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

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 fathers share of six annas in a rupee in the offerings made 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 and Kashmir and in a Letter Patent Appeal by a Full Bench of that Court. It is the judgment of the Full Bench (Which is dated the 18th of Jan. 1972) that is impugned before us :2. 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 lifetime 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 6/16th share therein and the defendants collectively a similar share. After the death of the plaintiffs 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.3. 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 subcastes namely, Khas Thakars, Drora 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.4. The findings arrived at by the trial court were these :(1) 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.(2) Under Sec. 4 of the Hindu Succession Act, any custom or usage inconsistent with the provisions of that Act becomes ineffective.(3) Even under Sec. 6 of the Hindu Succession Act read with the Schedule appended thereto the property of Bagu would devolve on the plaintiff in case Bagu died intestate.(4) Bagu executed a valid will in favour of the plaintiff devising to her the right to receive the offerings, apart from other properties.(5) 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 Ss. 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 :(1) the chance of future worshipers making offerings to the deity is a mere possibility of the nature referred to in Cl. (a) of Sec. 6 of the T. P. Act and is not property which can be transferred or inherited.(2) the right to receive offerings is not a transferable or heritable right.(3) The provisions of the Hindu Succession Act do not apply to the case in hand.(4) According to the custom governing the shrine of Shri Vaishno Devi Ji, only the abovementioned four sub-castes were entitled to share the offerings.All these contentions were rejected by the Full Bench as untenable. In regard to the first of them the Full Bench followed Balmukund v. Tula Ram, AIR 1928 All 721, 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 Cl. (a) of Sec. 6 of the T. P. Act, because the fact that offerings whether large or small are bounds to be made is a certainty.In relation to the second contention, the Full Bench noted the contents of para 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 services, they are alienable and attachable. Reference in this connection was also made to Balmukund v. Tula Ram (supra) wherein the following passage occurswhen 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 S. 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 inview of these observations which were adopted and followed in Nand Kumar Dutt v. Ganesh Dass, AIR 1936 All 131 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 considerationaside cash, whatever is the Charathh 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 Charatt. 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 Charatt. Pujaries get pay fromit was interpreted to mean that the right to share in the offerings made at the holy shrine had no. connection with any prisetly functions or with other services involving qualifications of a personal nature and therefore was a heritable as well as alienable right. This very conclusion 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 therelation 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 is S. 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 overrides 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.

Reasoning: 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.