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2014 Supreme(Cal) 750
CALCUTTA HIGH COURT
I. P. MUKERJI, J.
Asis Mitra – Appellant
Vs.
Sibani Dutta & others – Respondents
C. S. (OS) No. 1 of 2010
Decided On : 20/01/2014
A clause in a Will or Codicil that attempts to restrict Shebaitship to the sons of Shebaits indefinitely is invalid as it offends the rule against perpetuity.
Headnote:
PERPETUITY - SHEBAITS - VALIDITY OF CLAUSE IN WILL AND CODICIL RESTRICTING SHEBAITSHIP TO SONS OF SHEBAITS - RULE AGAINST PERPETUITY - INDIAN SUCCESSION ACT, 1925, SECTION 114.
Fact of the Case:
A Will and Codicil made by Baikuntha Nath Dutta in 1916 and 1919 respectively, dedicated certain properties to the deity Thakurani Shree Shree Durga Mata Jew and appointed Shebaits. The Will and Codicil contained a clause stating that after the death of the testator's last surviving daughter, only the sons of his daughters who followed the Hindu religion would be Shebaits and Trustees of the deity and the dedicated properties. The question arose whether this clause was valid in light of the rule against perpetuity.
Finding of the Court:
The Court held that the clause in the Will and Codicil restricting Shebaitship to sons of Shebaits was invalid as it offended the rule against perpetuity. The Court relied on Section 114 of the Indian Succession Act, 1925, which states that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the thing bequeathed is to belong.
Issues: 1. Whether the clause in the Will and Codicil restricting Shebaitship to sons of Shebaits was valid? 2. Whether the rule against perpetuity applied to the devolution of Shebaitship rights?
Ratio Decidendi: 1. The rule against perpetuity is a rule of law that prevents the tying up of property for an indefinite period of time. It applies equally to transfer of property inter vivos as it does to transmission of property by succession. 2. The clause in the Will and Codicil in question attempted to restrict Shebaitship to the sons of Shebaits indefinitely, which would have resulted in the tying up of the property for an indefinite period of time. This was in violation of the rule against perpetuity. 3. The rule against perpetuity is part of Hindu law and applies to the devolution of Shebaitship rights.
Final Decision: The Court held that the clause in the Will and Codicil restricting Shebaitship to sons of Shebaits was invalid as it offended the rule against perpetuity. The Court directed that the Shebaitship of Thakurani Shree Shree Durga Mata Jew Trust be constituted and continued in terms of the Judgment and Order and the provisions of the Will and Codicil, not declared invalid therein.
Questions are asked to this Court on this Originating Summons, under Chapter XIII of the Original Side Rules. The questions are posed by one of the Shebaits of the estate of the deity Thakurani Shree Shree Durga Mata Jew. The questions concern the last Will and Testament of Baikuntha Nath Dutta, a very wealthy citizen of Calcutta, made on 30th July, 1916. He was profoundly religious too. In 1900, he had founded a thakurbari. He installed this deity there and started worship. By this Will various properties of the testator were dedicated to the above deity housed at the Thakurbari at No. 32, Jugernath Dutta Lane (27, Raja Dinendra Narayan Roy Street, Kolkata). Shebaits were appointed.
2. Clause 5 of the Will dealt with the devolution of Shebaitship. It is set out hereunder:
5. To pay out of the said income as remuneration to the said Shebait or Shebaits as hereinafter provided for acting in the sheba and trust and I direct that after the defraying of the various expenses above directed if there shall be any surplus the same shall not in any ways become payable or divisible amongst my heirs or Shebaits who shall have no claim to any portion thereof but to be invested in the purchase of landed property or Government promissory notes to be held by him or her or them as the case may be upon the trusts hereinbefore declared and on the same conditions herein contained I hereby declare that my wife Srimati Khaganbala Dasi should she survive me will be the First Shebait of the Thakuranee Sree Sree Durgamata Jue and Trustee of the properties which I have hereby dedicated and made Debuttor and as I have no son I declare that after the death of my wife Srimati Khagen Bala Dasi my four daughter Srimati Prabhabati Dasi, Srimati Indumati Dasi, Srimati Pankajini Dasi and Srimati Bibhabait Dasi (the first two named daughter are being childless widows) or such of them as will survive me and my wife shall be the shebaits and Trustees of the Thakurannee Sree Sree Durgamata Jue and of the said Debuttor property. And I declare that on the death of my said daughters Srimati Prabhabait Dasi and Srimati Indumati Dasi or either of them her or their shares of shebait rights and remunerations shall lapse and pass on equally to my two other daugthers Srimati Pankajini Dasi and Srimati Bibhabati Dasi only and in the event of the demise of both or either of the latter namely Srimati Pankajini Dasi and Srimati Bibhabati Dasi the said rights and remunarations of Srimati Prabhabati Dasi and Srimati Indumati Dasi or of either of them should pass on respectively to the sons of the said Srimati Pankajini Dasi and Srimati Bibhabati Dasi irrespective of whichever of them predeceases the other. And I further declare that if my said daughters Srimati Pankajini Dasi and Srimati Bibhabati Dasi shall die at any time before or after acceptance of shebaitship their respective sons will be entitled to become shebaits in the place of their respective mothers the said Srimati Pankajini Dasi and Srimati Bibhabati Dasi. And I also declare that after the death of my last surviving daughter such of the sons of my said daughters Srimati Pankajini Dasi and Srimati Bibhabati Dasi as will follow the Hindu religious shall be the Shebaits and Trustees of the Thakuranee Sree Sree Durgamata Jue and of the said Debuttor property and on the death of any or all my grandsons their respective Shebait rights shall pass on to their respective sons and their sons in perpetuity as the heirs of their respective fathers. And I hereby declare that it shall be lawful for the shebait or shebaits (Illegible) being to act in the Trust by his her (sic) or their duly constituted attorney s whenever it shall appear to the said Shebait or Shebaits just and convenient.
3. The Will was altered by a Codicil dated 15th July, 1919. The alteration with regard to succession was as follows:
I hereby declare that my wife Sreemutty Khagan Bala Dassi, should she survive me, my third daughter Sreemutty Pankojini D
