

by a

male heir and the interest taken

by a female

heir."

But it does not decisively outweigh the several con­

siderations

set forth in the judgment just now delivered

..

'

by my learned brother Mukherjea J. for construing the "'c

word "property" in a wider serue so as to include the

shebaiti right also.

If there is no legal objection to a

(1) [1945] F.C.R. !.

S.C.R. SUPREME COURT REPORTS 1147

woman being a shebait under Hindu law, there is no

particular ·reason why she should be excl?de~ from

succeeding to the

same under an Act which

llllposes

no restriction or prohibition either in express terms,

or

by necessary implication.

The next point relates to the construction

of the

deed

of indenture executed by Nittamony Dasi and

Mrityunjoy. I

am of the opinion that the

technica~

rules of interpretation of provisos and exceptions, witfi

reference

to their scope and legal effect, adopted in

construing statutes should. not ordinarily

be imported

in interpreting

deeds and documents executed by

lay­

men. In ordinary deeds, a proviso may sometimes be

in the nature of an explanation of the main clause or

provision; and

we must look not merely at the form

of the language but its

substarn;e, the governing idea

or purpose

of the deed, the context and the

surround­

ing circumstances together the real meaning or inten­

tion of the executant. Judged in this-light and adopting

a broad construction, it appe~s to ine that what Mrity­

unjoy had in mind when he executed the indenture

was, as made clear in the proviso, that his issue (born

of his loins) or any person whom his wife

may adopt

on his authority, .should

succeed to the shebaiti in the

lint instance; and secondly, in default-of such contin­

gency, the shebaitship should go to any person who may

be nominated in this behalf by his will; and thirdly

in default of issue (born or adopted) and in default of

nomination

by will (which is necessarily implied), the

right

was to devolve

. upon his heirs under the Hindu

law. In other words, the proviso explains what he

means

by his heirs in the preceding clause. In this

view, the respondent will succeed to the office in

pre­

ference to the_ appellant.

But the construction placed on the indenture

by my

learned brothers

is also a possible one and I do not

desire to

express any dissent from the result, they have

reached.

Appeal. al.lowed.

Agent for appellant : Ganpat Rai.

Agent for respondent :

P. K. Bose.

1951

Angurbala·

Mullick

y,; .

Debabrata

Mullick

Chandrasekhara·

A.;yar I.