# • - / 9 63 RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES v. BAJRANG LAL & ORS

- **Citation:** [1978] 3 S.C.R. 963
- **Court:** Supreme Court of India
- **Decided:** 1978-05-05
- **Bench:** Y. V. Chandrachud, D. A. Desai, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-63-ram-rattan-dead-by-legal-representatives-v-bajrang-lal-ors-7471
- **Pages:** 8

## Headnote

Duty of Court to consider preliniinary objection as to ad111issibi/i1y of a
docurnent in ei·idence-Explained.
Stan1p Act, Sections 33, 35, 36-Scope of.
Hl!reditary office of Shebait enjoyed by a person, whether
1novable
or c·
immovable property-Whether the deed of Rift of such a right requires registration.-Tlie office being iln1norable property in the instant case, the gift deed' i.y
inadmissible in ci·idence for want of registration.
The plaintiff-appellant, \vho died pending the appeal sought a declaratioa
that he was entitled -to a right of v.:orship by turn (called Osra) for 10 days
in a circuit of 18 months in the temple of Kalyanji Maharaj at village Diggi
District. Tonk, R_ajasthan u•1der the Will Ext. dated 22 ·September, 1961 cxe·
Di
cuted by deceased Mst. Acharaj, ·wife of Onk,ar.
The Trial Court did not try
the preliminary objection. when it was raised at the time of the trial;
but
ma.de a note : "Objected. A!lowed subj'ect to objection".
The Cou:t rejec::ed
it at 'the time of arguments taking recourse to Section 36 of the Stamp Act.
On the question of registration it held that as the "turn of worship W<J-s
a
movable property", if did not require compulsory registration and decreed the
suit.
In appecll the first Appellate Court reversed the Judgment, inter aria.
hol_~ing that the document Ext I wa5 a gift and as it involved ~ift of immovable property the document was inadmissible in evid~nce both on the ground
E·.
that it is not duly stamped and for want of registration.
The Plaintiff's second
~1p_peal before the High Court failed.
Qismissing the appeal by special leave, the Court
l-lELO_ : 1. \Vhen a document is tendered in evid.ence by the plaintiff while
in witness box and the defendant raises an objection that the document is inadmissible in evidence as it Vias not duly stamped and for want of RegistraF
t_iQn, it is obligatory upon the Trial Judge to apply his mind to the objection
raised and to decide the objection according to law.
TenJency sometimes is
lo postpone the decison to avoid interruption in the process of recording
evidence and. therefore. a very convenient device is restored to, of marking
th~ dpc_ument in evid.ence 'subject to objection.'
This. however, would not
mean that the objection that the instrument is not duly stamped ·is jUCHcially
decided; it is merely postponed.
In such a situation at a later stage
before
the suit is finitlly dispQsed of it would non-the·less be obligntory
upon
the
G
Court to decide the objection,
If; after applying its mind to the rival contentro,ns
the tri~l court admits a document in eviden):;e, s. 36- of tQ.6 St<:1.μtp Act wou)d,
come. into play and such admission cannot be called in question at any stage
of the sarne &ui~ or pro~eeding on the ground t'ba,t the instrument h&S not
been duly stamped.
The Court, and of hecessity it would be trial court
before which the objection is taken about admissibility of document on the
ground that it is not duly stamped, as to judicially determine the matter as
soor;i .as .the document is ~ende.:re4 in evidence anμ before it is marked as an
e~h1b1t 10 the case an~ w~ere ~ docun1ent has been inadvertently . admitted
H
~1thout the court applying its mind as to the question of admissibility, the
1n6tr-Um.e-Jl,t could1 not be saidr to have been admitted in evidence With a view
to attracting s. 36.
[966 C·G]
SUPREME COURT REPORTS
[1978] 3 S.C.R.
A
In the instant case, the endoI'Sement made by the 1earned trial judge that
D
"objected, allowed subject to objection", clearly indicates that when the objec~
tion was raised it was not judicially determined and the document was merely
tent<itively marked and in such a si'uation s. 36 would not be Jttracted. lY66
G-H]
Javar Chand v. Pukhraj Surana; A.LR. 1961 S.C. 1655.
2. Undoubtedly, if .a person having by law a'uthority to receive evidence
and the civil court is one such person before whom any instrument chargeable
with duty is produced and it is found that such instrument is not duly s

## Text

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9 63
RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES
v.
BAJRANG LAL & ORS.
May 5, 1978
[Y. V. CHANDRACHUD, CJ., D. A. DESAI AND R. S. PATHAK, JJ.J
Duty of Court to consider preliniinary objection as to ad111issibi/i1y of a
docurnent in ei·idence-Explained.
Stan1p Act, Sections 33, 35, 36-Scope of.
Hl!reditary office of Shebait enjoyed by a person, whether
1novable
or c·
immovable property-Whether the deed of Rift of such a right requires registration.-Tlie office being iln1norable property in the instant case, the gift deed' i.y
inadmissible in ci·idence for want of registration.
The plaintiff-appellant, \vho died pending the appeal sought a declaratioa
that he was entitled -to a right of v.:orship by turn (called Osra) for 10 days
in a circuit of 18 months in the temple of Kalyanji Maharaj at village Diggi
District. Tonk, R_ajasthan u•1der the Will Ext. dated 22 ·September, 1961 cxe·
Di
cuted by deceased Mst. Acharaj, ·wife of Onk,ar.
The Trial Court did not try
the preliminary objection. when it was raised at the time of the trial;
but
ma.de a note : "Objected. A!lowed subj'ect to objection".
The Cou:t rejec::ed
it at 'the time of arguments taking recourse to Section 36 of the Stamp Act.
On the question of registration it held that as the "turn of worship W<J-s
a
movable property", if did not require compulsory registration and decreed the
suit.
In appecll the first Appellate Court reversed the Judgment, inter aria.
hol_~ing that the document Ext I wa5 a gift and as it involved ~ift of immovable property the document was inadmissible in evid~nce both on the ground
E·.
that it is not duly stamped and for want of registration.
The Plaintiff's second
~1p_peal before the High Court failed.
Qismissing the appeal by special leave, the Court
l-lELO_ : 1. \Vhen a document is tendered in evid.ence by the plaintiff while
in witness box and the defendant raises an objection that the document is inadmissible in evidence as it Vias not duly stamped and for want of RegistraF
t_iQn, it is obligatory upon the Trial Judge to apply his mind to the objection
raised and to decide the objection according to law.
TenJency sometimes is
lo postpone the decison to avoid interruption in the process of recording
evidence and. therefore. a very convenient device is restored to, of marking
th~ dpc_ument in evid.ence 'subject to objection.'
This. however, would not
mean that the objection that the instrument is not duly stamped ·is jUCHcially
decided; it is merely postponed.
In such a situation at a later stage
before
the suit is finitlly dispQsed of it would non-the·less be obligntory
upon
the
G
Court to decide the objection,
If; after applying its mind to the rival contentro,ns
the tri~l court admits a document in eviden):;e, s. 36- of tQ.6 St<:1.μtp Act wou)d,
come. into play and such admission cannot be called in question at any stage
of the sarne &ui~ or pro~eeding on the ground t'ba,t the instrument h&S not
been duly stamped.
The Court, and of hecessity it would be trial court
before which the objection is taken about admissibility of document on the
ground that it is not duly stamped, as to judicially determine the matter as
soor;i .as .the document is ~ende.:re4 in evidence anμ before it is marked as an
e~h1b1t 10 the case an~ w~ere ~ docun1ent has been inadvertently . admitted
H
~1thout the court applying its mind as to the question of admissibility, the
1n6tr-Um.e-Jl,t could1 not be saidr to have been admitted in evidence With a view
to attracting s. 36.
[966 C·G]
SUPREME COURT REPORTS
[1978] 3 S.C.R.
A
In the instant case, the endoI'Sement made by the 1earned trial judge that
D
"objected, allowed subject to objection", clearly indicates that when the objec~
tion was raised it was not judicially determined and the document was merely
tent<itively marked and in such a si'uation s. 36 would not be Jttracted. lY66
G-H]
Javar Chand v. Pukhraj Surana; A.LR. 1961 S.C. 1655.
2. Undoubtedly, if .a person having by law a'uthority to receive evidence
and the civil court is one such person before whom any instrument chargeable
with duty is produced and it is found that such instrument is not duly stamped,
the same has to be impounded.
The duty and penalty has to be recovered
according to law. Section 35, however, prohibits its admission in evidence
till such duty and penalty is paid.
The plaintiff has neither paid the duty
nor the penalty till today.
Therefore, .wricto sensu the instrument
is
not
ad1nissible i•,1. evidence.
[967 A·B]
3. The hereditary office of Shebait which would be enjoyed by the person
by turn would be immovable property.
The gift of such immovable property
must, of course, be by registered instrument.
Exhibit I being not registered
the High Court was justified in excluding it from evidence.
The definition
of immovable property in S. 2(6) of the -Registration Act lends assurance to
treating Shehait's hereditary office as immovable property because the defini·
tion includes hereditary allowances.
Office of Shebait is
hereditary
unless
provision to the contrary is made in the deed creating the endowment.
In
the conception of Shebait both the elements of office and property duties and
personal interest are mixed up and blended together and one of the elements
cannot be detached from the other.
Old texts, one of the principal sources
of Hindu Jaw a.nd the commentaries thereon, and over a century the courts
with very few exceptions have recognised hereditary office of Shebait as im·
immovable property, and it ha<; all along been treated as immovable property
a.hnost uniformly. [970 A·C]
Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125 and Cornmis·
sioner of Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha
Sit•arn;ar of Sri Shirur Mutt, [1954] S.C.R. 1005; foilowed.
Krishnabhat Bin Hiragange v. Kanbluu Bin Mahalbhat 6 Bombay High
Court Reports 137, Balvantrey alias Tatiaji Banaji v. Purshouun
SidhP.~liwar
and Anr., 9 Bombay High Court Reports. 99, Raiji Manor v. DeJai Kallianrai
lluk1natrai, 6 Bombay High Court Reports 56 Mahara11a Fallehsan[:ji Jaswanr·
sanRii v. Desai Kallianraiji Hekoomutraiji, 1 I.A. 34, Ra{?hoo Pandey & A nr.
v. Kassl' Parey and Ors. I.L.R. 10 Cal. 73, Manohar Mukherjee v. Bhunendra
p
i'Vath Mukherjee and Ors .. A.l.R. 1932 Cal. 791; approved.
Eshan Chandt'T Roy & Ors. v. Mann1ollini Dassi. I.L.R. 4 Cal. 693, Jharu!u
Das v. Jalandhar Thakur, I.L.R. 39 Cal. 887, la[!den Sinf.[h v.
Rcun Saran
Pande and Ors. A.I.R. 1927 Patna 7; explained.
Crv:rL APPELLATE JURISDICTION : Civil Appeal No. 1244 of 1973.
Appeal by Special Leave from the Judgment and Order/Decree
dated the 14th August, 1972 of the Rajasthan High Court in S.B. Civil
Second Appeal No. ?20 of 1968.
V. S. Desai, Sharad Manohar, S. S. Khanduia and R. K. Shukla for
the Appellant.
Badri Das Sharma for Respondents Nos. 1, 3 and 4.
M. B. L. Bhargava, S. N. Bhargava and Sobhagmal Jain for Respondent No. 2.
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RAM RATTAN V. BA.TRANG LAL (Desai, /.)
~ 65
The Judgment of the Court was delivered by
DESAI, J.-The unsuccessful plaintiff, appellant in this appeal by
special leave, who died pending the appeal, seeks a declaration that h6
is entitled to a right of worship by turn (called Osra) for 10 days in
a circuit of 18 months in the temple of Kalyanji Maharaj at Village
Diggi, Distt. Tonk, Rajasthao, under the will Ext. I dated 22nd September 1961 executed by deceased Mst. Acharaj, wife of Onkar.
The
suit was resisted by four amongst five defendants, the 5th defendant
having not put in an appearance.
Various contentions were raiscc.
but the only one surviving for present consideration is whether document Exht. I purporting to be a will of deceased Mst. Acharaj is
a
will or a gift, and if the latter. whether it is admissible in evide!!.£e on
the ground that it was not duly stamped and registered as required
by law?
When the plaintiff referred to the disputed document in his evidence
and proceeded to prove the same, an objection was raised on behalf
of the ddendents that the document was inadmissible in evidence as
being not duly stamped and for want of registration. The trial court
did not decide the objection when raised but made a note : "Objected ..
Allowed subject to objection", and proceeded to mark the document
as Exhibit. 1. When at the stage of arguments, the defendants contended that the document Ext. I is
inadmissible
in
evidence, the·
learned trial judge rejected the contention taking recourse to section
36 of the Stamp Act. On the question of registration it was held that
the document is not compulsorily registrable insofar as the subjectmatter of the suit is concerned, viz., turn of worship which
in
the
opinion of the learned trial judge movable property. On appeal 'by the
defendants the judgment of the trial judge was reversed,
inter alia,
holding that the document Exht. I was a gift and as it involved gift of
immovable property, the document was inadmissible in evidence both
on the ground that it is not duly stamped and for want of registration.
The plaintiff's second appeal to the High Court did not meet with
success.
The only question canvassed before this Court is that even if upon
its true construction the document Ext. I purports to be a gift of turn
of worship as a Shebait-cum-Pujari in a Hindu temple, does it purport
to transfer an interest in immovable property,
and,
therefore,
the
document is compulsorily registrable ?
On the question whether the
document was duly stamped it was said with some justification that it
was not open to the Court to exclude the document from being read
in evidence on the ground that it was not duly stamped because in
any event under s. 33 of the Stamp Act it is obligatory upon the court
to impound the document and recover duty and penalty as provided
in proviso (a) to s. 35.
Mst. Acharaj, wife of Onkar had inherited the right to worship hv
turn for 10 days in a circuit of 18 months in Kalyanji Maharaj Temple.
It is common ground that she was entitled during her turn to officiate
as Pujari and received all the offering made to the deity. During the
B
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[Jl)78j 3 S.C.R.
period of her turn she wttu!e be holding the office of a ·shebait. She
purported to transfer this office with . its ancillary rights to
plarntiff
Ram )'lattan under the deed Exhibit I purporting to be a will. Upon
its ttue construction it has been held to be a deed of gift and ·that
finding was not controverted, nor was it possible to controvert it, in
view of the recital in the deed that : "now Ram Rattan will acquire
legal rights and possession of my entire property from the date the
will is written the details of the property are in Schedule 'A' and after
him, his legal heirs will acquire those rights" It appears crystal clear
that the document purports to pass the title to the property thereby
conveyed in presenti and in the face of this recital it could never be
said that the document Ext. I purports to be a Will.
If by document Ext. I the donor conveyed property by gift to donec
and the property included the right to worship by turn in a temple, is
it transfer of immovable' property which could only be done by a
registered instrument which must be duly stamped according to
the
provisions of the relevant Stamp Act ?
When the document was tendered in evidence by the plaintiff while
in witness box, objection having been raised by the defendants that
the d.ocument was inadmissible in evidence as it was not duly stamped
and for want of registration, it was obligatory upon the )earned tr; a 1
judge to apply his mind to the objection raised and decide the objection
in accordance with law.
Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and,
therefore, a very convenient device is resorted to, of
marking
the
document in evidence subject to objection.
This, however; would not
mean that the objection as to admissibility on the ground that the
instrument is not duly stamped is judicially decided; it is merely postponed.
In such a situation at a later stage before the sultTs finally
disposed of it wonld none-the-less be obligatory upon the conn to
decide the objection.
If after applying mind to the rival contentions
the trial conrt admits a document in evidence, s. 36 of the Stamp Act
would come into play and such admission cannot be called in question
at any stage of the same suit or proceeding on the ground that the
instrument has not been duly slan'lped.
The Court, and of necessity
it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to
judicially determine the matter as soon as the document is tendered
in evidence and before it is marked as an exhibit in the case -and where
a document has been inadvertently ad1lll'tted without the Court applying
its mind as to the question of admissibility, the instrument could not
be said to have been admitted in evidence with a view to attractiw
s. 36 (see Javar Chand v. Pukhraj Surana).(1)
The endorsement
made by the learned trial judge that "objected, allowed subject to
objection", clearly indicates that when the objection was raised it was
not judidally determined and the document was merely tentatively
marked and in such a situation s. 36 would not be attracted.
Mr. Desai then contended that where an instrument not duly stamped or insufficiently stamped is tendered in evidence, the Court has to
rJ) A1R 1961 S.C, 1665.
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RAM RATTAN V. BAHANG LAL (Desai, J.)
967
impound it as obligated by s. 33 and then proceed as required by s.
35, viz., to recover the deficit stamp duty along with penalty.
Undou'b!e'dly, if a person having by law authority to receive evidence and
the civil court is one such person before whom any instrument chargeable with duty is produced and it is found that such instrument is not
duly stamped, the same has to be impounded.
The duty and penalty
l'l\Js to be recovered according to law.
Section. 35, however, prnhibits
its admission in evidence till such duty and penalty is paid.
The plaintiff has. neither paid the duty nor penalty till today. Therefore, stricto
sensu the instrument is not admissible in evidence. Mr. Desai, however, wanted us to refer the instrument to the authority competent to
adjudicate the requisite stamp duty payable on the instrument and then
recowr the duty and penalty which the party who tenders the instrument in evidence is in any event bound to pay and, therefore, on this
account it was said that the document should not be excluded from
evidence.
The duty and the penalty has to be paid when the document
is tendered in evidence and an objection is raised.
The difficnlty in
this case arises from the fact that the learned trial judge declined to
decide the objection on merits arid then sought refuge under s. 36. The
plaintiff was, therefore, unable to pay the deficit duty and penalty which
when paid subject to all just exceptions, the document has to be admitted in evidence.
In this background while holding that the document Ext. I would be inadmissible in evidence as it is not duly stamped,
we would not decline to take it into consideration because the trial
Court is bound to impound the document and deal with it according
to law.
Serious controvetsy centered, however, round the qnestion whether
right to worship by turn 'is immovable property gift of which can only
be made by re.gistered instrument.
Hindi: law
recogniS(0,~
0 !E!t of
property to an idol.
In respect of possession and management
of
the property which belongs to the Devasthanam or temple the responsibility would be in the manager who is described by Hindu law
as Shebait.
The devolution of the office of Shebait depends on the
terms of the deed or will by which it is created and in the absence
of a provision to the contrary, the settler himself becomes a Shellait
and the office devolves according to line of inheritence from
the
founder and passes to his heirs.
This led to an arrangement amongst
various heirs equally entitled to inherit the office for the due execution Of the functions belonging to the office, discharging duty
in
turn.
This turn of worship is styled as 'Pala' in West Bengal and
'Osra' in Rajasthan.
Shebaiti being held' to be property, in Angurbdla Mulick v. Debabrata Mullick,(') this Court recognised the
right of a family to succeed to the religions office of
Shebaitship.
This hereditary office of Shebait is traceable to old Hindn texts and
is a recognised concept of traditional Hindn law. It appears to be
heritable and partible in the strick sense that it is enjoyed by heirs of
equal degree by turn and transferable by gift subject to the limitation that it may not pass to a non-Hindu.
On principles of morality
and propriety sale of the office of Shebait is not favoured.
I) [1951] SCR 1125.
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968
SUPREME COURT REPORTS
[ J 978] 3 S.C.R.
A
The position of Shebait is not merely that of a Pujari. He is
a
human ministrant of the deity. By virtue of the office a Shebait is
an administrator of the pro!l_erty attached to the temple of which he
is Shebait.
Both the eleme_nts of office and property, of duties and
personal interest are blended together in the conception of Shebaitship
and neither can be detached from the other (vide Commissioner of
Hindu Religions Endorsements, Madras v. Sri Lakshmindra Thirtha
B
Swamiar of Sri Shlrur Mutt). (1)
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The question then is whether the hereditary office of Shebait is
immovable property. Much before the enactment of
the
Transfer
of Property Act a question arose in the context of the Limitation Act
then in force whether a suit for a share in the worship and the emoluments incidental to the same would be suit for recovery of immovable
property or an interest in immovable property. In Krishnabhat bin
Hiragang~ v. Konabhat bin Mahalbhat et al,(') after referring to
various texts of Hindu law andl the commentaries of English commentators thereon, a Division Bench of the Bombay High Court
\ield as under :
"Although, therefore. the office of a priest in a· temple,
when it is not annexed to the ownership of any land, or
held by virtne of such ownership, may not, in the ordinary
sense of the term, be immovable property, but is
an
in-
. corporeal hereditament of a personal nature, yet being by
the custom of Hindus classed with
immovable
property,
and so regarded in their law ...... "
The privileges and precedence attached to a hereditary office were
termed in Hindu law as Nibandha and the text of Yajnavalkay treated
Nibandha, loosely translated as corody,
as
immovable
property.
Soon thereafter the question again arose in Balyantray alias Tatiaii
Bapaii v. Purshotam Sidheshvar and another('), where, in view of a
conflict in decision between Krishnabhat (supra) and Baiji Manor v.
Desai Kallianrai Hukmatrai('), the matter was referred to a Full
Bench of 5 Judges.
The question arose in the context of the Limitation Act in a suit to recover fees payable to the incumbent of a hereditary office, viz., that of a village Joshi (astrologer). The contention was that such a hereditary office of village Joshi is
immovable
property.
After exhaustively referring to the texts of Yajnavalkay
and the commentaries thereon, Westropp, C.J. observed that the word
'corody' is not a happy translation of term Nibandha. It was
held
that Hindu law has always treated hereditary office
as
immovable
property.
These two decisions were affirmed by the Judcial Committee of the Privy Council in Maharana Fattehsangii Jaswantsangji v.
Desai Kallianraiji Hekoomutraiji(5 ). The
principle
that
emerges
(1) [1954] SCR 1005.
(2) 6 Bombay High Court Reports 137.
(3) 9 Bombay High Court Reports 89.
( 4) e Bombay High Court Reports 55.
(') 1 I.A. 34.
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RAM RATTAN v. BAJRANG LAL (Desai, l.)
969
from these decisions is that when the question concerns the rights of
Hindus it must be taken to include whatever the Hindu law classes as
immovable although not so, in ordinary acceptation of the word and
to the application of this rule within the appropriate limits the Judicial
Committee sees no object.ion.
In Raghav Pandey & Anr. v. Kasav
Parey & Ors. (1), the Calcutta High Court held that the right to officiate as a, priest at funeral ceremonies of Hindus is in the nature of
immovable property. A Full Bench of the Calcutta High Court in
Manohar Mukherjee v. Bhupendra Nath Mukherjee & Others('),
held that the office of Shebait is hereditary and is regarded in Hindu
Law as immovable property. This Court took note of these decisions with approval in Angurbala Mullick's case (supra).
Mr. Desai urged that there is a distinct line of authorities which
indicate that a Pala or turn of worship is movable property.
In
Mulla's Transfer of Property Act, 5th Edition, p. 17, the author has
observed that a pala or turn of worship is movable property. In
Eshan Chandra Roy & Ors. v. Monobini Desai(') it was said that it
was not possible to come to the conclusion that the right to worship
an idol is in the nature of an interest in immovable property. It is
a bare statement with no reference to texts of Hindu law or commentaries thereon. In Jharnla Das v. Jalandhar Thakur(4), it was
held
that the office of Shcbait is hereditary and that the suit which was
brought after a period of 12 years was barred by limitation. This
decision does not specify the nature of property termed as turn of
worship in Hindu law. The Patna High Court in .Tagdeo
v.
Ram
Saran Pande & Ors.("), has in terms held that a turn of worship is
not interest in immovable property and, therefore: a sale thereof
does not require registration. The decision purports to
follow
the
ratio in Eshan Chander Roy's case (supra) which gives no reasons for
the decision and also Jharula Das's case (supra) where this que1ltion
appears not to have been in terms raised.
The definiti<;m of immovable property in s. 3 of the Transfer of
Property Act is couched in negative form in that it does not include
standing timber, growing crops, or grass. The statute avoids positively defining what is immovable property but merely excludes certain
r- types of property from being treated as immovable property. Section
,,.-.
2( 6) of the Registration Act defines immovable property to include
lands, buildings, hereditary allowances, rights to ways, lights, ferries,
fisheries or any other benefit to arise out of land, and things attached
to the earth, or permanently fastened to anything which is attached to
the earth, but not standing timber, growing crops or grass. Section
2(26) of the General Clauses Act defines immovable property to
include land, benefits to arise out of land and things attached to the
earth or permanently fastened to anything attached to the earth.
(!) !LR IO Cal. 73.
(2) AIR 1932 Cal. 791.
(3) !LR 4 Cal. 683,
(4) !LR 39 Cal. 887.'
(S) AIR 1927 Patna 7.
11-329S:Cl/78
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970
SUPREME COURT REPORTS
[1978] 3 S.C.R.
It may be mentioned that the definition of immovable property in
Registration Act lends assurance to treating Shebait's hereditary office
as immovable property because the definition
includes
hereditary
allowaces. Office of Shebait is hereditary unless
provision to tke
countrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property,
duties and personal interest are mixed up and blended together and
one of the elements cannot be detached from the other.
Old texts,
one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have
recognised hereditary office of Shebait as immovable property, and
it has all along been treated as immovable property a!most uniformly.
While. examining the nature and character of an office as envisaged
by Hindu law it would be correct to accept and designate it in
the same manner as has been done by the Hindu Jaw text writers
and accepted by courts over a Jong period. It is, therefore, safe to
conclude that the hereditary office of Shebait which would be enjoyed
by the person by turn would be immovable property. The gift of
such immovable property must of course be by registered instrument.
Exhibit I being not registered, the High Court was justified in excludB
ing it from evidence.
On this conclusion the plaintiff's suit has been
rightly dismissed.
This appeal accordingly fails and is dismissed with costs.
S.R.
Appeal dismissed.
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