# BADRI NATH & ANR v. MST. PUNNA (DEAD) BY LRS & ORS

- **Citation:** [1979] 3 S.C.R. 209
- **Court:** Supreme Court of India
- **Decided:** 1979-02-15
- **Case number:** Civil Appeal No. 1118 of 1972
- **Bench:** V. R. Krishna !Yer, D· A. Desai, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/badri-nath-anr-v-mst-punna-dead-by-lrs-ors-7782
- **Pages:** 13

## Headnote

Hindu Succession Act, 1956-S. 4-Scope of-Share of a baridar (turnhulder) ill the ofJerings of a temple-If a heritage right nature of office
of baridar-C11ston1 that offerings should go to specified sub-castes-if valid .
The plaintiff's (respondent's) father and the defendants (appellants)
were
entitled to receive a defined share in the offerings made at a holy shrine.
OB
her father's death the plaintiff claimed his share in the offering~ alleging that
both under the law of inheritance and by virtue of her father's wt11 executed
in her favour, she was entitled to his share; but the defendants interfered with
her right to collect that share.
In the plaintiff's suit the defendants contended that only members belong~
A
B
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ing to four specified sub-castes were entitled to receive the offerings and the
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plaintiff lm'Ving lost her sub-caste by reason of her marriage outside those
sub-castes she was not entitled to her fs.ther's share. But this argument was
rejected by the trial court which held that on the dea.th of the baridar (lumholder) his heirs inherited his right to receive offerings just as they inherited
!his other property and that therefore, the plaintiff was entitled to the offerings
both under the Hindu Succession Act and the will executed by her father.
On appeal a Division Bench of the High Court held that where offerings
were received by persons independently of any obligation to render services,
they were alienable and attachable and that the custom which restricted the
right to a share in the offerings only to members of the four specified subcastes, could not be given effect tG in Yiew of the provisions of the
Hindu
Succession Act and that therefore, the plaintiff \Vas entitled to succeed to the
right though she did not belong to any of the sub-castes.
On further appeal to this Court it was contended on behalf of the appellants that (1) the right of the baridar was not a trans[erable right and (2)
the right to a share in the offerings and the duties attached to it must be
regarded as an office like that of a shebait and cannot be regarded as heritable
property.
Dismissing the appeal,
HELD : The right of the baridar was a transferable right.
1. To begin with, the right to a share in the offerings, according to the settlement record prepared for the village and 01 resolution passed by the Dharmarth
Committee, was restricted to the four sub-castes, and similarly the baridars
did not perform any duties in return. Sometime later, liowever, certain obligations, such as to provide permanent servant~, to look after visitors and the
like, were superimposed on that right. Though the fight to receive & share
in the offerings was subject to the performance of those duties, none of them
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[1979] 3 s.c.R.
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was in nature priestly or required a personal qualification. All of them were
of a non-religious or secular character which could be performed by
the
baridar's agents or servants incurring expense on his account. When the right
to receive !.he offerings made at a teinple is independent of rin obligation to
-..
render services involving qualifications of personal nature, (such as offi.c;ating the worship) such a right is herit~le as well as alienable. [217 B-H]
.,
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Balmukand & ors. v. Tula Ram & ors., AIR 1928 All. 721 approved.
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2. (0•) The right of the baridars cannot be equated with
the right
and
'
duties of a shebait. The haridars were not managers of the shrine
in the
sense that a shebait is in relation to a temple in his
charge. The
overall
•
management of the temple vested in the Board of Trustees known as Dhar·
-....4.....
marth Committee. (218 EJ
'"
(b) It is not correct to say that shebaitship is neither more nor less than
an office and is not heritable property. Shebaitship cannot be described as a
mere office. In addition to certain responsibilities it carries with it a definite
right to property. It is well-established that in the concept, CJf Shebait, both
the elemen

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209
BADRI NATH & ANR.
v.
MST. PUNNA (DEAD) BY LRS & ORS.
February 15, 1979
[V. R. KRISHNA !YER, D· A. DESAI AND A. D. KosHAL, JJ.]
Hindu Succession Act, 1956-S. 4-Scope of-Share of a baridar (turnhulder) ill the ofJerings of a temple-If a heritage right nature of office
of baridar-C11ston1 that offerings should go to specified sub-castes-if valid .
The plaintiff's (respondent's) father and the defendants (appellants)
were
entitled to receive a defined share in the offerings made at a holy shrine.
OB
her father's death the plaintiff claimed his share in the offering~ alleging that
both under the law of inheritance and by virtue of her father's wt11 executed
in her favour, she was entitled to his share; but the defendants interfered with
her right to collect that share.
In the plaintiff's suit the defendants contended that only members belong~
A
B
c
ing to four specified sub-castes were entitled to receive the offerings and the
D
plaintiff lm'Ving lost her sub-caste by reason of her marriage outside those
sub-castes she was not entitled to her fs.ther's share. But this argument was
rejected by the trial court which held that on the dea.th of the baridar (lumholder) his heirs inherited his right to receive offerings just as they inherited
!his other property and that therefore, the plaintiff was entitled to the offerings
both under the Hindu Succession Act and the will executed by her father.
On appeal a Division Bench of the High Court held that where offerings
were received by persons independently of any obligation to render services,
they were alienable and attachable and that the custom which restricted the
right to a share in the offerings only to members of the four specified subcastes, could not be given effect tG in Yiew of the provisions of the
Hindu
Succession Act and that therefore, the plaintiff \Vas entitled to succeed to the
right though she did not belong to any of the sub-castes.
On further appeal to this Court it was contended on behalf of the appellants that (1) the right of the baridar was not a trans[erable right and (2)
the right to a share in the offerings and the duties attached to it must be
regarded as an office like that of a shebait and cannot be regarded as heritable
property.
Dismissing the appeal,
HELD : The right of the baridar was a transferable right.
1. To begin with, the right to a share in the offerings, according to the settlement record prepared for the village and 01 resolution passed by the Dharmarth
Committee, was restricted to the four sub-castes, and similarly the baridars
did not perform any duties in return. Sometime later, liowever, certain obligations, such as to provide permanent servant~, to look after visitors and the
like, were superimposed on that right. Though the fight to receive & share
in the offerings was subject to the performance of those duties, none of them
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was in nature priestly or required a personal qualification. All of them were
of a non-religious or secular character which could be performed by
the
baridar's agents or servants incurring expense on his account. When the right
to receive !.he offerings made at a teinple is independent of rin obligation to
-..
render services involving qualifications of personal nature, (such as offi.c;ating the worship) such a right is herit~le as well as alienable. [217 B-H]
.,
B
Balmukand & ors. v. Tula Ram & ors., AIR 1928 All. 721 approved.
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2. (0•) The right of the baridars cannot be equated with
the right
and
'
duties of a shebait. The haridars were not managers of the shrine
in the
sense that a shebait is in relation to a temple in his
charge. The
overall
•
management of the temple vested in the Board of Trustees known as Dhar·
-....4.....
marth Committee. (218 EJ
'"
(b) It is not correct to say that shebaitship is neither more nor less than
an office and is not heritable property. Shebaitship cannot be described as a
mere office. In addition to certain responsibilities it carries with it a definite
right to property. It is well-established that in the concept, CJf Shebait, both
the elements of office and property, duties and personal inter·~st are mixed up
and one element cannot be detached from the
other.
Old
texts as ¥;ell as
courts have recognised heriditary office of shebaitship as itnmovablc property.
(218 F; 220 A-BJ
Angurbala Mullick v. Debabrata Mullick, [1951] SCI{ 1125; Rain Ratran v.
Bajrang Lal & ors. [1978] 3 SCR 963 follo\ved.
3. The right to share the offerings being a right coupled with duties other
than those involving personal qualifications
and being
heritable property, it
will descend in accordance with the dictates of the I-Tindu Succession Act in
supersession of all customs to the contrary in view of s. 4 of thrit Act. [220 EJ
In the instant case, in the light of s. 4 of the Hindu
Succession Act the
requirement that the right could not be exercised by a person not belonging
to any of the four sub-castes becomes ineffective. [220 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1118 of 1972
(Appeal by Special Leave from the Judgment and Order dated
18-1-72 of the Jammu and Kashmir High Court in L.P.A. No. 6 of
1969.)
L. N. Sinha, Satish Gupta, K. J. John and P. P. Singh, for
the
appellant.
R. K. Bhat and D. C. Anand for respondent lB--iK.
The Judgment of the Court was delivered by
KosHAL, J.-This appeal by special leave has arisen out of a suit
brought by Sm!. Punna, respondent No. 1, against the two appellants
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and respondent No. 2 for the issuance of a perpetual injunction rest-
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raining the three defendants from interfering with her right to recover her father's share of six annas in a rupee in the offerings made
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BADRI NATH V. MST~ I'UNNA (lfoshal; J;)
211
at the sacred shrine of Shri Vaishno Devi Ji which is situated on the
Trikutta Hills.
The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge, i·n a second
appeal by a learned Single Judge of the High Court of Jammu &
Kashmir and in a Letters Patent Appeal by a Full Bench of that Court.
It is the judgment of the Full Bench (which is dated the 18th of
January, 1972) that is impugned before us.
2. The averments made in the plaint may be summarised thus.
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The plaintiff is the daughter of one Bagu who died in or about the
,.-
year 1959.
During his life time Bagu and the three defendants were
j
entitled to receive the offerings made at the shrine of Shri Vaishno
Devi Ji on certain days falling within every seventh Bikrami year so
that Bagu would have 6/16th share therein and the defendants collectively a similar share.
After the death of the plaintiff's father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019, the plaintiff having
succeeded to th•e share of her father both under the law of inheritance
and by virtue of a will executed by him in her favour.
The plaintiff had to resort to the suit as the defendants had started interfering
with her right to collect her share of the offerings.
3. The defenda"nts contested the suit.
They challenged the
will
set up by the plaintiff as a forged one and further pleaded that only
members of four sub-castes namely, Khas Thakars, Darora Thakars,
Manotra Thakars and Samnotra Brahmins were entitled to receive the
offerings and that while Bagu was entitled to a share in the same, th<:
plaintiff was not as she had lost her original sub-caste by marriage
outside the four sub-castes mentioned above.
The offerings, aecordy·ing to the defendants, were also not liable to devolve by iiiheritance
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<JI demise.
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4. The findings arrived at by the trial court were these :
(i) On the death of a baridar (which expression, when
literally translated, means turn-holder) belonging to
any of the aforementioned sub-castes, his heirs inherited his right to receive offerings just as
they
inherited his other property.
(ii) Under section 4 of the Hindu Succession Act, any
custom or usage inconsistent with the provisions of
that Act becomes ineffective.
(iii) Even under section 6 of the Hindu Succession Act
read with the Schedule appended therto the proA'
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perty of Bagu would devolve on the plaintifi in case
Bagu died intestate.
(iv) Gagu executed a valid will in favour of the plaintiff
devising to her the right to receive the
offerings,
apart from other properties.
(v) The plaintiff was entitled, in view of the above four
findings to inherit the right to receive offerings not
only by reason of the provision· of sections 4 and 6
of the Hindu Succession Act, but also because of the
will.
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(5) At the hearing of the Letters Patent Appeal by the
Full
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Bench, the following four contentions were raised on behalf of the
defendants :
(i) The chance of future worshippers making offerings
to the deity is a mere possibility of the nature referred
to in clause (a) of section 6 of the Transfer of Property Act and is not property which can be transferred or inherited.
(ii) The right to receive offerings is not a transferable
or heritable right.
(iii) The provisions of the Hindu Succession Act do not
apply to the case in hand.
(iv) According to the custom governing the shrine of Shri
Vaishno Devi Ji, only the abovementioned four subcastes were entitled to share the offerings.
All these contentious were rejected by the Full Bench as untenable. - ---..I
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In regard to the first of them the Full Bench followed Ba mukand and
Others v. Tula Ram and Others(') ih which it
was held that the
right to receive offerings when made is a definite and fixed right "nd
does not depend on any possibility of the nature referred to in clause
(a) of section 6 of the Transfer of Property Act. because the fact
that offerings whether large or small are bound to be made is a certainty.
In relation to the second contention, the Full Bench noted the
contents of paragraph 422 of "Principles of Hindu Law" by Mnlla
which states, inter alia, that where offerings, though made to idols,
are received by persons independently of any obligation to render ser-
(I) AIR 1928 Allahabad 721.
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BADRI NATH v. MST. PUNNA (Koshal, l.)
213
vices, they are alienable and attachable.
Reference in this connection was also made to Balmukand and Others v. Tulia Ram and
Others (supra) wherein the following passage occurs :
"but when the right to receive the offerings made at a
temple is independent of an obligation to render services
involving qualifications of a personal nature, such as officiating at the worship we are unable to discover any Justification for holding that such a right is not transferable. That
the right to receive the offerings when made is a valuable
right and is property, admits of no doubt and, therefore, that
right must, in view of the provisions of section 6 of Transfer
of Property Act, be held to be transferable, unless its transfer
is prohibited by the Transfer of Property Act or any other
law for the time being in force."
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In view of these observations which were adopted and followed in
Nand Kumar Dutt v. Ganesh Dass,(')
the Full Bench, being in
agreement therewith, proceeded to determine whether the right to reD
<:eive the offerings in the present case was or was not independent of
services of a priestly or personal nature.
The following translation
of an extract from the Wajib-ul-Arz relating to village Purana Daiur
wherein the holy shrine is situated, was then taken up for consideration :
E
"Leaving aside cash, whatever is the 'Charatth' at the
temples of 'Ad Kanwari' and 'Sri Trikutta Devi' the entire
Darora community distributes that among itself and of (?)
other attached areas of Pangal, Sarron, Batan, Kotli, Gran,
Parhtal etc. according to hereditary shares.
And the castes
'Thakar Khas' and 'Minatra' are included in it.
Darora
c~ste take two shares and Manotra and Khas castes also take
one equal share of Charatth'. That is divided as per hereditary shares.
There is no service in lieu thereof.
Only it
is described as the blessings of Goddess.
Rupees twenty
one hundred (two thousand one hundred rupees) go to the
Government.
Every baridar keeps his man present in the
temple who receives the 'Charatth'. Pujaries get pay from
us."
F
an<l it was interpreted to mean that the right to share in the offerings
made at the holy shrine had no connection with any priestly functions
or with other services involving qualifications of a personal nature and
therefore was a heritable as well as alienable right.
This very con-
(1' A.1.R. 1936 Allahabad 131.
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clusion was reached by the Full Bench on a consideration of
the
deposition of the Patwari of the concerned circle and the Ain-i-Dharamarth which purports to be the constitution of a Board of Trustees
appointed by the State to manage the shrine.
In relation to the third contention, the Full Bench noted that the
properties to which the Hindu Successio11 Act does not apply are only
those which find enumeration in section 5 thereof, that the right to
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share the offerings is not one of those properties and that, therefore,
such a right could not but be governed by the provisions of the Act.
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In repelling the last contention the Full Bench relied upon
the
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provisions of the Hindu Succession Act which over-rides all custom~ ,.__
or usage being part of the Hindu Law as in force immediately prior
"'
to the commencement of the Act and concluded that the custom. of
the right to share in the offerings being restricted to members of the
four sub-castes abovemcntioned could not be given effoct to and that
the plaintiff was fulJy entitled to succeed to that right in spite of the.
fact that she did not belong to any of those sub-castes.
It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench.
6. At the very outset Mr. L. N. Sinha, learned counsel for the
appellant, has drawn our attention to the fact that the extract from
the Wajib-ul-Arz taken note of by the Full Bench of the High Court
relates not to the temple of Shri Vaishno Devi Ji but to a couple of
other temples situated in its vicinity, namely, the temples of 'Ad
Kanwari' and 'Sri Trikutta Devi' and has urged that the extract could
not possibly relate to the temple of Shri Vaishno Devi Ji which was
the main temple in the complex and a reference to which could not
have been omitted from the extract in case it was intended to apply
to that t•omple also.
A carefnl perusal of the extract shows that Mr.~
Sinha's contention is well-founded because there is not so much as a ' ~
hint to the main temple in the extract.
According . to Mr. Sinha, the
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duties to which the right to share the offerings is subject are detailed
in the settlement record prepared for village Daiur (Shri Vaishno Devi
Ji) for the year 1965-66 Bikrami and a resolution passed by
the
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Dharamarth Committee on Sawan 27, 1983 Bikrami. These documents may be set out in extenso :
Settlement Record
"In the column of ownership, the State is entered as
owner; in the column of possession-Dharmarth Trust entered
as in possession.
'Mandir Gupha' situate on land compris-
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BADRI NATH v. MST. PUNNA (Kasha/, J.)
215
ing 7 marlas bearing Khasra No. 166 and 'Bhawan' situate
on land comprising 4 marlas bearing Khasra No. 167.
The
sub-caste Thakar Darora, Manotra,
Khas,
and Brahmin
Samnotra have been sharing the offerings according to the
shapes mentioned be:ow from the very beginning.
Thakar
Daroras and Brahmin Samnotra are entitled to three shares
and one share respectively out of 213 of the total offerings
whereas Thakar Manotras and Khas are entitled to share
equally in the rest J/3 of the total offerings.
"Darora Thakars are sub-divided into further four subcastes namely; (i)
Darora Sunk (ii)
Darora Jaga (iii)
Darora Pai and (iv) Darora Deoeh and each one of them
has one equal share.
Similarly Brahmin (Samnotra) have
also divided their share into four shares which are received
as under :
Samnotra Brahmins from the branch of 'Darya'
one
share, Brahmins from the branch of 'Bairaj' one share;
Brahmins from the branch of 'Gobind' one share;
and
Brahmins from the branch of 'Ganesh' one .share.
Therefore 'Darora Sunk' and Samnotras from the
branch
of
'Bairaj' have their turn together in om year and they divide
the offerings for that in the proportion of 3.1 (i.e. 3 shares
of Darora Sunk and I share to Samnotras from the branch
of Dairaj). Similarly Brahmins from the branch of 'Darya'
have their turn with 'Darora Jaga' Brahmins from
the
branch of 'Ganesh' with 'Darora Parath' and Brahmins from
the branch of 'Gobind' with 'Darora Deoch' and Brahmins
in each case recei,·c I/4th share and Darora Thakars have
3/4th share.
"In the beginning nothing was taken from these persons
( bm idara11) in co"nsideration of their receiving the offerings.
But because the Sadhus would often go to the shrine and
due to the mismanagement of their stay and meals over there,
there were always riots at the shrine.
Therefore, in the year
1907 Bikrami during the regime of Maharaja Guiab Singh
an amount of Rs. 11501- was fixed as 'Aian' to be oaid by
the baridars for the management of stay and meals for Sadhus
at the shrine.
The said amount was to be deposited in the
State Treasury.
Thereafter in 1920 Bikrami another hundred rupees were added to the above said amount and thenceforth Rs. 1250 /- were fixed per annum which was being deposited in the State Treasury. After 1940 Bikrami the said
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amount of Rs. 1250 /- was being deposited with the Dhar·
marth Trust and this continues till today.
The said amount
is recovered from Thakar sub-castes. Besides this, so many
other things (such as silk chunis etc.) are received from the
said Thakar baridars.
Thakar baridars aro~ also liable
to
provide three permanent servants and six more peons during the season and will be liable to pay them.
The said
Thakars are liable to arrange the carriage and pay for the
'Parshad', etc., from Katra to Vaishno Devi temple. With
regard to the cattle kept by the Dharmarth Trustees,
the
said Thakars are liable to arrange for taking them from one
place to another. If any Government servant visits
the
shrine the said Thakars will be liable to arrange for
the
carriage of his luggage, etc.
The said Thakars are also liable
to perform the following duties :
(1) Qeanliness of the Gupha (Vaishno Devi temple) and the
compound appurtenan\ thereto.
(2) To carry Puja material inside the Gupha (temple along
with the Pujari.
(3) If during mela season there is any trouble to any pilgrim
or he becomes, sick, etc, the said Thakars are liable to
make proper arrangements for the removal of any such
trouble."
RESOLUTION OF THE DHARMARTH COMMITTEE
"(a) Dharmarth
Trust shall charge its
usual
Aian
(rent) from the baridaran which shall
b~ paid by them
before they distribute
their share of
the offering.
The
baridar who refuses or avoids the payment of rent to Dharmarth shall not be entitled to receive his share of the offering and the same shall be attached and deposited with the
manager, Dharmarth Trust.
The baridar whose share has
been thus attached can receive his share on payment of tltc
rent due to the Dharmarth Trust."
"(b) Unanimously it is passed that the strangers or
persons other than baridars (i.e.
four sub-castes)
shall
have no right to get the Puja performed in the shrine."
"(c) In case any baridar or his legal representative, due
to any reason, cannot attend in person then it will be the
duty of other co-sharer to deposit the absentee's share with
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BADRI NATH v. MST. PUNNA (Koshal, !.)
217
the Manager, Dharmarth Trust and when that baridar comes
present, the Manager, Dharmarth Trust shall, after deduct·
ing the due, if any, from him to the Dharmarth,
pay his
share to him.
The baridaran shall be bound to perform the
duties (such as Kah, Kunda, Argi etc. as being performed
by them previously)."
According to these documents the right to
share the offeri'ngs is
restricted to members of the four sub castes abovementioned,
and
although to begin with baridars did not perform any duties in return,
certain obligations were superimposed on the right from the year 1907
Bikarmi onwards.
Those obligations are:
(a) A duty to deposit a fixed annual sum with the Dharmarth
Trust to be
spent on
arrangements for lodging
and
boarding of Sadhus visiting the shrine.
(b) To provide three permanent servants, in addition to six
peons, during the "season".
( c) To pay for the 'prasad' and to arrange its transport from
Katra to Vaishno Devi temple .
(d) To arrange for the cattle owned by the Dharmarth Trust
being taken from one place to another.
(c) To arrange for the carriage of the luggage of Government
servants visiting the shrine.
(f) To keep the temple and the compound appurtenant thereto
in a state of cleanliness.
(g) To carry inside the temple the material required
for
worship by the priest.
(h) To look after visitors to the shrine who fall ill and to
make proper arrangements for the restoration or their
health.
There is thus no doubt that the right to receive a share in the
offerings is subject to the performance of onerous duties. _ But then
it is apparent that none of those duties is in nature priestly or requiring a personal qualification.
On the other hand all of tl1em arc
of a 'non-religions or secular character and may be
performed not
necessarily by the baridar personally but by his agents or servants
so that their performance boils down to mere incurring of expense.
If the baridar chooses to perform those duties personally he is
at
liberty to do so.
But then the obligation extends merely
to tbe
making of necessary arrangements which may be secured on oayment
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[1979] 3 s.c.R.
of money to others, the actual physical or mental effort involvec'
beiug undertaken by those others. The right is, therefore, a transferable right as envisaged in the passage above extracted from Balmukand and other v. Tula Ram and others (supra) which has not
beeu challenged before us as erroneous and which we regard as laying down the law correctly.
The contentions raised by Mr. Sinha
to the contrary is' thas repelled.
7. Another challenge made by Mr. Sinha to the impugned judgment is that the right to share offerings coupled with the duties to
•
which, it was subject must in its totality be regarded as an office (like
•
that of a she bait) only and not as property and that therefore no. --l .._
question of its heritability could arise.
In this connection reference
was made to the following observations made by Mukherjea, J ., who
delivered the judgment of the majority of this Court in
Angurbala
Mullick v. Debabrata Mullick.(')
"In a Hindu religious endowment on the other hand
the entire ownership of the dedicated property is transferred to the deit'y or the. institution itself as a juristic person
and the shebait or mahant is a mere manager."
There is nothing to indicate that baridars in the present case are
the managers of the shrine in the sense that a shebait is in relation
to the temple in his charge.
On the other band it appears that the
overall management of the shrine vests in the Board
of Trustees
known as Dbarmarth Committee and it would not be correct therefore to look at the right of the baridars in the light of the rights a'.nd
duties of a shebait. However, it may be pointed out that shebaitship
cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right to property. This is a
~
proposition on which emphasis was laid by this Court in Angurbala's . ·
'- ~
case (supra) itself. Mukherjea, J., observed in this connection:
"But though a shebait is a manager and not a trustee
in the technical sense, it would not be correct to describe
the shebtaitship 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 property.
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
(1) [1951] SCR 1125.
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BADRI NATH v. MST. PUNNA (Koshal, J.)
219
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 pzrsonal 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 Monohar
Mukherji v. Bhupendra Nath Mukherji(') and this decision
of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v.
Lal Behary(2), and
again in Bhabatarini v. Ashalata(•). The effect of the
first two decisions, as the Privy Cmncil pointed out in the
last case, was to emphasise the proprietary element in the
shebaiti 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 Greedharreejee v.
Rumanlollji Gossammee(') "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 dealing, or some
circumstances to show a different mode
of devolution."
Unless, therefore, the founder has disposed of the shehaitship in any particular manner-and this right of disposition is inherrent 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 inheritance from the founder."
Angurbala's case was followed by this Court in a recent decisioh
reported as Ram Rattan v. Bajrang Lal & Others(') wherein Desai,
J., who delivered the judgment of the Court observed :
(!) I. L. R. 60 Calcutta 452.
(2) 63 I. A. 448.
(3) 70 I. A. 57
14) 16 I. A. 137
(5) [1978] 3 S,C,R. 963
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220
SUPREME COURT REPORTS
[1979] 3 s.c.R.
"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,
properly, and it has all along been treated as immovable
property almost uniformly.
While examining
the nature
and character of an office as envisaged by Hindu iaw 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 long 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&e observations as also those made ih Angurbala's case and
extracted above demolish the contention of Mr. Sinha that shebaitship is nothing more or less than an office and is not heritable property.
8. The right to share the offerings being a right coupled
with
duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the
dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of section 4 of that
Act, Sub-section (1) of which state:
(a) Save as otherwise expressly provided in this Act-any
•
text, rule or interpretation of Hindu law or any custom _ --J
or usage as part of that law in force immediately before
, ·"
the commencement of this Act shall cease to have effect
with respect to any matter for which provision is made
in this Act:
(b) any other Jaw in force
immediately before the
commencement of this Act shall cease to apply to Hindus
in_ so far as it is inconsistent with any of the provision's
contained in this Act."
The requirements of the custom reli•ed upon by the appellants to the
effect that the right could not be exercised by a person who is not
a member of any of the four sub-castes mentioned above
becomes
wholly ineffective in view of these provisions, being contrary to the
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BADRI NATH v. MST. PUNNA (Koshal, J.)
221
{)rder of succession laid down in Chapter II of the Hindu Succession
A
Act under which the right devolves on the plaintiff-respondent.
7. The only contention raised by Mr. Sinha is that the plaintiff had
not stated in any part of the pleadings that she was prepared to carry
out the services to the performance of which the right to share the
offerings is subject and that therefore she was not entitled to a decree.
This contention must be repelled for the simple reason that it was not
raised before the High Court. Besides, there being no repudiation
on her part of tl1e obligations to render the services abovementioned,
B
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her claim must ~~ regarded for the enforcement of that right coupled
A
with those services and the decree construed accordingly even though
-i
it may be silent on the point.
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9. In the result the appeal fails and is dismissed, but the parties
are left to bear their own costs throughout.
P.B.R.
Appeal dismissed.
c