Citation Codes

Equivalent Citations

citation codes

Case Number

First Appeal No. 423 of 1932, from a decree of Mathura Prasad, Additional Subordinate Judge of Benares, dated the 16th of June, 1932.

Attorney(S)

Messrs P.L Banerji and H.P Sen, for the appellants.
Messrs Gadadhar Prasad and Satnarain Prasad, for the respondents.

Judges

Thom
Rachhpal Singh, JJ.

Acts

provisions of the Hindu Widows Remarriage Act of 1856.

See more information ...

Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This is a plaintiff's appeal arising from a suit for possession of certain properties (including immoveables) and for a declaration that the plaintiffs are the duly appointed shebaits entitled to administer a trust. The plaintiffs also sought costs and past and future mesne profits. The plaint set out a primary declaration (that the plaintiffs are shebaits of specified deities and entitled to manage specified Debutter properties) and ancillary reliefs including delivery of possession of certain scheduled property, recovery of mesne profits, recovery or valuation-decree for ornaments, and future mesne profits assessed at Rs. 15 per month.

The trust (wakf/endowment) was created by Purna Nand (Swami Purnananda Saraswati Adhyaita Acharya) by a deed dated 21 April 1885. That deed provided that during his life he would manage the muth and after his death two daughters, Nritya Kali and Jai Kali, would carry on management jointly; the deed included an expressed provision that the two daughters would have the power jointly to appoint a manager (shebait) in consultation with named persons.

The plaintiffs are the sons of Nritya Kali by her marriage to Har Prasad Mukerji and claimed title as the legal representatives of the founder. Nritya Kali had executed a will on 31 December 1912 appointing the plaintiffs as shebaits. Jai Kali executed a will on 26 March 1930 in favour of Keshab Chandra Mukerji; defendants 1 and 2 are sons of Keshab Chandra Mukerji and defendant 3 claims an interest under that will.

The plaintiffs also relied on a purported subsequent deed of endowment dated 5 December 1887 (Ex. 11), but that deed's genuineness was challenged by the defendants and it was not proved. The learned Subordinate Judge accepted the defendants' contention that Nritya Kali's marriage to Har Prasad Mukerji was invalid (on a gotra ground) and dismissed the suit. The plaintiffs appealed; the present opinion disposes of that appeal.

Legal Issues Presented

Whether, under the deed of endowment dated 21 April 1885, the power to appoint shebaits could be exercised unilaterally by one sister or required joint exercise by both sisters (i.e., validity of the plaintiffs' appointment by Nritya Kali's will of 31 December 1912).
Whether, on failure of a valid appointment under the deed, the right to appoint or succeed as shebaits devolves upon the legal representatives of the founder (and whether Mohan Lalji v. Madhsudan Lala applies).
Whether the plaintiffs are legitimate legal representatives of the founder — specifically whether Nritya Kali's marriage to Har Prasad Mukerji (a Mukerji, alleged to be of her father's gotra) was valid under Hindu law and whether the Hindu Widows' Remarriage Act, 1856, affects that validity.
Consequentially, whether the plaintiffs are entitled to possession of the endowed property, mesne profits, and recovery of costs and ornaments as claimed.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The plaintiffs claimed to be the legal representatives (sons of Nritya Kali) of the founder Purna Nand and therefore entitled to succeed as shebaits where no valid appointment was made.
The plaintiffs relied upon the deed of 21 April 1885 (the original wakf) as the operative instrument and submitted that the purported 1887 deed (Ex. 11) had not been proved and therefore did not revoke or alter the 1885 deed.
They pointed to the will of Nritya Kali dated 31 December 1912 appointing them as shebaits (though the court ultimately treated issues about the power to appoint under the 1885 deed).

Respondents' (Defendants') Arguments

The defendants contended that Nritya Kali's marriage to Har Prasad Mukerji was invalid because it was a marriage within her father's gotra (i.e., a gotra bar), and that the Hindu Widows' Remarriage Act, 1856, did not legalise such a marriage.
As a consequence of the alleged invalidity, the defendants argued that the plaintiffs were illegitimate and therefore not the legal representatives of Purna Nand entitled to succeed as shebaits.
Respondents' counsel further argued (relying on a passage in a learned treatise) that upon the death of her first husband a widow reverts to her father's gotra for purposes of remarriage, which, if accepted, would affect the validity of the subsequent marriage to a Mukerji.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohan Lalji v. Madhsudan Lala (1910) 32 All 461	Principle that where persons vested with a power to appoint successors under an endowment fail to make a valid appointment, the right to appoint or the right to succeed devolves upon the legal representatives of the founder of the wakf.	The court applied this principle to hold that, because no valid appointment of shebaits had been made (the 1887 deed was unproved and unilateral appointments by a single sister were invalid), the right to be shebaits devolved on the legal representatives of the founder — i.e., the plaintiffs.
Lallubhai Bapubhai v. Cassibai (1880) 5 Bom 110	Authority for the proposition that upon marriage a wife passes into her husband's gotra (i.e., she ceases to be of her father's gotra for purposes of subsequent marriages).	The court relied on this decision as definitive authority that Nritya Kali, having been married previously, had passed into her first husband's gotra and did not revert to her father's gotra on widowhood; thus her subsequent marriage to a Mukerji was not within her father's gotra and was therefore valid, making her sons legitimate.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct legal steps, each tied closely to the documentary record and applicable authorities:

Effect and operation of the 1885 deed of wakf:
The court examined the terms of the deed of 21 April 1885 and concluded that the power to appoint shebaits was vested to be exercised jointly by the two daughters, Nritya Kali and Jai Kali. The text of the deed did not confer an independent, unilateral power on either sister to appoint shebaits after her death. Accordingly, any appointment made by one sister independently of the other (including the will of Nritya Kali of 31 December 1912) was invalid insofar as it purported to exercise a unilateral power.
Validity / evidentiary status of the subsequent deed (5 December 1887):
The alleged second deed of endowment dated 5 December 1887 (Ex. 11) was challenged by defendants and was not proved by the plaintiffs; therefore, the deed of 21 April 1885 remained the operative instrument.
Consequences of failure to make a valid appointment:
With no valid appointment under the deed, the court applied the principle from Mohan Lalji v. Madhsudan Lala that the right to appoint or to assume possession as shebaits devolves upon the legal representatives of the founder. The court therefore turned to the question whether the plaintiffs were indeed the legal representatives entitled to succeed.
Legitimacy of the plaintiffs — gotra and remarriage issues:
The defendants asserted that Nritya Kali's marriage to Har Prasad Mukerji was invalid because it was within her father's gotra, which would make her sons illegitimate. The court inspected the evidence and documentary references indicating that Nritya Kali had been previously married and described as a widow in an earlier will. The court considered two competing authorities: (a) the Judicial Committee/decision in Lallubhai Bapubhai v. Cassibai, which the court treated as clear authority that upon marriage a wife passes into her husband's gotra; and (b) a passage in a learned treatise cited by respondents' counsel suggesting that a widow should be deemed to revert to her father's gotra for remarriage.

The court held that the passage in the treatise was not sufficient authority to displace the clear judicial authority in Lallubhai Bapubhai. In the absence of any clear authority that a widow reverts to her father's gotra upon the death of her husband, the court refused to adopt the respondents' contention. The court therefore concluded that Nritya Kali had passed out of her father's gotra upon her first marriage; her subsequent marriage to a Mukerji was valid; and her sons were legitimate and the legal representatives of Purna Nand.
Final application to reliefs:
Because the plaintiffs were the legal representatives of the founder and no valid appointment of shebaits had been made under the deed, the plaintiffs were entitled to succeed as shebaits and to possession of the endowed property. The court reviewed the evidence and then allowed the appeal, setting aside the decree of the Subordinate Judge on that basis.
Other factual determinations:
The court found that one item (the house B 7/158) did not form part of the endowed property and dismissed the plaintiffs' claim concerning that item. The plaintiffs were nevertheless held entitled to mesne profits for wrongful occupation of the other endowed premises. On costs the court directed that the costs of the parties in both the present proceedings and the court below be borne by the endowed estate; respondents who had already realised costs in the trial court had to repay those amounts to the plaintiffs, to be recovered from the defendants.

Holding and Implications

Core Ruling: APPEAL ALLOWED; DECREE OF THE LEARNED SUBORDINATE JUDGE SET ASIDE; PLAINTIFFS DECLARED THE SHEBAITS OF THE PROPERTY ENDOWED BY PURNA NAND (DEED DATED 21 APRIL 1885) AND ENTITLED TO POSSESSION.

Direct consequences and practical implications for the parties:

The court granted a declaration that the plaintiffs are the shebaits of the endowed property described in the 1885 deed and are entitled to possession of that property (subject to the exclusion noted below).
The plaintiffs' claim in respect of house B 7/158 was dismissed because that house was found not to form part of the endowed property.
The plaintiffs are entitled to mesne profits for wrongful occupation of the endowed premises (the opinion confirms entitlement without detailing the precise accounting in this summary text).
The costs of the plaintiff and the defendants in the present appeal and in the court below are to be borne by the endowed estate. The respondents had already realised their costs in the trial court from the plaintiffs; those amounts are to be repaid to the plaintiffs by the defendants.

Broader precedent: The opinion applied existing authorities (Mohan Lalji v. Madhsudan Lala and Lallubhai Bapubhai v. Cassibai) to resolve questions about succession to the office of shebait and the effect of marriage on gotra. The opinion does not state that it establishes a new rule of law beyond its application of those precedents; its immediate effect is the disposition of rights and costs between the parties as described above.

Show full summary ...

Radha Nath Mukerji v. Shaktipado Mukerji

1. This is a plaintiff's appeal arising out of a suit for possession over certain properties including immoveables, and for a declaration that the plaintiffs have a right to administer a trust as the duly appointed shebaits, and also for costs and future mesne profits. The prayer in the plaint is in the following terms:

That the Court may be pleased to declare that the plaintiffs are the shebaits of gods Kaliji and Shivaji installed in premises No. B 6/6 and of Sri Radha Krishnaji installed in premises No. B 7/89 & 89-A and as such are entitled to manage the entire Debutter properties specified in Schedule A to D hereunder, and to receive rents and profits out of the same, and the defendant has no right, title, or interest in the same claim valued at Rs. 11,750 over which Court-fee of Rs. 10 has been paid.

(b) That the defendant be ordered to deliver possession to the plaintiff over the property specified in Schedule B, and, if he fails to do so, the plaintiff may be put in possession of the said property as shebait of the said gods by dispossessing the defendant's claim valued at Rupees 2,750, being the value of the property (included in the valuation given in relief A).

(c) Mesne profits to the extent of Rs. 100 realised by the defendant from tenants of premises Nos. B 7/158, B 7/89, 89-A, B 6/6, and Rs. 75 for his wrongful occupation of premises No. B 7/158-A, total Rs. 175 be awarded to the plaintiff from the defendant, valued at Rs. 175.

(d) That pending and future mesne profits for use and occupation of the premises by the defendant at Rs. 15 per month be awarded to the plaintiff from the defendant for which Court-fees will be paid after ascertainment of account in the Execution Department.

(e) That the defendant be ordered to return the ornaments specified in Schedule E, belonging to the gods, to the plaintiffs within time to be fixed by the Court, failing which a decree for Rs. 200, being the value of the ornaments, be passed in favour of the plaintiffs as shebaits of the said gods against the defendants valued at Rs. 200.

2. The trust property in dispute was endowed by one Swami Purnananda Sarswati Adhyaita Acharya who, before he turned an ascetic, was a Bengali Brahmin and a Mukerji. The deed of waqf was executed on 21st April 1885. The deed includes the following provisions for the management of the properties:

From the date of execution of this document, I or the Mts. (Nritya Kali and Jai Kali) aforesaid neither have nor shall have any right to sell, make a gift of, transfer mortgage or dedicate to another temple, the property appertaining to the muth. So long as I live, I myself shall look after the management of the muth, and after my death the Mts. aforesaid shall carry on the management in my place. Of the two daughters Mt. Jai Kali shall be in charge of cash and meet the expenses of 'rag' and 'bhog.' After her death Nritya Kali shall be in charge of the cash. Be it also known that both the daughters shall also have power to appoint any one they like as manager for the future in consultation with Rakhal Chandra and Hari Prasad so that the work of the muth may be carried on in the terms noted above.

3. Purna Nand is alleged to have executed another deed of endownment on 5th December 1887. This deed is printed at p 61 of the paper book, and is Ex. 11. The genuineness of this deed was challenged by the defendants and the plaintiffs adduced no evidence to prove it. By the second deed Purna Nand purported to exclude Jai Kali from any share of the management of the muth on the ground that she had become disobedient. Since the deed has not been proved however we must take it that the deed of 21st April 1885 stands unrevoked in regard to all its provisions. The plaintiffs alleged that the daughter Nritya Kali married one Purna Chandra Banerji, who died when Nritya Kali was still a young girl, and that she subsequently married one Har Prasad Mukerji The plaintiff-appellants are the sons of Nritya Kali by her marriage with Har Prasad Mukerji They are the legal representatives therefore of the founder of the muth, Purna Nand. By a will executed on 31st December 1912, which is printed at p. 87 of the paper book, Nritya Kali appointed the plaintiffs as shebaits of the muth. On 26th March 1930 Jai Kali executed a will which is printed at p. 91 of the paper book in favour of Keshab Chandra Mukerji, a stranger to the family. Defendants 1 and 2 are the son of Keshab Chandra Mukerji and defendant 3 claims to be a beneficiary tinder the will executed by Keshab Chandra Mukerji.

4. We are satisfied from a consideration of the terms of the deed of wakf of 21st April 1885 that the power to appoint shebaits to the muth was a power to be exercised jointly by the two sisters Nritya Kali and Jai Kali. It is clear in our view that neither sister had the power independently of the other to appoint shebaits to manage the property after her death. We hold therefore that so far as the appointment of the plaintiffs as 'shebaits' is concerned the will of 31st December 1912 by Nritya Kali is invalid. Similarly any appointment made by Jai Kali of a 'shebait' to manage the muth upon her decease independently of her sister Nritya Kali is invalid.

5. No provision is made in the will in regard to the appointment of a 'shebait upon failure of the two sisters validly to execute their power to appoint 'shebaits' as their successors. In these circumstances the right to appoint 'shebaits' to the muth devolves upon the legal representatives of the founder of the wakf: see the case in Mohan Lalji v. Madhsudan Lala (1910) 32 All 461. In other words, the persons entitled to assume possession of the property as 'shebaits' are the plaintiffs, the sons of Nritya Kali. The defendants however contend that Nritya Kali's marriage with Har Prasad Mukerji was invalid, that her sons are not legitimate and therefore not the legal representatives of Purna Nand, the founder of the endowment. This contention is based upon the theory that Nritya Kali married a Mukerji, that is, she married with her father's 'gotra.' Such a marriage is by Hindu law invalid and is not legalised by the provisions of the Hindu Widows Remarriage Act of 1856. The learned Subordinate Judge accepted the defendants' contention on the point and dismissed the suit. Now, as already observed, it has been alleged that Nritya Kali prior to her marriage to a Mukerji was married to one Purna Chandra Banerji That she was married prior to her marriage with Har Prasad Mukerji is not in doubt. In a will executed by Purna Nand, her father, on 26th November 1879, Nritya Kali is described as "aged 14 who has become a widow and lives with me." The father of Nritya Kali would never have described her as a widow if in fact she had not been married. The evidence as to whom, in fact, Nritya Kali was first married, is somewhat meagre. The allegation that she was married to a Banerji rests upon the somewhat vague admission of defendant 1; in our view however it is not important to ascertain who was Nritya Kali's first husband. Quite clearly she could not have been married to a Mukerji, as marriage within her father's 'gotra' would have been invalid. What is important however is that whoever her first husband was, she left her father's 'gotra' and entered the 'gotra' of her husband. On this question we were referred to the decision in Lallubhai Bapubhai v. Cassibai (1880) 5 Bom 110 at p. 118 and also to Banerjee's Tagore Law Lectures on Hindu Law of Marriage and Stridhana, Edn. 3, p. 57.

6. Learned Counsel for the respondents however contended that on the death of her first husband Nritya Kali returned to the 'gotra' of her father. In support of this proposition he referred to Bannerjee's Law on Marriage, Edn. 5, p. 309. The particular passage upon which learned Counsel for the respondents relied is as follows:

Vidya Sagar maintains that her father's 'gotra' is to be deemed the 'gotra' of a widow for the purpose of her re-marriage; and considering that her father or some other paternal relation is still her guardian in marriage, I think that view is in accordance with the intention of the Act.

7. The learned author bases his view that for the purpose of re-marriage the widow's 'gotra' must be taken to be that of her father upon the expression of opinion of an eminent seriologist who lived about the middle of last century. "We do not regard this passage in the volume referred to as sufficient authority for the proposition which, if given effect to in the present case, would have the result of making the marriage, which was solemnized so far back as 1886, invalid, and of bastardising the entire issue of that marriage. There is the definite authority of the Judicial Committee of the Privy Council for the proposition that upon marriage the wife passes into her husband's 'gotra,' viz., the decision in Lallubhai Bapubhai v. Cassibai (1880) 5 Bom 110 referred to above. There is no definite authority for the other proposition that upon the death of her husband the widow passes again into her father's 'gotra.' In the absence of any clear authority we are not prepared to accept the contention of learned Counsel for the respondents and we hold that Nritya Kali passed out of her father's 'gotra' upon her first marriage and therefore the marriage between herself and a Mukerji, which marriage was celebrated somewhat about the year 1886, was a valid marriage; and that her sons are legitimate issue and the legal representatives of Purna Nand, the founder of the endowed property.

8. As we have already observed the legal representatives of the founder are entitled to succeed as 'shebaits' where no appointment has been validly made under the provisions of the deed of endowment. It follows that the plaintiffs are entitled to (possession of the endowed property. (Their Lordships then discussed the evidence and proceeded.) In the result we allow the appeal and set aside the decree of the learned Subordinate Judge. We grant a declaration that the plaintiffs are the shebaits' of the property endowed by Purna Nand by the deed of 21st April 1885 and as such are entitled to possession thereof. The house B 7/158 does not form part of the endowed property and the plaintiffs' claim in respect of this item is dismissed. The plaintiffs will be entitled to mesne profits. We direct that in the circumstances the costs of the plaintiff and the defendants here and in the Court below be borne by the endowed estate. The respondents have already realised their costs in the trial Court from the plaintiffs. The amount of these costs will be repaid to the plaintiffs by the defendants.

Radha Nath Mukerji v. Shaktipado Mukerji

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

Respondents' (Defendants') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Radha Nath Mukerji v. Shaktipado Mukerji

Comments