Case: Profulla Chorone Requitte &amp; Ors Vs. Satya Chorone Requitte

1a. Late Babu Durga Chorone Requitte was the grandfather of Satya Chorone Requitte, defendant, and plaintiffs 1 and 2. He owned considerable immovable property. He was an inhabitant of Chandernagore (then a French territory). The suit property is situated in Chandernagore. Among others, it included a big residential house containing about 84 or 85 rooms with extensive grounds, gardens and tanks. In this house, which he was occupying for his residence, he had his family deity, Sree Sree Iswar Sridhar Jiew2. Durga Chorone made and published two wills, one dated June 4, 1898, with regard to his properties in the then British India, and the other dated June 6, 1898 with regard to his properties situated in the French territory of Chandernagore. By these two wills, Durga Chorone appointed his wife, Saraswati Dassi, his two sons, Shyama Chorone Requitte and Tarini Chorone Requitte and his nephews, Ashutosh Das and Bhola Nath Das, executrix and executors and trustees of the estate left by him. The wills provided that the trustees would hold the bequeathed properties left by the testator according to the terms of the wills for the legatees and the beneficiaries mentioned therein. The wills also provided that in case of death or retirement or refusal or incapacity to act of any of the trustees, the continuing trustees or trustee for the time being, or the executors or administrators of the last acting trustee might appoint any other person or persons to be a trustee or trustees in place of the trustee or trustees so dying or desiring to retire from or refuse, etc. But, in no case, the number of the trustees should be less than two3. By his will, dated June 6, 1898, Durga Chorone created an absolute debutter in favour of the said family deity and devised and bequeathed to his executors and trustees named therein, his dwelling house with gardens and tanks appertaining thereto situated in Chandernagore, "upon Trust to stand possessed of and to hold, retain and use the premises an endowed or debutter property for the service and worship of" his said family deity. By that will, he further directed that this family idol "shall be located in my said house in Chandernagore which said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or idol."4. The testator died on August 27, 1898. Thereafter, the will, dated June 6, 1898, was duly probated and the trustees came into possession of the debutter properties and carried on the administration of the estate and the seva and puja, as directed in the will5. Smt. Saraswati, widow of Babu Durga Chorone, who was one of the trustees named in the will, died on October 30, 1913, while her son, Shyama Chorone, another trustee, died on December 21, 1925. Thereupon, Tulsi Chorone son of Shyama Chorone was appointed a new trustee in place of his father. Bhola, the other co-trustee, refused to act as such. Therefore, his son, Devindra was appointed as trustee by the continuing trustees. Tarani Chorone died on or about May 29, 1939 and the continuing trustees appointed his son, Profulla Chorone as a trustee. Tulsi Chorone died on August 17, 1952 and the continuing trustees similarly appointed Bhagwati, son of late Shyama Chorone a new trustee. Debendranath Das died on or about March 7, 1956, and the continuing trustees appointed Satish Chandra Das, a son-in-law of late Shyama Chorone as a new trustee in his place6. In or about the year 1934, the descendants of the settlor, Durga Chorone, some of whom were the then trustees, referred certain disputes with regard to the endowed property to the arbitration of one Bhringeswar Sreemany. The disputes referred to the arbitrator included rival claims by the sons and grandsons of Durga Chorone, to their residence in the debutter property belonging to the family deity. The arbitrator made an award on September 6, 1934, whereby he allotted room Nos. 72 and 82 to Satya Chorone, respondent, which had been in their use and occupation from before. The arbitrator made similar allotments of other rooms in the said house in favour of other sons and grandsons off the settler7. On April 20, 1959, Profulla Chorone Requitte, Bhagwati Chorone Requitte and Satish Chorone Das, the then trustees, instituted Title Suit 28 of 1959 in the Court of the Subordinate Judge, 1st Court, Hooghly. The plaintiffs prayed for two reliefs in the plaint :(i) Possession by ejectment of the defendant, Satya Chorone Requitte, primarily from all the six rooms, alleging that the defendant had been occupying the same as licences under the plaintiffs and the said licence had been revoked;(ii) in the alternative, for possession of the four rooms mentioned in Item 1 of Schedule B of the plaint, which had not been allotted to him under the award8. The plaintiffs case, as laid in the plaint, was that since the dwelling house belonging to the deity had a large number of rooms the trustees allowed temporarily the sons and grandsons of Durga Chorone to occupy and use for their families some of the rooms in the said dwelling house as licensees. It was further alleged that in the year 1958, the defendant illegally and forcibly occupied room Nos. 63, 35, 46 and 57 in the aforesaid house without the knowledge and consent of the trustees causing serious inconvenience in the due performance of the religious ceremonies of the deity according to the terms of the will. It was further contended somewhat inconsistently that the dwelling house at Chandernagore being absolute debutter belonging to the deity, no person, except the trustees, has any legal right in the said house which can only be used for the sewa puja of the family deity located in the house; that the arbitration award of 1934 is not binding on the deity and/or the trustees who were not parties to that arbitration; that the award was beyond the scope of the reference and was adverse to the Trust, itself9. In his written statement the defendant traversed the material allegations in the plaint and asserted that he was in use and occupation of the rooms in dispute in his own right as a shebait. He further pleaded that the plaintiffs had no right to represent the deity and had no locus standi to maintain the suit as trustees; that since all the Shebaits had not been joined as parties, the suit was incompetent10. The Subordinate Judge dismissed the suit, holding, inter alia, that :(i) By his will, Babu Durga Chorone had absolutely dedicated the property in dispute to the family deity, Sree Sree Iswar Sridhar Jiew, but he had not, under that will, made any testamentary disposition of his shebaiti rights in respect of this debutter property which, on the death of the testator, devolves under Hindu Law upon his descendants, who in consequence, were entitled to reside in the house as shebaits(ii) The trustees were not shebaits. Only the descendants of Babu Durga Chorone had become shebaits and had shebaiti right in the endowed property(iii) The award made by the arbitrator, Bhringeswar Sreemany, was valid and binding upon the plaintiffs(iv) The plaintiffs could not recover possession from the defendant as trustees(v) The plaintiffs were not entitled to represent the deity and had no locus standi as trustees to maintain the suit on behalf of the deity(vi) the defendant had a right to occupy the rooms in suit as co-shebaits(vii) The plaintiffs having not claimed any relief in terms of the arbitration award, were not entitled to any relief in respect of room Nos. 35, 46, 57 and 6311. Aggrieved, the plaintiffs preferred an appeal to the District Judge, who dismissed the same and affirmed the decision of the trial Court12. Against the appellate decree of the District Judge, the plaintiffs carried a second appeal to the High Court at Calcutta. The Division Bench of the High Court, by its judgment dated July 21, 1969, allowed the appeal in part, and granted the plaintiffs a decree for Khas possession of room Nos. 35, 46, 57 and 63 in the said dwelling house; but not in respect of room Nos. 72 and 82 mentioned as item 1 of Schedule B to the plaint13. After obtaining the certificate under Article 133(1)(b) of the Constitution, as it then stood, the plaintiffs have filed Civil Appeal 1873 of 1970 against the partial dismissal of their claim in respect of room Nos. 72 and 82, while the defendant has filed Civil Appeal 1874 of 1970, praying that the plaintiffs suit ought to have been dismissed in respect of room Nos. 35, 46, 57 and 63 also. Both the appeals will be disposed of by this common judgment.

Reasoning:
34. It may be observed that this will, in English, appears to have been drafted in pursuance of legal advice by an expert draftsman. The omission of the words "management", "manager", "custodian of the idol" or "ministrant of the idol" from the will, therefore, cannot but be intentional35. It seems clear to us that the underlined (Herein given in bold) words in the above extract, by themselves, merely create a trust or endowment and indicate the nature and purpose of the endowment. These words do not touch or deal with shebaiti rights. This inference receives support from the surrounding circumstances39. Thus construed conjointly, the two wills make it clear that although the entire family house, comprising 84 or 85 rooms, at Chandernagore was formally endowed to the family idol, yet the testators intention was that his heirs and descendants would also be entitled to use this house as their family dwelling house, apart from the room wherein the idol was enshrined41. The aforesaid provisions further show that although the trustees were provided with the funds for the sewa puja of the family deity and for other festivals out of the estate left by the testator, but they were not expressly constituted as shebaits of the deity. It will, therefore, be not unreasonable to infer that the intention of the testator was that these funds would be expended for the purposes indicated by him, through the shebaits45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone.