Case: Profulla Chorone Requitte &amp; Ors Vs. Satya Chorone Requitte

family idol to whom the property was absolutely dedicated. The testator did not create a trust estate in the sense in which it is understood in English law. 44. The above-quoted provisions from the wills further show that no rights to act as ministrant of the idol were conferred upon the trustees. On the other hand, a mere obligation to hold and use the property for the endowment indicated was imposed upon the persons designated as trustees. 45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property. 46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law. 47. In arriving at the conclusion that in spite of the interposition of the trust, the founder by his will left the shebaitship undisposed of, and as such, the defendant also, under Hindu law, became one of the shebaits, we are fortified by the inference arising out of the facts admitted by no less a witness than plaintiff 3, Satish Chandra Dass, himself, who alone deposed for the plaintiffs. Though he claimed that there were no shebaits of the deities and the trustees were managing the shebas, he categorically admitted the following facts : (a) "The disputed house is a big house", having 84-85 rooms. "It is the only family dwelling house" of the sons and grandsons of Durga Chorone Requitte, who live in it, while "the deity is installed in room 66 in the first floor". (b) The inmates of the disputed house, as far as practicable, look after the bath of the deity as also the preparation of Naibedya (tray containing the offerings) and Bhog (food) of the deity. 48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants. 49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder. 50. Assuming for the sake of argument, that the trustees were also vested with the rights and obligations of a shebait, then also, the evidence on the record shows that those trustees who were not descendants of the founder, Durga Chorone Requitte, never acted as such. They went out of the picture long ago and must be presumed to have renounced their shebaiti rights in favour of their co-shebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to the accommodation in their residential occupation. Thereupon, the trustees agreed with the descendants of the founder by means of the agreement (Ex. E) to refer the dispute to the sole arbitration of Shri Bhringeswar Sreemany. The arbitrator, inter alia, held that the heirs of late Durga Chorone Requitte and his descendants alone had the right to act as shebaits. There is documentary evidence on the record to show that this award (Ex. G) given by the arbitrator was accepted by the trustees. The present plaintiffs-appellants, by their letter dated June 18, 1950 (Ex. A/7), asserted their rights on the basis of this award and described the defendant-respondent as shebait of the deity. The letters (Exs. A-8 and A-10) also point to the same conclusion. 51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid. 52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone. 53. In the view we take, it is not necessary to decide whether the trust created by the will of Durga Chorone Requitte was a continuing trust or not, or whether the mode of devolution of the office of trustees indicated by the founder in his will, was or was not hit by the rule in Tagore v. Tagore (supra).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]34. It may be observed that this will, in English, appears to have been drafted in pursuance of legal advice by an expert draftsman. The omission of the words "management", "manager", "custodian of the idol" or "ministrant of the idol" from the will, therefore, cannot but be intentional35. It seems clear to us that the underlined (Herein given in bold) words in the above extract, by themselves, merely create a trust or endowment and indicate the nature and purpose of the endowment. These words do not touch or deal with shebaiti rights. This inference receives support from the surrounding circumstances39. Thus construed conjointly, the two wills make it clear that although the entire family house, comprising 84 or 85 rooms, at Chandernagore was formally endowed to the family idol, yet the testators intention was that his heirs and descendants would also be entitled to use this house as their family dwelling house, apart from the room wherein the idol was enshrined41. The aforesaid provisions further show that although the trustees were provided with the funds for the sewa puja of the family deity and for other festivals out of the estate left by the testator, but they were not expressly constituted as shebaits of the deity. It will, therefore, be not unreasonable to infer that the intention of the testator was that these funds would be expended for the purposes indicated by him, through the shebaits45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone.