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1940 Supreme(SC) 58
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD THANKERTON, AND SIR GEORGE RANKIN.
MAHARANI HEMANTA KUMARI DEBI - Appellant
Versus
GAURI SHANKAR TEWARI - Respondents
From the High Court at Allahabad.
Decided On : December 4, 1940.
Solicitors for appellants :Douglas Grant & Dold. Solicitor for respondents: Harold Shephard.
Dedication of property for public bathing does not necessarily divest the owner of proprietary rights; it may constitute a partial dedication granting a public easement while the owner retains title, unless a complete relinquishment of ownership is expressly proven.
Headnote:(A) Hindu Law - Dedication of property to public use - Proprietary rights vs. Right of management - Distinction between complete and partial dedication - Dedication of a bathing ghat to the public does not necessarily divest the owner of proprietary rights. A distinction exists between complete dedication, where ownership vests in a religious institution or idol, and partial dedication, where the owner retains title but grants the community an easement for specific purposes. In the absence of a formal endowment deed or evidence of complete relinquishment, the owner remains the proprietor despite the public's right of user. (Paras 247-248)
(B) Customary Rights - Right of professional assistants to occupy public bathing ghats - Persons providing services to pilgrims at a public ghat do not possess an inherent customary right to exclusive possession of specific sites. Such occupation is generally by leave and license of the owner. Their presence is not essential to the religious efficacy of the ablutions. (Paras 245-246)
Facts of the case:
The owner of a bathing ghat sought a declaration of ownership and the ejectment of professional assistants who had occupied portions of the ghat with platforms and canopies. The assistants claimed a heritable and transferable right of property based on long-term use and custom. The trial court found for the owner, but the appellate court held that the property had been dedicated to the public, rendering the owner a mere manager without proprietary title.
Findings of Court:
The court found that the professional assistants had no customary or prescriptive right to exclusive possession of the ghat. Regarding ownership, it was determined that the dedication of the ghat for public bathing was a partial dedication granting a public easement rather than a complete divestment of ownership, as the owners had continued to repair the property and levy tolls.
Issues: Whether the dedication of a bathing ghat to the public divests the founder of proprietary rights, and whether professional assistants providing services to bathers acquire a customary right to occupy specific sites on such a ghat.
Ratio Decidendi: Dedication to public use for religious or charitable purposes does not automatically result in the cessation of private ownership. Unless there is an express endowment or evidence of complete relinquishment, the owner retains title, subject to the public's right of user. Furthermore, professional service providers at such sites do not acquire proprietary rights through long-term use if such use is by permission.
Result: Appeal allowed; decree of the High Court set aside and decree of the trial court restored.
Legal Category Hierarchy
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hindu law
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religious endowments
- dedication of property
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religious endowments
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property law
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real property
- easements
- proprietary rights
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real property
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practice and procedure
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civil remedies
- ejectment
- injunctions
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civil remedies
Judgement
Appeal (No. 64 of 1939) from a judgment and decree of the High Court (January 3, 1936), which modified a judgment and decree of the Court of the First Additional Subordinate Judge of Benares (June 25, 1930).
By the suit out of which this appeal arose the appellant, Maharani Hemanta Kumari Debi, sought to establish her proprietary right to the Pryag Ghat on the river Ganges, at Benares, to which Hindu pilgrims resorted for bathing and for the performance of religious ceremonies. She also sought to eject from the ghat the respondents, fourteen persons, who were ghatias engaged in assisting the pilgrims in
Law. Rep. 68 Ind. App. 53 ( 1940- 1941) Maharani Hemanta Kumari Debi V. Gauri Shankar Tewari
243
the performance of their religious rites. The respondents disputed the appellants claim to proprietorship and her right to eject them. Pending this appeal the appellant, who was the widow of the last male owner of the Puthiya Raj estate, had accelerated by relinquishment the interest of her husbands reversioners, and they were joined as appellants.
The facts appear from the judgment of the Judicial Committee.
The Subordinate Judge held that the ghat had been dedicated to the public by the appellants predecessors, but, in his opinion, such dedication did not divest the donor of his right of ownership. He also held that the ghatias had acquired no rights by adverse possession or by custom, and that they were liable to be ejected. In the result, he passed a decree as claimed by the appellant.
On appeal by a number of the defendants the Full Bench of the High Court (Sulaiman C. J., Bajpai and Ganga Nath JJ.), to whom the matter was referred by a Division Bench (Thorn and Iqbal Ahmad JJ.), held that the ghat had been dedicated by the appellants predecessors to the public, that she had no right of ownership, but only of management, and that the respondents as ghatias using the ghat, and as members of the public, had a right to resort to it. The Court discharged the trial judges order of ejectment and the injunction granted by him to restrain the respondents from using the ghat as ghatias or sitting or squatting over the same. They discharged also the declaration made by the trial judge that the appellant was the owner of the ghat. The appeal is reported at ( 1936) I. L. R. 58 A. 818.
1940. Oct. 30, 31 ; Nov. 4. C. 5. Rewcastle K.C. and C. Sidney Smith for the appellants. Such a right as the respondents claim does not appear anywhere to have been recognized under Hindu law. On the documents it is submitted, first, that the ghatias are in no sense a recognized community, and, secondly, that their services are not essential in any way to the efficacy of the ablutions and ceremonies of the bathing public. The dedication of the ghat to the use of bathers did not deprive the appellant of her proprietary rights in the ghat, and the High Court was wrong, it is submitted, in finding that she is, in respect of the ghat, a mutawalli or manager and not the absolute owner. Having found that ghatias had no customary right, and had been sitting on other ghats by leave and licence of the owners, and that the respondents had not established any right by custom, grant or prescription to specific sites on the suit ghat, the High Court ought, it is contended, to have found that the ghatias could not sit on the ghat except by leave and licence of the appellants. The appellants are entitled to a decree ejecting the respondents, or to an injunction restraining them from using the ghat as ghatias without the consent of the appellants as owners. Maharaj Bahadur Singh v. Paresh Nath Singh (( 1904) I. L. R. 31 C. 839.) appears to be in point, and the present case is in principle the same as Harrison v. Duke of Rutland . ([ 1893] 1 Q. B. 142.)
J. M. Parikh and P. V. Subba Row for the respondents. The respondents submit to any order preventing them from doing anything which obstructs the use of the ghat by the general public, but it is submitted that whate
