Case: Kali Kinkor Ganguly Vs. Panna Banerjee And Ors

3. The deity at the premises is popularly known as Firingi Kali. Ramakanta Pal constructed a Shiva temple and installed the deity Shiva at the premises. Ramakanta Pal became the shebait In 1820 Kali Prasad Pal and Gouri Prasad Pal the two sons of Ramakanta Pal orally transferred the temple together with the idol and shebaiti right of the deity to Srimanta Pandit. Srimanta Pandit carried on the sheba. He constructed a small brick built one storeyed room thereon. He installed the deities Kali, Sitala. Manasha and Shaligram Shila. Sitala. In 1880 Srimanta Pandit by a registered deed transferred the temple together with the deities and the shebaiti right of the deities to Shashi Bhusan Banerjee. Shashi Bhusan Banerjee performed sheba till his death on 24 August, 1894. He left behind him two widows Paripurna Debi and Pramila Sundari Debi. Paripurna Debi after the death of Shashi Bhusan Banerjee carried on sheba puja of the deity. She died on 10 April, 1905. On her death Rakhal Chandra Mukherjee brother of Paripurna Debi took possession of the temple premises and ousted Pramila Debi.4. On 22 August, 1905 Pramila Debi filed a suit in the High Court against Rakhal Chandra Mukherjee for a declaration of her right in the temple premises and the sheba puja. On 12 February, 1907 Pramila Debi obtained a decree against Rakhal Chandra Mukherjee declaring her to be entitled to temple premises and to the right of sheba puja.5. Meanwhile on 3 August, 1906 Pramila Debi along with one Chandra Kumar Banerjee who was the reversioner of Shashi Bhusan Banerjee sold certain properties of the estate of Shashi Bhusan Banerjee to Upendra Nath Gangull for legal necessity. On 29 January, 1907 by a deed Pramila Debi sold one half share of her full title in the temple and the share of shebaiti right to Upendra Nath Ganguli. The legal necessity claimed in the deed was incurring expenses in connection with the litigation relating to the temple premises and the shebaiti right against Rakhal Chandra Mukherjee.6. Upendra Nath Ganguli who came into possession of the premises carried on sheba puja till his death in 1925. On 5 November, 1922 Upendra Nath Ganguli made his first will. He appointed his brother Pramatha Nath Ganguli as the executor. Upendra Nath Ganguli bequeathed life interest in respect of temple premises to Pramila Debi as shebait and after her death to the appellant Kali Kinkor Ganguly. On 15 January, 1925 Upendra Nath Ganguli made a second will by which he bequeathed to Pramila Debi all his right, title and interest in the temple premises for her life. Upendra Nath Ganguli died on 30 January. 1925. On 3 August, 1925 Pramatha Nath Ganguli applied for probate, before the District Judge 24-Parganas. On 12 December, 1925 Pramila Debi filed an objection in the probate proceedings. She contended that there was a second will. The district Judge granted probate to Pramatha Nath Ganguli in respect of first will and letters of administration with copy of the will annexed to Pramlia Debi in respect of the second will. By an order dated 6 February, 1928 the proceedings relating to letters of administration granted to Pramila Debi were remanded to the District Judge by a Division Bench of the High Court at Calcutta. On 17 July, 1928 probate was granted to Pramatha Nath Ganguli in respect of both the wills of Upendra Nath Ganguli.7. On 15 September, 1947 Pramila Debi died. In 1949 Pramatha Nath Ganguli died.8. The appellant filed this suit on 22 January, 1959. The appellant claimed a declaration that he is the sole owner of premises No. 244 Bowbazar Street, Calcutta and is the sole, shebait of Firingi Kali and other deities. The alternative prayer is a declaration that the plaintiff is entitled to an undivided half share in the said premises and to half the pala in the sheba. The allegations in the plaint are that the respondents. viz, the Banerjees who are the heirs of Shashi Bhusan Banerjee denied the appellants right in the premises and in shebaiti rights.9. The trial court held that the transfer of half share of shebaiti right to Pramila Debi to Upendra Nath Ganguli was for legal necessity, and the transfer was binding on the defendants in the suit. The trial court passed a decree in favour of the appellant. The appellant was entitled to half share of the shebaiti right of the deities and the respondents were entitled to the other half in accordance with the deed dated 29 January, 1907 made by Pramila Devi in favour of Upendra Nath Ganguli.10. The High Court on appeal set aside the decree. The High Court held that the transfer by Pramila Debi in favour of Upendra Nath Ganguli is invalid.

Reasoning:
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.