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HIGH COURT OF CALCUTTA
Das Gupta
BAMESWAR BAMDEV SHIVA - Appellant
Versus
ANATH NATH MUKHERJEE - Respondent
Original Civil Suit 1494 Of 1941
Decided On : MAY 11, 1949
SHEBAITI RIGHT - TRANSFER - VALIDITY - CIRCUMSTANCES - RENUNCIATION - BENEFIT OF DEITY - PALAS - PARTITION - RES JUDICATA.
Fact of the Case:
The suit was filed to determine whether the deed of gift executed by Govinda, transferring his 1/7th share in the shebaiti right to his sons, was valid and whether any right of shebaiti had passed to his sons by such deed of gift.
Finding of the Court:
The court held that the deed of gift was invalid and Manindra did not become a shebait by virtue of it. The court further held that the matter in issue before it was not barred by the principle of res judicata.
Issues: 1. Whether the deed of gift executed by Govinda, transferring his 1/7th share in the shebaiti right to his sons, was valid? 2. Whether any right of shebaiti had passed to his sons by such deed of gift? 3. Whether the matter in issue before the court was barred by the principle of res judicata?
Ratio Decidendi: 1. A shebaiti right is a property of a peculiar character and office is the most important part of such right. A shebait occupies a fiduciary position in relation to the deity and its property and although not strictly speaking a trustee his position is similar to that of a trustee. 2. The transfer of a shebaiti right is contrary to and inconsistent with any conception of transferability of such right. The element of office involved in the conception of the shebaiti right cannot form the subject-matter of a transfer. How can then it be said that the element of property which is inseparably mixed up and blended with the element of office in a shebaiti right or the entire right of a shebait which is the amalgam of office and property can form the subject-matter of a transfer? 3. A shebait can be removed by the Court, which shows that shebaiti right is a property of a peculiar character and office is the most important part of such right. 4. The transfer of a shebaiti right can be justified on the ground of and is the same as complete renunciation. 5. The doctrine of benefit of the deities applicable to the case of a transfer of the corpus of the debutter property has been sought to be extended to the case of a transfer of the rights of shebait. With all respect to the learned Judges concerned, the court failed to see how and on what principle it can be so extended. 6. The palas or turns of worship are not properties and cannot be transferred.
Final Decision: The court held that the deed of gift was invalid and Manindra did not become a shebait by virtue of it. The court further held that the matter in issue before it was not barred by the principle of res judicata.
( 1 ) IN this suit only one question has been left for my decision. With regard to the rest, an order has been made by consent of the parties.
( 2 ) THE facts of the case are as follows : One Sriman Chandra Mukherjee died in the year 1878-leaving a will whereby he created a debutter and appointed his wife, Bama Sundari, executrix and directed that the pltf. deities should be installed by her. Pursuant to this direction, the pltf. deities were installed by Bama Sundari. Thereafter, in the year 1933, a suit was filed being Suit No. 2385 of 1933 in which, on 30-8-1934, a decree was passed declaring certain persons to be shebaits. The persona who were declared shebaits were (1) Bimal Chandra Mukherjee, (2) Charu Chandra Mukherjee, (3) Dino Nath Mukherjee, (4) Anadi Mohon Mukherjee, (5) Jnanendra Nath Mukherjee, (6) Govinda Chandra Mukherjee, (7) Atul Chandra Mukherjee, (8) Dulal Chandra Mukherjee and (9) Kali Krishna Mukherjee. They are the descendants of one Harish Chandra Mukherjee, brother of the said Sriman Ch. Mukherjee.
( 3 ) A genealogical table has been annexed to the plaint and the relationship of the parties would appear from the said genealogical table.
( 4 ) THEREAFTER, in the year 1987, another suit was filed, being Suit No. 1498 of 1937 and in that suit, on 28-8-1938, a decree was passed by consent. By that decree a scheme was framed for the management of the worship of the deities and the following persons were declared shebaits : (a) Jnanendra Nath Mukherjee, (b) Dulal Chandra Mukherjee, (c) Govinda Chandra Mukherjee. (d) Bimal Chandra Mukherjee, (e) Charu Chandra Mukherjee, (f) Dino Nath Mukherjee, (g) Pran Nath Mukherjee, (h) Lakhi Kanta Mukherjee and (i) Kali Krishna Mukherjee.
( 5 ) IT appears that Atul Chandra Mukherjee who was one of the shebaits under the decree dated 30-8-1934 passed in Suit No. 2385 of 1933, had died and his share was inherited by his brother, Govinda Chandra Mukherjee. Govinda Chandra Mukherjee thus became entitled to a 2/7th share in the shebaiti right--1/7th of himself and 1/7th inherited from his brother Atul.
( 6 ) IN the scheme of management which was framed, after declaring the names of the persons who were declared shebaits, it was provided that the palas or turns of worship should be divided into certain shares. Govinda Chandra Mukherjee was declared entitled to 2/7th share in the pala or turn of worship of the said deities and he was given two palas, namely, the second pala or turn of worship commencing on 1st Aswin 1347 B. S. and ending on the last day of Bhadra 1348 B. S. and the fifth pala of turn or worship commencing on 1st Aswin 1350 B. S. and ending on the last day of Bhadra 1351 B. S. It was further provided by that scheme that the debutter estate should be managed by a board of shebaits to be constituted for the time being. The board should consist of six shebaits, one from each of the six groups and such board, constituted as above, should remain in office for a period of three years. Then comes the most material part of the scheme,--material for the purpose of determination of the matter in controversy before me. Under Clause 15 of the scheme of management, it was provided that the members of the board should every three years elect one of themselves to be its secretary to conduct correspondence on behalf of the board, to call meetings and to do all such acts as the board may direct. It thus appears that in order to be a secretary, one has to be a member of the board, and in order to be a member of the board, one has to be a shebait.
( 7 ) AFTER the final decree which was passed as aforesaid, a board was constituted consisting of the following persons : Govinda, Bimal, Jnanendra, Pran Nath, Dulal and Kali Krishna. Manindra Nath Banerjee was the eldest son of Govinda. He was not a shebait and Manindra was appointed as proxy for Govinda. On 11-10-1939, the board took possession and on 12-10-1939 the first meeting of the board was called and at that m
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