# [1951] 1 S.C.R. 1125

- **Citation:** [1951] 1 S.C.R. 1125
- **Court:** Supreme Court of India
- **Decided:** 1950-05-19
- **Case number:** Civil Appeal No. 22 of 1951
- **Bench:** SA1Ym FAzL Au, Mehar Chand Mahajan, MuKHERJEA, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1951-1-s-c-r-1125-167
- **Pages:** 23

## Headnote

Hindu Women's Rights to Property Act (XVIII of 1937), s. 3-
<, Right to shebaitship-Whether "property"-Applicability of ActWidow's right to joint shebaitship with son-Construction of deeds
-"Heirs of A," meaning of.
The word "property" as used in s. 3 (l) of the Hindu Women's
Rights to Property Act, 1937, includes shebaitship which is a recognised form of property under Hindu law, and there is nothing
in any of the provisions of the said Act which excludes from the
y scope and operation of the Act succession to shebaitship.
Even
assuming that ·the word "property" in Act XVIII of 1937 is ·to
be interpreted in a narrower sense, inasmuch as
succession
to
shebaitship follows succession to property in
its
ordinary
or
secular sense and the Hindu Women's Rights to Property Act,
1951
111 re
The Delhi
Larva A.ct, 1912,.
etc.
./Jose J.
1951
.Angurba/a
Mullick•·
Debabrata
Mullick
Mukherjea J.
1126
SUPREME COURT REPORTS
[1951]
1937, fays down th~ law of. succession to property in general, the
devolution of shcba1tsh1p will also be governed by the said Ate .
Umayal Achi v. Lakshmi Achi [1945]
upon. Suryanarayanacharyulu v. Seshamma
103) approved.
F.C.R. I, commented
(A.LR.
1950
Mad.
A deed of dedication of properties to a deity provided that the
scttlor shall during her life-time be the shebait of the
said deity
and that after her death, her son M shall be the shebait. It provided further that after M's death, M's wife K and after K's death,
the heirs of M shall be the shebaits. If M died without any issue or
without giving authority to his wife to adopt, M shall be competent to appoint a shebait by will, but in case M died without any
issue, the shebaitship shall, after the death of his wife
devolve
upon his heirs under the Hindu law. M died in 1942 leaving a
son by his first wife K, and a second wife.
In a suit by the
second wife for a declaration that she was entitled to the
shebaitship as sole shebait or in any event as a j"oint shcbait
with
her
step-son :
Held, that the Hindu Women's Rights to Property Act, 1937,
was applicable to the case and the plaintiff was entitled to
~oint
shebaitship with her step-son.
Held also, on the construction of the deed, (i) that the words
uheirs of the said M" occurring in the deed were not words -.>£ gift
but only words regulating devolution; and (ii) that heirs oi
M
did not mean issue of M but his legal heirs and there was nothing
in the deed to show that the son of M had i right to
succeed
in
'~
preference to the widow.
,...
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 22 of 1951.
Appeal against the Judgment and Decree dated the
19th May, 1950, of the High Court of Judicature at
Calcutta (Harries C.J ..• and Sinha J.) in Appeal No. 29
of 1950 arising out of a decree dated 9th February,
1949, in
S~it No. 2481 of 1947.
Bakshi Tek Chand (S. Banerji, with him) for the
appellant.
-
S. Bannerjee (B. Sen and S. C. Roy, with him}, for
the respondent.
1951. May 3. The Judgment of Fazal Ali, Mahajan and Mukherjea JJ. was delivered by Mukhcrjca J.
Chandrasckhara Aiyar J.
delivered
a
separate
but
concurring judgment.
.(
S.C.R.
SUPREME COURT REPORTS
1127
MuKHEKJEA J.-This appeal is directe.d against an
appellate judgment of the Calcutta High C.Ourt, dated
the 19th May, 1950, which affirmed the judgment of a
single Judge of the Original Side of ~at C.Ourt passed
on 9th February, 1949, in Suit No. 2481 of 1947.
The plaintiff, who is the appellant before us, is the
widow of one Mrityunjoy Mullick, a wealthy Hindu
resident of Calcutta, while the· defendant, who is still
an infant, is the only son of Mrityunjoy born of his
first wife Kiranbala, who died during the lifetime of
her husband. The controversy between
the parties
centres round the short point as to whether the plaintiff is entitled, after the death of her husband, to act as
shebait of an idol named Sree Sree Nitto Gopal Jew
founded by Mrityunjoy and his mother
either solely
or jointly with the defendant, her step-son.
To appreciate the points that have

## Text

_Characters 0–39,817 of 50,410. This is a partial read: ask again with offset=39817 for what follows._

S.C.R.
SUPREME COURT REPORTS
1125
"provision · may be made in any enactment so extended
for the repeal or amendment of any corresponding law
(other than a Central Act) which is for the time being
applicable to that Part C State," is ultra vires the
Indian Parliament which passed the Act.
Agent for the President of India, the State of "Bombay, the State of Madras and the State of
Mysore : P. A. Mehta.
Agent for the State of Uttar Pradesh: C. P. Lal.
Agent for Capt. Deep Chand and Pt. Amarnath
Bhardwaj : R. S. N arula.
Agent for the Ajmer Electric Supply Co. Ltd. :
M. S. K. Sastri.
Agent for the Municipal Committee of Ajmer, the
Maiden's
Hotel
and
Runglal
Nasirabad
Rajinder Narain.
Agent for Shri Munshi Lal and others : Shankar
Das.
ANGURBALA MULLICK
ti •
. DE BAB RAT A MULLICK.
[SA1Ym FAzL Au, MEHAR CHAND MAHAJAN,
MuKHERJEA AND CHANDRASEKHARA AIYAR JJ.]
Hindu Women's Rights to Property Act (XVIII of 1937), s. 3-
<, Right to shebaitship-Whether "property"-Applicability of ActWidow's right to joint shebaitship with son-Construction of deeds
-"Heirs of A," meaning of.
The word "property" as used in s. 3 (l) of the Hindu Women's
Rights to Property Act, 1937, includes shebaitship which is a recognised form of property under Hindu law, and there is nothing
in any of the provisions of the said Act which excludes from the
y scope and operation of the Act succession to shebaitship.
Even
assuming that ·the word "property" in Act XVIII of 1937 is ·to
be interpreted in a narrower sense, inasmuch as
succession
to
shebaitship follows succession to property in
its
ordinary
or
secular sense and the Hindu Women's Rights to Property Act,
1951
111 re
The Delhi
Larva A.ct, 1912,.
etc.
./Jose J.
1951
.Angurba/a
Mullick•·
Debabrata
Mullick
Mukherjea J.
1126
SUPREME COURT REPORTS
[1951]
1937, fays down th~ law of. succession to property in general, the
devolution of shcba1tsh1p will also be governed by the said Ate .
Umayal Achi v. Lakshmi Achi [1945]
upon. Suryanarayanacharyulu v. Seshamma
103) approved.
F.C.R. I, commented
(A.LR.
1950
Mad.
A deed of dedication of properties to a deity provided that the
scttlor shall during her life-time be the shebait of the
said deity
and that after her death, her son M shall be the shebait. It provided further that after M's death, M's wife K and after K's death,
the heirs of M shall be the shebaits. If M died without any issue or
without giving authority to his wife to adopt, M shall be competent to appoint a shebait by will, but in case M died without any
issue, the shebaitship shall, after the death of his wife
devolve
upon his heirs under the Hindu law. M died in 1942 leaving a
son by his first wife K, and a second wife.
In a suit by the
second wife for a declaration that she was entitled to the
shebaitship as sole shebait or in any event as a j"oint shcbait
with
her
step-son :
Held, that the Hindu Women's Rights to Property Act, 1937,
was applicable to the case and the plaintiff was entitled to
~oint
shebaitship with her step-son.
Held also, on the construction of the deed, (i) that the words
uheirs of the said M" occurring in the deed were not words -.>£ gift
but only words regulating devolution; and (ii) that heirs oi
M
did not mean issue of M but his legal heirs and there was nothing
in the deed to show that the son of M had i right to
succeed
in
'~
preference to the widow.
,...
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 22 of 1951.
Appeal against the Judgment and Decree dated the
19th May, 1950, of the High Court of Judicature at
Calcutta (Harries C.J ..• and Sinha J.) in Appeal No. 29
of 1950 arising out of a decree dated 9th February,
1949, in
S~it No. 2481 of 1947.
Bakshi Tek Chand (S. Banerji, with him) for the
appellant.
-
S. Bannerjee (B. Sen and S. C. Roy, with him}, for
the respondent.
1951. May 3. The Judgment of Fazal Ali, Mahajan and Mukherjea JJ. was delivered by Mukhcrjca J.
Chandrasckhara Aiyar J.
delivered
a
separate
but
concurring judgment.
.(
S.C.R.
SUPREME COURT REPORTS
1127
MuKHEKJEA J.-This appeal is directe.d against an
appellate judgment of the Calcutta High C.Ourt, dated
the 19th May, 1950, which affirmed the judgment of a
single Judge of the Original Side of ~at C.Ourt passed
on 9th February, 1949, in Suit No. 2481 of 1947.
The plaintiff, who is the appellant before us, is the
widow of one Mrityunjoy Mullick, a wealthy Hindu
resident of Calcutta, while the· defendant, who is still
an infant, is the only son of Mrityunjoy born of his
first wife Kiranbala, who died during the lifetime of
her husband. The controversy between
the parties
centres round the short point as to whether the plaintiff is entitled, after the death of her husband, to act as
shebait of an idol named Sree Sree Nitto Gopal Jew
founded by Mrityunjoy and his mother
either solely
or jointly with the defendant, her step-son.
To appreciate the points that have been canvassed
before us in this appeal , it will be necessary to narrate
a few antecedent facts about which there is no dispute
between the parties.
It may be stated
her$:!
that
neither
side adduced
any evidence before
the
trial
judge during the hearing of the case and the questions
raised in the suit were argued as questions of law
turning on the construction of the indenture which
created the endowment as well as of the provisions
. of the Hindu Women's Rights to Property Act (Act
XVUI of 1937 as amended by Act XI of 1938).
It appears that one Dhananjoy Mullick, who was
the adoptive father of Mrityunjoy, died on 28th of
August, 1907, leaving behind him, his widow Nitto
Sundari and the adopted son Mrityunjoy who was
then a minor.
On February 11, 1 910, Nitto Sundari
obtained letters of administration to the estate of the
deceased Dhananjoy limited during the minority of
the adopted son. On June
13,
1920,
the widow
purchased a house property in the city of Calcuttabeing premises No. 14, Syakrapara Lane-Qut of the
monies belonging to the estate of her hunsoand, and on
October 10, 1934, she conveyed the said property to
Mrityunjoy who had by that time attained majority.
1951
Angurbala
Mullick v.
Debabrata
Mullick
Mukherjea J.
19Sl
Angorbala
Mullick v.
.Debabrota
Mulliclc
Mukherjea I.
1128
SUPREME COURT REPORTS
(1951]
On the very same day that this property was conveyed
to Mrityunjoy, Nitto Sundari and Mrityunjoy together
executed an indenture, by which certain properties
described in Schedules A and B of the document and
including premises No.
14, Syakrapara Lane, were
dedicated to deity Nitto Gopal Jew. The indenture
recites that Nitto Sundari had, with the consent and
concurrence of her son, established and consecrated
the said idol and located it in premises No. 14 Syakrapara Lane, and that she had been performing the
worship and periodical festivals of the deity according
to Hindu rites. The document lays down in detail the
various rites, ceremonies and festivals of the idol that
are to be performed daily or at specific periods, and
the way in which the expenses necessary for these
purposes are to be met from the income of the dedicated properties.
A remuneration of 25 per cent. of
the net income of the debutter property has also been
provided for the shebait or shebaits for the time being.
After declaring the various trusts, the indenture proceeds to provide for appointment of shebaits and for
devolution of shebaitship in the following manner :-
)
"That the said Sm. Nitto Sundari Dassi doth
thereby constitute and appoint herself the shebait
of
the said Thakur for and during the term of her natural
life and doth hereby declare that after her death her
son the said Mrityunjoy Mullick shall become the shebait of the said Thakur and after his death his wife
Sm. · Kiranbala Dassi and after her death the heirs of
the said Mrityunjoy Mullick shall be and act as the
shebait or shebaits of the said Thakur and she doth
hereby declare him or them such shebait or shebaits
accordingly and doth hereby direct and declare that
the daily worship and other periodical festivals and
ceremonies of the said Thakur should be performed by
such shebait or shebaits.
Provided however that
in
case the said Mrityunjoy Mullick . shall happen to die
without any issue or without giving any authority to
"'
his wife him surviving, to adopt, then in such case it
shall be competent for the said Mrityunjoy Mullick to
appoint by will or otherwise a shebait who would act
'
S.C.R.
SUPREME COURT REPORTS
1129
as such after the death of his sai'd wife as aforesaid
hut in case the said Mrityunjoy Mullick shall happen
to die without any issue the shebaitship . of the said
Thakur after the death of his wife shall devolve upon
his heirs under the Hindu Law."
It is not disputed that Nitto Sundari acted as she.
bait till her death in 1938 and that after
her death
Mrityunjoy become the shebait. Kiranbala, the first
wife of Mrityunjoy, who is referred to in the indenture
.as stated above, died on l4th January, 1942, leaving
her infant son Debabrata, who is the defendant in the
suit.
Soon after her death, Mrityunjoy married the
plaintiff Angurbala as his second wife and within five
months after this marriage Mrityunjoy died on the 4th
of July, 1942. · The present suit was filed in the
Original Side of the Calcutta High Court on 29th
August, 1947, by Angurbala and she prayed
for
a
declaration that she was the sole shebait of the deity
under the terms of the indenture or, in the alternative,
was entitled to shebaitship jointly with the defendant,
she being a co-heir of her stepson under the provisions
of the Hindu Wowen's Rights to Property Act. There
was a further prayer claiming a right of residence in
premises No. 14. Syakrapara Lane.
The written statement that was filed on behalf of
the defendant denied the plaintiff's claim of shebaiti
right,
either
exclusively
in
herself
or
jointly
with the defendant, and asserted that the defendant
was the sole shebait under the terms of the deed of
endowment as well as under law. The defendant also .
contended that the plaintiff was not entitled to any,
right of resi4ence in the premises mentioned above.
The learned trial Judge by his judgment dated 9th
of February, 1949, held that the plaintiff was neither
the sole shebait of the deity nor was she entitled to
claim shebaiti rights jointly with the defendant
and
that the Hindu Women's Rights to Property Act was
inapplicable to devaluation of shebaiti, rights at all. It
was held further that as the plaintiff was not in law
the natural guardian of the defendant, she could not
1951
A.ng11rbalo
Mullick v.
Debabrata
Mullick
Mukherjea J.
1951
Angur/Jala
Mullick
v.
Debab11t1ta
Mullick
Mukherjea I.
1130
SUPREME COURT REPORTS
[19511
claim to exercise the rights of a shebait on behalf of
the defendant as his natural guardian so long as the
defendent remained a minor.
The learned Judge held,
however, that the plaintiff's claim to a right of residence in premises No. 14, Syakrapara Lane, was wellfounded and she was held entitled to relief
in
that
respect.
The result was that save and except
givmg
the plaintiff a declaration of her right of residence in
premises
No.
14,
Syakrapara Lane, all
the
other
prayers of the plaintiff were dismissed.
Against this decision the plaintiff preferred an appeal
which came up for hearing before an appeal Bench of
the Calcutta High Court consisting of Sir Trevor Harries C.J. and Sinha J.
The learned counsel appearing
in support of the appeal did not seriously challenge that
part of the decision of the trial Judge which negatived
the plaintiff's claim to act as a sole shebait
either
under the terms of the indenture of endowment. or as
a guardian of the defendant during the period of his
minority.
The only question pressed was whether the
plaintiff was entitled to be a joint shebait with the
defendant.
The learned Judges rejected this contention of the appellant primarily on the ground that the
identical
point
was
raised
and
considered
by
the
Federal Court in Umayal Ac!zi v. Lakshmi Achi(1) and
it was held there that succession to shebaitship was
not in any way altered or affected by the provisions of
the Hindu \Vomen's Rights to Property Act. The
appeal was thus dismissed and the plaintiff having
obtained a certificate under article 133(1)(c) of the
Constitution has now come up in appeal to this Court.
The substantial contention raisc;d by Mr. Tek Chand,
who appeared on behalf of the plaintiff-appellant, is that
under the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to Kiranbala after the death of Mrityunjoy and after her death
it is to vest in the heirs of. Mrityunjoy. As Kiranbala
died during the life-time of Mrityunjoy, the grant of
the shebaiti right in her favour lapsed and the heirs
of Mrityunjoy arc, therefore, entitled to come in as the
(I) [1945] F,C.R.1.
r
'
S.C.R.
SUPREME COURT REPORTS
1131
next shebaits after
Mrityunjoy~s death.
Who these
heirs are has. got to be determined according to the law
in force at the time when the succession
opened
and under the Hindu Women's Rights to Property
Act, which came into force in the year 1937, the widow
of a propositus, who dies intestate, would rank as an
heir along with the son and would be entitled to the
same share as a ·son gets in the property of the deceased; It is said that as shebaitship is property, it wouW
devolve under section 3 of the Hindu Women's Rights
to Property Act upon both the plaintiff and the
defeadant jointly.
Assuming, however, for argument's
sake, that the expression "property", as used in the
Hindu Women's Rights to Property Act, tloes not
include shebaiti right, it is argued by the learned
counsel that it is a well-established proposition of law
that succession to shebaitship is governed by the
ordinary rules of inheritance in respect to secular property under the Hindu law, and as the Hindu women'.s
Rights· to Property Act ·has amended the general law
of inheritance in certain matters, the same, alterations
must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. Tek
Chand-though it was not pressed seriously...:...that the
language of the indenture would go to suggest that in
the matter of succession to . shebaitship the wife of
Mrityunjoy would have priority over other heirs.
It
i.~ true that the document spe3ks only of Kiranbala,
the wife· of Mrityunjoy who is to. come as shebait
after . his death; . but it is argued that the . word
"Kiranbala" is merely descriptive of the word "Wife''
and whoever would happen to be the wife of Mrityunjoy at the date of his death, would be entitled to
succeed to his shebaiti rights.
Mr. Shankar Banerjee appearing for the respondent
stated at the outset that he · would not dispute as a
proposition of law that shebaitship is property of
~
some kind the devolution of which is governed, in the
absence of any direction to the contrary given by the
founder, by the ordinary rule of succession under the
Hindu law.
He contended however, that the Hindu
26-3 S.C.India/68
t9Sl
A!fgurbala
Mullick
v.
Debabrata
Mullick
Mukhetjea J.
1951
Angurbala
Mullick
v.
D~babrata
Mullick
MiJcher}ttl I.
1132
SUPREME COURT REPORTS
[19511
Women's Rights to Property Act, which is a piece of
special legislation enacted for a special purpose, does
not use the expression "property" in a wide and
unlimited sense; and it would appear clear from the
provisions of the different sections of the Act that it
could not have had in contemplation, and does not
purport to affect, the rules of succession relating to the
special and somewhat anomalous
type
of
property
which shebaitship admittedly is.
The learned counsel
referred in this connection to the provisions of sections 3 and 5 of the Act as well as to the preamble
which sets out its object, and considerable stress was
laid upon the pronouncement of the Federal Court in
Umayal Achi v. Lakshmi Achi('). The other contention put forward by the learned counsel turns upon the
construction of the relevant clause in the
indenture
referred to above which lay down the mode of devolution of the shebaitship, and his argument
was
that
reading the clauses as a whole, it would be clear that
the intention of the executants of the deed was that
the "issue" of Mrityunjoy would succeed to him as
shebaits in the first instance and that no other heir
of Mrityunjoy basing his claim either upon general
law or any special enactment would be entitled to
become shebait so long as any issue of Mrityunjoy was
alive. A further question relating to the construction
of the deed, raised by Mr. Banerjee, was that the words
"heirs of the said Mrityun;oy" occurring in the deed
arc to be construed not as words of devolution but of
direct gift to the heirs under the deed and consequently
the expression "heirs" must
mean those who could
legally claim :is heirs at the time when the grant was
made : and any subsequent change in the law could
not affect the position.
We will first advert to and examine the prov1s1on•
of the Hindu Women's Rights to Property Act and see
whether the Act includes within its scope a property
of such character as shebaitship is.
The exact legal position of a shebait may not be
capable of precise definition but its implications are
(I) [194.5) F.C.R. 1.
f.
r
r
i,
S.C.R.
. SUPREME COURT REPORTS
1133
fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v.
Bal usami (1) that the relation of a shebait in regard to
debutter property is not that of a trustee to trust property under the English law. In English law the legal
estate in the trust property vests in the trustee who
holds it for the benefit of cestui que trust. In a Hindu
religious endowment on the other hand the entire
ownership of the dedicated property is transferred to
the diety or the institution itself as a juristic person
and the shebait or mahant is a mere manager. But
though a shebait is a manager and not a trustee in the
technical sense, it would not be correct to describe the
shebaitship as a mere office. The shebait has not only
duties to discharge in connection with the endowment,
but he has a beneficial interest in the debutter pro- .
perty.
As the Judicial Committee observed in the
above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or
upon custom or usage.
Even where no emoluments
are attached to the office of the shebait, he enjoys some
sort of right or interest in the endowed property which
partially at least has the character of a proprietary
right;.
Thus, in the conception of shebaiti both the
elements of office and property, of duties and personal
interest, are mixed up and blended together; and one
of the elements cannot be detached from the other. It
is the presence of this personal or beneficial interest in
the endowed property which invests shebaitship with
the character of proprietary rights and attaches to it
the legal incidents of property.
This was elaborately
discussed by a Full Bench of the Calcutta High Court
in Manohar · Mukherji v. Bhupendra Nath Mukherji(2 )
and this decision of the Full Bench was approved of
by the Judicial Committee in Ganesh Chunder Dhur v.
Lal Behary(8) and again in Bhabatari~i v. Ashalata(4 ),
The effect of the first two decisions, as the Privy
Couru:il pointed out in the last case, was to emphasize
(I) 48 I.A. 302.
(3) 63 I. A. 448.
(2) I.L.R. 60 CaL 4S2.
27-3 S.C.lndia/68
(4) 70 I.A. 57.
1951
Ang_urb11la
Mullick v.
Debabrata
Mullick ·
Mukher}ea J.
1951
Angurbala
Mu//ickv.
· Dehahrata
Mullick
Mukhtrj.a J.
1134
SUPREME COURT REPORTS.
[1951]
the proprietary element in the shehaiti right, and to
show that though in some respects anomalous, it was
(
an anomaly to be accepted as having been admitted
into Hindu law from an early date.
"According to
Hindu law," observed Lord Hobhouse in Gossamee
Sree
Greedharreejjee
v.
Rumanlolljee
Gossamee('),
'when the worship of a Thakoor has been founded, the
shebaitship is held to be vested in the heirs of the
!-
founder, in default of evidence that he has disposed of
it otherwise, or there has been some usage, course of
dealing, or some circumstances to show a different
mode of devolution."
Unless, therefore, the founder
has
disposed
of the shebaitship in any. particular
manner-and this right of disposition is inherent in the
founder-or except when usage or custom of a different
nature is proved to exist, shebaitship like any other
species
of
heritable property
follows
the
line of
r
inheritance from the founder.
Turning now to the Hindu Women's Rights to Property Act, it will be seen that the object of the Act,
as set out in the preamble, is to give better rights to
women in respect of property. Section 2 lays down :-
"Notwithstanding any rule of
Hindu
law
or
custom to the contrary, the provisions of section 3
shall apply where a Hindu dies intestate."
Section 3( 1) then provides :-
"When a Hindu governed
by
the
Dayabhaga
School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school
r
of Hindu law ...... dies intestate leaving separate
pro-
~
perty, his widow, or if there is more than one widow
all his widows together, shall, subject to the provisions
of sub-section ( 3), be entitled in respect of property in
respect of which he dies intestate to the same share as
a son:
Provided that the widow of a predeceased son shall
--.
inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in
(I) 161.A. 137.
S.C.R.
SUPREME COURT REPORTS
li35
like manner as a son's son if there is surviving a ·son
or son's son of such predeceased son;
Provided further that the
same
provts1on
shall
apply mutatis mutandis to the widow of a predeceased
son of a predeceased son."
\
Sub-sections (2) and ( 4) of section 3 ate not material
(
for our present purpose. Sub-section (3) lays down :- .
"Any interest devolving on a Hindu widow under
the provisions of this section shall be the limited
interest known as a Hindu woman's estate .......... "
Section 4 lays down. that the •Act is . not to operate
retrospectively.
The only other section in the Act
which has been referred to in the course of arguments
is .section 5 which runs as follows :-
"For the purposes of this Act a person
shall be.
deemed to die intestate in respect of all property · ot
which he has not made a testamentary disposition
which is capable of taking effect."
It will be seen that section 3(1) abrogates the general
rule of Hindu law according to which a ·widow
succeeds to her deceased husband's property only
in
default of male issue and she is now entitled to the .
same share as a son along with or in default of male
issue. Similar rights have been given by the two
provisos attached . to section 3 ( 1) to the widow of a
predeceased son and also to the widow of a predeceased
son of a predeceased son. Section 3(1) speaks of "any
property". The expression prima facie includes, unless
something to the contrary can be spelt out from the
other provisions of the Act, all forms or types of
interest answering to the description of "property" in
law.
Of course, the property must be heritable pre>-
perty in respect to which alone. the question of
succession may legitimately arise.
Reliance has been placed f:iy Mr. Banerjee, first of
all, upon the object or purpose for which the statute
was passed.
The object, as set out in the preamble, is
to give better rights to women in respect to property;
in other words, the object of the legislation is to confer
1951
Angurbala
Mullick
V.·
Debabrata
Mullick
Mukherjea i.
1951
Angurbala
Mul/itlt
v.
Debabrata
MuJ//clt
Muk/rerfea J.
1136
SUPREME COURT Rfil'ORTS
[1951!
larger rights upon women in comparison to what they
enjoyed
under
the
ordinary
Hindu
law.
In our
opinion, the preamble does not throw any light on the
question as to whether the Act does or does not include
within its ambit rights and interest of a shebait.
Mr. Banerjee' next invokes in support of his conten
tion the provisions of sub.section (3)
of section
3,
which lays down that the interest devolving upon a
widow under the provisions of the Act will be the limited interest known as the "Hindu
women's
estate''.
It is argued that this distinction between the Hindu
woman's estate and the unrestricted rights of a male
heir can be predicated only of ordinary secular pre>-
perty, but this distinction is unmeaning when applied
to shebaiti right, for the nature of the interest enjoyed
by a. male or a female shebait is exactly the
same.
This argument does not appear to us to be at all convincing. Precise! y the same thing happens when the
shebaiti right devolves upon a female heir under the
ordinary law of inheritance. If a shebait dies leaving
behind him a widow and no male issue, the widow
would succeed to shebaitship under ordinary law but
her rights in respect oi the shebaiti would be restricted
in the same manner as they would have been if the
successor was the son.
This is because there are
certain limitations and restrictions attached to and
inherent in the shebaiti right itself and they exist irrespective of the fact
as to whether the shebaitship
devolves upon a male or a female heir. But although
as regards powers of alienation the disability of the
male and the female shebaits may be identical, then:
is yet a distinction between them as regards the other
limitation or characteristic of a Hindu women's estate.
When a Hindu female heir succeeds to the property of
a male propositus, she cannot transmit
the interest
which she inherits, to her own heirs upon her death.
The property· goes after her death not to her heirs but
to the heirs of the last male owner. This rule applies
even when the right which devolves upon a widow is
the right of a shebait. After her
death the
sh~blliti
right would not pass to her stridhana heirs but would
r
(
S.C.R.
SUPREME COURT REPORTS
1137
go to heirs of the last shebait(1). Sub-section (3) of
section 3, therefore, is of no assistance to Mr. Banerjee's
client.
Mr. Banerjee then contends that section . 5 of the
Hindu Woman's Rights to Property Act affords a clear
indication that the Act is intended to be applicable
only to property in respect to which a testamentary
disposition is possible.
This section, it may be noted
was added by the amending Act XI of 1938 and the
object apparently was to explain what is meant by
"dying intestate". It says that for the purposes of the
Act -a person shall be deemed to die intestate in respect
of all property of which he has not made a festamentary disposition which is capable of taking effect.
Mr. Banerjee would read the section as qualifying the
meaning of the word "property" as used in section 3(1)
or rather as engrafting a limitation upon it. What he
says is, that the language of the section would be
wholly inappropriate if the Act is applicable to properties in respect to which, as in the case of shebaitship, no testamentary disposition
is
possible.
This
argument, in our opinion, cannot be accepted as sound.
Section 2 of the Act which has been referred to above
makes the provisions of section 3 applicable only when
a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will dispos.-
'ing of his properties.
A doubt might arise
as
to
whether this Act would apply when a will was actually
executed by a deceased, but for some reason or other
it was incapable of taking effect and it was for the
purpose of removing such doubt that this section was
added by the amending Act of 1938. The language of
section 5 of the Act is exactly the same as that of
section 30 of the Indian Succession Act and the object
underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude
the operation of the Act. The will must be an operative will and if the will is void or incapable of taking
effect, it would be deemed that the testator has died
intestate.
If the property is "non-testamentable",
as:
(I} Anurtlgi kuer v. Part1111a111md. t\ .. I. R. 1939 Pat. 1.
1951
A._ngurbala
Mullicki
v.
Debabrata1
Mullick ·
Mukherjea 1.
1951
Angurbala
Mullick
v.
Debabrata
Mul/ic/o
Mukherjea I.
1138
SUPREME COURT REPORTS
(1951]
Mr. Banerjee puts it, no testamentary disposition of
such property is possible or could take effect in law
and the testator must in such circumstances be deemed
to have died intestate in respect of such
property.
Thus, there is nothing in any of the provisions of the
Act from which an inference could be drawn that the
expression "property" as used in section 3( l) has
a
limited or restricted interpretation and is not applicable to shebaitship, which is recognised
as
property
in Hindu law.
'
Reference may now be made to the decision of the
Federal Court in Umayal Achi v. Llkshmi Achi('),
upon which the learned appellate Judges of the High
Court practically based their decision.
The facts
of )
that case stripped of unnecessary details are that one
Arunachalam Chettiar who was a resident of Madras
and
owned
considerable
properties,
moveable
and
immoveable, both within and outside British India,
died leaving behind him two widows and the widow
of a predeceased son.
The deceased had left a will
but the legacies given by the same exhausted only a
small portion of his estate so that with regard to the r
rest which was of considerable value he died intestate.
The deceased was in possession of several trust properties in regard to which there were certain religious and
charitable trusts and the direction in the will was that
the management of these trusts should devolve upon
his heirs.
The son's widow instituted a suit in the
Court of the Subordinate Judge at Devakottai for
administration of the estate and for partition and
,_
separate possession of a half share of the same, basing
her claim upon the Hindu Women's Rights to Property
Act. The suit was resisted by the two widows as well
as by the executqrs appointed under the will of the
deceased and it was pleaded, intra alia, that the Hindu
Women's Rights to Property Act was ultra vi res the
legislature and that in any event it was not applicable
as the propositus did not die intestate.
The trial court
~
held first that the Act was not ultra vires and was
operative on all
properties with the exception of
(I} [1945J F. C.R. I.
'
. '
S.C.R.
SUPREME COURT REPORTS
1139
agricultural lands and this finding was affirmed by the
High Court on appeal and also on further appeal to the
Federal Court by the majority of the Judges of the
Court.
The
second
finding
of
the
trial
Judge
was that the deceased
died
intestate
with
regard
to
a
considerable
amount
of
property
and
consequently the plaintiff was entitled to a · half share
thereof. The High Court affirmed this finding with this
variation that her claim to moveable situated outside
British India was not allowed but the Federal Court
reversed the decision of the High Court on this point
and restored that of the trial Judge. The other point and
that is the point with which we are concerned in the ·
present case, related to the devolution of the trust estates which were held by the testator. Both the courts
~ below concurred in holding that these trusts should go
· to the heirs of the deceased under the ordinary Hindu
law and that the provisions of the Hindu Women's
Rights to ·Property Act were not attracted to the
trusts.
This decision was upheld by the majority of
the Judges in the Federal Court and the point was
actually dealt with by Varadachariar J. in his judgment.
The view expressed by the learned Judge is
~ that the Hindu Women's Rights to Property Act was
intended to apply only to properties beneficially owned
by the propositus and it was not applicable to rights
in the nature of trusteeship. It seems to us that,
properly construed, this decision does not stand in the
way of the appellant.
In the first place, we do not
know at all what the nature of these trusts was. The
'ilearned Judge observed himself in his judgment . that
there was little or no evidence as to the terms of the
foundations in respect of any of the trusts "managed"
by the deceased.
This observation, taken along
with
the terms of the documents referred to in the judgment,
would go to show that the deceased was a mere
man~ger of the trusts and in respect of some of them
~ at least he was. the manager jointly with other persons.
In the High Court, Sir Lionel Leach C. J. expressly
held that in no sense could the trust properties be
regarded as the separate property of the testator and
1951
Angurbala
Mullick
v.
Debabrata
Mullick
Mukherjea J.
1951
Angurbala
Mu/liclo
v.
Debahrata
Mullick
Mulcherjea J.
1140
SUPREME COURT REPORTS
[1951]
consequentfy Act XVIII of 1937 could not apply
to
such a case. V aradachariar J. observed with reference
~
to the documents relied upon by the . learned counsel
for the appellant that they only provided for "management by his heirs." At any rate, we have no materials
to hold that in regard to the trusts that formed the
subject-matter
of
that
suit
the
trustees
had any
beneficial or personal interest in the trust properties.
~
the indications, on the other hand, are clearly in the
opposite direction. In these circumstances, no question
arises in the present case of controverting the proposition of law that V aradachariar J. purported
to
lay
down, namely, that the Hindu Women's Rights to
Property Act could not govern succession to property
in respect to which the propositus had no
beneficial
enjoyment.
It is not possible, however, to enunciate
~
on the basis of this decision, a broad rule of law that
succession to shebaitship, in which an element of
beneficial or personal interest is normally involved
would not be governed by the provisions of the Act.
There are indeed one or two observations ·of the learned
Judge in his judgment, not very definitely expressed,
from which it is not impossible to draw an inference
in favour of the respondent, but we think that they
~
should be construed in the light of the facts and the
actual decision in the case.
The observation that
Hindu law regards trusteeship as property for certain
purposes is of a most general character and it has to
be noted that not only the word "shebaitship" has not
been used by the learned Judge but he does not even
confine his remarks even to religious trusts.
Morever, .;.
trusteeship is not certainly equivalent to shebaitship.
On the other hand, the reference made by the learned
Judge to the limited objective of the Act affords an
indication that he had in mind a trust of
such a
character where the trustee had no personal interest in
the trust property.
The object of the Act as stated
above, is to give better rights to women in respect of "-
property. If a trusteeship, evc;_n if it is regarded as
P.roP<:rty, carries with it no emoluments or any beneficial interest for the trustee and consists of nothing else
S.C.R.
SUPREME COURT REPORTS
1141
but a bundle of obligations and duties, it might possibly be said that the giving of a share iD- such rights
to a Hindu widow would not in any way improve her
position. But the position would be obviously differen.t
if there is a beneficial interest of a substantial
kind
inseparably connected with· the duties of a particular
office. Then again, the learned Judge possibly used
the expression "private property" in a ·somewhat loose
sense as meaning personal property in respect to which
the proprietor has a beneficial interest of his own.· The
reference to section 3(3) of the Hindu Women's Rights
to Property Ast is, as we have indicated already, not
much helpful for the purpose of construing the Act.
After all, we must take the decision as it stands and
it is not right to call into aid a particulaI1 reason assigned by the learned Judge, for the purpose of carrying
the decision beyond what it actually purports to. lay
down.
We think that a very proper view of the effect
of this decision of the Federal Court has been taken
by a Division Bench of the Madras High Court
in
P. Suryanarayanacharyulu v. P. Seshamma(1).
There
the question arose in connection with the rights associated with the office of archakatavam, which is a hereditary religious office and the holder or holders of it
for the time being are beneficially entitled to enjoy
the income of the endowed property. It was held that
the principle laid down by the
Federal Court in
Umayal Achi v. Lakshmi Achi(2) has no application to
a case relating to the office ·of archak_atvan.
It is
pointed out by the Madras High Court that though the
observations of the learned Judge in the Federal Court
are wide, the decision proceeded only . on the main
ground that the Act governs succession to property
beneficially owned by the propositus.
In our opinion,
the same reasons apply to the case of a hereditary
shebait of a private debutter, particularly where,
as
in the present case, 25 per cent. of the net income of
the endowed properties has been given to the shebait
or shebaits for the time being as their remun~ration.
Our conclusion, therefore, • is that there is nothing in
1(1) A.I .. 9SOMad. 103.
(2) [1945] F.C.R. I.
1951
Angurbala
Mullick
v.
Debabrata
Mullick
Mukherjea J.
19Sl
A._ngurbala
Mui/kl<
v.
Debabrata
Mullick
Mukherjea I.
1142
SUPREME COURT REPORTS
[1951]
any of the provisions of the Hindu Women's Rights to
Property Act which excludes from
the. s~ope a_nd
operation of the Act succession to shebaitship which
is a recognized form of property in Hindu law.
Assuming that the word "property" in Act XVIII
of 1937 is to be interpreted to mean property in its
common and ordinarily accepted sense and is not to be
extended to any special or peculiar type of property,
even then we think that the other contention of
Mr. Tek Chand is perfectly sound.
Succession to
shebaitship, even though there is an ingredient of office
in it, follows succession to ordinary or secular property.
It is the general law of succession that governs succession to shebaitship as well.
While the general law has
now been changed hy reason of Act XVIII of 1937,
there does not appear to be any cogent reason why the
law as it stands at present should not be made applicable in the case of devolution of shebaitship.
The last contention of Mr. Tek Chand that under
the indenture itself the wife of Mrityunjoy and not
Kiranbala particularly has been given rights of succession to shebaitship prior to any issue of Mrityunjoy is
manifestly untenable and as the learned counsel
was
not at all serious in pressing this point, we consider it
unnecessary to discuss it any further.
It remains for us now to advert to and consider the
other contentions raised by Mr. B;merjee wi}ich depend
upon the construction of the refevant clauses in the
indenture.
It may be stated at the outset that we are
not at all impressed by the argument of the learned
counsel that the words "heirs of the said Mrityunjoy"
occurring in the document are to be construed as words
not of inheritance but of grant. Such construction
would be against the language and the whole tenor of
the document.
It is to be noted that Mrityunjoy was
the owner of the dedicated properties and the real
founder of the endowment. The mother was associated
with him in the act of dedication because it was she
who consecrated and established the diety and was
looking after its worship and service since it was
installed. It was in the fitness of things therefore that
i
S.C.R.
SUPREME COURT REPORTS
1143
Mrityunjoy should request his mother to become the
}'
fi'rst shebait and this is exactly what is recited in the
indenture.
After
the
death
of
Nitto
Sundari,
Mrityunjoy, the founder, himself, was to be the shebaii:
and save and except the provision made in favour of
Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the
r
founder.