JUDGMENT

DESAI, J.:— The unsuccessful plaintiff, appellant in this appeal by special leave, who died pending the appeal, seeks a declaration that he is entitled to a right of worship by turn (called Osra) for 10 days in a circuit of 18 months in the temple of Kalyanji Maharaj at Village Diggi, Distt. Tonk, Rajasthan, under the will Ext. I dated 22nd Sept. 1961 executed by deceased Mst. Acharaj, wife of Onkar. The suit was resisted by four amongst five defendants, the 5th defendant having not put in an appearance. Various contentions were raised but the only one surviving for present consideration is whether document Ext. I purporting to be a will of deceased Mst. Acharaj is a will or a gift, and if the latter, whether it is admissible in evidence on the ground that it was not duly stamped and registered as required by law ?

2. When the plaintiff referred to the disputed document in his evidence and proceeded to prove the same, an objection was raised on behalf of the defendants that the document was inadmissible in evidence as being not duly stamped and for want of registration. The trial court did not decide the objection when raised but made a note : "Objected. Allowed subject to objection", and proceeded to mark the document as Exhibit I. When at the stage of arguments, the defendants contended that the document Ext. I is inadmissible in evidence, the learned trial judge rejected the contention taking recourse to S. 36 of the Stamp Act. On the question of registration it was held that the document is not compulsorily registrable insofar as the subject-matter of the suit is concerned, viz, turn of worship which in the opinion of the learned trial judge was moveable property. On appeal by the defendants the judgment of the trial judge was reversed, inter alia, holding that the document Ext. I was a gift and as it involved gift of immovable property, the document was inadmissible in evidence both on the ground that it is not duly stamped and for want of registration. The plaintiffs second appeal to the High Court did not meet with success.

3. The only question canvassed before this Court is that even if upon its true construction the document Exht. I purports to be a gift of turn of worship as a Shebait-cum-Pujari in a Hindu temple, does it purport to transfer an interest in immoveable property, and, therefore, the document is compulsorily registrable? On the question whether the document was duly stamped it was said with some justification that it was not open to the Court to exclude the document from being read in evidence on the ground that it was not duly stamped because in any event under S. 33 of the Stamp Act it is obligatory upon the court to impound the document and recover duty and penalty as provided in proviso (a) to S. 35.

4. Mst. Acharaj, wife of Onkar had inherited the right to worship by turn for 10 days in a circuit of 18 months in Kalyanji Maharaj Temple. It is common ground that she was entitled during her turn to officiate as Pujari and receive all the offerings made to the deity. During the period of her turn she would be holding the office of a Shebait. She purported to transfer this office with its ancillary rights to plaintiff Ram Rattan under the deed Ext. I purporting to be a will. Upon its true construction it has been held to be a deed of gift and that finding was not controverted, nor was it possible to controvert it, in view of the recital in the deed that : "now Ram Rattan will acquire legal rights and possession of my entire property from the date the will is written the details of the property are in Schedule A and after him, his legal heirs will acquire those rights". It appears crystal clear that the document purports to pass the title to the property thereby conveyed in praesenti and in the face of this recital it could never be said that the document Ext. I purports to be a Will.

5. If by document Ext. I the donor conveyed property by gift to donee and the property included the right to worship