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1988 Supreme(Cal) 381
High Court Of Calcutta
Monoranjan Mallick
SIDDHESWAR DAS - Appellant
Versus
DHIRENDRA NATH DAS - Respondent
Originating Summons 451 Of 1986
Decided On : 09/22/1988
The line of succession to the Office of Shebait laid down by the testator in the Will is invalid insofar as it contravenes the general law of inheritance under Hindu Law, and after the death of the last Shebait appointed by the testator, the Office of Shebait reverts to all the heirs of the testator.
Headnote:
DEBUTTER ESTATE - SUCCESSION TO SHEBAITSHIP - VALIDITY OF LINE OF SUCCESSION LAID DOWN BY TESTATOR - REVERSION OF OFFICE OF SHEBAIT TO HEIRS OF TESTATOR - APPOINTMENT OF SHEBAIT BY LAST SHEBAIT - VALIDITY - SCHEME FOR MANAGEMENT AND ADMINISTRATION OF DEBUTTER ESTATE - INJUNCTION RESTRAINING DEFENDANT FROM INTERMEDDLING WITH DEBUTTER ESTATE.
Fact of the Case:
Originating Summons seeking determination of questions relating to succession to the Office of Shebait of a Debutter Estate created by a Will, validity of the line of succession laid down by the testator, reversion of the Office of Shebait to heirs of the testator, appointment of Shebait by the last Shebait, framing of a scheme for management and administration of the Debutter Estate, and injunction restraining the defendant from intermeddling with the Debutter Estate.
Finding of the Court:
1. The line of succession laid down by the testator in the Will, insofar as it relates to persons not in existence at the time of his death, is invalid as it contravenes the general law of inheritance under Hindu Law. 2. After the death of the last Shebait appointed by the testator, the Office of Shebait reverted to all the heirs of the testator. 3. The appointment of the defendant No. 1 as the sole Shebait by the last Shebait was invalid as he was not designated as a Shebait by the testator and his appointment based on seniority in the male line was contrary to the law of succession. 4. Shebaitship devolved upon all male and female heirs of the testator living on the date of death of the last Shebait appointed by the testator. 5. The defendant No. 7 could not claim as the sole Shebait by virtue of a deed created by the last Shebait as he had no power to nominate his successor. 6. A scheme for management and administration of the Debutter Estate could not be framed in the Originating Summons as all parties were not impleaded.
Issues: 1. Whether the line of succession laid down by the testator in the Will is valid. 2. Whether the Office of Shebait reverted to the heirs of the testator after the death of the last Shebait appointed by the testator. 3. Whether the appointment of the defendant No. 1 as the sole Shebait by the last Shebait was valid. 4. Who are the joint Shebaits of the Debutter Estate. 5. Whether a scheme for management and administration of the Debutter Estate should be framed. 6. Whether an injunction should be granted restraining the defendant No. 1 from intermeddling with the Debutter Estate.
Ratio Decidendi: 1. The testator cannot lay down a line of succession contrary to the general law of inheritance under Hindu Law. 2. Shebaitship is property and devolves under the general law of succession. 3. The appointment of a Shebait must be in accordance with the mode prescribed in the deed or Will creating the Debutter Estate, and in the absence of such provision, it follows the ordinary rules of inheritance according to Hindu Law. 4. The founder of a Debutter Estate cannot completely dispose of the shebaiti, and on the death of the grantee, it goes to the founder or his heirs. 5. A Shebait cannot nominate his successor unless authorized by the deed or Will creating the Debutter Estate.
Final Decision: 1. The Office of Shebait reverted to all the heirs of the testator after the death of the last Shebait appointed by the testator. 2. The plaintiffs and the defendants and other female heirs of the testator are the joint Shebaits of the Debutter Estate. 3. The defendant No. 1 is restrained from exclusively performing the seva puja of the deity excluding the other Shebaits of the Debutter Estate. 4. All the Shebaits shall act jointly for the seva puja of the deity till an appropriate scheme is framed by a Competent Court of Law.
( 1 ) IN this Originating Summons the plaintiffs seek the determination of the following questions: (A) Whether after the death the said Bhuban Mohan Das the Office of the Shebait has reverted to the heirs of the said Srinath Das; (B) If the answer to question (a) are in the affirmative, whether the plaintiffs and the defendants being the surviving peat grandsons of the testator are his only heirs and joint shebaits of the Debutter Estate; (C) If the answers to questions (a) and (b) above are in the affirmative, the plaintiffs submit that in view of the large number of shebaits, a scheme should be framed by the Hon'ble Court and/or directions therefor he given and/or such Orders and/or such other direction be given for proper management and administration of the Debutter State as the Hon'ble Court may seem fit; (D) Perpetual injunction restraining the defendant No. 1 and his servants and agents and each of them from. intermeddling with the Debutter Estate exclusively to the prejudice of the rights of the other parties to their Suit.
( 2 ) THE plaintiffs state as follows: one Srinath Das, an eminent Vakil and Wealthy inhabitant of Calcutta was a Hindu governed by the Dayabhag School of Hindu Law. He died on 13th September 1907 leaving a Will whereby he, inter alia, created a Debutter Estate and dedicated the properties specified in para 1 of the petition. By the said Will the said testator and settlor laid down the following line of succession to the Office of the Shebait:"for the due performance of the seva, puja and far managing Debutter properties, I appoint my youngest son Rajendra Nath Das as shebait; after his death my eldest grandson Jogendra Nath Das alias Uday Kumar Das in the male line, if legally fit and entitled to do the work; after him my youngest grandson in the male line Jatindra Nath Das alias Arun Kumar Das if legally fit and entitled to do the work and so on my grandsons in the male line by my two sons Surendra Nash Das and Rajendra Nath Das according to seniority in age shall be successive shebaits. In default of my grandsons in the male line my great grandsons in the male line shall be shebait in the manner stated above and so on forever one grade after another. If at any time the shebait dies without leaving a successor as stated above, the eldest male descendant then living in the male line of my two sons Surendra Nath Das and Rajendra Nath Das shall become the next shebait and the above provision regarding the selection of the shebait shall continue to apply. In the absence of a proper person answering any of the above description the shebaitship sha3 descend to any body who will appear at the time of the death of the last shebait to be the successor-in-interest to my estate either immediately or immediately by way of inheritance. "
( 3 ) AFTER the death of Srinath Das, Rajendra Nath Das acted as shebait until his death on the 29th day of January 1913. After his death Jogendra Nath Das became the shebait and he continued to hold office until the 21st day of May 1972 when he died. After the death of Jogendra Nath Das, Bhuban Mohan Das became the shebait and he continued to hold the once until 18th May 1986 when he died.
( 4 ) THE said Bhuban Mohan Das was the last person who was in existence at the time of death of the said Srinath Das and who answered the description in the line of succession laid down by the said testator and settlor Srinath Das.
( 5 ) THE plaintiffs submit that the line of succession laid down by the said testator and settlor in so far as the same related to the persons not in existence at the time of death of the testator and settlor is invalid in law in asmuch as the same days lays down a line of succession contrary to the general law of inheritances according to Hindu Law.
( 6 ) THE plaintiffs state that after the death of Bhuban Mohan Das the Office of Shebait has reverted to all the heirs of the said testator or settlor Srinath Das. The plaintiffs and th
