Case: Kalipada Chakraborti And Another Vs. Palani Bala Devi And Others

3. The subject-matter of dispute is one-third share of shebaiti right in respect of a private debutter dedicated to an idol known by the name of Dakshineshwar Jew and situated at a village called Dhop Dhopi within the district of 24-Parganas in West Bengal. The deity is an ancient one and its reputed founder and first shebait was one Udhab Chandra Pandit. It is not disputed that by successive devolutions the rights of the shebait came to vest in one Iswar Chandra Chakroborti, who was the common ancestor of the parties to this suit. The following genealogical table will make clear the relationship of the several persons who figure as parties to the present litigation as between themselves and also to their common ancestor.4. Iswar died leaving six sons as his heirs and they were Ashutosh, Govinda, Gopal, Sadananda Trailokhya and Haran. These six sons when they divided the properties of their father, divided the shebaiti right also which devolved upon them in six equal shares, and this division was by the method known as palas or turns of worship, which means that to each one of the sons was allotted the right of worshipping the deity for 5 days every month and during these days he alone was to discharge the functions of the Shebait and receive the emoluments attached to the office. Gradually, a custom grew up in the family according to which these palas could be bought and sold or otherwise alienated amongst the members of the shebaits family, Govinda, who was the father of the plaintiffs and who got 5 days pala every month in his share, sold his interest in the shebaiti to Haran, a brother of his, and the result was that Haran acquired l0 days pala every month or one-third share in the entire shebaiti right. Haran died without any issue leaving him surviving, his widow Rajlakshmi as his sole heir under the Hindu Law and Rajlakshmi continued to hold this one-third share of shebaiti right along with other properties of the deceased. On 17-6-1920, Rajlakshmi granted an ijara lease of her shebaiti right for a term of two years to one Satish Chandra Dey. on 1-4-192l, Satish sold this leasehold interest in respect to the palas to one Ram Rakhal Ghose. Previous to that, on 6-8-1920. Ram Rakhal had himself taken a lease from Rajlakshmi of her shebaiti right for a period of 5 years, this lease to commence at the close of the previous lease in favour of Satish. Ram Rakhal admittedly got possession of the office of shebait and began to exercise his rights as such on and from 1-4-1921. By a deed of conveyance dated 7-11-1921, Rajlakshmi made an out and out sale of her shebaiti right in favour of Ram Rakhal and twenty days after this purchase, that is to say, on 27-11-1921, Ram Rakhal in his turn sold this interest to Nagendra and Surendra, two of the sons of Trailokhya. Surendra died some time afterwards and on 20-6-1925 his widow Tarakali sold her husbands share in the shebaiti right to Nagendra; her husbands brother. Thus Nagendra in addition to what he had inherited from his own father came to hold the entirety of a third share in the shebaiti right, represented by 10 days pala every month, which was previously held by Haran. Rajlakshmi died on 22-12-1943 and the two plaintiffs, who are the two surviving sons of Govinda, filed the suit out of which this appeal arises for recovery of possession of this one-third shebaiti right of Haran on the allegation that they were the next heirs of Haran at the time of Rajlakshmis death.5. Nagendra had died in the mean time and the first and the principal defendant in the suit is his daughter Palani Bala, who is a minor and is represented by her husband as guarantee. Defendant 2 is the receiver, who has been placed in charge of the properties of Palani Bala in a guardianship proceeding pending before the District Judge of 24-Parganas. Defendants 3 and 4 are the surviving descendants of Iswar who hold the remaining interest in the shebaiti right.6. The case of the plaintiffs, in substance, is that the one-third share of the shebaiti right, which was held by Haran during his life-time, devolved upon his widow Rajlakshmi who had only the restricted rights of a Hindu widow in respect to the same. On the death of the widow, the interest vested in the plaintiffs, who were the nearest heirs of Haran at the time of Rajlakshmis death. They accordingly, prayed for being put in possession of this one-third share of the shebaiti right, represented, as stated aforesaid, by l0 days pala every month after evicting defendant 1 therefrom. There was a claim also for mesne profits from the date of the widows death. In the plaint a description has been given of the temple, its appurtenant lands and also of the structures standing thereupon, but there is no prayer for possession in respect of these properties.7. The suit was resisted on behalf of defendant 1 and the main contention raised was that as the sale of her shebaiti right by Rajlalakshmi, the widow of Haran was a void transaction which did not create any right in the transferee, the possession of Ram Rakhal and after him his vendees, who were the predecessors of defendant 1, was adverse against all the shebaits, and defendant1 consequently acquired an indefeasible title to this third share in the shebaiti right by adverse possession and the plaintiffs suit was barred by limitation. Several other contentions were raised but they are not material for our present purpose.8. The trial Judge by his judgment dated 22-12-1948 overruled the pleas taken by the defendant and gave the plaintiffs a decree. On the question of limitation, the Subordinate Judge held that although Art.141, Limitation Act, was not attracted to this case, yet the plaintiffs suit was not barred by limitation. Two reasons have been assigned for this view. It has been said in the first place that Nagendra purported to purchase only the life interest of Rajlakshmi; consequently his position as purchaser was in recognition of the interest of the reversionary heirs of Haran. It is said further that as Rajlakshmi and Nagendra were both co-shebaits of the deity, the possession of the latter could not have been adverse to the former, they being in the position of co-shares in law and nothing like ouster being alleged or proved in this case.9. Against this judgment, defendants 1 and 2 took an appeal to the Calcutta High Court and the appeal was heard by a Division Bench consisting of Das and Guha JJ. The learned Judges while affirming all the other findings arrived at by the trial Judge disagreed with the latter on the question of limitation. It was held by the High Court that the proper Article to apply in this case was Art. 124, Limitation Act, and as defendant 1 and her predecessors had been in possession of the hereditary office of the shebait adversely to the plaintiff for more than 12 years prior to the institution of the suit, the plaintiffs claim was barred by limitation. In this view, the judgment of the trial Court was reversed and the plaintiffs suit dismissed.

Reasoning: 11. The proposition is well established that the alienation of the shebaiti right by a shebait in favour of a stranger is absolutely void in Hindu Law and cannot be validated even on the footing of a custom. The alienee of the right is, therefore, a trespasser out and out and his possession as against the transfered is adverse from the very beginning. Mr. Chatterjea appearing for the plaintiffs appellant; has not assailed the correctness of this proposition of law; - his contention is that the possession of shebaiti right by defendant 1 and her predecessors might have been adverse against Rajlakshmi ever since the date of transfer and on the strength of such possession they might have acquired a statutory title against her in respect of the shebaiti interest, but such adverse possession for more than the statutory period though it might bar the widow would not bar the reversioners who do not derive their title from or through her. This, it is said, is the principle underlying the Law of Limitation in India ever since 1871 and Art.141, Limitation Act, expressly recognises and gives effect tolearned Judges of the High Court have held and quite properly that the benefit of Art. 141 could be claimed only if there was a qualified estate in the female heir after whose death the plaintiff was entitled to the property as the heir of the last male holder. According to the learned Judges, however, this condition was not fulfilled in the present case, inasmuch as the subject-matter of dispute was the right of shebaitship and the rights of a female shebait, it is said, are not in any way more restricted or qualified than those of a male shebait, although she cannot transmit this office to her own heirs.Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the Legislature is obviously to treat hereditary office like land for the purpose of barring suits for possession of such office and extinguishing the right in the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is conceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time: but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajlakshmi, the defendant could not be regarded as taking possession of the office adversely to the plaintiffs. He refers in this connection to the definition of "plaintiff " in S. 2(8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right toportion of the judgment, it seems was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Rajlakshmi is immaterial. That would not be deriving their right to sue through and from the widow, and in this view of the case the plaintiffs suit cannot be held to be barred.