Case: Badri Nath &amp; Anr Vs. Mst. Punna (Dead) By Lrs &amp; Ors

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 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 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, ILR 60 Cal 452 : (AIR 1932 Cal 791 ) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary. 63 Ind App 448 : (AIR 1936 PC 318 ) and again in Bhabatarini v. Ashalata, 70 Ind App. 57 : (AIR 1943 PC 89 ). The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize 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 v. Rumanlollji Gossammee, (1890) 16 Ind. App. 137 (PC) "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 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."Angurbalas case was followed by this Court in a recent decision reported as Ram Rattan v. Bajrang Lal, (1978) 3 SCR 963 : (AIR 1978 SC 1393 ) wherein Desai, J., who delivered the judgment of the Court observed (at p. 1397 of AIR) :"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 court 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 Angurbalas case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing ore or less than an office and is not heritable property.8. 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 S. 4 of that Act, sub-sec. (1) of which states :"(1) Save as otherwise expressly provided in this Act -(a) 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 provisions contained in this Act."The requirements of the custom relied upon by the appellants to the effect that 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 order of succession laid down in Chap. II of the Hindu Succession Act under which the right devolves on the plaintiff-respondent.9. 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 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.

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

Explanation:
0[ds]A careful perusal of the extract shows that Mr. Sinhas contention is well founded because there is not so much as a hint to the main temple in theis 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 these 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 of money to others, the actual physical or mental effort involved being undertaken by thoseright is, therefore, a transferable right as envisaged in the passage above extracted from Bal Mukund v. Tula Ram (AIR 1928 All 721) (FB) (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 are thusis 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 corrected 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 tocontention 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.