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2005 Supreme(Cal) 284
High Court Of Calcutta
Kalyan Jyoti Sengupta
ISWAR GOPAL GOBINDA JEW THAKUR - Appellant
Versus
RUPA MUKHERJEE - Respondent
O. S. SUIT 396 Of 1999
Decided On : 04/29/2005
The female heirs of the settlor are entitled to succeed to the office of shebait and a clause in a trust deed that excludes female heirs from shebaitship is repugnant to the law of succession.
Headnote:
TRUST - Shebaitship - Heritability - Succession - Hindu law - Interpretation of trust deed - Rights and duties of shebaits - Distinction between religious office with duties and proprietary right - Applicability of Hindu Women's Right to Property Act.
Fact of the Case:
A summons was taken out by the son of the settlor of a trust, posing questions regarding the rights and succession of shebaits, beneficiaries, and trustees under the trust deed. The settlor had created a trust of his property and appointed himself and two others as trustees. The trust deed specified the beneficiaries and the mode of succession of shebaits.
Finding of the Court:
The court held that the office of shebaitship is a heritable property and the succession to the office is governed by the Hindu law of inheritance. The court further held that the founder of a Hindu debuttor is competent to lay down rules to govern the succession to the office of shebait, subject to the restriction that he cannot create any estate unknown or repugnant to Hindu law. The court also held that the female heirs of the settlor are entitled to succeed to the office of shebait and that Clause 2 (iii) (b) of the trust deed, which excluded female heirs from shebaitship, is repugnant to the law of succession.
Issues: (a) Was the Settlor entitled to confine the right of Shebaitship only to his lineal male decendants? (b) Whether all heirs (male or female) of sisters of the plaintiffs no. 2 are entitled to become beneficiaries of the Estate ? (c) Whether the female heirs of the deceased brothers of the plaintiff No, 2 can claim to be beneficiaries of the Estate ? (d) Whether female heirs of the Settlor can be excluded from shebaitship by virtue of Clause 2 iii (b) of the said Deed ? If not, what is the effect of Clause 2 iii (b) of the Deed Trust? (e) Whether Clauses 11 of the said Deed is valid, binding and enforceable on the heirs of the Settlor and if so to what extent? (f) At present, who, amongst the plaintiff No. 2 and the defendants are eligible to represent in the process of election of the board of Trustees? (g) Whether the female heirs of the Settlor or any of them are/ is entitled to be Trustees/trustee of the said Estate? (h) Whether in the absence of a provision to that effect in the said Deed, the Trustees or the Shebaits are entitled to perform Seba puja of the Plaintiff No. 1 by way of Pala system of worship? If, so, whether a scheme should be framed to that effect?
Ratio Decidendi: The court relied on the following principles of law in reaching its decision: 1. Shebaitship is a heritable property and the succession to the office is governed by the Hindu law of inheritance. 2. The founder of a Hindu debuttor is competent to lay down rules to govern the succession to the office of shebait, subject to the restriction that he cannot create any estate unknown or repugnant to Hindu law. 3. The female heirs of the settlor are entitled to succeed to the office of shebait. 4. A clause in a trust deed that excludes female heirs from shebaitship is repugnant to the law of succession.
Final Decision: The court answered the questions formulated in the summons as follows: Q (A) : Answered in negative. Q. (B): Answered in affirmative. Q. (C): Answered in affirmative. Q. (D): Answered in negative, because this Clause 2 (iii) (b) of the said Trust Deed is repugnant to the Law of Succession. Q. (E) : Answered in affirmative, absolutely binding and enforceable. Q. (F): The representative has to be elected in terms of Clause 11 by the group of plaintiff No. 2 and the defendants. Q. (G): Answered in affirmative. Q. (H): A scheme has to be formulated upon the meeting of the trustees and beneficiaries and the shebaits, by consensus, if not possible, to approach the competent Civil Court for the relief of framing of scheme.
( 1 ) THIS summon was taken out originally by one Debabrata Bose, since deceased being the son of the settlor of the subject trust posing a number of questions for opinion of this Court, the questions are as follows :- (a) Was the Settlor entitled to confine the right of Shebaitship only to his lineal male decendants? (b) Whether all heirs (male or female) of sisters of the plaintiffs no. 2 are entitled to become beneficiaries of the Estate ? (c) Whether the female heirs of the deceased brothers of the plaintiff No, 2 can claim to be beneficiaries of the Estate ? (d) Whether female heirs of the Settlor can be excluded from shebaitship by virtue of Clause 2 iii (b) of the said Deed ? If not, what is the effect of Clause 2 iii (b) of the Deed Trust? (e) Whether Clauses 11 of the said Deed is valid, binding and enforceable on the heirs of the Settlor and if so to what extent? (f) At present, who, amongst the plaintiff No. 2 and the defendants are eligible to represent in the process of election of the board of Trustees? (g) Whether the female heirs of the Settlor or any of them are/ is entitled to be Trustees/trustee of the said Estate? (h) Whether in the absence of a provision to that effect in the said Deed, the Trustees or the Shebaits are entitled to perform Seba puja of the Plaintiff No. 1 by way of Pala system of worship? If, so, whether a scheme should be framed to that effect?
( 2 ) ON death of the original plaintiff No. 2 on 7th April, 2001 Mrs. Roma bose, Mrs. Ratna Guha and Mrs. Devipriya Guha Biswas were substituted in place and instead of original plaintiff No. 2. The defendants are quite large in number but only the defendant Nos. 3 and 4 have come forward to oppose this summons.
( 3 ) THE said Motilal Bose, since deceased, the father of the original plaintiff No. 2 is a pious Hindu gentleman by and under an indenture of trust dated 21 st July, 1949 created a trust of his property consisting of four cottahs three chittaks and thirteen square feet wide brick built pucca building commonly known as 'pala house'. By this trust the settler granted transferred and conveyed the trust property unto himself as the first trustee and two other trustees named therein. The object of the trust and the beneficiaries thereof are mentioned in the trust deed specifically. One of the beneficiaries is the plaintiff No. 1 deity. Several directions have been given upon the trustees to perform their duty. For the purpose of proper and effective seba puja of the plaintiff/deity the office of the shebait has also been created. In this summons the parties are concerned with the right, title and interest in this Shebaitship. So it is appropriate to set out the relevant provision for creating office of shebait and the mode of succession of the same.
( 4 ) BY and under Clause 2 iii ( (b) of the said trust deed the following provision regarding appointment of shebait and mode of succession is provided :-" (iii ). . . . . . . . . . . . . . . . . . . . . . . . (a ). . . . . . . . . . . . . . . . . . . . . . . . . . (b) The Settlor appoints himself and his wife the said Srimati hiron Bala Bose to be the Shebait of the said deity Sri. Sri Iswar gopal Gobinda Jew Thakur for their respective life and after their death the Shebaitship shall devolve upon the beneficiaries and their male heirs according to Seniority and in succession and each Shebait will hold his office for one year provided however, if any person or persons entitled to be the shebait and trustee renounces the Hindu religion then he or they shall for the purpose of these presents be considered as dead and the person or persons next entitled to succeed as Shebait and Trustee or as a beneficiary shall succeed and it is hereby declared that the Trustees or Shebaits for the time being shall not have power to sell or mortgage or otherwise encumber the said hereditaments and premises which will vest only upon trustees who will hold the property in trust for the deity a
