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PETITIONER:

SREE SREE ISHWAR SRIDHAR JEW

Vs.

RESPONDENT:

SUSHILA BALA DASI AND OTHERS.

DATE OF JUDGMENT:

16/11/1953

BENCH:

BHAGWATI, NATWARLAL H.

BENCH:

BHAGWATI, NATWARLAL H.

MUKHERJEA, B.K.

BOSE, VIVIAN

CITATION:

1954 AIR 69 1954 SCR 407

CITATOR INFO :

R 1965 SC1874 (17)

R 1974 SC 740 (10)

ACT:

Hindu law-Religious endowments-Dedication of properties

Dedication to idol subject to charge in favour of heirs or

bequest to heirs subject to charge in favour of idol-

Construction of will-Adverse possession-Possession of

shebait, whether can be adverse to idol.

HEADNOTE:

The question whether the idol itself is the true

beneficiary subject to a charge in favour of the heirs of

the testator, or the heirs are the true beneficiaries

subject to a charge for the upkeep, worship and expenses of

the idol, has to be determined by a conspectus of the entire

provisions of the deed or will by which the properties are

dedicated.

Pande Har Narayan v. Surja, Kunwari (I.L.R. 47 I.A. 143)

referred to.

A provision giving a right to the sevayats to reside in

the premises dedicated to the idol for the purpose of

carrying on the daily and periodical worship and festivals

does not detract from the absolute character of a dedication

to the idol.

Gnanendra Nath Das v. Surendra Nath Das (24 C.W.N. 1026)

referred to.

No shebait can, so long as he continues to be the shebait,

ever claim adverse possession against the idol.

Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari

Thakurani (I.L.R. 60 Cal. 54) approved.

Judgment of the Calcutta High Court affirmed.

JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil Appeal No. 201 of 1952.

Appeal from the Judgment and Decree dated the 5th March,

1951, of the High Court of judicature at Calcutta (Harries

C.J. and Banerjee J.) in Appeal from Original Decree No. 118

of 1950, arising out of the Judgment and Decree dated the

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15th June, 1950, of the said High Court in its Ordinary

Original Civil jurisdiction in Suit No. 2379 of 1948.

N.C. Chatterjee (S. N. Mukherjee, with him) for the

appellant.

N.N. Bose (A. K. Dutt, with him) for the respondent in

Civil Appeal No. 201 of 1952 and petitioner for special

leave.

408

M.C. Setalvad, Attorney-General for India, (B. Sen, with

him) for respondents Nos. 1, 2 and 3 in the petition for

special leave.

1953. November 16. The Judgment of the Court was

delivered by

BHAGWATI J.-This is an appeal on a certificate under

article 133(1) of the Constitution from a judgment and

decree passed by the Appellate Bench of the High Court of

Calcutta, modifying on appeal the judgment and decree passed

by Mr. Justice Bose on the original side of that court.

One Dwarka Nath Ghose was the owner of considerable

moveable and immoveable properties. On the 10th June, 1891,

he made and published his last will and testament whereby he

dedicated to this family idol Shree Shree Iswar Sridhar Jew

his two immoveable properties, to wit, premises No. 41 and

No. 40/1. Grey Street in the city of Calcutta. He

appointed his two sons Rajendra and Jogendra executors of Ms

will and provided that his second wife Golap Sundari and the

two sons Rajendra and jogendra should perform the seva of

the deity and on their death their heirs and successors

would be entitled to perform the seva.

Dwarka Nath died on the 16th March, 1892, leaving him

surviving his widow Golap Sundari and his two sons Rajendra

and Jogendra. On the 19th July, 1899, Rajendra made and

published his last will and, testament whereby he confirmed

the dedication made by Dwarka Nath with regard to premises

Nos. 41 and 40/1 Grey Street and appointed his brother

Jogendra the sole executor thereof. He died on the 31st

January,1900, and Jogendra obtained on the 24th April,

1900,. probate of his said will. Probate of the will of

Dwarka Nath was also obtained by jogendra on the 31st

August, 1909.

On the 4th September 1909, Bhupendra, Jnanendra. and

Nagendra, then a minor, the three sons of Rajendra filed a

suit, being Suit No. 969 of 1909,on the original side of the

High Court at Calcutta against Jogendra, Golap Sundari and

Padma Dassi, the widow of Sidheswar, another son of

Rajendra, for the

409

construction of the wills of Dwarka Nath and Rajendra, for

partition and other reliefs. The idol was not made a party

to this suit. The said suit was compromised and on the 24th

November, 1910, a consent decree was passed, whereby

jogendra and Golap Sundari gave up their rights to the

sevayatship and Bhupendra, Jnanendra and Nagendra became the

sevaits of the idol, a portion of the premises No. 41 Grey

Street was ;allotted to the branch of Rajendra and the

remaining portion was allotted to jogendra absolutely and in

consideration of a sum of Rs. 6,500 to be paid to the

plaintiffs, jogendra was declared entitled absolutely to the

premises No. 40/1 Grey Street. The portions allotted to

Jogendra were subsequently numbered 40/2-A Grey Street and

the portion of the premises No. 41 Grey Street allotted to

the branch of Rajendra was subsequently numbered 41-A Grey

Street.

Jogendra died on the 5th August, 1911, leaving a will

whereby he appointed his widow Sushilabala the executrix

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thereof. She obtained probate of the will on the 6th

August, 1912.

Disputes arose between Bhupendra, jnanendra and

Nagendra, the sons of Rajendra, and one Kedar Nath Ghosh was

appointed arbitrator to settle those disputes. The

arbitrator made his award dated the 12th October, 1920,

whereby he allotted premises No. 41-A Grey Street,

exclusively to Nagendra as his share of the family

properties. Nagendra thereafter executed several mortgages

of the said premises. The first mortgage was created by him

in favour of Snehalata Dutt on the 19th May, 1926. The

second mortgage was executed on the 4th June, 1926, and the

third mortgage on the 22nd February, 1927. On the 23rd

February, 1927, Nagendra executed a deed of settlement of

the said premises by which he appointed his wife Labanyalata

and his wife's brother Samarendra Nath Mitter trustees to

carry out the directions therein contained and in pursuance

of the deed of settlement he gave up possession of the said

premises in favour of the trustees.

Snehalata Dutt filed in the year 1929 a suit, being Suit

No. 1042 of 1929, against Nagendra, the trustees

410

under the said deed of settlement and the puisne mortgagees,

for realisation of the mortgage security,. A consent decree

was passed in the said suit on the 9th September, 1929.

Nagendra died in June, 1931, and the said premises were

ultimately put up for sale in execution of the mortgage

decree and were purchased on the 9th December, 1936, by Hari

Charan Dutt, Hari Pada Dutt and Durga Charan Dutt for a sum

of Rs. 19,000. A petition made by the purchasers on the

12th January, 1937, for setting aside the sale was rejected

by the court on the 15th March, 1937. Haripada Dutt -died

on the 3rd June, 1941, leaving him surviving his three sons,

Pashupati Nath Dutt, Shambhunath Dutt and Kashinath Dutt,

the appellants before us. Haricharan Dutt conveyed Ms one

third share in the premises to them on the 4th

March,1944, and Durga Charan Dutt conveyed his one-third

share to them on the 3rd May, 1946. They thus became

entitled to the whole of the premises which had been

purchased at the auction sale held on the 9th December,

1936.

On the 19th July, 1948, the family idol of Dwarka Nath,

Sree Sree Iswar Sridhar Jew, by its next friend Debabrata

Ghosh, the son of Nagendra, filed the suit, out of which the

present appeal arises, against the appellants as, also

against Susilabala and the two sons of Jogendra by her,

amongst others, for a declaration that the premises Nos. 41-

A and 40/2-A Grey Street, were its absolute properties and

for possession thereof, for a declaration that the consent

decree dated the 24th November, 1910, in Suit No. 969 of

1909 and the award dated the 12th October, 1920, and the

dealings made by the heirs of jogendra and/or Rajendra

relating to the said premises or any of them purporting to

affect its rights in the said premises were invalid and

inoperative in law and not binding on it, for an account of

the dealings with the said premises, for a scheme of

management of the debutter properties and for its worship,

for discovery, receiver, injunction and costs.

411

Written statements were filed by the appellants and by

Susilabala and the two sons of Jogendra denying the claims

of the idol and contending inter alia that there was no

valid or absolute dedication of the suit properties I to the

idol and that the said premises had been respectively

acquired by them by adverse possession and that the title of

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the idol thereto had been extinguished.

The said suit was heard by Mr. Justice Bose who declared

the premises No. 41-A Grey Street to be the absolute

property of the idol and made the other declarations in

favour of the idol as prayed for. The idol was declared

entitled to possession of the said premises with mesne

profits for three years prior to the institution of the suit

till delivery of possession, but was ordered to pay as a

condition for recovery of possession of the said premises a

sum of Rs. 19,000 to the appellants with interest thereon at

the rate of 6 per cent. per annum from the 19th July, 1945,

till payment or till the said sum was deposited in court to

the credit of the suit. The learned judge however dismissed

the suit of the idol in regard to the premises No. 40/2-A

Grey Street as, in his opinion, Sushilabala as executrix to

her husband's estate and her two sons had acquired title to

the said premises by adverse possession and the title of the

idol thereto had been extinguished.

The appellants filed on the 18th August, 1950, an appeal

against this judgment being Appeal No. 118 of 1950. The

idol filed on the 20th November, 1950, cross-objections

against the decree for Rs. 19,000 and interest thereon as

also the dismissal of the suit in regard to the premises No.

40/2-A Grey Street. The appeal, and the cross-objections

came on for hearing before Harries C. J. and S. N. Banerjee

J., who delivered judgment on the 5th March, 1951,

dismissing the said appeal and allowing the cross-objection

in regard to Rs. 19,000 filed by the idol against the

appellants. In regard however to the cross-objection

relating to premises No. 40/2-A Grey Street which was

directed against Sushilabala and the two sons of jogendra

the

412

learned judges held- that the cross-objection against the

co-respondents was not maintainable and dismissed the same

with costs.

The appellants filed on the 31st May, 1951, an appli-

cation for leave to prefer an appeal to this court against

the said judgment and decree of the High Court at Calcutta.

A certificate under article 133(1) of the Constitution was

granted on the 4th June, 1951, and the High Court admitted

the appeal finally on the 6th August, 1951. On the 22nd

November, 1951, the idol applied to the High Court for leave

to file cross-objections against that part of the judgment

and decree of the High Court,which dismissed its claims with

regard to the premises No.40/2-A Grey Street. The High

Court rejected the said application stating that there was

no rule allowing cross-objections in the Supreme Court.The

said cross-objections were however printed as additional

record,

By an order made by this court on the 24th May, 1953, the

petition of the idol for filing cross-objections in this

court was allowed to be treated as a petition for special

leave to appeal against that part of the decree which was

against it, subject to any question as to limitation. The

appeal as also the petition for special leave to appeal

mentioned above came on for hearing and final disposal

before us. The appeal was argued but so far as the petition

for special leave to appeal was concerned the parties came

to an agreement whereby the idol asked for leave to withdraw

the petition on certain terms recorded between the parties.

The petition for special leave was therefore allowed to be

withdrawn and no objection now survives in regard to the

decree passed by the trial court dismissing the idol's claim

to the premises, No. 40/2-A Grey Street. The appeal is

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concerned only with the premises No. 41-A Grey Street.

It was contended on behalf of the appellants that the,

dedication of the premises NO. 41 Grey Street made by Dwarka

Nath under the terms of his will was a. partial dedication,

and that his sons Rajendra and jogendra and his widow Golap

Sundari, who were

413

appointed sevayats of the idol were competent to deal with

premises No. 41 Grey Street after making the due provision

for the idol as they purported to do by the terms of

settlement, dated the 24th November, 1910. It was further

contended that Nagendra, by -virtue of the award dated the

12th October, 1920, claimed to be absolutely entitled to the

premises No. 41-A Grey Street and that his possession of the

said premises thereafter became adverse which adverse

possession continued for upwards of 12 years extinguishing

the right of the idol to the said premises.

The first contention of the appellants is clearly un-

tenable on the very language of the will of Dwarka Nath.

Clause 3 of the said will provided

"With a view to provide a permanent habitation for the

said deity, I do by means of this will, dedicate the

aforesaid immovable property the said house No. 41 Grey

Street together with land thereunder to the said Sri Sri

Issur Sridhar Jew. With a view to provide for the expenses

of his daily (and) periodical Sheba and festivals, etc. The

3 1/2 Cattahs (three and half Cattahs) of rent free land

more or less that I have -on that very Grey Street No.

40/1.......his also I dedicate to the Sheba of the said Sri

Sri Sridhar Jew Salagram Sila Thakur. On my demise none of

my heirs and representatives shall ever be competent to

take the income of the said land No. 40/1 and spend (the

same)for household expenses. If there be any surplus

left after defraying the Debsheba expenses the same shall be

credited to the said Sridhar Jew Thakur's fund and with the

amount so deposited repairs, etc; from time to time will be

effected to the said house No. 41 with a view to preserve it

and the taxes etc., in respect of the said two properties

will be paid. . . ...... For the purpose of the carrying on

the daily (and) periodical sheba and the festivals, etc. of

the said Sri Issur Sridhar Jew Salagram Sila Thakur my said

,second wife Srimati Golap Moni Dasi, and 1st Sriman

Rajendara Nath and 2nd, Sriman Jogendra Nath Ghose born of

the womb of my first wife on living in the said house No. 41

Grey Street dedicated by me shall

414

properly and agreeably to each other perform the sheba.

etc., of the said Sri Sri Issur Sridhar Jew Salagram Sila

Thakur and on the death of my said two sons their

representatives, successors and heirs shall successively

perform the sheba in the aforesaid manner and the executors

appointed by this will of mine having got the said two

properties registered in the Calcutta Municipality in the

name of the said Sri Sri Issur Sridhar Jew Thakur shall pay

the municipal taxes, etc.' and shall take the municipal

bills in his name. None of my representatives heirs,

successors, executors, administrators or assigns shall have

any manner of interest in or right to the said two debutter

properties and no one shall ever be competent to give away

or effect sale, mortgage or in respect of the said two

properties nor shall the said two properties, be sold on

account of the debts of any one."

It is quite true,that a dedication may be either

absolute or partial. The property may be given out and

out to the idol, or it may be subjected to a charge in

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favour of the idol. "The question whether the idol itself

shall be considered the true beneficiary, subject to a

charge in favour of the heirs or specified relatives of the

testator for their upkeep, or that, on the other hand, these

heirs shall be considered the true beneficiaries of the

property, subject to a charge for the upkeep, worship and

expenses of the idol, is a question which can only be

settled by a conspectus of the entire provisions of the

will": Pande Har Narayan v. Surja Kunwari(1).

What we find here in clause 3 of the will is an absolute

dedication of the premises No. 41 Grey Street to the idol as

its permanent habitation with only the right given to the

sevayats to reside in the said premises for the purposes of

carrying on the daily and periodical seva and the festivals,

etc., of the deity. The said premises are expressly

declared as dedicated to the deity. They are to be

registered in the municipal records in the name of the

deity, the municipal bills have got to be taken also in his

name and none of the

(1) [1921] L. R. 48 I. A. 143, 145, 146.,

415

testator's representatives, heirs, successors, executors,

administrators or assigns is to have any manner of interest

in or right to the said premises or is to be competent to

give away or effect sale, mortgage, etc., of the said

premises. There is thus a clear indication of the intention

of the testator to absolutely dedicate the said premises to

the deity and it is impossible to urge that there was a

partial dedication of the premises to the deity. The only

thing which was urged by Shri N. C. Chatterjee in support of

his contention was that the right to reside in the premises

was given to the sevayats and that according to him

detracted from the absolute character of the dedication.

This argument however cannot avail the appellants. It was

observed by Lord Buckmaster in delivering the judgment of

the Privy Council in Gnanendra Nath Das v. Surendra Nath

Das (1):

"In that case it is provided that the shebait for the

time being shall be entitled to reside with his family in

the said dwelling-house, but the dwelling-house itself is

the place specially set apart for the family idols to which

specific reference is made in the will, and in their

Lordships' opinion the gift is only a perfectly reasonable

arrangement to secure that the man in whose hands the

supervision of the whole estate is vested should have

associated with his duties the right to reside in this named

dwelling place."

The first contention of the appellants therefore fails

and we hold that the dedication of the premises No. 41 Grey,

Street to the idol was an absolute dedication.

As regards the second contention, viz., the adverse

possession of Nagendra, it is to be noted that under the

terms of clause 3 of the will of Dwarka Nath the

representatives, successors and heirs of his two sons

Rajendra and Jogendra were successively to perform the seva

in the manner therein mentioned and Nagendra was one of the

heirs and legal representatives Of Rajendra. He was no

doubt a minor on the 24th November, 1910, when the terms of

settlement were arrived at between the parties to the suit

No. 969 of

(1) (1920) 24 C.W.N. 1926 at p. 1030.

416

1909. His two elder brothers Jnanendra and Bhupendra were

declared to be the then sevayats, but a right was reserved

to Nagendra to join with them as a sevayat on, his attaining

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majority. So far as Nagendra is concerned there is a clear

finding of fact recorded by Mr. Justice Bose on a specific

issue raised in that behalf, viz, "Did Nagendra act as

shebait of the plaintiff deity under the wills of Dwarka

Nath Ghosh and Rajendra Nath Ghosh ?" that he did act as

such shebait and that his possession of the premises No. 41A

Grey Street was referable to possession on behalf of the

idol, This finding was not challenged in the appeal court

and it is too late to challenge the same before us. If

Nagendra was thus a sevayat of the idol it could not be

urged that his possession could in any manner whatever be

adverse to the idol and his dealings with the said premises

in the manner he purported to do after the 12th October,

1920, could not be evidence of any adverse possession

against the idol. The position of the sevayat and the

effect of his dealings with the property dedicated to the

idol has been expounded by Rankin C.J. in Surendrakrishna

Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (1) :-

"But, in the present case, we have to see whether the

possession of two joint shebaits becomes adverse to the idol

when they openly claim to divide the property between them.

The fact of their possession is in accordance with the

idol's title, and the question is whether the change made by

them, in the intention with which they hold, evidenced by an

application of the rents and profits to their own purposes

and other acts, extinguishes the idol's right. I am quite

unable to hold that it does, because such a change of inten-

tion can only be brought home to the idol by means of the

shebait's knowledge and the idol can only react to it by the

shebait. Adverse possession,in such circumstances is a

notion almost void of content. True, any heir or perhaps

any descendant of the founder can bring a suit. against the

shebaits on the idol's behalf and, in the present case, it

may be said that the acts of the shebaits must have I been

notorious in the family.

(1) (I 933) 60 Cal 54 at 7 7

417

But such persons have no legal duty to protect the

endowment and, until the shebait is removed or controlled by

the court, he alone can act for the idol."

We are in perfect accord with the observations made by

Rankin C.J. If a shebait by acting contrary to the terms of

his appointment or in breach of his duty as such shebait

could claim adverse possession of the dedicated property

against the idol it would be putting a premium on dishonesty

and breach of duty on his part and no property which is

dedicated to an idol would ever be safe. The shebait for

the time being is the only person competent to safeguard the

interests of the idol, his possession of the dedicated

property is the possession of the idol whose sevait he is,

and no dealing -of his with the property dedicated to the

idol could afford the basis of a claim by him for adverse

possession of the property against the idol. No shebait

can, so long as he continues to be the sevait, ever claim

adverse possession against the idol. Neither Nagendra nor

the appellants who derive their title from the auction sale

held on the 9th December, 1936, could therefore claim to

have perfected their title to the premises No. 41-A Grey

Street by adverse possession. The second contention of the

appellants also therefore fails.

The further contention urged on behalf of the appellants

in regard to the disallowance of the sum of Rs. 19,000 by

the appeal court could not be and was not seriously pressed

before us and does not require any consideration.

The result therefore is that the appeal fails and must

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stand dismissed with costs.

Appeal dismissed.

Agent for the appellant : P. K. Chatterice.

Agent for the respondent No. 1 in the appeal and the

petitioner, in the petition for special leave :

Sukumar Ghose.

Agent, for the respondents Nos. 1, 2 & 3 in the petition for

special leave : P. K. Ghose.

418