Case: Ram Rattan (Dead) By Legal Representatives Vs. Bajrang Lal and Others

When the plaintiff referred to the disputed document in his evidence and proceeded to prove the same, an objection was raised on behalf of the defendants that the document was inadmissible in evidence as being not duly stamped and for want of registration. The trial court did not decide the, objection when raised but made a note: "Objected. Allowed subject to objection", and proceeded to mark the document as Exhibit. 1. When at the stage of arguments, the defendants contended that the document Ext. 1 is inadmissible in evidence, the learned trial judge rejected the contention taking recourse to section 36 of the Stamp Act. On the question of registration it was held that the document is not compulsorily registrable insofar as the subject matter of the suit is concerned, viz., turn of worship which in the opinion of the learned trial judge movable property. On appeal by the defendants the judgment of the trial judge was reversed, inter alia, holding that the document Ext. 1 was a gift and as it involved gift of immovable property, the document was inadmissible in evidence both on the ground that it is not duly stamped and for want of registration. The plaintiffs second appeal to the High Court did not meet with success.

Reasoning:
When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially, it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it woulds be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, s. 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting s. 36 (see Javar Chand v. Pukhraj Surana).(AIR 1961 S.C. 1665.) The, endorsement made by the learned trial judge that "objected, allowed subject to objections clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation s. 36 would not be attracted.. Desai then contended that where an instrument not duly stamped or insufficiently stamped is tendered in evidence, the Court has to impound it as obligated by s. 33 and then proceed as required by s. 35, viz., to recover the deficit stamp duty along with. Undoubtedly, if a person having by law authority to receive evidence and the civil court is one such person before whom any instrument chargeable with duty is produced and it is found that such instrument is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section, 35, however, prohibits its admission in evidence till such duty and penalty is paid. The plaintiff has neither paid the duty nor penalty till today. Therefore, stricto, sensu the instrument is not admissible in evidence. Mr. Desai, however, wanted us to refer the instrument to the authority competent to adjudicate the requisite stamp duty payable on the instrument and then recover the duty and penalty which the party who tenders the instrument in evidence is in any event bound to pay and, therefore, on this account it was said that the document should not be excluded from evidence. The duty and the penalty has to be paid when the document is tendered in evidence and an objection is raised. The difficulty in this case arise s from the fact that the learned trial judge declined to decide the objection on merits and then sought refuge under s. 36. The plaintiff was, therefore, unable to pay the deficit duty and penalty which when paid subject to all just exceptions, the document has, to be admitted in evidence. In this background while holding that the document Ext. 1 would be inadmissible in evidence as it is not duly stamped, we would not decline to take it into consideration because the trial Court is bound to impound the document and deal with it according to law. Serious controversy centered, however, round the question whether right to worship by turn is immovable property gift of which can only be made by registered instrument. Hindu law recognises gift of property to an idol. In respect of possession and management of the property which belongs to the Devasthanam or temple the responsibility would be in the manager who is described by Hindu law as Shebait. The devolution of the off ice of Shebait depends on the terms of the deed or will by. which it is created and in the absence of a provision to the contrary, the settlor himself becomes a Shebait and the office devolves according to line of inheritance from the founder and passes to his heirs. This led to an arrangement amongst various heirs equally entitled to inherit the office for the due execution of the functions belonging to the office, discharging duty in turn. This turn of worship is styled as Pala in West Bengal and Osra in Rajasthan. Shebaiti being held to be property, in Angurbala Mulick v. Debabrata Mullick, ([1951] SCR 1125.) this Court recognised the right of a family to succeed to the religious office of Shebaitship. This hereditary office of Shebait is traceable to old Hindu texts and is a recognised concept of traditional Hindu law. It appears to be heritable and partible in the strick sense that it is enjoyed by heirs of equal degree by turn and transferable by gift subject to the limitation that it may not pass to a. On principles of morality and propriety sale of the office of Shebait is not favoured.The position of Shebait is not merely that of a Pujari. lie is a human ministrant of the deity. By virtue of the office a Shebait is an administrator of the property attached to the temple of which he is Shebait. Both the elements of office and property, of duties and personal interest are blended together in the conception of Shebaitship and neither can be detached from the other (vide Commissioner of Hindu Religions Endorsements, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt).([1954] SCR 1005.)  Much before the enactment of the Transfer of Property Act a question arose in the context of the Limitation Act then in force whether a suit for a share in the worship and the emoluments incidental to the same would be suit for recovery of immovable property or an interest in immovable property. In Krishnabhat bin Hiragange v. Konabhat bin Mahalbhat et al, (6 Bombay High Court Reports 137.) after referring to various texts of Hindu law and the commentaries of English commentators thereon, a Division Bench of the Bombay High Court held as under:"Although therefore, the office of a priest in a temple, when it is not annexed to the ownership of any land, or held by virtue of such ownership, may not, in the ordinary sense of the term, be immovable property, but is an incorporeal hereditament of a personal nature, yet being by the custom of Hindus classed with immovable property, and so regarded in their law......."In Eshan Chandra Roy &Ors. v. Monobini Desai (ILR 4 Cal. 683.) it was said that it was not possible to come to the conclusion that the right to worship an idol is in the nature of an interest in immovable property. It is a bare statement with no reference to texts of Hindu law or commentaries thereon. In Jharula Das v. Jalandhar Thakur(ILR 39 Cal. 887  .1), it was held that the office of Shebait is hereditary and that the suit which was brought after a period o f 12 years was barred by limitation. This decision does not specify the nature of property termed as turn of worship in Hindu law. The Patna High Court in Jagdeo v. Ram Saran Pande &Ors. (AIR 1927 Patna 7.), has in terms held that a turn of worship is not interest in immovable property and, therefore, a sale thereof does not require registration. The decision purports to follow the ratio in Eshan Chander Roys case (supra) which gives no reasons for the decision and also Jharula Dass case (supra) where this question appears not to have been in terms raisedThe definition of immovable property in s. 3 of the Transfer of Property Act is couched in negative form in that it does not include standing timber, growing crops, or grass. The statute avoids positively defining what is immovable property but merely excludes certain types of property from being treated as immovable property. Section 2(6) of the Registration Act defines immovable property to include lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass. Section 2 (26) of the General Clauses Act defines immovable property to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.It may be mentioned that the definition of immovable property in Registration Act lends assurance to treating Shebaits hereditary office as immovable property because the definition includes hereditary allowances Offence of Shebait is hereditary unless provision to countrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property, duties and personal interest axe 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. The gift of such immovable property must of course be by registered instrument. Exhibit 1 being not registered, the High Court was justified in excluding it from evidence.