Civil Appeal No 1118 of 1972 Appeal by Special Leave from the Judgment and Order dated 18 1 72 of the Jammu and Kashmir High Court in LPA No 6 of 1969 LN Sinha Satish Gupta KJ John and PP Singh for the appellant RK Bhat and DC Anand for respondent 1B 1K
The Judgment of the Court was delivered by KOSHAL J
This appeal by special leave has arisen out of a suit brought by Smt
Punna respondent No 1 against the two appellants and respondent No 2 for the issuance of a perpetual injunction restraining the three defendants from interfering with her right to recover her father s share of six annas in a rupee in the offerings made 211 at the sacred shrine of Shri Vaishno Devi Ji which is situated on the Trikutta Hills
The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge in a second appeal by a learned Single Judge of the High Court of Jammu  Kashmir and in a Letters Patent Appeal by a Full Bench of that Court
It is the judgment of the Full Bench which is dated the 18th of January 1972 that is impugned before us
The averments made in the plaint may be summarised thus
The plaintiff is the daughter of one Bagu who died in or about the year 1959
During his life time Bagu and the three defendants were entitled to receive the offerings made at the shrine of Shri Vaishno Devi Ji on certain days falling within every seventh Bikrami year so that Bagu would have 616th share therein and the defendants collectively a similar share
After the death of the plaintiff s father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019 the plaintiff having succeeded to the share of her father both under the law of inheritance and by virtue of a will executed by him in her favour
The plaintiff had to resort to the suit as the defendants had started interfering with her right to collect her share of the offerings
The defendants contested the suit
They challenged the will set up by the plaintiff as a forged one and further pleaded that only members of four sub castes namely Khas Thakars Darora Thakars Manotra Thakars and Samnotra Brahmins were entitled to receive the offerings and that while Bagu was entitled to a share in the same the plaintiff was not as she had lost her original sub caste by marriage outside the four sub castes mentioned above
The offerings according to the defendants were also not liable to devolve by inheritance or demise
The findings arrived at by the trial court were these i On the death of a baridar which expression when literally translated means turn holder belonging to any of the aforementioned sub castes his heirs inherited his right to receive offerings just as they inherited his other property
ii Under section 4 of the Hindu Succession Act any custom or usage inconsistent with the provisions of that Act becomes ineffective
iiiEven under section 6 of the Hindu Succession Act read with the Schedule appended therto the pro 212 perty of Bagu would devolve on the plaintiff in case Bagu died intestate
iv Gagu executed a valid will in favour of the plaintiff devising to her the right to receive the offerings apart from other properties
v The plaintiff was entitled in view of the above four findings to inherit the right to receive offerings not only by reason of the provision of sections 4 and 6 of the Hindu Succession Act but also because of the will
5 At the hearing of the Letters Patent Appeal by the Full Bench the following four contentions were raised on behalf of the defendants i The chance of future worshippers making offerings to the deity is a mere possibility of the nature referred to in clause a of section 6 of the Transfer of Property Act and is not property which can be transferred or inherited
ii The right to receive offerings is not a transferable or heritable right
iiiThe provisions of the Hindu Succession Act do not apply to the case in hand
iv According to the custom governing the shrine of Shri Vaishno Devi Ji only the abovementioned four subcastes were entitled to share the offerings
All these contentious were rejected by the Full Bench as untenable
In regard to the first of them the Full Bench followed Balmukand and Others vs Tula Ram and Others in which it was held that the right to receive offerings when made is a definite and fixed right and does not depend on any possibility of the nature referred to in clause a of section 6 of the Transfer of Property Act because the fact that offerings whether large or small are bound to be made is a certainty
In relation to the second contention the Full Bench noted the contents of paragraph 422 of Principles of Hindu Law by Mulla which states inter alia that where offerings though made to idols are received by persons independently of any obligation to render ser 213 vices they are alienable and attachable
Reference in this connection was also made to Balmukand and Others vs Tulla Ram and Others supra wherein the following passage occurs but when the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of a personal nature such as officiating at the worship we are unable to discover any justification for holding that such a right is not transferable
That the right to receive the offerings when made is a valuable right and is property admits of no doubt and therefore that right must in view of the provisions of section 6 of Transfer of Property Act be held to be transferable unless its transfer is prohibited by the Transfer of Property Act or any other law for the time being in force
 In view of these observations which were adopted and followed in Nand Kumar Dutt vs Ganesh Dass the Full Bench being in agreement therewith proceeded to determine whether the right to receive the offerings in the present case was or was not independent of services of a priestly or personal nature
The following translation of an extract from the Wajib ul Arz relating to village Purana Daiur wherein the holy shrine is situated was then taken up for consideration  Leaving aside cash whatever is the Charatth  at the temples of Ad Kanwari  and Sri Trikutta Devi  the entire Darora community distributes that among itself and of  other attached areas of Pangal Sarron Batan Kotli Gran Parhtal etc
according to hereditary shares
And the castes Thakar Khas  and Minotra  are included in it
Darora caste take two shares and Manotra and Khas castes also take one equal share of Charatth 
That is divided as per hereditary shares
There is no service in lieu thereof
Only it is described as the blessings of Goddess
Rupees twenty one hundred two thousand one hundred rupees go to the Government
Every baridar keeps his man present in the temple who receives the Charatth 
Pujaries get pay from us and it was interpreted to mean that the right to share in the offerings made at the holy shrine had no connection with any priestly functions or with other services involving qualifications of a personal nature and therefore was a heritable as well as allenable right
This very con 214 clusion was reached by the Full Bench on a consideration of the deposition of the Patwari of the concerned circle and the Ain i Dharamarth which purports to be the constitution of a Board of Trustees appointed by the State to manage the shrine
In relation to the third contention the Full Bench noted that the properties to which the Hindu Succession Act does not apply are only those which find enumeration in section 5 thereof that the right to share the offerings is not one of those properties and that therefore such a right could not but be governed by the provisions of the Act
In repelling the last contention the Full Bench relied upon the provisions of the Hindu Succession Act which over rides all customs or usage being part of the Hindu Law as in force immediately prior to the commencement of the Act and concluded that the custom of the right to share in the offerings being restricted to members of the four sub castes abovementioned could not be given effect to and that the plaintiff was fully entitled to succeed to that right in spite of the fact that she did not belong to any of those sub castes
It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench
At the very outset Mr LN Sinha learned counsel for the appellant has drawn our attention to the fact that the extract from the Wajib ul Arz taken note of by the Full Bench of the High Court relates not to the temple of Shri Vaishno Devi Ji but to a couple of other temples situated in its vicinity namely the temples of Ad Kanwari  and Sri Trikutta Devi  and has urged that the extract could not possibly relate to the temple of Shri Vaishno Devi Ji which was the main temple in the complex and a reference to which could not have been omitted from the extract in case it was intended to apply to that temple also
A careful perusal of the extract shows that Mr Sinha s contention is well founded because there is not so much as a hint to the main temple in the extract
According to Mr Sinha the duties to which the right to share the offerings is subject are detailed in the settlement record prepared for village Daiur Shri Vaishno Devi Ji for the year 1965 66 Bikrami and a resolution passed by the Dharamarth Committee on Sawan 27 1983 Bikrami
These documents may be set out in extenso Settlement Record In the column of ownership the State is entered as owner in the column of possession Dharmarth Trust entered as in possession Mandir Gupha  situate on land compris 215 ing 7 marlas bearing Khasra No 166 and Bhawan  situate on land comprising 4 marlas bearing Khasra No 167
The sub caste Thakar Darora Manotra Khas and Brahmin Samnotra have been sharing the offerings according to the shares mentioned below from the very beginning
Thakar Daroras and Brahmin Samnotra are entitled to three shares and one share respectively out of 23 of the total offerings whereas Thakar Manotras and Khas are entitled to share equally in the rest 13 of the total offerings Darora Thakars are sub divided into further four subcastes namely i Darora Sunk ii Darora Jaga iii Darora Pai and iv Darora Deoch and each one of them has one equal share
Similarly Brahmin Samnotra have also divided their share into four shares which are received as under Samnotra Brahmins from the branch of Darya  one share Brahmins from the branch of Bairaj  one share Brahmins from the branch of Gobind  one share and Brahmins from the branch of Ganesh  one share
Therefore Darora Sunk  and Samnotras from the branch of Bairaj  have their turn together in the one year and they divide the offerings for that in the proportion of 31 ie 3 shares of Darora Sunk and 1 share to Samnotras from the branch of Bairaj
Similarly Brahmins from the branch of Darya  have their turn with Darora Jaga  Brahmins from the branch of Ganesh  with Darora Parath  and Brahmins from the branch of Ganesh  with Darora Deoch  and Brahmins in each case receive 14th share and Darora Thakars have 34th share
In the beginning nothing was taken from these persons baridaran in consideration of their receiving the offering
But because the Sadhus would often go to the shrine and due to the mismanagement of their stay and meals over there there were always riots at the shrine
Therefore in the year 1907 Bikrami during the regime of Maharaja Gulab Singh an amount of Rs 1150 was fixed as Aian  to be paid by the baridars for the management of stay and meals for Sadhus at the shrine
The said amount was to be deposited in the State Treasury
Thereafter in 1920 Bikrami another hundred rupees were added to the above said amount and thenceforth Rs 1250 were fixed per annum which was being deposited in the State Treasury
After 1940 Bikrami the said 216 amount of Rs 1250 was being deposited with the Dharmarth Trust and this continues till today
The said amount is recovered from Thakar sub castes
Besides this so many other things such as silk chunis etc are received from the said Thakar baridars
Thakar baridars are also liable to provide three permanent servants and six more peons during the season and will be liable to pay them
The said Thakars are liable to arrange the carriage and pay for the Parshad  etc from Katra to Vaishno Devi temple
With regard to the cattle kept by the Dharmarth Trustees the said Thakars are liable to arrange for taking them from one place to another
If any Government servant visits the shrine the said Thakars will be liable to arrange for the carriage of his luggage etc
The said Thakars are also liable to perform the following duties 1 Cleanliness of the Gupha Vaishno Devi temple and the compound appurtenant thereto
2 To carry Puja material inside the Gupha temple along with the Pujari
3 If during mela season there is any trouble to any pilgrim or he becomes sick etc the said Thakars are liable to make proper arrangements for the removal of any such trouble
 RESOLUTION OF THE DHARMARTH COMMITTEE a Dharmarth Trust shall charge its usual Aian rent from the baridaran which shall be paid by them before they distribute their share of the offering
The baridar who refuses or avoids the payment of rent to Dharmarth shall not be entitled to receive his share of the offering and the same shall be attached and deposited with the manager Dharmarth Trust
The baridar whose share has been thus attached can receive his share on payment of the rent due to the Dharmarth Trust b Unanimously it is passed that the strangers or persons other than baridars ie four sub castes shall have no right to get the Puja performed in the shrine c In case any baridar or his legal representative due to any reason cannot attend in person then it will be the duty of other co sharer to deposit the absentee s share with 217 the Manager Dharmarth Trust and when that baridar comes present the Manager Dharmarth Trust shall after deducting the due if any from him to the Dharmarth pay his share to him
The baridaran shall be bound to perform the duties such as Kah Kunda Argi etc
as being performed by them previously
 According to these documents the right to share the offerings is restricted to members of the four sub castes abovementioned and although to begin with baridars did not perform any duties in return certain obligations were superimposed on the right from the year 1907 Bikarmi onwards
Those obligations are a A duty to deposit a fixed annual sum with the Dharmarth Trust to be spent on arrangements for lodging and boarding of Sadhus visiting the shrine
b To provide three permanent servants in addition to six peons during the season
c To pay for the prasad  and to arrange its transport from Katra to Vaishno Devi temple
d To arrange for the cattle owned by the Dharmarth Trust being taken from one place to another
e To arrange for the carriage of the luggage of Government servants visiting the shrine
f To keep the temple and the compound appurtenant thereto in a state of cleanliness
g To carry inside the temple the material required for worship by the priest
h To look after visitors to the shrine who fall ill and to make proper arrangements for the restoration or their health
There is thus no doubt that the right to receive a share in the offerings is subject to the performance of onerous duties
But then it is apparent that none of those duties is in nature priestly or requiring a personal qualification
On the other hand all of them are of a non religious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense
If the baridar chooses to perform those duties personally he is at liberty to do so
But then the obligation extends merely to the making of necessary arrangements which may be secured on payment 218 of money to others the actual physical or mental effort involved being undertaken by those others
The right is therefore a transferable right as envisaged in the passage above extracted from Balmukand and other vs Tula Ram and others supra which has not been challenged before us as erroneous and which we regard as laying down the law correctly
The contentions raised by Mr Sinha to the contrary is thus repelled
Another challenge made by Mr Sinha to the impugned judgment is that the right to share offerings coupled with the duties to which it was subject must in its totality be regarded as an office like that of a shebait only and not as property and that therefore no question of its heritability could arise
In this connection reference was made to the following observations made by Mukherjea J who delivered the judgment of the majority of this Court in Angurbala Mullick vs Debabrata Mullick In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager
 There is nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge
On the other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and it would not be correct therefore to look at the right of the baridars in the light of the rights and duties of a shebait
However it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities it carries with it a definite right to property
This is a proposition on which emphasis was laid by this Court in Angurbala s case supra itself
Mukherjea J observed in this connection But though a shebait is a manager and not a trustee in the technical sense it would not be correct to describe the shebtaitship as a mere office
The shebait has not only duties to discharge in connection with the endowment but he has a beneficial interest in the debutter property
As the Judicial Committee observed in the above case in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage
Even 219 where no emoluments are attached to the office of the shebait he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right
Thus in the conception of shebaiti both the elements of office and property of duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other
It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property
This was elaborately discussed by a Full Bench of the Calcutta High Court in Monohar Mukherji vs Bhupendra Nath Mukherji and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur vs Lal Behary and again in Bhabatarini vs Ashalata
The effect of the first two decisions as the Privy Council pointed out in the last case was to emphasise the proprietary element in the shebaiti right and to show that though in some respects anomalous it was an anomaly to be accepted as having been admitted into Hindu Law from an early date According to Hindu law observed Lord Hobhouse in Gossamee Sree Greedharreejee vs Rumanlollji Gossammee when the worship of a Thakoor has been founded the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise or there has been some usase course of dealing or some circumstances to show a different dealing or some circumstances to show a different mode of devolution
 Unless therefore the founder has disposed of the shebaitship in any particular manner and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist shebaitship like any other species of heritable property follows the line of inheritance from the founder
 Angurbala s case was followed by this Court in a recent decision reported as Ram Rattan vs Bajrang Lal  Others wherein Desai J who delivered the judgment of the Court observed 220 In the conception of shebait both the elements of office and property duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other
Old texts one of the principal sources of Hindu law and the commentaries thereon and over a century the Courts with very few exceptions have recognised hereditary office of shebait as immovable property and it has all along been treated as immovable property almost uniformly
While examining the nature and character of an office as envisaged by Hindu law it would be correct to accept and designate it in the same manner as has been done by the Hindu law text writers and accepted by courts over a long period
It is therefore safe to conclude that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property These observations as also those made in Angurbala s case and extracted above demolish the contention of Mr Sinha that shebaitship is nothing more or less than an office and is not heritable property
The right to share the offerings being a right coupled with duties other than those involving personal qualifications and therefore being heritable property it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of section 4 of that Act Sub section 1 of which state a Save as otherwise expressly provided in this Act any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act b any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provision s contained in this Act
 The requirements of the custom relied upon by the appellants to the effect that the right could not be exercised by a person who is not a member of any of the four sub castes mentioned above becomes wholly ineffective in view of these provisions being contrary to the 221 order of succession laid down in Chapter II of the Hindu Succession Act under which the right devolves on the plaintiff respondent
The only contention raised by Mr Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to a decree
This contention must be repelled for the simple reason that it was not raised before the High Court
Besides there being no repudiation on her part of the obligations to render the services abovementioned her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point
In the result the appeal fails and is dismissed but the parties are left to bear their own costs throughout
PBR Appeal dismissed


Summary:
The plaintiff s respondent s father and the defendants appellants were entitled to receive a defined share in the offerings made at a holy shrine
On her father s death the plaintiff claimed his share in the offerings alleging that both under the law of inheritance and by virtue of her father s will executed in her favour she was entitled to his share but the defendants interfered with her right to collect that share
In the plaintiff s suit the defendants contended that only members belonging to four specified sub castes were entitled to receive the offerings and the plaintiff having lost her sub caste by reason of her marriage outside those sub castes she was not entitled to her father s share
But this argument was rejected by the trial court which held that on the death of the baridar turnholder his heirs inherited his right to receive offerings just as they inherited his other property and that therefore the plaintiff was entitled to the offerings both under the Hindu Succession Act and the will executed by her father
On appeal a Division Bench of the High Court held that where offerings were received by persons independently of any obligation to render services they were alienable and attachable and that the custom which restricted the right to a share in the offerings only to members of the four specified subcastes could not be given effect to in view of the provisions of the Hindu Succession Act and that therefore the plaintiff was entitled to succeed to the right though she did not belong to any of the sub castes
On further appeal to this Court it was contended on behalf of the appellant that 1 the right of the baridar was not a transferable right and 2 the right to a share in the offerings and the duties attached to it must be regarded as an office like that of a shebait and cannot be regarded as heritable property
Dismissing the appeal  HELD The right of the baridar was a transferable right
To begin with the right to a share in the offerings according to the settlement record prepared for the village and a resolution passed by the Dharmarth Committee was restricted to the four sub castes and similarly the baridars did not perform any duties in return
Sometime later however certain obligations such as to provide permanent servants to look after visitors and the like were superimposed on that right
Though the right to receive a share in the offerings was subject to the performance of those duties none of them 210 was in nature priestly or required a personal qualification
All of them were of a non religious or secular character which could be performed by the baridar s agents or servants incurring expense on his account
When the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of personal nature such as officiating the worship such a right is heritable as well as alienable
217 B H Balmukand  ors
vs Tula Ram  ors AIR 1928 All 721 approved
a The right of the baridars cannot be equated with the right and duties of a shebait
The baridars were not managers of the shrine in the sense that a shebait is in relation to a temple in his charge
The overall management of the temple vested in the Board of Trustees known as Dharmarth Committee
218 E b It is not correct to say that shebaitship is neither more nor less than an office and is not heritable property
Shebaitship cannot be described as a mere office
In addition to certain responsibilities it carries with it a definite right to property
It is well established that in the concept of Shebait both the elements of office and property duties and personal interest are mixed up and one element cannot be detached from the other
Old texts as courts have recognised heriditary office of shebaitship as immovable property
A B Angurbala Mullick vs Debabrata Mullick  Ram Rattan vs Bajrang Lal  ors  followed
The right to share the offerings being a right coupled with duties other than those involving personal qualifications and being heritable property it will descend in accordance with the dictates of the Hindu Succession Act in supersession of all customs to the contrary in view of section 4 of that Act
220 H In the instant case in the light of section 4 of the Hindu Succession Act the requirement that the right could not be exercised by a person not belonging to any of the four sub castes becomes ineffective
220 H