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1976 Supreme(Cal) 127
High Court Of Calcutta
SABYASACHI MUKHERJI
SM.HIRANBALA DEVI - Appellant
Versus
BISHNUPADA BHATTACHARYA - Respondent
Suit 132 Of 1975
Decided On : 04/02/1976
A.N.ROY, H.MITRA, P.K.Sen, P.NATH
A testator cannot lay down a line of inheritance which is inconsistent with the general law of inheritance.
Headnote:
HINDU LAW - SHEBAITSHIP - DEED OF DEDICATION - LINE OF SUCCESSION LAID DOWN BY SETTLOR - VOID - SHEBAITSHIP REVERTS TO HEIRS OF SETTLOR.
Fact of the Case:
Sriram Mukherjee created a debutter in respect of his moveables and premises No. 15, Amherst Row, Calcutta, and dedicated the properties to the Idol Sri Sri Sitala Thakurani. He appointed himself as the only shebait and provided that after his death, his wife Srimati Kusum Kumari Devi and Sriman Ashutosh Bhattacharyya and Sriman Nanilal Bhattacharyya would be the joint shebaits. After their death, their male heirs according to seniority would be appointed shebaits.
Finding of the Court:
The court held that the line of succession laid down by the settlor after the death of Ashutosh Bhattacharya and Nanilal Bhattacharya was void as it was repugnant to Hindu Law. The court also held that Ashutosh Bhattacharya and Nanilal Bhattacharya were not appointed shebaits absolutely, but only for their respective lives. Therefore, on their death, the shebaitship would revert back to the heirs of the settlor.
Issues: 1. Whether the plaintiff, Hiranbala Devi, is the sole heiress and legal representative of Haripada Bhattacharyya, the beneficiary under the deed of dedication and coupled with the decree, and is the shebait of the plaintiff deity along with the defendants? 2. Whether the offices of shebait-ship of the plaintiff deity have devolved upon the plaintiff Hiranbala Devi upon the death of her husband Haripada Bhattacharyya? 3. Whether the plaintiff Hiranbala Devi is entitled to participate in the management and administration of the estate of the plaintiff deity? 4. What are the scope, effect, and meaning of the said deed of dedication dated January 10, 1917, and the said decree dated January 31, 1938, and in the event there is any ambiguity, necessary directions be given for the same.
Ratio Decidendi: 1. A testator cannot lay down a line of inheritance which is inconsistent with the general law of inheritance. 2. The provision in the deed of dedication that after the death of Ashutosh Bhattacharya and Nanilal Bhattacharya, their male heirs according to seniority would become shebaits, is void as it is repugnant to Hindu Law. 3. Ashutosh Bhattacharya and Nanilal Bhattacharya were not appointed shebaits absolutely, but only for their respective lives. 4. On the death of Ashutosh Bhattacharya and Nanilal Bhattacharya, the shebaitship would revert back to the heirs of the settlor.
Final Decision: The court answered question (d) by saying that as regards the deed of dedication in so far as it lays down on the death of Ashutosh Bhattacharya and Nanilal Bhattacharya the male heirs in seniority become shebaits, the same is void and on their death the shebaitship would revert back to the heirs of the settlor.
( 1 ) IT appears that one Sriram Mukherjee by a deed executed on 10th January, 1917, created a debutter in respect of his moveables and the premises being No. 15, Amherst Row, Calcutta and dedicated the said properties to the Idol Sri Sri Sitala Thakurani. By the said deed the settlor appointed himself as the only shebait. He thereupon stated, inter alia, as follows:"i appoint my wife Srimati Kusum Kumari Devi and her brother Sreman Ashutosh Bhattacharyya who is my most affectionate and Sriman Nanilal Bhattacharyya son of Srimati Basanta Kumari Devi, the sister of my said wife, the Joint Shebaits after my death. After my death my said wife Srimati Kusum Kumari Devi and Sriman Ashutosh Bhattacharyya and Sriman Nanilal Bhattacharyya, being the shebaits of the said deity shall jointly and holding the same opinion, perform the Seba Puja and Bhog etc. , of the said deity out of the income of the said debuttor property. My said wife, during her lifetime shall be one of the Shebaits and after her death the said Sriman Ashutosh Bhattacharyya and Sriman Nanilal Bhattacharyya only shall remain Shebaits and after their death, their male heirs according to seniority, shall be appointed She-baits and shall duly carry on the Seba and Puja etc. , of the said Iswari Thakurani. . . . . "
( 2 ) ONE Hiranbala claiming to be the great grand-daughter of Sriram Chandra Mukherjee being the granddaughter of the Gyanada Devi who is alleged to be the daughter of Sriram Mukherji by his first wife has taken out this originating summons for answering the following questions:-- (a) Whether the plaintiff Sm. Hiranbala Devi as the sole heiress and legal representative of Haripada Bhattacharyya, the beneficiary under the said deed of dedication and coupled with the said decree is the shebait of the plaintiff deity along with the defendants; (b) Whether the offices of shebait-ship of the plaintiff deity has devolved upon the plaintiff Hiranbala Devi upon the death of her husband Haripada Bhattacharyya; (c) Whether the plaintiff Hiranbala Devi entitled to participate in the management and administration of the estate of the plaintiff deity; (d) What are the scope, effect and meaning of the said deed of dedication dated January 10, 1917 and the said decree dated January 31, 1938 and in the event there is any ambiguity, necessary directions be given for the same. "it is, however, denied and disputed in this case that Sreeram Mukherjee had another wife or that Gyanada Devi was a daughter of Sreeram Mukherjee or that the plaintiff is great grand daughter of Sreeram Mukherjee. In view of such dispute, in my opinion, it is inappropriate in this originating summons to attempt to answer questions (a), (b) or (c ). Whether Hiranbala Devi at all has any right or claim to the said shebaitship is dependent upon whether she in fact is the great grand daughter of Sreeram Chandra Mukherjee. In view of the disputes raised, I, therefore, decline to answer the questions (a), (b) and (c) in paragraph 15 of the affidavit in support of the originating summons.
( 3 ) SO far as question (d) is concerned, in my opinion, it is well settled that a testator by Will cannot lay down a line of inheritance which is inconsistent with general law of inheritance. This principle was laid down by the Judicial Committee in the case of Juttendro Mohan Tagore v. G. M. Tagore, (1872) Ind App Sup Vol. 47 (PC ). In view, therefore, of the principle laid down in the aforesaid decision and the decision of the Judicial Committee in the case of Gnanasambandha Pandara v. Velu Pandavam, (1899) 27 Ind App 69 (PC) and the Full Bench decision of this Court in the case of Monohar Mukherjee v. Bhupendra Nath, AIR 1932 Cal 791 (FB) in my opinion it must be held that in so far as the settlor purported to lay down that after the death of Ashutosh Bhattacharya and Nanilal Bhattacharya their male heirs according to seniority would become the shebaits, the settlor was laying down a line of suc
