Important Points
1. Will in the normal connotation, takes effect after the demise of the testator. But in the case of nomination of a shebait, the nomination takes effect from the date of its execution though it is styled as a will.
2. A chela cannot be adopted but can be nominated and chela nominated must not be a minor but must be one capable to renounce worldly affairs or capable to adopt himself as Bairagi.
3. Shebaitship being a property would succeed in line of inheritance.

Headnote:(i) Hindu Religious endowment -Shebaitship - Succession of-One H founded temple endowing his properties to temple-During his life time he was defacto trustee-Bhumidari right in properties came to be conferred on deity-H had four chelas of which R and B were real brothers-R got married and had two sons (plaintiffs)-B was last surviving chela of H-B by will nominated plaintiffs as Shebaits-Later he cancelled will by adoption deed whereby he appointed two minors belonging to another family as chelas-Founder of temple did not lay down line of succession in to shebaitship-Trial Court held plaintiffs were entitled to succeed shebaitship on death of B last chela of founder-High Court held will and adoption were invalid and property became escheat-Held: Will valid and adoption invalid and even otherwise plaintiffs being sons of B’s real brother entitled to succeed to shebaitship of temple and administer properties.
       (ii) Hindu Law-Adoption-Bairagi cannot adopt any one as his chela-Chela can be nominated and not adopted - Chela nominated must be one who is independent and capable of renouncing worldly affairs. (Para 17)
       (iii) Shebait-Whether a married person is entitled to be a shebait. (Para 17)
       (iv) Will - Cancellation of -Bairagi nominating shebaits by executing will-Later cancelling will by deed of adoption when some one else was adopted as chela-Not valid-In case of nomination of shebait, nomination takes effect from date of its execution of though it is styled as a will. (Para 16)
       Held : From the evidence it is clear that the plaintiffs are entitled to act as shebaits of the temple because in the endowment deed at Ex. 2 late Sri Hari Dass did not lay down the line of succession to the office of Shebait. Further his 4 chelas nominated in this deed did not exercise their power to appoint some shebait and as such it was not open for late Bansi Dass to appoint 2 chelas belonging to another family of his own desire. Since Bansi Dass died issueless the property would go again to the heirs of Ram Dass because Ram Dass and Bansi Dass were real brothers. (Para 13)
       It would, thus, be seen that there is no controversy as to whether Rambir Dass became entitled to succeed the temple as shebait as could be seen from the evidence; in the light of the above legal position, Hari Dass had not laid down any line of succession to his chelas to administer the debutter estate of the temple. He left behind him four chelas and admittedly one of the chelas, Ram Dass, had married. The appellant and his brother, are the progenies of Ram Dass. Bansi Dass the last chela had executed a Will under which he nominated Rambir Dass and his brother as Shebait. Admittedly, he did not reserve any right to cancel their nomination in the Will. He cancelled the Will while executing an Adoption Deed in favour of the defendants. The question is: whether he had the competence to cancel the Will having duly nominated the appellant and his brother as Sehbaits? Since the brother of the appellant became insane, it is not necessary to go into the question whether he would succeed after Rambir Dass. The Will in the normal connotation, takes effect after the demise of the testator. But in the case of nomination of a shebait, the nomination takes effect from the date of its execution though it is styled as a Will. Once it takes effect, the nominee becomes entitled to go into the office as a shebait after the demise of the last chela of Hari Dass. Under these circumstances, the shebaitship being a property, vests in Rambir Dass and he could administer the property and manage the temple for the purpose of spiritual and other purposes with which Hari Dass, the original founder had endowed the property to Lord Krishna and Radha. (Para 16)
       The next question is: whether Bansi Dass has power to adopt defendants 1 and 2 and deprive the appellant of his right of shebaitship? Having seen that Bansi Dass did not reserve any right to cancel the nomination and that too for valid reasons, the Will became operative as soon as it was executed. Thereby, he had no more any power to cancel it and thereby the right of adoption would not be approved of by this Court as valid in law, as he is a Bairagi and he could not adopt anyone except nominating a chela who follows the principles and precepts the founder had laid for being observed. Unfortunately, there is no plea in this behalf nor is any power in that behalf. The only ground on which the cancellation came to be made was that Rambir Dass had married and thereby he became disentitled to be a Bairagi to administer the debutter estate as a shebait. There is no pleading that a married bairagi cannot hold the property nor that he becomes a shebait to administer the debutter estate endowed to the Mandir. It is to be seen that the property stands vested in the deity, Lord Krishna and Radha and that anyone who administers the property, does so as a shebait and administers as a trustee for and on behalf of the deity. It is true that the High Court had disallowed the Will and held that neither party is entitled to shebaitship. The view taken by the High Court is clearly illegal. It is not the case that the appellant was not nominated under the Will executed by Bansi Dass, in the first instance and thereby he was vested with the right to manage, as a Shebait of the debutter estate belonging to the deity, Lord Krishna and Radha. There is no plea nor proof that a married person is not entitled to be the shebait. Therefore, the view of the High Court that he became disentitled on account of the marriage is clearly illegal. A chela cannot be adopted but can be nominated. As a consequence, the adoption of defendants 1 and 2 by Bansi Dass as chelas is also not legal for the reason that they were minors as on the date when he claims to have adopted them Chelas. Chela nominated must be one who is independent and capable to renounce the worldly affairs or capable to adopt himself as Bairagi. He cannot adopt anyone as his successor by application of the general principles of law. (Para 17)
       Under these circumstances, though for different reason, the adoption deed executed by Bansi Dass is clearly illegal. In consequence, the estate does not become an escheat but it continues to remain vested in the deity and the shebait remains incharge of management of the property. The right of management should go either in the order of succession given by the original founder or, in its absence, in the line of intestate succession. It is seen that Ram Dass one of the chelas was married and he left behind his son Rambir Dass, the appellant; another chela, Bansi Dass having died without nominating any chela, necessarily, the succession would go to the heirs of one of the chelas. In the absence of line of succession indicated by the founder admittedly, Rambir Dass became entitled to succeed by inheritance the debutter estate as shebait to manage the temple on behalf of the deity Lord Krishna and Radha and he remains to be the trustee and is entitled to get possession of the properties and manage the same for the purpose for which and in the manner in which, it was endowed by Hari Dass. If there is any dereliction of the duty in that behalf by the appellant, appropriate action would be taken by Endowment Department of Uttar Pradesh Government in accordance with law. But so long as he maintains and administers the property for the benefit and for the purpose for which they were endowed, he is entitled to manage as a shebait for and on behalf of the deity, Lord Krishna and Radha. (Para 18)

Order

C.A. No. 947 of 1980

This appeal by special leave arises from the judgment dated 19th March, 1980 passed by the learned Single Judge of the High Court of Allahabad in SA No. 1940 of 1977.

2. The admitted position is that one Hari Das owned considerable properties situated in the town Khair of Aligarh District which is part of Schedule ‘B’ attached to the Plaint. He constructed a temple, by name Shri Jugal Kishoreji Maharaj Mandir. Therein, the principal deity is Lord Krishna and Radha. He endowed all his properties to the Mandir. During his life time, he was in-charge of the temple as de facto trustee and he did seva (service) and pooja to the deity. After the abolition of the estate under the U.P. Zamindari Abolition and Land Reforms Act, 1950, bhumidari rights in the properties were conferred on the deity Lord Krishna and Radha. Hari Dass left behind him four chelas by name, Narain Das, Bansi Dass, Manohar Dass and Ram Dass alias Ram Chander. Appellant No. 1 Rambir Das and his brother Har Govind Das are sons of Ram Dass. Bansi Dass, the last serving chela, had executed a Will, Ex. B-19 and 9.2.1955 whereunder he nominated the plaintiff and his brother as Shebaits of the Mandir. During his life time by Deed of Adoption dated January 6, 1966, Ex. A-45 cancelled the Will and adopted defendant Nos. 1 and 2 as his chelas. Bansi Dass died on February 3, 1969. Thereafter, the disputes arose between the appellants and the respondents as to who would be entitled to succeed to the Shebaitship of the Mandir. It is not necessary to dilate upon the proceedings that went on in the Criminal Court and in the suit. Suffice it to state that the appellant had sought a relief of declaration of succession as a Shebait to the Mandir, possession thereof and consequential perpetual injunction against the respondents from interfering with his Shebaitship and possession and enjoyment of the property as a Shebait of the temple. The Trial Court granted the decree. On appeal it was confirmed. In the second appeal, the learned single Judge held that the cancellation of the Will in the Adoption Deed is valid for the reason that Rambir Dass had married and thereby he ceased to be a bairagi. His brother Har Govind Dass having become insane, was disqualified to be a Shebait. The defendants-respondents being minors, nomination in that behalf is invalid in law. As a consequence, the property became escheat; he directed the Advocate-General to take action for possession of the properties. Thus, this appeal by special leave and cross appeal.

3. The primary question for consideration is: whether the appellant’s claim to be a Shebait of the Mandir is valid and sustainable in law? In Tagore Law Lectures-1936 published in “Hindu Law of Religious and Charitable Trust”, Justice R.K. Mukherjee, the former Chief Justice of this Court stated at page 216 as under :

“As shebaitship is property, it devolves like any other property according to the ordinary Hindu Law of inheritance. If it remains in the founder, it follows the line of founder’s heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder (g). In the matter of appointment of a shebait, the discretion of the founder is unfettered. No Hindu would indeed think of appointing a person as manager of a temple, who is a follower of a different religion, but there is nothing in law which prevents him from appointing as shebait, a person of different or inferior caste.”

4. It is further stated at page 217 thus:

“As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship, the Supreme Court of India has held very recently that shebaitship is ‘property’ within the meaning of the Hindu Women’s Right to Property Act; consequently in a case to which

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1997 Supreme(SC) 300

Cases Referred (3)