Case: Kali Kinkor Ganguly Vs. Panna Banerjee And Ors

Such transfer was said to amount to delegation of delegated authority and could not be sanctioned even on the footing of a custom because it would be against public policy.16. The doctrine in Raja Vurmahs case (supra) has been applied on transactions by way of lease or mortgage. In Sunderambal v. Yogavanagurukkal ILR 38 Mad 850 = (AIR 1915 Mad 561 ) one of the parties alienated half share in the Archaka right for a pecuniary benefit. It was said that "an alienation of a religious office by which the alienor gets a pecuniary benefit cannot be upheld even if a custom is set up sanctioning such alienation.17. The rule against alienation of shebaiti right has been relaxed by reason of certain special circumstances. These are classified by Dr. B. K. Mukherjea at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, 1st edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.18. In the present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interest of the deity and to meet some pressing necessity.19. The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebaits is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at his death (See Rajeswar v. Gopeswar, (1908) ILR 35 Cal 226). The decisions in Mahammayas case and Khetra Chandra Ghoshs case (supra) do not support the appellants contention of sale of shebaiti right for pecuniary consideration. A shebait cannot delegate his duties to another person, but he is not bound to accept his office. If he renounces his duties the renunciation in the form of a transfer in favour of the next heir can be valid in law.20. In Khetra Chandra Ghoshs case (supra) on which the appellant relied in support of the assignment of shebaiti right on the doctrine of benefit to the deity the question was whether the Ghoshes who were the shebaits of a private family endowment could make over the idol together with the endowed property to the predecessors of the plaintiff in that case on the ground that the Ghoshes were unable to carry on the worship of the idol with the income of the Debutter. Dr. B. K. Mukherjea at pages 236-239 in his Tagore Law Lectures 1st Edition examined various decisions on this aspect. In Khetra Chandra Ghoshs case (supra) the Court relied on the decision of the Judicial Committee in Prosanna Kumari v. Golap Chand. (1874-75) 2 Ind App 145 (PC) where the Judicial Committee said that a shebait must, of necessity, be empowered to do whatever might be required for the services of the idol and for benefit and preservation of the property. The ratio in Khetra Chandra Ghoshs case (supra) is that all the members of the Ghosh family, for the purpose of preserving the property of idol and preventing the discontinuance of its worship gave the estate another direction.21. In Rajeswar v. Gopeswar case (supra) the doctrine of necessity or benefit to the deity was referred to. The actual decision in the case was that a hereditary shebait cannot alienate his office by will.22. In Nirmal Chandra v. Jyoti Prasad 42 Cal WN 1138 = (AIR 1938 Cal 709 ) the transfer of shebaiti rights was not by way of a sale, but was found to be conducive to the interests of the idol. It was held to be valid.23. Dr. B. K. Mukherjea doubted the propriety of these decisions. Shri Venkatarama Aiyar as the editor of the Second Edition of Dr. B. K. Mukherjeas Tagore Law Lectures also expressed the same view at pages 219-220 that even if the transfer is for no consideration the transfer would be bad if it is not in favour of those next in the line of succession.24. Dr. B. K. Mukherjea in his Tagore Law Lectures has pointed out that the decision in Prosanna Kumaris case (supra) was that the rule of necessity extended only to an alienation of the temporality of the idol and it does not and cannot apply to alienation to the spiritual rights and duties. Dr. Mukherjee illustrated this with reference to the decision in Nagendra Nath, ILR 53 Cal 132 = (AIR 1926 Cal 490 ) and an earlier decision in Rajeswar v. Gopeswar (supra). The doctrine of alienation of shebaitship on the ground of necessity or benefit to the deity is said by Dr. Mukherjea to be of doubtful authority and based upon a misconception of certain pronouncements of the Judicial Committee.25. In the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer of Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception.

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

Explanation:
0[ds]17. The rule against alienation of shebaiti right has been relaxed by reason of certain special circumstances. These are classified by Dr. B. K. Mukherjea at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, 1st edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.18. In the present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interest of the deity and to meet some pressing necessity.19. The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebaits is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at hisIn the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer of Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception.