Citation Codes

Equivalent Citations

citation codes

Case Number

Letters Patent Appeal No. 84 of 1930

Judges

Courtney-Terrell, C.J
Fazl Ali, J.

Acts

Section 11, 5 of the Evidence Act.

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Smart Summary

Judgment Summary — Fazl Ali, J. (with Courtney-Terrell, C.J.)

Factual and Procedural Background

The dispute concerns whether the plaintiff is entitled to a declaration that he is the sole shebait (custodian/manager) of a certain idol and whether the defendant, who claims to be a co-shebait, should be restrained from interfering with the management of the debuttar (devotional) properties.

Five properties were dedicated to the idol: three by Gobind Charan Ghose (the common ancestor of the parties) and two by his son Madhusudan Ghose. Gobind Charan was the first shebait and possessed all five properties in his lifetime. He was succeeded by his son Madhusudan, and on Madhusudan's death his two sons — the plaintiff and Chaitannya Prasad Ghose — became shebaits. After Chaitannya's death, the defendant (his only daughter, then a minor and unmarried) was recorded as shebait in respect of two properties; the plaintiff, acting as her guardian at the time, supported that recording.

In 18-- (the opinion records the year as 1825), the defendant applied for registration of her name in respect of the other three mauzas; the plaintiff contested that application, asserting that his earlier allowance of her name for two properties had been made under a misapprehension of law. His objection was overruled, and he then sued for a declaration that he was the sole shebait, for removal of the defendant's name from the Collectorate register, and for a permanent injunction against the defendant's interference with management. The suit was dismissed by the first two Courts, but was decreed on appeal to this Court by Boss, J. The defendant appealed against Boss, J.'s decision to the bench delivering the present opinion.

Legal Issues Presented

Whether the plaintiff is entitled to a declaration that he is the sole shebait of the idol and whether the defendant should be restrained from interfering with management of the debuttar properties.
How the document dated 20 February 1863 (Ex. 2) — by which Gobind Charan Ghose dedicated two endowed properties — is to be construed, particularly the effect of the words repeatedly used in Urdu/Persian: "pisran, warisan, kayammokamian" (translated as sons, heirs, representatives).
Whether the donor's use of the word translated as "sons" indicates a preference for male-line descendants to occupy the office of shebait and whether succession must be taken from the classes named in a specified order.
Whether the plaintiff is estopped from denying the defendant's right because of his prior admission in Land Registration proceedings (i.e., whether an admission on a point of law can operate as estoppel under the Evidence Act).
Whether the construction reached in respect of the two properties covered by Ex. 2 should apply to all five endowed properties or only those two.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff claimed that he was the sole shebait. His entitlement rested principally on his relationship to the donor: he was a grandson of Gobind Charan Ghose and thus, under the document's terms, had a preferential claim (if the word "sons" is read broadly to include male-line descendants).
The plaintiff asserted that his earlier allowance of the defendant's name for two properties had been made under a misapprehension of law and did not preclude him from contesting her claim later.

Defendant's / Appellant's Arguments

The defendant claimed to be a co-shebait by virtue of being the heir of Chaitannya Prasad Ghose, who had been a co-shebait with the plaintiff.
The appellant (defendant) contended that the judgment should govern only the two properties covered by Ex. 2 and not the other properties in which she was recorded.
An argument was advanced (by or on behalf of the defendant) that the plaintiff's prior admission in land-registration proceedings should estop him from denying the defendant's claim now.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
G.M. Tagore v. U.M. Tagore	That a gift to a man and his sons and grandsons, in the absence of contrary intention, passes a general estate of inheritance according to Hindu law (as expressed by Sir Barnes Peacock).	The court acknowledged the principle but distinguished it: directions in a religious endowment concerning the office of shebait are not to be construed on the same footing as gifts of ordinary property; the donor's expressed intention regarding the suitability of those who hold the office is relevant.
Ranchhod Mayaram v. Bai Jaijantip, A.I.R. 1926 Bom. 309	That the right to officiate and enjoy profits under a religious grant cannot be placed absolutely on a par with rights to succession in ordinary Hindu property; when a descendant passes out of the family (e.g., by adoption or marriage), the right may cease; the grant's vahivat was intended for a particular family and should not be widened unduly.	The court relied on this reasoning to support the proposition that succession to a shebaitship under a religious endowment can differ from ordinary hereditary succession and that the donor's intent to keep management within the family and under capable persons is relevant.
Jagwant Singh v. Silan Singh	That an admission on a point of law is not an admission of fact so as to create estoppel under Section 11, 5 of the Evidence Act; legal admissions do not necessarily estop a party where the other party is aware of their legal rights.	The court applied this principle to reject the estoppel argument: the plaintiff's previous admission in land-registration proceedings (a point of law) did not estop him from contesting the defendant's claim to be co-shebait.

Court's Reasoning and Analysis

The court held that the result of the appeal turned primarily on the construction of Ex. 2 (the deed dated 20 February 1863) — the only document addressing management of the dedicated properties. The critical language of Ex. 2 directed that income should be spent on daily puja, necessary items, feeding religious persons, and stated that "My heirs and representatives shall have on no account any right to sell the said mauza dedicated to the said temple" and that the donor and his "sons, heirs, representatives" should take care of the temple.

The opinion examined the repeated Urdu/Persian words "pisran, warisan, kayammokamian" (rendered as sons, heirs, representatives). Boss, J. had taken the view that "pisran" (sons) meant the donor preferred male-line descendants and that the three words created concentric classes to be exhausted in sequence. Fazl Ali, J. disagreed with Boss, J.'s rigid sequential exhaustion approach and aligned with Ross, J.'s interpretation: the use of the word rendered as "sons" must have some significance and was not merely a reference to the immediate successor but intended to indicate a class of male descendants (the donor's scribe, writing in Urdu/Persian, might have used the available term to convey a broader notion of male-line descendants).

The court noted authorities and linguistic usage (including a scholarly note that "putra" in Sanskrit can include next male descendants) and observed that construing "sons" in a broad sense would give a preferential claim to a grandson (the plaintiff). Even if "sons" were read strictly, the plaintiff would still fall within the wider category of "heirs" mentioned in the deed.

The court emphasized a fundamental distinction: directions in a religious endowment about succession to an office (the shebaitship) are not to be treated identically with gifts of ordinary property. Specifically, a trust founder is commonly concerned with the fitness of successors; where the deed's words are unclear, surrounding circumstances and considerations typical of a Hindu founder of a trust (for example, concern that a married daughter may not be able to properly manage debuttar properties) are admissible in construing intent. The court endorsed Boss, J.'s practical concern that a daughter who may be married away might not be suitable to manage the debuttar properties.

The court therefore concluded on construction that the plaintiff was entitled to succeed as shebait. Having reached that conclusion based on Ex. 2, the court considered several other issues debated at the Bar unnecessary to decide (e.g., whether the defendant could have been a co-shebait absent donor direction, or whether survivorship among co-trustees would operate to make the plaintiff sole trustee).

On the scope of the decision, the court observed that the case had been tried on the basis that all five endowed properties formed the same trust; it rejected the contention that the ruling should be confined to the two properties covered by Ex. 2, saying there was no intention that different classes of shebaits should apply to different properties.

As to estoppel, the court applied Jagwant Singh v. Silan Singh and related authority to hold that an admission on a point of law does not operate as an estoppel under the Evidence Act: a party's prior legal admission does not necessarily create a representation on which another (who knows the law) reasonably relies to the other's detriment. Thus the plaintiff was not estopped by his prior registration-related admission.

Holding and Implications

APPEAL DISMISSED.

Direct holding:

The court held that, on construction of the deed (Ex. 2), the plaintiff is entitled to succeed as shebait; the appeal by the defendant was dismissed with costs.
The court treated the five endowed properties as incorporated in the same trust and therefore considered it unnecessary to confine the decision only to the two mauzas mentioned in Ex. 2.

Implications:

The immediate effect is to affirm the decree in favour of the plaintiff (as previously decreed by Boss, J.) and to dismiss the defendant's appeal with costs.
The court's reasoning clarifies that succession to the office of shebait under a religious endowment is governed by the donor's expressed intention (as ascertained from the deed and surrounding circumstances) and is not to be equated automatically with ordinary hereditary succession in Hindu law.
The opinion does not purport to lay down a novel, general rule of law beyond the application of the donor-intent and trust-construction principles to the facts; the decision's effect is primarily to resolve the parties' dispute and to uphold the lower appellate decree.

Disposition recorded in the text: "In my judgment this appeal should be dismissed with costs." (Fazl Ali, J.). Courtney-Terrell, C.J. agreed. "Appeal dismissed."

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Bimalabala Sinha v. Deb Kinkar Ghosh .

Fazl Ali, J.:— The question to be decided in this appeal is, whether the plaintiff is entitled to a declaration that he is the sole shebait of a certain idol and whether the defendant who claims to be a co-shebait with the plaintiff should be restrained from interfering with the management of the debuttar property. It appears that of the five properties dedicated to the idol, three were endowed by one Gobind Charan Ghose, the common ancestor of the parties and two by his son Madhusudan Ghose. It is common ground that Gobind Charan Ghose was the first shebait of the deity and was as such in possession of all the five properties during his lifetime. He was succeeded by his son Madhusudan Ghose and upon the death of the latter his two sons, the plaintiff and one Chitannya Prasad Ghose, became shebaits. When Chaitannya died, the defendant, his only unmarried daughter who was a minor at that time, was recorded as a shebait in respect of two of the properties and the plaintiff who was then acting as her guardian supported her claim. In 1825 however when the defendant applied for registration of her name in respect of the other three mauzas, the plaintiff contested her application and stated that he had allowed her name to be recorded in respect of the two properties under a misapprehension of law. His contention was overruled and so he brought this suit for a declaration that he was the sole shebait of the deity and prayed that the name of the defendant be removed from the Collectorate register and that the defendant be permanently restrained from interfering with the management of the debuttar properties. The suit was dismissed by the first two Courts, but it was decreed on appeal to this Court by Boss, J., against whose decision this appeal has been preferred.

2. It appears to me that the result of the appeal depends entirely upon the construction of a document (Ex. 2), dated 20th February 1863 by which Gobind Charan Ghose dedicated two of the endowed properties, as it is the only document in which some mention is made as to how the dedicated properties are to be managed. The important passage in this document runs thus:

“First of all the Government revenue having been paid through me and after me through my sons, heirs, representatives, the entire produce thereof shall be spent on daily puja…. and the other necessary items and feeding sadhus, saints and Brahmins by me as the sevak and after my death by my sons, heirs, representatives. My heirs and representatives shall have on no account any right to sell the said mauza dedicated to the said temple. I and after me my sons, heirs, representatives, shall take care of all the things mentioned above, sadar and mofussil, appertaining to the said mauza and the temple.”

3. The document is written in Urdu and the words which occur repeatedly in it are, “pisran, warisan, kayammokamian” which may be translated as sons, heirs, representatives. The view taken by Boss, J., is that the word “pisran” or sons must have been used by the founder of the trust with some object and his conclusion is that this word indicates that the latter preferred the male line of descendants to occupy the office of the shebait. He is also of opinion that the three words used in the document represent gradually widening classes from whom the shebaits were intended to be chosen and that these classes have to be exhausted in succession. In other words, if the male descendants were not available, then the shebait was to be chosen from among the heirs and lastly from among the legal representatives of the donor. Now, it may be conceded at once that it is not very easy to construe the document especially as it was drafted by one who was not a lawyer and who did not know the Urdu language well. Taking however all the circumstances into consideration I am inclined to agree with the interpretation put upon the document by Ross, J. There is no doubt that the use of the word “sons” must have some significance and the founder of the endowment would not have used three words where two of them were sufficient to convey his meaning. I am also not prepared to accept the suggestion that the donor simply meant to provide as to who should succeed him as a shebait immediately after his death and that he left the office to devolve according to the ordinary rule of succession afterwards. As Ross, J., points out the use of the plural pisran (sons) was strictly speaking inappropriate to the circumstances of the donor's family inasmuch as he had actually one son; but even apart from this there is no reason to assume that, while the donor showed some concern about his immediate successor, he should have been entirely indifferent as to whether the shebaits to be appointed in after generations were fit to hold the office or not. How is then the direction in the deed to be construed? The word “pisar” is a Persian word meaning a son, and although, strictly speaking, the word in its Persian sense does not include a grandson, yet that was the only word available to a scribe to be used in a document written in Urdu and he may have well used it to convey the sense which is usually conveyed by the term putra” which is the Sanskrit word for a son. Dr. Gour says in his Hindu Code that sons include paternal grandsons and great grandson and adds the explanation:

“The term “putra” is used in the Sanskrit texts in that generic sense as comprising the next three male descendants.”

4. This proposition is not contested by the learned advocate for the appellant, and if the word “sons” is construed in this broad sense, the plaintiff evidently has a preferential claim to the shebaitship of the donor as his grandson. He is also admittedly an heir of the donor and thus if the word “pisar” is construed in its strict sense, he would succeed as a representative of the wider class referred to in the document as “heirs.” The appellant's claim in this case is based mainly upon the fact that she is the heir of Chaitannya who was a co-shebait with the plaintiff. That circumstance however will not help the defendant because, as Ross, J., pointed out, there is no question of an estate of inheritance in this case., Here there was a gift out and out to the deity and the office of the shebait is to devolve in accordance with the intention of the donor so far as it can be gathered from the document. Mr. Bay has referred to a number of decisions which have only re-affirmed the view taken in G.M Tagore v. U.M Tagore (1) at p. 182. This view was expressed thus by Sir Barnes Peacock:

“A gift to a man and his sons and grandsons or to a man and his sons' sons would in the absence of anything showing contrary intention passes a general estate of inheritance according to Hindu law.”

5. But the directions given by the founder of a religious endowment as to how the office of the shebait is to devolve are not to be construed on the same principle as the gift of property. The most obvious distinction is that the founder of a trust is generally concerned about the fitness of the person who is to carry on the trust after his death, but no such considerations generally arise in the case of a gift to a private individual. When the intention of the donor is clearly expressed, there can obviously be no difficulty in construing the document and no extraneous evidence would be admissible for the purpose. Where however the words used in the document are not very clear, the intention of the executant may, I take it, be construed not only in the light of the surrounding circumstances, but also of such considerations as are generally present in the mind of a Hindu founder of a trust. In this view Boss, J., was in my opinion quite justified in referring to the fact that a daughter who might be married anywhere cannot look after the debuttar properties so well as his son. To the same effect are also the following observations made by Madgavkar, J., in Ranchhod Mayaram v. Bai Jaijantip, A.I.R 1926 Bom. 309, in the following passage:

“The respondent's claim really rests upon the right now in question being treated as a heritable right in exactly the same manner as ordinary property under Hindu law. But both by reason of the grant being in favour of the Goddess and particularly the third condition of inalienability by way of gift or deed of inheritance, the right to officiate and to enjoy the not profits cannot be placed absolutely on a par with the rights to succession in ordinary Hindu property. The vahivat in the grant was in our opinion meant to be assigned to the family of Dayaram; and the moment any descendant passed out of the family, as for example by adoption or by marriage, the right ipso facto ceased. Any other view such as the one for which the respondents contend would not only widen the succession beyond undue bounds, but would lead to difficulties in carrying out the worship for which in this particular case access to the joint family house is necessary.”

6. It appears to me therefore that on the construction of the document the plaintiff is entitled to succeed and in this view I consider it wholly unnecessary to go into the other questions which were discussed at the Bar, namely, whether the defendant would have been entitled to be a co-shebait or not in the absence of any direction by the founder of the trust and whether or not by reason of the fact that the plaintiff was a co-trustee he would become the sole trustee after the death of his brother by survivorship. It was contended by the learned advocate for the appellant that this decision should govern only the two properties which are covered by Ex. 2 and not the others.

7. But the case appears to me to have been tried throughout on the footing that all the properties are incorporated in the same trust and I do not think that it was the intention of anyone that there should be one class of shebaits in respect of some of the properties and a different class of shebaits in respect of the others. There is another point which deserves a passing notice. It is said that the plaintiff himself having admitted the claim of the defendant in the Land Registration proceedings in respect of two of the endowed properties is estopped from questioning her right to be a co-shebait with him now. It has been held in Jagwant Singh v. Silan Singh (2) and certain other cases that an admission on a point of law is not an admission of a thing so as to make the admission a matter of estoppel within Section 11, 5 of the Evidence Act. To adopt the language used in that case:

“it is not the case of a person who knows or must be deemed to know the real state of things creating by his representation a belief in the mind of a person who does not know the real state of things; for, quite apart from any representation made by the plaintiff, the defendants must be deemed to have known whit their legal rights were.”

8. In my judgment this appeal should be dismissed with costs.

Courtney-Terrell, C.J:— I agree.

R.M/R.K

9. Appeal dismissed.

Bimalabala Sinha v. Deb Kinkar Ghosh .

Judgment Summary — Fazl Ali, J. (with Courtney-Terrell, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant's / Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bimalabala Sinha v. Deb Kinkar Ghosh .

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