# 728. KALI KINK OR GANG UL Y v. PANNA BANERJEE AND ORS

- **Citation:** [1975] 1 S.C.R. 728
- **Court:** Supreme Court of India
- **Decided:** 1974-08-16
- **Case number:** Civil Appeal No. 1115of1973
- **Bench:** A. N. Ray, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/728-kali-kink-or-gang-ul-y-v-panna-banerjee-and-ors-6238
- **Pages:** 9

## Headnote

Religious endowment-Transfer of office of Shebaiti-When. pern1issible.
On the death of B who had the Shebaiti right of the deities in a temple, one of
his two widows, carried on the sheba puja and on her death, her brother took possession of the temple premises. The other widow filed a suit and obtained a decree in
her favour declaring her right to be entitled to the temple pren1ises and to the right
of sheba puja. She sold a half share of the temple and the shebaiti right to G for
meeting the expenses of the litigation. The appellant, a legatee of G, filed a suit
claiming a declaration that he was entitled to the shebaiti right, which the respondents, who are the heirs of 'B' denied. The High Court, in appeal held against
the appellant on the ground that the transfer to G was invalid.
Dismissing the appeal to this Court,
B
c
HELD : Although shebaiti right is heritable like any other property, it lacks the
other incident of proprietary rights, namely, capacity of being freely transferred by
the person in whom it is vested. The rule against alienation of shebaiti right has
been relaxed in certain decisions of the High Courts, which are clas.sified under
three heads (a) where the transfer is not for any pecuniary benefit and the transferee
D
is the next heir of the transferor or stands in the line of succession of shebaits and
suffer.; from no disqualification regarding the performance of duties; (b) when the
transfer is made in the interest of the deity itself and to me(1t..1,somo pressing necessity; and (c) when a valid custom is proved sanctioning the alienation of shebaiti
right within a limited circle of purchasers, who are actual or potential shebai_ts of
the deity or othenvise connected with the family. In the present case, the appellant
rested his claim on the second exception on the ground that the transfer was made
in the interest of the deity and to meet a pressing necessity. But, the appellant
cannot invoke the doctrine of transfer of shebait right for the benefit of the deity,
E ·
because, the transfer to G is illegal, for the reason, that neither the temple nor the
deities, nor the shebaiti right can be transferred by sale for pecuniary consideration.
The rule of necessity extended only to an alienation of the temporality of the idol
and does not and cannot apply to alienation of the spiritual rights and duties. The
doctrine of alienability of the shebaitship itself on the ground of necessity or benefit
to the deity, is based upon a misconception of the observations of the Judicial Committe.e. Such a sale is void in its inception. An assignment of a religious office
by which the aliener gets pecuniary benefit is against public policy and cannot be
F
uphe!J. [733C-D,H-734C, 735C-F]
Pro,anna Kumari v. Go/ap Chand 2 LA. 145 explained.
Mahamaya v. Haridas I. L. R. 42 Cal. 455, Khatra Chandra Ghosh v. Haridas
I.L.R. 17 Cal. 557, Rajah Vurmah v. Ravi Burn1ah 41. A. 76. Sundarmnbalv .. Yoganyanag1uukkul I.L.R. 38 Mad. 850, Rajeshwar v. Gopaswar I.L.R. 35 Cal. 226, l'1irn1al
Chandra Banerjee v. Jyoti Prasad 42 C.W.N. 1138 Nagendra ]1/ath v. Rabindra I.L.R.
53 Cal. 132 and Dr. B.K. Mukherjea, Hindu Law of Religious and Charitable Trust,
referred to.
ARGUMENTS
For the appellant-The alienation in favour of Gisin same tcnns as the alienation under which B hi1nself had acquired rights. The documents were understood
throughout by all the parties as a mere transfer of the personal proprietary interest
of a shebait \vh_i~h is ancillary to ~is d_uties.as a ministre_n~ of the deity and a manager
of its temporalitles. There is no Justification for not g1vmg effect to the true import
and substance of the document, and, indeed it \vas conceded before the High Courl
that no claim was being laid to either the deity or the temple. In such circumstances,
the only question which arose for determination was whether in the fact and circun1stances of the instant case the transfer to G was .invalid and could not be given
effect to.
·
G
H
' l
.

## Text

728.
KALI KINK OR GANG UL Y
v.
PANNA BANERJEE AND ORS.
August 16, 1974
[A. N. RAY, C.J., AND K. K. MATHEW, J.J
Religious endowment-Transfer of office of Shebaiti-When. pern1issible.
On the death of B who had the Shebaiti right of the deities in a temple, one of
his two widows, carried on the sheba puja and on her death, her brother took possession of the temple premises. The other widow filed a suit and obtained a decree in
her favour declaring her right to be entitled to the temple pren1ises and to the right
of sheba puja. She sold a half share of the temple and the shebaiti right to G for
meeting the expenses of the litigation. The appellant, a legatee of G, filed a suit
claiming a declaration that he was entitled to the shebaiti right, which the respondents, who are the heirs of 'B' denied. The High Court, in appeal held against
the appellant on the ground that the transfer to G was invalid.
Dismissing the appeal to this Court,
B
c
HELD : Although shebaiti right is heritable like any other property, it lacks the
other incident of proprietary rights, namely, capacity of being freely transferred by
the person in whom it is vested. The rule against alienation of shebaiti right has
been relaxed in certain decisions of the High Courts, which are clas.sified under
three heads (a) where the transfer is not for any pecuniary benefit and the transferee
D
is the next heir of the transferor or stands in the line of succession of shebaits and
suffer.; from no disqualification regarding the performance of duties; (b) when the
transfer is made in the interest of the deity itself and to me(1t..1,somo pressing necessity; and (c) when a valid custom is proved sanctioning the alienation of shebaiti
right within a limited circle of purchasers, who are actual or potential shebai_ts of
the deity or othenvise connected with the family. In the present case, the appellant
rested his claim on the second exception on the ground that the transfer was made
in the interest of the deity and to meet a pressing necessity. But, the appellant
cannot invoke the doctrine of transfer of shebait right for the benefit of the deity,
E ·
because, the transfer to G is illegal, for the reason, that neither the temple nor the
deities, nor the shebaiti right can be transferred by sale for pecuniary consideration.
The rule of necessity extended only to an alienation of the temporality of the idol
and does not and cannot apply to alienation of the spiritual rights and duties. The
doctrine of alienability of the shebaitship itself on the ground of necessity or benefit
to the deity, is based upon a misconception of the observations of the Judicial Committe.e. Such a sale is void in its inception. An assignment of a religious office
by which the aliener gets pecuniary benefit is against public policy and cannot be
F
uphe!J. [733C-D,H-734C, 735C-F]
Pro,anna Kumari v. Go/ap Chand 2 LA. 145 explained.
Mahamaya v. Haridas I. L. R. 42 Cal. 455, Khatra Chandra Ghosh v. Haridas
I.L.R. 17 Cal. 557, Rajah Vurmah v. Ravi Burn1ah 41. A. 76. Sundarmnbalv .. Yoganyanag1uukkul I.L.R. 38 Mad. 850, Rajeshwar v. Gopaswar I.L.R. 35 Cal. 226, l'1irn1al
Chandra Banerjee v. Jyoti Prasad 42 C.W.N. 1138 Nagendra ]1/ath v. Rabindra I.L.R.
53 Cal. 132 and Dr. B.K. Mukherjea, Hindu Law of Religious and Charitable Trust,
referred to.
ARGUMENTS
For the appellant-The alienation in favour of Gisin same tcnns as the alienation under which B hi1nself had acquired rights. The documents were understood
throughout by all the parties as a mere transfer of the personal proprietary interest
of a shebait \vh_i~h is ancillary to ~is d_uties.as a ministre_n~ of the deity and a manager
of its temporalitles. There is no Justification for not g1vmg effect to the true import
and substance of the document, and, indeed it \vas conceded before the High Courl
that no claim was being laid to either the deity or the temple. In such circumstances,
the only question which arose for determination was whether in the fact and circun1stances of the instant case the transfer to G was .invalid and could not be given
effect to.
·
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K. K. GANGULY V. P. BANERJEE
729
lt is now \Veil settled that in the concept of shebaiti both the ele1nents of office
and property are there. It has been held (vide Angurbala v. Devabrata (1951) SCR
1125 that shebaitship is property within the meaning of Hindu Women's Right
to Property Act and was also property in the general sense and the general law of
succession governed succession to shebaitship. It has also been held that a partition of the shebaiti right .amongst several co-shebait or co-heirs can be suitable effected under a scheme allotting differant palas or terms of worship to the different
claimants (vide I.L.R. 42 Calcutta 445). If the proprietary interest of a sbebait
is both heritable and capable of being partitioned, there is no reason ·why, subject
to certain limitations, it should not be alienable. To the general rule, founded on
the principle that the elements of office and property, of duties and personal interests
are more or less blended together, that shebaiti right was inalienable, there are,
certain notable exceptions, one being that such transfer is permissible if it was neither
contrary to the intentions of the Founder as expressed in the Deed of Endowment
or otherwise nor was in any was obnoxious to the principles of Hindu Law, and
subject always to this fundamental limitation, a shebait can ·always transfer his or
her shebaiti interest which was an amalagan1 of office and property for the benefit
of the idol or the deity or for any legal or pressing necessity.
Now in the instant case the following facts are either admitted or found : Either
under the transfer from the original founders, or under the transfer to B and also
under the transfer to the predecessor-in-interest of the plaintiff, a right of transfer
to strangers was conferred expressly and each had a right to extinguish and exhaust
the line of -succession.
It is apparent th~t the intention of the founders was that strangers could be taken
in management and power was expres..'\ly given by them in redelegate the authority
to such strangers. Accordingly, the transfer cannot be said to be contrary to the
founders' intentions, and, as the transfer has been made to a person who was in no
manner disqualified to discharge the duties of the office of a shebait, the transfer
comes squarely under the exception mentioned above.
To impose a total ban will be contrary to the principle enshrined in Article
19(I)(b) of the Constitution and, in any case it cannot be in consonance with a sound
public policy to ban a transfer to a qualified person even in a case of dire legal neces·
sity such as presentation of the very existence of the deities and recover them and
their abode from possession of one who had taken forcible posse.5sion.
An alienation of shebaiti right for necessity or benefit of the deity was held justified in the undernoted cases :
I. I.L.R. 17 Cal. 557
2. I.L.R. 35 Cal. 226
F
3. 42 c.w.N. ll38
G
H
4. 8. I.A. 146 (152)
5. 44 I.A. 147
6. 48 I.A. 302
7. 36 I.A. 148.
8. 45 C.W.N. 809
9. I.L.R. 6 Born. 298
Therefore, the alienation was wrongly held as invalid.
For the respondent-The earlier transfers were not challenged in the suit. It
is well settled that neither the temple nor the deities can be the subject matt.er of
any sale transactions and this .Propo~ition has not been conteste~ by t~e appel!ant.
That being so, on the face of it, the impugned transfer should fad. It JS submttted
that the deed should be read as a whole from which the subject matter of the sale
is to be ascertained. That being so, it is not permissible to consider separately the question of transfer of the half share of her shebaiti-right. It is submitted that the said
transfer as a whole should be held to be invalid.
Even assuming that the question of transfer of shebaiti-right can be separated,
as contended by the appellant, the transfer of shebaite-right should be held to be
730
SUPREME COURT REPORTS
(1975} 1 S.C.R.
fnvalid. It has been held in Raja Rai1i Varn1a's case (4 I.A. 76) and in several other
decisions that sale of shebaitship is altogether void. This subject has been dealt
within detail by Dr. B.K. Mukherjee in his Tagore Law Lectures on Hindu Law ~f
Roligious and Charitable Trusts delivered in 1951 at pages 228 onwards of the Orig1·
nal Edition. After considering the texts and Case Law on the subject the opinion
expressed by the learned author is that although alienation may be permissible in
favour of next shebait or one in the line of succession or to a co-shebait the same
cannot be made in favour of a stranger even on the ground of necessity. The lear~
ned author at page 235 has observed that certain decisions of the Calcutta High
Court which had purported to uphold the transfer of shabaiti-right on the ground
of necessity was of doubtful authority and was to a great extent based upon misconstruction of certain pronouncements of the judicial Committee. The editor of
the said Edition of Dr. Mukherjee's said Tagore Law Lectures (Mr. T. L. Venkatarama Ayyar) has also expressed the same view. This being the legal position, it is
submitted, G did not acquire any right of shabaitship of the deities by the deed of
sale in his favour. Accordingly the ap~e11ant also derived no right and the High
Couri in appeal rjghtly decided the question raised before it.
For the Receiver : On behalf of the Receiver some submissions were made regarding his remuneration and expenses including the salary of his clerk.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1115of1973.
Appeal from the Judgment & Decree dated the 11th April 1973
of the Calcutta High Court in Appeal from Original :Oecree No. 52
B
c
of 1972.
D
A. B. M. Sinha, Sa/ii Ganguly and Samir Roy Choudhury, for the
appellant.
B. Sen and D. N. Mukhe1jee, for the respondents.
P.K. Mukherjee, for the respondent.
The Judgment of the Court was delivered by
RAY, C.J. This appeal is by certificate from the judgment dated 11
April, 1973 of the High Court at Calcutta difmissing the appellant's
suit.
E
Two contentions were advanced on behalf of the aprellant. First,
a shebaiti right being both an clllce as well as species of property
F
can and has been transferred in certain circumstances. Such transfer
is possible ifitis not contrary to the intention of the founder as expr<md
in the deed or any document
concerning shebaitship. Second, it
is permissible for the benefit of the idol or the deity or any other pres·
sing necessity to execute a sale deed in respect of shebaiti right.
The deity at the premises is popularly known as Firingi Kali. R<makanta 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 tl1e
sheba. He constructed a small brick built one storeyed rccrn thereotL
He installed the deities Kali, Sitala Manasha and Shalig1Cm Shila ..
In 1880 Srimanta Pandit by a registered deed transfemd the temple
together with the deities and the shebaiti right of the deities to Shashi'
Bhusan Banerjee. Shashi Bhusan Banerjee performed sheba tilf
G
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A
B
c
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K. K. GANGULY v. P. BANERJEE (Ray, C.l.)
731
his death on 24 August, 1894. He left behind him two widows Paripuma Debi and Pramila Sundari Debi. Paripurna Deh 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 pmniHs
and ousted Pramila Debi.
On 22 August, 1905 Pramila Debi filed a suit in the High Ccmt
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 aga;nst Rakhal Chandra Mukherjee
declaring her to be entitled to temple premises and to the right of
sheba puja.
Meanwhile on 3 August, 1906 Pramila Debi alcng with cne Chandra
Kumar Banerjee who was the reversioner of Shashi Bhman Banerjee
sold certain properties of the estate of Shashi Bhusan Banerjee to
Upendra Nath Ganguli for legal necessity. On 29 January, 1907
by a deed Pramila Devi sold one half share of her full title in the tc mple
and the share of shebaiti right to Upendra Nath Ganguli. The legal
necessity claimed in the deed was incurring expenses in ccnnection with
the litigation relating to the temple premises and the shebaiti 1i~ht
against Rakhal Chandra Mukherjee.
Upendra Nath Ganguli who came into possession of the pH mises
carried on sheba puja till his death in 1925. On 5 November, 1922
Upendra Nath Ganguli made his first wilJ. He appointed his brother
Pramatha Nath Ganguli as the executor. Upendra Nath Ganguli
E
bequeathed life interest in respect of temple premises to Pnmila Dtbi
as shebait and after her death to the appellant Kali Kinkor Ganguly.
On 15 February, 1925 Upendra Nath Ganguli made a second will
by which he bequeathed to Pramila Debi all his right, title ar.d inttmt
in the temple premises for her life. Upendra Nath Ganguli ditd en
30 January, 1925. On 3 August, 1925 Pramatha Nath Ganguli applied
for probate before the District Judge 24-Parganas. On 12 December,
F
1925 Pramila Debi filed an objection in the probate prccecdings. 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 Pramila Debi in
respect of the second will. By an order dated 6 February, 1928 the
proceedings relating to letters of administr.ation granted to Pramila
Debi were remanded to the District Judge by a Division Bench of
G
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.
H
On 15 September, 1947 Pramila Debi died. In 1949 Pramatha
Nath Ganguli died.
The appellant filed this suit on 22 January, 1959. The appellant
claimed a Cleclaration 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
732
SUPREME COURT REPORTS
[1975] 1 S.C.R.
is entitled to an undivided half share in the said pr<mis<S and lo 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 appellant's right in the premises and in shebaiti rights.
The trial court held that the transfer of half share of shtbaiti right
by 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 Debi in favour ofUpendra
Nath Ganguli.
A
B
The High Court on appeal set aside the decree. The High Court
C
held that the transfer by Pramila Debi in favour of Upendra Nath
Ganguli is invalid.
The centre of controversy in this appeal turns on the constructic n
of the deed dated 29 January, 1907 made by Pramila Debi in favour
of Upendra Nath Ganguli. By the deed Pramila Debi sold to Upendra
Nath Ganguly for consideration of Rs. 1200/- "one half share of the
D
full title that I have in the said Kalibati together with the land underneath, the pucca building and income etc. (from the Kalibari) that
is to say -/8/- eight annas share in the said Kali Mata, Her seba and
pala etc. and in the Kali Mandir and Bati situate at 244, Bowbazar
Street, Calcutta together with the land underneath the pucca building
and in the entire income and profit therefrom. From this day share
to the extent of -/8/- eight annas out of the sixteen annas in right title
E
and interest which J had in the said property, devolves on you and you
being entitled to the rights of gifts, sale etc. shall enjoy and possess
the said property for ever down to your sons or heirs and rnprcsentatives in succession. To that, mine or any other heirs or representatives
of my husband shall not be competent to raise any kind of plea or
objection".
The appellant contended that no one laid any claim to the deity
or to the temple. The appellant contended as follows : The sum and
substance of the deed sued upon is that it is a mere transfer of the personal proprietary interest of a shebaiti which is ancillary to his duties
as a ministrant of the deity and the manager of its temporalities.
The concept of shebaiti has both the elements of office and property.
A partition of shebaiti right amongst several co-sebaits or co-heirs
can be effected under a scheme allotting different Palas. The transfer
from the original founders to Srimanta Pandit in 1820 or the transfer
from Srirnanta Pandit to Shashi Bhusan Banerjee and the transfer
from Pr'amila Debi to Upendra Nath Ganguli, the predecessor-ininterest of the appellant all indicate that the shebaits exerci,ed rights
of transfer to strangers and further that the she bait had rights to extinguish and exhaust the line of succession. These transfers of shebaiti
rights indicate that it was the intention of the founders that strangers
could be taken in management and power was given by them to redelegate the authority to such strangers. Therefore, transfer by Pramila
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G
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K. K. GANGULY·V. P. BANERJEE (Ray, C.J.)
733
Debi to Upendra Nath Ganguli is not coutrary to the founders'
intentions. Furthermore, Upendra Nath Ganguli was not di•qualified to discharge the duties of the office of shebait.
Counsel for the appellant relied on the decision of this Ccurt in
Angurbala v. Devabrata 1951 S.C.R. 1125 in support of the proposition that shebaitship is property. Reliance was also plae<d on He
decisions in Mahamaya v. Haridas I.LR. 42 Cal. 455 and Kherta
Chandra Ghosh v. Haridas I.LR. 17 Cal. 557 in support of the
proposition that a partition of shebaiti right is possible. A ccrollary
was drawn by counsel for the appellant that if the proprietary interest
of a shebati is both heritable and capable of being partiticmd, there
is no reason why subject to certain limitations it should nnt be alienable.
It was said that an alienation of a shebaiti right for necessity or benefit
of the deity is permissible as well as justified.
. In the Hindu Law of Religious & Charitable Trust, !st Edition,
being the Tagore Law Lectures delivered by Dr. B.K. Mukherjea the
statement of law at page 228 is this : "Although shebaiti right is. heritable like any other property, it lacks the other incident of prcpnetary
right, viz., capacity of being freely transferred by the person in whom
it is vested. The reason is that the personal propreitary interest which
the shebait has got is ancillary to and inseparable from his duties as
a ministrant of the deity, and a manager of its temporalitks. As the
personal interest cannot be detached from the duties
the transfer
of shebaitship would mean a delegation of the duties of the transfercr
which would not only be contrary to the express intent icns cf tile
founder but would contravene the policy of law. A transfer of shebaitship or for the matter of that of any religious office has nowhere
been countenanced by Hindu lawyers".
In Rajesh Vurmah v. Ravi Burmah 4 I.A. 76 Rajah paid certain
sum to the ura/lers (managers) of the religious foundation who transferred all their rights to the Rajah. The Judicial Committee held t_hat
the assignment was void in law and could not create any rights in favour
of the Rajah. An assignment of religious office for the pecuniary
benefit of the holder of the office was held to be against public policy
and contrary to the intentions of the founder. Such tramfer was
said to amount to delegation of delagated authority and cculd not be
sanctioned even on the footing of a custom because it would be against
public policy.
The doctrine in Rajah Vurmah's case (supra) has been applied on
transactions by way of lease or mortgage. In Sundrambal v. Yoganyanagurukkul I.L.R. 38 Mad. 850 one of the parties alienated half
share in the Arc~aka right for a pecuniary benefit. It was said that
"an alienation of a religious office by which the alienor gets a pecuniary
benefit cannot be upheld even if a custom is set up sanctioning such
alienation''.
The rule against al.ienation of shebaiti right has been relaxed by
reason of cer.tam special cu~um.stances. These are classified by Dr.
B.K. MukherJea at page 231 m his Tagore Law Lectures on the Hindu
734
SUPREME COURT REPORTS
(1975] 1 S.C.R.
Law of Religious and Charitable Trust, !st Editicn under three heads.
The first case is where transfer is not for any pecunia1y brnefit 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 mede
in the interests of the deity itself and to meet scme pressing necessity.
Third, when a valid custom is proved sanctioning alienation cf shebaiti
right within a limited circle of purchasers, who are actual or potential
shebaits of the deity or otherwise connected with the family.
In ~he present case counsel for the appellant rested on the second
exception on the ground that the transfer is made in the interfst of the
deity and t o meet some pressing necessity.
The reason why transfer in favour of the next shebait or one in the
line of succession or a co-shebait 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. Jn such a case no policy of Hindu Law is likely to be affected qor 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 his death (See Rajeswar v. Gopeswar J.L.R. 35 Cal. 226).
The decisions in Mahamaya's case and Khetra Chandra Ghosh's case
(supra) do not support the appellant's contention of sale of shebaiti
right for pecuniary consideration. A shebait cannot delegate his
duties to another person, but he is not bound to accept his office.
If he renounces his duties the renunciation in the form of a transfer
in favour of the next heir can be valid in Jaw.
In Khetra Chandra Ghosh's case (supra) on which the appellant
relied in support of the assignment of shebaiti right on the doctrine
of benefit to the deity the question was whether the Ghoshes who
were the shebaits of a private family endowment could make over
the idol together with the endowed property to the predecessors of
the plaintiff in that case on the ground that the Ghoshes were unabl,
to carry on the worship of the idol with the income of the Debutter.
Dr. B. K. Mukherjea at pages 236-239 in his Tagore Law Lectures
Ist Edition examined various decisions on this aspect.
In Khetra
Clrandra Ghosh's case (supra) the Court relied on the decision of
the Judicial Committee in Prosa1111a Kumari v. Golap Chand 2 I.A.
I 45 where the Judicial Committee said that a she bait must, of necessity, be empowered to do whatever might be required for the service
of the idol and for benefit and preservation of the ·property. The
ratio in Khetra Chandra Ghosh's case (supra) is that all the members
of the Ghosh family, for the purpose of preserving the property of
idol and preventing the discontinuance of its worship gave the estate
another direction.
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G
In Rajeswar v. Gopeswar case (supra) the doctrine of necessity or
H
beuefit to the deity was referred to. The actual decision in the case
was that a hereditary shebait cannot alienate his office by will.
A
B
• . ,
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K. K. GANGULY v. P. BANERJEE (Ray, C.J.)
730In Nirmal Chandra Banerjee v. Jyoti Prasad 42 C.W.N. 1138
the transfer of shebaiti rights was not by way of a sale, but was found
to be conducive to the interests of the idol. It was held to be valid.
Dr. B.K. Mukherjea doubted the propriety of these decisions.
Shri Venkatarama Aiyar as the editor of the Second Edition of Dr. B.K.
Mukherjea's Tagore Law Lectures also expressed the same view at
pages 219-220 that even if the transfer is for no consideration the
transfer would be bad if it is not in favour of those next in the line of
succession.
Dr. B.K. Mukherjea in his Tagore Law Lectures has pointed out
that the decision in Prasanna Kumari's case (supra) was that the
rule of necessity extended only to an alienation of the temporality
of the idol and it does not and cannot apply to alienation to the spiritual rights and duties. Dr. Mukherjea illustrated this with reference
to the decision in Nagendra Nath v. Rabindra I.L.R. 53 Cal. 132
and an earlier decision in Rajeswar v. Gopeswar
(supra). The
doctrine of alienation of shebaitship on the ground of necessity or
benefit to the deity is said by Dr. Mukherjea to be of doubtful authority and based upon a misconception of certain pronouncements of
the Judicial Committee.
In the present case, the appellant cannot invoke the doctrine ortransfer of shebaiti right for the benefit of the deity because the transfer
by 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.
For these reasons the appeal is dismissed. We may state here that
we are not in agreement with the various reasons given by the concurring judgment of the High Court.
Some submissions were made on behalf of the receiver about
his remuneration and expenses including salary of the clerk. At
the time we granted stay of the operation of the decree of the High
Court we indicated that the question of remuneration and salary
of the clerk would be gone into at the time of the disposal of the appeal.
The receiver will be entitled to his remuneration for 16 months during
the pendency of the appeal. The High Court sanctioned the receiver
a remuneration of 130 gold mohurs for 7 months and salary of the
clerk at the rate of Rs. 50/- per month. The High Court will fix
the remuneration of the receiver for the subsequent months up to
the discharge of the receiver on passing of his accounts. The High
736
SUPREME COURT REPORTS
[1975] 1 S.C.R.
·Court will also fix the salary of the clerk because it was submitted
before us that the salary of the clerk was low considering that he had
.to attend the temple every day for long hours without any holiday.
The receiver will submit his accounts and will be discharged on
passing of accounts. The receiver will hand over to the respondents,
viz., the Banerjees all monies lying with him after deducting his remuneration, salary of the clerk and.all other expenses at the passing of
the accounts by the High Court.
The appellant will pay one set of costs to be shared by the respondents and the guardian-ad-litem.
Appeal dismissed.
l/.P.S.
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