# PROFULLA CHORONE REQUI'ITE & ORS v. SATYA CHORONE REQUITTE

- **Citation:** [1979] 3 S.C.R. 431
- **Court:** Supreme Court of India
- **Decided:** 1979-03-02
- **Case number:** Civil Appeal Nos. 1873-1874 of 1970
- **Bench:** R. S. Sarkaria, V. D. Tulzapurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/profulla-chorone-requi-ite-ors-v-satya-chorone-requitte-7629
- **Pages:** 17

## Headnote

Interpretation of Wills-Common ancestor of
plaintiffs
and defendant!
created absolute debutter of his house in favour of family deity-By two wills
devised and bequeathed the house to the trustees for service and lvorship of
the deity-Shebaiti rights-Whether vested in trustees or descendants
of the
testator.
The common ancestor of the plaintiffs and the defendant owned
a
big
residential house (the suit property) In which he had his fumily deity. By
hvo wills-one dated June 4, 1898 in respect of his properties in British lndia
and another, dated June 6, 1898 in respect of the house property in Chandrangore-he appointed his wife, two sons and nephews as hustees of the estate.
By these wills he provided that in the event of vacancy occurring in the office
of trustees the continuing trustees might appoint any other person or persons
to be a trustee or trustees. By his will of June 6, 1898 th'e tes-ta.tor created an
absolute debutter in favour of the family deity.
This will also stated that he
"devised and bequeathed" the Chandranagore house to the tn1stees named
therein as a dwelling house "upon trust to stand possessed of" and "to hold,
retain and use the premises ns an endowed or debutter property for the service
and worship of" the family deity.
B
c
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In 1934 rival claims of the sons and grandsons of the testator to their
E
residence in the debutter property were referred to an arbitrator. The arbitrator allotted rooms nos. 72 and 82 which had been in his use and occupation
from before to the defendant (respondent) and allotted certain other rooms
to the other sons and grandsons of the testator.
The then trustees (plaintiffs) filed a suit in 1959 claiming that the dwelling
house at Cbandranagore being absolute debutter property belonging
to the
deity none other than the trustees had any legal right in it, and since the award
of the arbitrator was not binding on the deity the defendant should be ejected
from the rooms forcibly occupied by him .
The defendant on the other hand claimed that he was in occupation of the
rooms in dispute in his own right as a shebait and that the plaintiffs had no
right to represent the deity and so had no locus standi to maintain the suit
as trustees.
Dismissing the suit the trial court held that on the death of the testator it
was not the trustees but the descendants of the testator who became shebO.its
and who had the shebaiti rights in the endowed property and that the defendant
being the descendant (grandson) of the testator, had a right, as a co-.~hebait,
to occupy the rooms in the suit property.
IJ'he District Judge, on appeal, affirmed the decision of the trial court.
8-253 scr /79
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432
SUPREME COURT REPORTS
[1979] 3 s.c.R.
A
On second appeal the High c·ourt decreed possession of certain rooms to
the plaintiffs but not in respect of the rooms under the occupation
of the
defendant.
0n further appeal to this Court it was contended on behalf of the plaintiffs
that from the language used in the 'vill dated June 6, 1898 the intention of the
testator was clearly to constitute the tn1stees as shebaits of the property with
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exclusive right to manage the dehutter.
On the other hand on behalf of the defendant it was contended that the
two wills should be read as complementary to each other, and so read, they
made it clear that the testator did not wish W part with his shebaiti ri;ghts,
which were heritable property, in favour of the trustees to the exclusion of
his natural heirs under the Hindu Law.
C
.Allowing the defendant's appeal and dismissing the plaintiffs' appeal.
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HELD : 1. A conspectus of the various provisions of the two wills makes
it clear tha.t the testator left th'e shebaitsliip undisposed of with the presumed
intention that it devolved on bis natural heirs who would have the
ri,g,ht to
use the suit house as their family dwelling house. The rights conferred o:o the
trustees may amount to curtailment of the right to manage the endowed property
which a shebait would otherwise ha

## Text

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431
PROFULLA CHORONE REQUI'ITE & ORS.
v.
SATYA CHORONE REQUITTE
March 2, 1979
[R. S. SARKARIA AND V. D. TULZAPURKAR, JJ.]
Interpretation of Wills-Common ancestor of
plaintiffs
and defendant!
created absolute debutter of his house in favour of family deity-By two wills
devised and bequeathed the house to the trustees for service and lvorship of
the deity-Shebaiti rights-Whether vested in trustees or descendants
of the
testator.
The common ancestor of the plaintiffs and the defendant owned
a
big
residential house (the suit property) In which he had his fumily deity. By
hvo wills-one dated June 4, 1898 in respect of his properties in British lndia
and another, dated June 6, 1898 in respect of the house property in Chandrangore-he appointed his wife, two sons and nephews as hustees of the estate.
By these wills he provided that in the event of vacancy occurring in the office
of trustees the continuing trustees might appoint any other person or persons
to be a trustee or trustees. By his will of June 6, 1898 th'e tes-ta.tor created an
absolute debutter in favour of the family deity.
This will also stated that he
"devised and bequeathed" the Chandranagore house to the tn1stees named
therein as a dwelling house "upon trust to stand possessed of" and "to hold,
retain and use the premises ns an endowed or debutter property for the service
and worship of" the family deity.
B
c
D
In 1934 rival claims of the sons and grandsons of the testator to their
E
residence in the debutter property were referred to an arbitrator. The arbitrator allotted rooms nos. 72 and 82 which had been in his use and occupation
from before to the defendant (respondent) and allotted certain other rooms
to the other sons and grandsons of the testator.
The then trustees (plaintiffs) filed a suit in 1959 claiming that the dwelling
house at Cbandranagore being absolute debutter property belonging
to the
deity none other than the trustees had any legal right in it, and since the award
of the arbitrator was not binding on the deity the defendant should be ejected
from the rooms forcibly occupied by him .
The defendant on the other hand claimed that he was in occupation of the
rooms in dispute in his own right as a shebait and that the plaintiffs had no
right to represent the deity and so had no locus standi to maintain the suit
as trustees.
Dismissing the suit the trial court held that on the death of the testator it
was not the trustees but the descendants of the testator who became shebO.its
and who had the shebaiti rights in the endowed property and that the defendant
being the descendant (grandson) of the testator, had a right, as a co-.~hebait,
to occupy the rooms in the suit property.
IJ'he District Judge, on appeal, affirmed the decision of the trial court.
8-253 scr /79
G
H
432
SUPREME COURT REPORTS
[1979] 3 s.c.R.
A
On second appeal the High c·ourt decreed possession of certain rooms to
the plaintiffs but not in respect of the rooms under the occupation
of the
defendant.
0n further appeal to this Court it was contended on behalf of the plaintiffs
that from the language used in the 'vill dated June 6, 1898 the intention of the
testator was clearly to constitute the tn1stees as shebaits of the property with
B
exclusive right to manage the dehutter.
On the other hand on behalf of the defendant it was contended that the
two wills should be read as complementary to each other, and so read, they
made it clear that the testator did not wish W part with his shebaiti ri;ghts,
which were heritable property, in favour of the trustees to the exclusion of
his natural heirs under the Hindu Law.
C
.Allowing the defendant's appeal and dismissing the plaintiffs' appeal.
0
E
F
G
HELD : 1. A conspectus of the various provisions of the two wills makes
it clear tha.t the testator left th'e shebaitsliip undisposed of with the presumed
intention that it devolved on bis natural heirs who would have the
ri,g,ht to
use the suit house as their family dwelling house. The rights conferred o:o the
trustees may amount to curtailment of the right to manage the endowed property
which a shebait would otherwise have; but such curtailment by itself would not
make the ordinary rules of Hindu Law of succession inapplicable in regard eo the
devolution of shebaitship. Therefor'e, the defendant and other descenda11ts of
the testator became ctrshebaits of the deity by the operation of the ordinary
rules of Hindu Law. [445 A-Bl
2(a) It is well established that property dedicated to an idol vests in it in
an ideal sense only. The shebait is the human ministrant and custodian of
the idol, its authorised representative entitled to deal with all
its
teinporaJ
affairs and to manage its property. Under Hindu Law, property absolutely
dedicated to an idol, vests in the idol and not in the shebait. Yet almost in
every case a shebait has a right to a part of the usufruct, the mode
of
its
enjoyment and the amount of the usufruct, depending on usage nnd
custom,
if not devised by the founder. [ 439 F-G]
(b) In the conception of shebaitship both office and property are blended.
A shebait has, to some extent, the rights of a limited owner. Shebaitship being
property, it devolves like any other species of heritable property. Where the
founder does not dispose of shebaiti rights in the endowment created by him,
the shebaitship devolves on the heirs of the founder according to Hindu Law,
if no usage or custom of a different nature is shown to exist.
[ 440 D-E]
Gossamee Shree Greedhareejee v.
Rumanlalje~, 19 I.A. 137; Doorganath
Roy v. Ra1n Chander Sen L.R. 4 I.A. 52; Pramatha Nath Mullick v. Pradyumna
Kumar Mullick, 52 I.A. 245; referred to.
3(a) The words "to hold, retain and use the premises endowed or debutter
property for the service and worship of my family thakur or idol" usei in the
wilJ, merely create a trust or endowment and indicate the nature and purpose
fl of the endowment. They do not touch or deal with shebaiti rights. [442 GJ
,. 'r
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(b) The two wills are complementary to each other. The will of' June 4,
..o,
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refers "~" the family house as having been endowed to the family deity and
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P. c. REQUITTE v. s. c. REQU!TTE (Sarkaria, !.)
433
v..·ould be used by the testator's heirs for their residence. By using the words
A
"''wife and sons and sons' \Vives and other relatives of mine" w·ho shall reside
in my residential house in Chandranagore the testator n1eant that all the des~
cendants and heirs of his should reside in the house.
In other words although
'the entire family house ¥.'as formally endowed to the family idol, his intcutit>n
was that his heirs and descendants "'ould also be entitled to use this house
as their family dwelling house, apart from the room where the idol was en~
shrined. [443 A; ll 444 Al
B
(c) The will also provided that although the trustees were provided with
funds for the Sewa-puja of the family deity and for other festivals out of tho
-estate of the testator, ·they were not expressly constituted as shebaits of the
deity. The intention af the testator apparently was that these funds would
te expended for the purpose indicated by him through the sheb<llts.
[444 El
(d) Even assuming that originally the trustees "'ere regarded as having been
-constituted as shebaits, then, too, those among them who were not fan1ily
members or descendants of the founder had renounced and relinquished their
•hebaiti right, if any, in favour of the descendants of the founder. Such a
relinquishment in favour of the co-shebaits will be valid. (446 E]
(e) The shebaitship of the family deity remained solely with the descenc
dants of the founder and the defendant being the grandson of the founder,
D
had been regarded as one of the sl1ebnits and therefore was entitled to reside
in the disputed rooms. [446 F-G]
(f) Moreover in this case the trustees accepted the a\vard of the arbitrator
.allotting the disputed rooms to the defendant and the plaintiffs described the
defendant as a shebait of the deity. (446 D]
(g) The trustees by themselves have no right to maintain the suit in respect
·Of the debutter property.
The legal title to the debutter property vests in the
jdol a.nd not in the trustees. The right to sue on behalf of the deity vests in
the shebaits. All the shebaits having not been made parties, the suit was not
properly constituted and was liable to be dismissed. (446 G]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1873-1874
of 1970.
a.
From the Judgment and Decree dated 21-7-1969 of the Calcutta
High Court in Appeal from Appellate Decree No. 30/67.
Lal Narain Sinha and Sukumar Ghosh for the Appellant in C.A.
1873/70 and Respondent in C.A. 1874/70.
E
F
A. K. Sen (In C.A. 1874/70) and D. N. Mukherjee for the ResG
ponderit in C.A. 1873/70 and Appellant in C.A. 1874/70.
The Judgment of the Court was delivered by
SARKARIA, J. These two appeals on certificate arise out of the
appellate judgment and decree, dated July 21, 1969, of the High Colll1
at Calcutta.
The facts of the case are as follows :-
· H
Late Babu Durga Charan Requitte was the grandfather of Satya
Charan Requitte, defendant, and plaintiffs l and 2.
He owned consi-
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434
SUPREME COURT REPORTS
[1979] 3 s.c.R.
derable immoveable property. He was an inhabitant of
Chandernagore (then a French territory). The suit property is situated in
Chandernagore.
Among others, it included a big residential house
containing about 84 or 85 rooms with extensive grounds, gardens and
tanks. In this house, which he was occupying for his residence, he had
his family Deity Sree Sree Iswar Sridhar Jiew.
Durga Charan made and published two Wills, one dated June 4,
1898 with regard to his properties in the then British India, and the
other dated June 6, 1898 with regard to his properties situated in the
French territory of Chandernagore. By these two Wills, Durga Charan
appointed his wife, Saraswati Dassi, his two sons, Shyama Chorone
Requitte and Tarini Chorone Requitte and his nephews, Ashutosh Das
and Bhola Nath Das, executrix and executors and trustees of the (:State
left by him.
The Wills provided that the trustees would
hold the
bequeathed properties left by the testator according to the terms of
the Wills for the legatees and the beneficiaries mentioned therein. The
Wills also provided that in case of death or retirement or refusal or
incapacity to act of any of the trustees, the continuing trustees of
trustee for the time being, or the executors or administrators of the
last acting trustee might appoint any other person or persons to be a
trustee or trustees in place of the trustee or trustees so dying or desiring to retire from or refuse etc.
But, in no case, the number of the
trustees should be less than two.
By his Will, dated June 6, 1898, Durga Chorone created un absolute Debutter in favour of the said family Deity and devised and bequeathed to his executors and trustees named therein, his dwelling
house with gardens and tanks appertaining thereto sitμated in Chi,ndernagore, "upon T111st to smnd possessed of and to hold, retain and
use the premises and endowed or Debutter property for the service and
worship of" his said family Deity.
By that Will, he further directed
that this family idol "shall be located in my said house in Chandernagore which said house and premises shall be appropriated and
devoted solely and exclusively to the Thakur or Idol."
Th~ testator died on Angust
27, 1898. Thereafter, the Will,
dated June 6, 1898, was duly probated and the trustees came into
possession of the Debutter properties and carried on the administration
of the estate and the Sewa and Puja, as directed in the Will.
H
Smt. Saraswati, widow Gf Babu Durga Chorone, who was one of
the trustees nan1ed in the Will, died on October 30, 1913, while her
son, Shyama Chorone, another trustee, died on December 21, 1925.
,
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P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, !.)
435
Thereupon, Tulsi Chorone son of Shyama Chorone was appointed a
new trustee in place of his father, Bhola, the other co-trustee, refused
to act as such. Therefore, his son, Devindra wa's appointed as trustee
by the continuing trustees.
Turani Chorone died on or about May
29, 1939 and the continuing trustees appointed his son,
Profulla
Chorone as a trustee. Tulsi Chorone died on August 17, 1952 and
the continuing trustees similarly appointed Bhagwati, son of
late
Shyama Chorone as a new trustee.
Debendranath Das died on or
about March 7, 1956, and the continuing trustees appointed Salish
Chandra Das, a son-in-law of late Shyama Chorone as a new trustee
in his place.
In or about the year 1934, the descendants of the settlor, Durga
Chor~ne, some of whom were the then trustees, referred certain disputes with regard to the endowed property to the arbitration of one
Bhringeswar Sreemany.
The disputes referred to the arbitrator included
rival claims by the sons and grandsons of Durga Chorone, to their residence in the Debuttor property belonging to the family Deity. The
Arbitrator made an Award on September 6, 1934, whereby he allotted
rooms Nos. 72 and 82 to Satya Chorone, respondent, who had been in
use and occupation from before. The Arbitrator made similar allotments of other rooms in the said house in favour of the other sons and
grandsons of the settlor.
On April 20, 1959, Profulla Chorone Requitte, Bhagwati Chorone
Requitte and Salish Chorone Das, the then trustees instituted Title
Suit No. 28 of 1959 in the Court of the Subordinate Judge, 1st Court,
Hooghly. The plaintiffs prayed for two reliefs in the plaint : (i) Possession by ejectment ·of the defendant, Satya Chorone Requitte, primarily from all the six rooms, alleging that the defendant had been
occupying the same as licensee under the plaintiffs and the said licence
had been revoked : (ii) in the alternative, for possession of the four
rooms mentioned in Item No. 1 of Schedule 'B' of the Plaint, which
had not been allotted to !Jim under the award.
The plaintiffs' ca'se, as laid in the plaint, was that since the dwelling house belonging to the Deity, had a large number of roonis the
trustees allowed temporarily the sons and grandsons of Durga Chorone
to occupy and use for their families some of the rooms in the said
dwelling house as licensees. It was further alleged that in the year
1966, the defendant illegally and forcibly occupied Room Nos. 63,
35, 46 and 57 in the aforesaid house without the knowledge and consent of the trustees causing serious inconvenience in the due perfor•
mance of the religious ceremonies of the Deity according to the terms
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436
SUPREME COURT REPORTS
[1979] 3 s.c.R.
of the Will. It was further contended somewhat inconsistently that
the dwelling house at Chandemagore being absolute Debutter belonging to the Deity, no person, except the trnstees, has any legal right
in the said house which can only be used for the Sewa Puja of the
family Deity located in the house; that the arbitration award of 1934
is not binding on the Deity and/or the trnstees who were not parties
to the arbitration; that the award was beyond the scope of the reference
and was adverse to the Trust, itself.
In his written statement, the defendant traversed the material allegatious in the plaint and asserted that he was in use and occupation of
the rooms in dispute in his own right as a Shebait. He further pleaded
that the plaintiffs had no right to represent the Deity and had no
locus standi to maintain the suit as trnstees; that since all the Shebaits
had not been joined as parties the suit was incompetent.
The subordinate Judge dismissed the suit holding, inter alia, that :
(i) By his Will, Babu Durga Chorone had absolutely dedicated the
property in dispute to the family Deity, Sree Sree Iswar Sridhar Jiew,
but he had not under that Will made any testamentary disposition of
his Shebaiti rights in respect of this Debutter property which, on the
death of the testator, devolved under Hindu Law upon his descendants,
who in consequence, were entitled to reside in the house as Shebaits.
(ii) The Trustees were not Shebaits.
Only the descer,dants of
Babu Durga Chorone had become Shebaits and had Shebaiti right in
the endowed property.
(iii) The award made by the arbitrator, Bhringeswar Sreemany,
was valid and binding upon the plaintiffs.
(iv) The plaintiffs could not recover possession from the defendant as trustees.
(v) The plaintiffs were not entitled to represent the Deity and had
no locus standi as trustees to maintain the suit on behalf of the Deity.
(vi) The defendant had a right to occupy the rooms in suit as
c<>-shebaits .
G
(vii) The plaintiffs having not claimed any relief in terms of the
arbitration award, were not entitled to any relief in respect of Room
Nos. 35, 46, 57 and 63.
Aggrieved, the plaintiffs preferred an appeal to the District Judge,
who dismissed the same and 'affirmed the decision of the Trial Court.
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Against the appellate decree of the District Judge, the plaintiffs
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carried a Second Appeal to the High Conrt at Calcutta. The DivisiQn Bench of the High Court, by its judgment dated July 21, 1969~
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P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, !.)
437
allowed the appeal, in part, and granted the plaintiffs' a decree for
A
Khas possession of Room Nos. 35, 46, 57 and 63 in the said dwelling
house; but not in respect of Room Nos. 72 and 82 mentioned as
Item No. 1 of Schedule 'B' to the Plaint.
After obtaining the certificate under Article
133(1) (b) of the
Constitution, as it then stood, the plaintiffs have filed Civil Appeal
1873 of 1970 against the partial dismissal of their claim in respect of
Room Nos. 72 and 82; while the defendant has filed Civil Appeal
1874 of 1970, praying that the plaintiffs' suit ought to have be~n dismissed in respect of Room Nos. 35, 46, 57 and 63 also. Both the
appeals will be disposed of by this common judgment.
Jne following pedigree table which has been compiled from the
material on record by the learned counsel for the appellant, will be
helpful in understanding the relationship of the parties and other connected facts :-
Durga Chorone
~kraswati (Widow).
Executrix died
on 30-10-1913.
I
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Hart
,
111re<
sons &
their
families.
Tulsi
Wife
Two sons &
their families & one
unmarried
daughter.
died on 27-8-1898
Shyama ~qorone
(Son)
Executor, died
on 21-12-25
I
I
Satya
Chorone
(Defdt.)
I !
Wife, six
sons and
families
and five
daughters
(one unmarried).
I
hi
.
B agwatt
Chorone
(Plff. 2)
-~---
Tarani C~orone
(Son).
Executor died
on 29-5-39_
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wife, five
sons & two
\
daughters
(one un1
married).
\
Profulla Chorone
(Plff. l).
lmulya
(not a party)
life 4
daughters .
life,2sons
& 6daughters (3 unmarried.)
The principal question that falls to be determined in these appeals
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is, whether the settlor had constituted the same set of persons
as
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Shebait as well us Trustees. This question turns on a construction of
the- V,'ill.
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SUPREME COURT REPORTS
[1979] 3 s.c.a.
Mr. Lal Narain Sinha, learned Counsel for the appellant in Civil
Appeal No. 1873 of 1970 submits that the answer to this question
must be in the affirmative because the Settlor, Durga Chorone Requitte had by express words in the Will, (Ex. 6/6A), dated June 6,
1898, imposed an obligation on the trustees to hold, manage and use
the suit property which he bad thereby absolutely dedicated to the
family idol, for the service and worship of the idol. It is maintained
that although the word 'Shebait' is not used in the Will, yet the said
obligation cast on the Trustees by inevitable implication clothed them
with the character of Shebaits, also.
As against this, Mr. Ashok Sen contends that the answer to the
question posed must be in the negative. It is urged that the words
"to hold, retain and use the pTemises . . . for the service and worship
of my family deity", on which Mr. Sinha's argument rests, do not
necessarily mean that the Testator had disposed of his Shebaitship
rights, also, and vested them in the Trustees.
Tt is stressed that there
are no words in the Will which, expressly or necessary implication,
constituted the Trustees as Shehaits; that the testator has not used
the word 'Shebait' anywhere in the Will; nor did he employ the word
'manage' or 'manager' anywhere in the Will while charging the Trustees to hold and use the premises as Debutter property of the idol.
According to the learned counsel, if the Will is construed as a whole
in the light of the surrounding circumstances, it would be clear that
the trust created was not a continuing trust but one which
would
terminate as soon as the Executor-Trustees handed over the bequeathed properties to the beneficiaries.
It is pointed out that the two
Wills, one dated June 4, 1898,
and the other dated June 6, 1898,
should be read as complementary to each other. The necessity of
executing two separate Wills arose, because the properties bequeathed
by the Will (Ex. 6) were situated in the then French territoriei., while
those covered by the Will dated June 4, 1898, were situated in the
British India.
There were several beneficiaries under these
Wills,
and the family idol was one of them.
The recitals in these Willsaccording to the counsel-particularly in the Will dated June 4, 1898,
show that the testator had kept, in tact, the right of residence of his
widow and daughters-in-law and other heirs in the property dedicated
to the idol. This, says Mr. Ashok Sen, is a sure indication of the
fact that the founder did not want to part with his Shebaiti rights,
which were heritable property, in favour of the Trustees, to the exclusion of his natural heirs under Hindu Law.
Mr. D. B. Mukherjee, appearing for the appellants in Civil Appeal
No. 1874 of 1970, further submitted that the words "to hold!, retain
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P. c. REQUITTE V. s. c. REQUITTE (Sarkaria, !.)
439
llnd use the premises as endowed or debutter property for the service
and worship of my family deity", if properly construed in the context
of the Will as a whole and surrounding circumstances, mean that the
Executors and Trustees would hold the property in trust for the benefit
of the deity and the shebaits. In the alternative, counsel submitted
that even if it is assumed arguendo that they were so appointed, the
line of succession set out in the Will would be hit by the principles
laid down in Tagore v.
Tagore('), Ganesh Chandra v. Lalit
Behary('); Jagadindra v. Rani Hemanta Kumari(•) and by the Rule
against perpetuities (Manohar v. Bhupendra)('). It is further contended that since the founder did not dispose of the Shebaitship but
only founded the worship of the Thakur, Shebaitship would vest in
the heirs of the founder.
For this proposition, reliance has been
placed on Gossamee Shree Greedhareejee v. Rumanlaljee(•).
In reply to this, Mr. Sinha submits that trusteeship with power to
nominate successor is an estate recognised by law, and in such a case
the founder does not create an estate of inheritance contrary to Hindu
Law of Succession, nor does the question nf the rule of perpetuity arise
because the founder does not determine the choice of the succeeding
Trustees. Reference has been made in
this behalf to
LL.R.
24
Madras 219, and Underhill's treatise on "Trusts", 12th Ed. pp. 53435 at 23-31. It is maintained that the Trust in question is a continuing trust; it did not come to, an end when the Trustees had fully performed their duties and obligations as executors of the Will, that the
general principle underlying Section 77 of the Trust Act is applicable
to the case in hand. lt is further submitted that of the two Wills, the
later must prevail and rderence to the earlier Will, for the purpose of
dete.rmining whether the heirs of the Settlor had been given a right
of residence in the suit property, is irrelevant.
Before dealing with these contentions, it will be appropriate to
have a clear idea of the concept, the legal cha,racter and incidents of
Shebaitship.
Property dedicated
to an idol ve.sts in it in an ideal
sense only; ex-necessitas.. the possession and management has to be
entrusted to some human agent.
Such an agent of the idol is known
as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he
is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal
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(!) I.A. Supp. l, Vol. 47.
(2) 63 I.A. 448.
(3) 31 I.A. 203.
(4) 60 Cal. 452.
(5) 19 I.A. l37.
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440
SUPREME COURT REPORTS
(1979] 3 S.C.Raffairs and to manage its property.
As regards the administration of
the debutter, his position is analogous to that of a Trustee, yet, he i:>
not precisely in the position of a Trustee in the English sense, becaus•~
under Hindu L'aw, property absolutely dedicated to an idol, vests in
the idol, and not in the Shebait.
Although the debutter never vest>
in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, amf
the amount of the usufruct depending again on usage and custom, if
not devised by the founder.
As regards the service of the temple and the duties th•at appertain
to it, h.e is rather in the position of the holder of an office; but even
so, it will not be quite correct to describe Shebaitship as a mere office,.
"Office and property are both blended in the conception of Shebait·
ship". Apart from the obligations and duties resting on him in connection with the endowment, the Shebait has a personal interest in the
endowed property.
He has, to some extent, the rights of a limited'
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owner.
ShelYaitship being property, it devolves like any other species of
hec ·'.able property. It follows that, where the founder does not dispose of the shebaiti rights in the endowment created by him, the
Shebaitship devolves on the heirs of the founder according to Hindu
E
Law, if no usage or custom of a different nature is shown to exist
[Gossamee Shree Greedharejee v. Rumanlaljee, (ibid.) ]
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Then, there is a distinction between a public and private debutter.
In a public debutter or endowment, the dedication is for the use or
benefit of the public. But in a private endowment, when property is
set apart for the worship of a family idol, the public are not interested.
The present ca'se is one of a private debutter. The distinction is important, because the results logically following therefrom have been
given effect to _l:iy Courts, differently.
Aooording to English Law, the beneficiaries in a private Trust,.
if sui juris 11nd of one. mind, have the power or authority to put arr
end to the trust or use the trust fund for any purpose and divest it
from its original object.
Whether this principle applies to a private
endowment or debutter created under Hindu Law, is a question on
which authorities are not agreed.
In Doorganath Roy v. Ram·
Chunder Sen('), it was observed that while the dedication is to
it
public temple, the family of the founder could not put an end to it,
but "in the case of a familv idol, the consensus of the. whole family
(I) L.R. 4 I.A. 52.
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might give the (Debutter) estate another direction" and tum it into
a secular estate.
Subsequently, in Pramatha Nath Mullick v.
Pradyunma KumQI'
Mullick('), the Judicial Committee clarified that the property cannot
be taken away from the idol and diverted to other purposes without
the consent of the idol through its earthly agents who, as guardians
of the deity, cannot in law consent to anything which may amount to
an extinction of the deity itself.
Although, Shebaitship is heritable property, yet, it C'annot be freely
tnu1sferred by the Shebait.
But there are exceptions to this general
rule.
Some of such exceptions recognised in several decisions, are :
alienation in favour of next shebait, or one in favour of the heir of
the transferor, or in his line of succession, or in favour of a coshebait, particularly when it is not against the presumed intention of
the founder. (See Nirod
Mohini v. Shibdas(') and Mancharan v.
Pranslwnkar(').
The Bombay High Court has also pointed out in Radhu Nath v.
Purnanand ('), that if any one of the Shebaits intends to get rid of his
duties. the proper thing for him to do would be to surrender his
office in favour of the remaining Shebaits. In the case of such a
transfer in favour of co-shebait, no policy of Hindu L'aw is likely to
be affected, much less the presumed intentions of the founder.
Now, let us deal with the problem in hand in the light of the
principles cited above.
The first question that falls for detennination is : Whether the
founder's intention ~·as to confer rights of Shebaitship on the persons
designated by him as 'trustees' in his Will? In other words, did he ·
by the Will, dated June 6, 1898 (Ex. 6/6A), dispose of the Shebaitship of the deity, also? 'If the answer to this question is fonnd in
the negative, shebaiti rights in this endowed property will devolve,
according to Hindu Law, on all the heirs of the founder, including the
defendant. In that situation, the defendant with his family, like the
other co-Shebaits, will be taken as residing in the debutter property,
in his own right.
If, however, the answer to the said question is
fonnd in the affirmative, the further question to be considered would
be with regard to the effect of the Award dated June 29, 1934 (Ex. C)
on the respective claims of the parties.
(l) 52 I.A. 245.
(2) I.L.R. 36 Cal. 975.
(3) I.L.R. 6 Born. 298.
(4) I.L.R. 47 Born. 529.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
We will now take up the first question.
Mr. Sinha, learned counsel for the appellants, submits that since
by his Will, dated June 6, 1898, the founder had "devised and bequeathed" the Chandernagore house to the pl'aintiffs-trustees "upon
Trust to stand possessed of' and "to hold, retain and use the premises
as endowed or debutter property for the worship of the family Thakur'',
his intention was to constitute the trustees as Shebaits of the property
having the exclusive right to manage the debutter, to serve the idol
and to preserve its property. It is submitted that the founder had
by these express words, invested the trustees both with the legal title
and Shebaitship, although the beneficial title (in an ideal sense) was
vested in the idol.
The passage in the Will on which Mr. Sinha relies for the construction propounded by him, runs as under :
"I desire, devise and bequeath to
my Executors
and
Executrix and Trustees hereinafter named . . . my dwelling
house with garden and tanks appertaining thereto situate in
Lal Bagan in Chandernagore. Upon
trust to stand possessed of and to hold, retain and use the premises an endowed
or Debutter property
for the service and
worship of my
family Thakur or idol Sreedhar Jew, which I hereby direct
shall be located in my said house in Chandernagore which
said house and premises shall be appropriated and devoted
solely and exclusively to the Thakur or Idol."
(Emphasis supplied)
The crucial words are those that have been underlined.
It may be observed that this Will, in English, appeoars to have been
drafted in pursuance of legal advice by an expert draftsman.
The
omission of the words "management", "1nanager'
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, "custodian of the
idol" or "ministrant of the idol" from the Will, therefore, cannot but
be intentional.
It seems clear to us tlrat the underlined words in the above extract, by themselves, merely create a trust/ or endowment and indicate the nature and purpose of the endowment.
These words do
not touch or deal with Shebaiti rights. This inference receives support from the surrounding circumstances.
Further, in arriving at the true import of the words "to hold,
retain and use the premises an endowed or Debutter property for the
service and worship of my family Thakur', it will not be improper to
look to the conduct of the Trustees and the members of the family
of the founder.
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P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, J.)
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There is no antagonism between the two Wills, one dated June 4,
1898 and the other dated June 6, 1898, of the founder.
Indeed, in
a sense they are complementary to each other.
There is a reference
in the Will, dated June 4, 1898, to the Testator's dwelling house at
Chandernagore, which under the Will (Ex. 6) was endowed to the
family deity.
From the following provisions in the Will, dated June,
4, 1898, .it is clear thoat the testator intended that the dwelling house
at Chandernagore would be used by his heirs for their residence :
"(a). I further direct my said Executors and Trustees
out of the said rents and profits of the said premises number 39, Chowringhee
Road to pay monthly a sum of
Rupees Fifty for the maintenance to each of my daughterin law Smt. Gopeswari
Dassee wife of my
eldest son
Shyama Chorone Requitte and Nagendra Mani Dassee wife
of youngest son Tarine Choron-e
Requitte
during their
lives respectively and provided they reside with their respective husbands at my dwelling house in Chandernagore.
(b). The Trustees shall pay monthly a sum not exceedin Rupees
Two hundred in
addition to the
interest of
Government securities of the nominal wlue of Rupees
Twenty thousand hereinafter mentioned and directed to be
applied for the purpose of household and other monthly
expenses of my family, namely wife and sqns and sons' wives
and other relatives of mine who shall reside in my dwelling
house at Chandernagore.
( c). To pay and apply the net interest of Government
securities on the nominal wlue of Rupees Twenty thousand
for the house-hold and
other monthly expenses of
my
family, namely, wife and sons and also sons' wives and other
and other relatives of mine who shall reside in my dwelling
house at Chandernagore and also to pay and apply the net
interest of Government securities of the nominal value of
Rupees six thousand for the costs and expenses of keeping
and maintaining my said family dwelling house at Chandernagore in proper repair and in payment of all
taxes and
assessments in respect thereof."
(Emphasis supplied)
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Looking to the general tenor of the document, it will not be
inappropriate to interpret the words "wife, and sons, and sons' wives,
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and other relatives of mine" in the above-quoted portions of the Will,
as including all the descendants and heirs of the testator.
444
SUPREME COURT REPORTS
[1979] 3 s.c.R.
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Thus construed conjointly, tl)e two Wills make it clear that alB
though the entire family )muse,
comprising 84 or 85 rooms,
at
Chandernagore was formally endowed to the faniily idol, yet the testator's intention was that his heirs and descendants would also be
entitled to use this house ~s their family dwelling house, apart from
the room wherein the idol was enshrined.
It may be further noted that in the Will, dated June 4, 1898, the
testator made the following provisions for the Sewa puja of the idol
at Chandernagore and for other religious festivals :
(i) The trustees shall set ap•art interests of Government secur.ities
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for the daily expenses of worship of the idol.
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(ii) The Trustees shall pay and apply the net interest of Government securities of the nominal value of Rs. 25,000/- for the yearly
expenses of the Durga Puja festival at Chandernagore.
(iii) The Trustees shall pay and 11pply the net interest of Government securities of the nominal value of Rs. 15,0001- for the yearly
expenses of the Dolejatra of the faniily idol, Thakur Sreedhar Jew at
Chandernagore.
The aforesaid provisions further show that although the trustees
were provided with the funds for the Sewa-puja of the family deity
and for other festivals out of the estate left by the testator, but they
were not expressly constituted as
Shebaits of the deity. It will,
therefore, be not unreasonable to infer that the intention of the testator W\lS that these funds would be expended for the purposes indicated by him, through the Shebaits.
Another telling circumstance appearing in evidence is that after
the death of the widow and the two sons of the testator, their heirs,
also, continued to live in this family
dwelling house at Chandernagore.
It may be further noted that by the Will, dated June 6,
1898, no
legal title in the endowed property was vested in the trustees.
The
title was expressly vested in the family idol to whom the property was
absolutely dedicated.
The testator did not create a trust estate in the
sense in which it is understood in English Law.
The above-quoted provisions from the Wills further show that no
rights to act as ministrant of the idol were conferred upon the TrusH
tees.
On the other hand, a mere obligation to hold 11nd use the property for the endowment indicated was
imposed upon the per>ons
designated as 'trustees'.
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P. c. REQUITTE v. s. c. REQUITTE (Sarkaria, J.)
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Reading the two Wills together, with particular focus on the pro-
<visions extracted iu this judgment, it is clear that the testator, Durga
Chand Requitte, did leave Shebaitship uhdisposed of; his
presumed
intention being that Shetaitship should devolve on his natural heirs
who would have a right to use the suit house as their family dwelling
house.
The rights conferred on the Trustees under the Will may, at
the most, amount to a curtailment of the right to manage the endowed
property which a Shcbait would otherwise have.
But, such curtailment by itself would not make the ordinary rules of succession in
Hindu Law inapplicable in regard to the devolution of Shebaitship,
which is heritable property.
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The upshot of the above discussion is that in spite of the interposition of the Trust for management of the endowed property, the
Shebaitship remained undisposed of and, as such, the defendant and
other descendants of Durga Chand Requitte became co-shebaits of
the deity by the operation of the ordinary rules of Hindu Law.
In arriving at the conclusion that in spite of the interposition of
the Trust, the founder by his Will left the Shebaitship undisposed of,
and as such, the defendant also, under Hindu Law, became one of
the Shebaits, we are fortified by the inference arising out of the facts
admitted by no less a witness than Plaintiff No. 3, Satish Chandra
Dass, himself, who alone deposed for the
plaintiffs.
Though
he
claimed that there were no Shebaits of the deities and the trustees
were managing the Shebaiis, he categoricallY admitted the following
facts :
(a) "The disputed house is a big house", having 84-85 rooms.
"It is the only family dwelling house" of the sons and grandsons ol
Durga Chorone Requittc, who live in it, while "the deity is installed
in room No.