# SREE SREE ISHWAR SRIDHAR JEW v. SUSHILA BALA DASI AND OTHERS

- **Citation:** [1954] 1 S.C.R. 407
- **Court:** Supreme Court of India
- **Decided:** 1951-03-05
- **Case number:** Civil Appeal No. 201 of 1952
- **Bench:** B. K. MuKHERJEA, VIVIAN BosE, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sree-sree-ishwar-sridhar-jew-v-sushila-bala-dasi-and-others-275
- **Pages:** 11

## Headnote

Hindu law-Religioits endowments-Dedication of properties
-Dedication to idol subject to charge in favour of heirs or bequest to
heirs subject to charge in favour of idol-Construction of willAdverse possession -Possession of shebait, whether can be adverse to
idol.
The question whether the idol itself is the true beneficiary
subject :to a charge in favour of the heirs of the testator, or the
heirs are the true beneficiaries subject to a charge for the upkeep,
worship and expenses of the idol, has to be determined by a conspectus of the entire provisions of the deed or will by which the
properties are dedicated.
.
Pande Har Narayan v. S1trja Kunwari (I.L.R. 47 I.A. 143)
referred to .
A provision giving a right to the sevayats to reside in the
premises dedicated to the idol for the purpose of carrying on the
daily and periodical worship and festivals does not detract from
the absolute character of a dedication to the idol.
Gnanendra Nath Das v. Surendra Nath Das (24 C.W.N. 1026)
referred to.
No shebait can, so long as he continues to be the shebait,
ever claim adverse possession against the idol.
Surendrakrishna Ray v. Shree Shree Ishwar Bhitbaneshwari
Thakurani (I.L.R. 60 Cal. 54) approved.
Judgment of the Calcutta High Court affirmed.

## Text

... ,
•
S.C.R.
SUPREME COURT REPORTS
407
SREE SREE ISHWAR SRIDHAR JEW
v.
SUSHILA BALA DASI AND OTHERS.
[B. K. MuKHERJEA, VIVIAN BosE and BHAGWATI JJ.]
Hindu law-Religioits endowments-Dedication of properties
-Dedication to idol subject to charge in favour of heirs or bequest to
heirs subject to charge in favour of idol-Construction of willAdverse possession -Possession of shebait, whether can be adverse to
idol.
The question whether the idol itself is the true beneficiary
subject :to a charge in favour of the heirs of the testator, or the
heirs are the true beneficiaries subject to a charge for the upkeep,
worship and expenses of the idol, has to be determined by a conspectus of the entire provisions of the deed or will by which the
properties are dedicated.
.
Pande Har Narayan v. S1trja Kunwari (I.L.R. 47 I.A. 143)
referred to .
A provision giving a right to the sevayats to reside in the
premises dedicated to the idol for the purpose of carrying on the
daily and periodical worship and festivals does not detract from
the absolute character of a dedication to the idol.
Gnanendra Nath Das v. Surendra Nath Das (24 C.W.N. 1026)
referred to.
No shebait can, so long as he continues to be the shebait,
ever claim adverse possession against the idol.
Surendrakrishna Ray v. Shree Shree Ishwar Bhitbaneshwari
Thakurani (I.L.R. 60 Cal. 54) approved.
Judgment of the Calcutta High Court affirmed.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 201 of 1952.
Appeal from the Judgment and Decree dated the
5th March, 1951, of the High Court of Judicature at
Calcutta (Harries C.J. and Banerjee J.) in Appeal from
Original Decree No. 118 of 1950, arising out of the
Judgment and Decree dated the 15th June, 1950, of
the said High Court in its Ordinary Original Civil
Jurisdiction in Suit No. 2379 of 1948.
N. C. Chatterjee (S. N. Mukherjee, with him) for the
appellant.
.
N. N. Bose (A. K. Dutt, with him) for the respondent
in Civil Appeal No. 201 of 1952 and petitionerfor
special leave .
.'it
Nov.16
408
SUPREME COURT REPORTS
[1954]
1953
M. G. Seta,lvad, Attorney-General.for India, (B. Sen,
S
S-I
h
with him) for respondents Nos. 1, 2 and 3 in the petition
ree
ree
s war
.
·
Sridhar Jew for special leave.
v.
1953. November 16. The Judgment of the Court
Su.•hila Bala was delivered by
Da.si and Othera,
BHAGWATI J.-This is an appeal on a certificate
Rhagwati .1.
under article 133( l) of the Constitution from a judgment and decree passed by the Appellate Bench of the
High Court of Calcutta, modifying on appeal ·the
judgment and decree passed by Mr. Justice Bose on
the original side of that court.
One Dwarka Nath Ghose was the owner of considerable moveable and immoveable properties.
On the
10th June, 1891, he made and published his last will
and testament whereby he dedicated to his family idol
Shree Shree Iswar Sridhar Jew his two immoveable
properties, to wit, premises No. 41 and No. 40/1 Grey
Street in the city of Calcutta. He appointed his two
sons Rajendra and ,Jogendra executors of his will and
provided that his second wife Golap Sundari and the
two sons Rajendra and Jogendra should perform the
8€Va of the deity and on their death their heirs and
successors would be entitled to perform the 8eva.
Dwarka Nath died on the 16th March, 1892, leaving
him surviving his widow Golap Sundari and his two
sons Rajendra and Jogendra.
On the 19th July, 1899,
Rajendra made and published his last will and testament whereby he confirmed the dedication made by
Dwarka Nath with regard to premises Nos. 41 and
40/1 Grey Street and appointed his brother Jogendra
the sole executor thereof.
He died on the 31st
January, 1900, and Jogendra obtained on the 24th
April, 1900, probate of his said will.
Probate of the
will of Dwarka Nath was also obtained by Jogendra
on the 31st August, 1909.
On the 4th September, 1909, Bhupendra, Jnanendra
and Nagendra, then a minor, the three sons of
Rajendra filed a suit, being Suit No. 969 of 1909, on
the original side of the High Court at Calcutta against
Jog~ndra, Golap Sundari and Padma Dassi, the widow
of Sidheswar, another son of Rajendra, for the
•
1 ..
•
S.U.R.
SUPREMl~ COURT REPORTS
409
construction of the wills ofDwarka Nath and Rajendra,
1953
for partition :i-nd ?ther ,relief~. T~e idol was not m.ade Srec Sree 1 shwiir
a party to this smt. 'Ihe said ~mt was compromised
Sridhar Jew
and on the 24th November, 1910, a consent decree was
v.
passed, whereby Jogendra and Golap Sundari gave up Sushila Bala
their rights .to the sevayatship and Bhupendra, Dasi and Others.
Jnanendra and Nagendra became the sevaits of the
--
Bhaywati J.
idol, a portion of the premises No. 41 Grey Street was
allotted to the branch of Rajendra and the remaining
portion was allotted to Jogendra absolutely and in
consideration of a sum of Rs. 6,500 to be paid to the
plaintiffs, Jogendra was declared entitled absolutely
to the premises No. 40/1 Grey Street. The portions
allotted to Jogendra were subsequently numbered
40/2-A Grey Street and the portion of the premises
No. 41 Grey Street allotted to the branch of Rajendra
was subsequently numbered 41-A Grey Street.
Jogendra died on the 5th August, 1911, leaving a will
whereby he appointed his widow Sushilabala the exe- · ·
cutrix thereof. She obtained probate of the will on the
6th August, 1912.
Disputes arose between Bhupendra, Jnanendra 'an<l
Nagendra, the sons of Rajendra, and one Kedar Nath
Ghosh was appofo.ted arbitrator to settle those disputes .. The arbitrator made his award dated the 12th
October, 1920, whereby he allotted premises No. 41-A
Grey Street, exclusively to N agendra as his share of the
family properties. N agendra thereafter executed several
mortgages of the said premises. The first mortgage
was created by him in favour of Snehalata Dutt on the
19th May, 1926. The second mortgage was executed on
the 4th June, 1926, and thethird mortgage on the 22nd
February, 1927. Onthe23rdFebruary, 1927, Nagendra
executed a deed of settlement of the said premises by
which he appointed his wife Labanyalata and his wife's
brother Samarendra Nath Mitter trustees to carry out
the directions therein contained and in pursuance of
the deed of settlement he gave up possession of the
said .premises in favour of the trustees.
Snehalata Dutt filed in the year 1929 a suit, being
Suit No. 1042 of 1929, against Nagendra, the trustees'
410
SUPREME COURT REPORTS
[i954]
1968
under the said deed of settlement and the puisne
S
S1 h
mortgagees, for realisation of the mortgage security.
ree
ree • war A
d
d ·
h
'd
·
h
Sridhar Jew
consent
ecree was passe
m t e_sa1 smt on t e
v.
9th September, 1929. Nagendra diedin June, 1931, and
Sushila Bala the said premises were ultimately put up for sale in
Dasi and Others. execution of the mortgage decree and were purchased
on the 9th December, 1936, by Hari Charan Dutt, Hari
Bhagwati J.
Pada Dutt and Durga Charan Dutt for a sum of
Rs. 19,000. A petition made by the purchasers on the
12th January, 1937, for setting aside the sale was
rejected by the court on tlie 15th March, 1937.
Haripada Dutt died on the 3rd June, 1941, leaving him
surviving his three sons,
Pashupati Nath Dutt,
Shambhunath Dutt and Ka8hinath Dutt, the appellants before us.
Haricharan Dutt conveyed his onethird share in the premises to them on the 4th March,
1!144, and Durga Charan Dutt conveyed his one-third
share to them on the 3rd May, 1946. They thus became
. entitled to the whole of the premises which had been
purchased at the 'auction sale held on· the 9th
December, 1936.
On the 19th July, 1948, the family idol of Dwarka
Nath, Sree Sree Iswar Sridhar Jew, by its next friend
Debabrata Ghosh, the son of Nagendra, filed the suit,
out of which the present appeal arises, against the
appellants as also against Susilabala and the two sons
of Jogendra by her, amongst others, for a declaration
that the premises Nos. 41-A and 40/2-A Grey Street,
were its absolute properties and for possession thereof,
for a declaration that the consent decree dated the
24th November, 1910, in Suit No. 969 of 1909 and the
award dated the 12th October, 1920, and the dealings
made by the heirs of .Jogendra' and/or Rajendra
relating to the said premises or any of them purporting to affect its rights in the said premises were invalid
and inoperative in law and not binding on it, for an
account of the dealings with the said premises, for a
scheme of management of the debutter properties and
for its worship, for discovery, receiver, injunction and
')OS ts.
'l ..
•
•
s.c.:R.
SUPREME COUR'l; REPORTS
411
Written statements were filed by the appellants and
1953
by Susilabala and the two sons of J ogendra denying 8
8--1 h
the claims of the idol and contending inter alia that ';.id~:: ;e:ar
there was no valid or absolute dedication of the suit
v.
properties to the idol and that the said premises had
Sushila Bala
been respectively acquired by them by adverse pos- Da•i and Others.
session and that the title of the idol thereto had been
-
Bhagwati J.
extinguished.
The said suit was heard by Mr. Justice Bose who
declared the premises No. 41-A Grey Street to be
the absolute property of the idol and made the other
declarations in favour of the idol as prayed for.
The
idol was declared entitled to possession of the said
premises with mesne profits for three years prior to
the institution of the suit till delivery of possession,
but was ordered to pay as a condition for recovery of
possession of the said premises a sum of Rs. 19,000 to
the appellants with interest thereon at the rate of
6 per c.ent. per annum from the 19th July, 1945, till
payment or till the said sum was deposited in court to
the credit of the suit. The learned Judge however
dismissed the suit of the idol in regard to the premises
No. 40/2-A Grey Street as, in his opinion, Sushilabala
as executrix to her husband's estate and her two sons
had acquired title to the said premises by adverse
possession and the title of the idol thereto had been
extinguished.
The appellants filed on the 18th August, 1950, an
appeal against this judgment being Appeal No. _118 of
1950. The idol filed on the 20th November, 1950,
cross-objections against the decree for Rs. 19,000 and
interest thereon as also the dismissal of the suit in
regard to the premises No. 40/2-A Grey Streek The
appeal and the cross-objections came on for hearing
before Harries C. J. and S. N. Banerjee J., who delivered judgment on the 5th March, 1951, dismissing the
said appeal and allowing the cross-objection in regard
to Rs. 19,000 filed by the idol against the appellants.
In regard however to the cross-objection relating to
premises N."o. 40/2-A Grey Street which was directed
against Sushilabala and the two sons of Jogendra the
412
SUPREME COURT REPOR'rs
[1954]
195J
learned Judges held that the cross-objection against
8
_,
1 ,
the co-respondents was not maintainable and dismissed
Yee orcc
tJnwar
·
.
Bridhar Jew the same with costs.
v.
The appellants filed on the 31st May, 1951, an appliBu•hila Bala cation for leave to prefer an appeal to this court
Dasi and Othm. against the said judgment and decree of the High
Blwyw--:iiJ.
Court at Calcutta.
A certificate under article 133(1)of
the Constitution was granted on the 4th June, 1951, and
the High Court admitted the appeal finally on the 6th
August, 1951.
On the 22nd November, l!J51, the idol
applied to the High Court for leave to file cross-objections against that part of the judgment and de9ree of
· the High Court which dismissed its claims with regard
to the premises No. 40/2-A Grey Street. The High Court
rejected the said application stating that there was no
rule allowing cross-objections in the Supreme Court.
The said cross-objections were however printed as
additional record.
By an order made by this court on the·24th May,
1953, the petition of the idol for filing cross-objections
in this court was allowed to be treated as a petition for
special leave to appeal against that part of the decree
which was against it, subject to any question as to
limitation: The appeal as also the petition for special
leave to appeal mentioned above came on for hearing
and final disposal before us.
The appeal was argued
but so far as the petition for special leave to appeal
was concerned the parties came to an agreement
whereby the idol asked for leave to withdraw the petition oh certain terms recorded between the parties.
The petition for special leave was therefore allowed to
be withdrawn and no objection now
survives in
regard. to the decree passed by the trial court dismissing the idol's claim to the premises No. 40/2- A Grey
Street. The appeal is concerned only with the premises No. 41-A Grey Street.
It was contended on behalf of the appellants that
the dedication of the premises No. 41 Grey Street
made .. by Dwarka Nath under the terms of his will was
a partial dedication, and that his sons Rajendra and
Jogendra and his widow Golap Sundari, who were
-'·
•
S.C.R.
SUPREME COURT REPORTS
413
appointed sevayats of the idol were competent to deal
1953
with premises No. 41 Grey Street after making the
.
• ·
£
h · 'd 1 ' h
d
· d
b
Sree Sree lshwar
due prov1s10n 1or t e I o as t ey purporte to
o
Y Sridhar Jew
the terms of settlement, dated the 24th November,
v. ·
1910. It was' further contended that Nagendra, by
Sushila Bala
virtue of the award dated the 12th October, 1920, Dasi and Others.
claimed to be absolutely entitled to the premises
No. 41-A Grey Street and that his possession of the
Bhagwati J.
said premises thereafter became adverse which adverse
possession continued for upwards of· 12 years extin- ·
guishing the right of the idol to the said premises.
The first contention of the appellants is clearly untenable on the very language of the will of Dwarka
Nath. Clause 3 of the said will provided:-
"With a view to provide a permanent habitation
for the said deity, I do by means of this will, dedicate
the aforesaid immovable property the said house
No. 41 Grey Street together with land thereunder to
the said Sri Sri Issur Sridhar Jew. With a view to
provide for the expenses of his daily (and). periodical
Sheba and festivals, etc. The 3!· Cattahs (three and
half Cattahs) of rent free land more or less that I have
on that very Grey Street No. 40/1. ........... This also
I dedicate to the Sheba of the said Sri Sri Sridhar Jew
Salagram Sila Thakur. On my demise none of my
heirs and representatives shall ever be competent to
take the income of the said land No. 40/l and spend
(the same) for household expenses. If there be any
surplus left after defraying the Debsheba expelljles the
same shall be credited to the said Sridhar Jew Thakur's fund and with the amount so deposited repairs,
etc., from time to time will be effected to the said
house No. 41 with a view to preserve it and the taxes
etc., in respect of the said two properties will be paid ...
.. . .. . For the purpose of the carrying on the daily (and)
_periodical sheba and the festivals, etc., of the said 8ri
Sri Issur Sridhar Jew Salagram Sila Thakur my said
<second wife Srimati Golap Mani Dasi, and 1st Sriman
Rajendra Nath and 2nd Sriman Jogendra Nath Ghose
.,.,
born of the womb of my first wife on living in th_e said
house No. 41 Grey Street dedicated by me shii,ll
414
SUPREME COURT REPORTS
[1954]
1953
properly and agreeably to each other perform the sheba,
S
S--1 h
etc. of the said Sri Sri Issur Sridhar Jew Salagram Sil a
ree
ree
s war
'
d
h
f
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h '
Sridhar Jew Thakur and on the eat
o my sa1 two sons t eir
v.
representatives, successors and hdrs shall successively
Sushila Bala . perform the sheba in the aforesaid manner and the
Dasi and Others. executors appointed by this will of mine having got
-.
the said two properties registered in the Calcutta
Bhagwati J.
Municipality in the name of the said Sri Sri Issur
Sridhar Jew Thakur shall pay the municipal taxes,
etc., and shall take the municipal bills in his name.
None of my representatives heirs, successors, execu.
tors, administrators or assigns shall have any manner
of interest in or right to the said two de butter properties and no one shall ever be competent to give
away or effect sale, mortgag" or in respect of the
said two properties nor shall the said two properties
be sold on account of the debts of any one."
It is quite true, that a dedication may be either
absolute or partial. The property may be given out
and out to the idol, or it may be subjected to a charge
in favour of the idol.
"The question whether the idol
itself shall be considered the true beneficiary, subject
to a charge in favour of the heirs or specified relatives of
the testator for their upkeep, or that, on the other
hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the up·
keep, worship and expenses of the idol, is a question
which can only be settled by a conspectus of the entire
provisions of the will": Pande Har Narayan v.
Surja Kunwari (1).
What we find here in clause 3 of the will is an
absolute dedication of the premises No. 41 Grey Street
to the idol as its permanent habitation with only the
right given to the sevayats ·to reside in the said premises for the purposes of carrying on the daily and
periodical seva and the festivals, etc., of the deity.
The said premises are expressly declared as dedicated to
the deity.
They are to be registered in the municipal -.,
records in the name of the deity, the municipal bills ·
have ~ot to be taken also in his name and none of the
(I) (192.r) L .. R. 48 I. A. 143, 145, lf6.
•
S.C.R.
SUPREME COURT REPORTS
415
testator's representatives, heirs, successors, executors,
1953
administrators or assigns is to have any manner of8
8 --1 h
h
h
'd
.
.
b
ree
ree
8 wat
interest in or rig t to t e sa1
premises or is to e
Sridhar Jew
competent to give away or effect sale, mortgage, etc.,
v.
of the said premises. There is thus a clear indication Su•hila Bala
Of the intention of the testator to absolutely dedicate Dasi and Others•
the said premises to the deity and it is impossible to · B~wati J.
urge that there was a partial dedication of the premises to the deity. The only thing which was urged by
Shri N. C. Chatterjee in support of his contention was
that the right to reside in the premises was given to
the sevayats and that according to him detracted
from the absolute character of the dedication.
This
argument however cannot avail the appellants. It
was observed by Lord Buckmaster in delivering the
judgment of the Privy Council in Gnanendra Nath Das
v. Su.rendra Nath Das ('):
"In that case it is provided that the shebait for
the time being shall be entitled to reside with his
family in the said dwelling-house, but the dwelling.
house itself is the place specially set apart for the
family idols to which specific reference is made in the
will, and in their Lordships' opinion the gift is only a
perfectly reasonable arrangement to secure that the
man in whose hands the supervision of the whole
estate is vested should have associated with his duties
the right to reside in this named dwelling place."
The first contention of the appellants therefore
fails and we hold that the dedication of the permises
No. 41 Grey Street to the idol was an absolute dedication.
·
As regards the second contention, viz., the adverse
possession of Nagendra, it is to be noted that under
the terms of clause 3 of the will of Dwarka Nath the
representatives, successors and heirs of his two sons
Rajendra ,and J ogendra were successi.vely to perform
the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of
Rajendra. He was no doubt a minor on the 24th
November, 1910, when the terms of settlement- were
arrived at between the parties to the suit No. 969 of
(r) (1920) 24 C.\11'.N. 1026 at p. 1030,
?5.
4-16
SUPREME COURT REPORTS
[1954-)
J9'5.J
1909.
His two elder brothers Jnanendra and Bhupen-
~
3--1 h
dra were declared to be the then sevavats, but a right
'';,;a~~. ;,:"''was reserved to Nagendm to join 'with them as a
v.
sevayat on his attaining majority. So far as N agendra
sushila Bara
is concerned there is a clear finding of fact recorded by
n,,,; and 01hers, Mr .. Ju~tice ~ose on a specific issi,ie ra.ised in tha~ b~-
--.
half, viz., "Did Nagendra act as slleba1t of the plamt1ff
Hhogwa1t J.
deity under the wills of Dwarka Nath Ghosh and
Rajendra Nath Ghosh ?"-that he did act as such
she bait and that his possession of the premises No. 41A
Grey Street was referable to possession on behalf of
the idol.
This finding was not challenged in the
appeal court and it is too late to challenge the same
before us. If N agendra was thus a sevayat of the idol
it could not be urged that his possession could in · any
manner whatever he adverse to the idol and his dealings with the said premises in the manner he purport-
- ed to do after the 12th October, 1920, could not be
evidence of any adverse possession against the idol.
The position of the sevayat and the effect of his dealings
with the property dedicated to the idol has been expounded by Rankin C.J. in Surendrakrishna Ra.y v.
Shi'ee Shree Ishwar Bhubaneshwari Thakurani(') :-
"But, in the present case, we have to see whether the
possession of two joint shehaits becomes adverse to
the idol when they openly claim to divide the property
between them.
The fact of their possession is in
accordance with the idol's title, and the question is
whether the change made by them, in the intention
with which they bold, evidenced by an application of
the rents and profits to their own purposes and other
acts, extinguishes the idol's right. I am quite unable
to hold that it does, because such a change of intention can only be brought home to the idol by means of
the shebait's knowledge and the idol can only react to
it by the she bait. Adverse possession, in. such circumstances, is a notion almost void of content.. True, any
heir or perhaps any descendant of the founder can
bring a suit against the sbebaits on the idol's behalf
and;in the present case, it may be said that the acts
of the shebaits must have been notorious in the family.
(I) (1933) 60 Cal. 54 at 77,
S.C.R.
SUPREME COURT REPORTS
417
But such persons have no legal duty to
protect
the
endowment and,
until the shebait is removed or controlled by the court, he alone can act for the idol."
We are in perfect accord with the observations made
by Rankin C.J. If a shebait by acting contrary to the
terms of his appointment or in breach of his duty as
such shebait
could
claim
adverse
possession
of the
dedicated property against the idol it would be
putting a premium on dishonesty and breach of duty on
his part and no property which is dedicated to an idol
would ever be safe.
The shebait for the time being is
the only person
competent to safeguard the interests
of the idol, his possession of the dedicated
property is
the possession of the idol whose sevait he is,
and no
, dealing of his with the property dedicated to the idol
could afford the basis of a claim by him
for
adverse
possession of the property against the idol.
No shebait
can, so long as he continues to
be the sevait, ever
claim
adverse
possession
against the
idol.
Neither
Nagendra nor the appellants
who derive
their
title
from the auction sale held on the 9th December, 1936,
could therefore claim to have
perfected
their
title to
the premises No. 41-A Grey
Street
by adverse
possession.
The second
contention of the
appellants
also
therefore fails.
The further contention urged on
appellants in regard to the disallowance
Rs. 19,000 by the appeal
court
could
was not seriously pressed
before
us
require ~ny consideration.
behalf of the
of the sum of
not
be
and
and
does not
The result
therefore is that the appeal
must stand dismissed with costs.
fails and
Appeal dismissed.
Agent for the appellant : P. K. Chatterjee.
Agent for the respondent No. 1 in the appeal and the
petitioner in the petition for special leave :
Sukumar Chose.
Agent for the respondents
Nos. 1, 2 & 3 in the
petition for special leave : P. K. Chose.
1953
Sree Sree lshwarSridhar Jew
v.
Sushila Bala
Dasi and Others~
BhagwatiJ.