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Rashika Mohan Nandy v. Amrita Lal Nandi
Factual and Procedural Background
The dispute arises from two connected appeals originating from one suit concerning the shebaitship (office of temple representative) of two Idols dedicated by Peari Mohon Nandy of Kantal, District Dacca. By an arpannama (deed of dedication) dated 21 April 1920, Peari dedicated properties to the Deities and designated himself as shebait during his lifetime, with succession to his sons, grandsons and other male descendants; the deed indicated that no female heir could become shebait until the male line was exhausted.
Peari had two sons by his first wife (Radhika and Brindaban) and two sons by his second wife (Amrita and Nidanta). After estrangement with his eldest son Radhika, Peari executed a second arpannama on 5 July 1936 altering the line of succession so that only sons by his second wife could succeed as shebaits. Peari died soon after, and his two sons by the second wife (the Plaintiffs) sued for a declaration that they alone were the shebaits under the second arpannama, excluding Radhika and other descendants of Brindaban (Defendants). Alternatively, they asked that if the Defendants were shebaits in law they be removed for misconduct under the first arpannama.
Defendant No. 1 (Radhika) alone contested the suit substantively, asserting (1) that the second arpannama altering the original appointment was invalid and that Peari had no right to change the original line of shebaits, and (2) that he had not committed misconduct warranting removal; the other Defendants, represented by a pleader-guardian, adopted Defendant No. 1's written statement.
The Subordinate Judge held for the Plaintiffs, validating the second arpannama and finding Defendant No. 1 not to be a legal shebait under that instrument (so removal was not applicable). On appeal the District Judge partly reversed: he held that the original appointment of shebaits could not be altered by the founder and thus the Defendants were entitled to act as shebaits as legal heirs, but he further found Defendant No. 1 liable to be removed for misconduct. Two appeals to this Court followed: Appeal No. 1113 of 1940 by Defendant No. 1 challenging his removal, and Appeal No. 1215 of 1940 by the Plaintiffs challenging the District Judge's view that the second arpannama was invalid.
Legal Issues Presented
- Whether, in the absence of an express reservation in the original deed of dedication (arpannama), the founder can validly alter the line of succession of shebaits by a subsequent deed.
- Whether the specific provision in the first arpannama restricting shebaitship to male descendants (and thereby excluding female heirs) is valid in law, and if that provision is invalid whether the founder may make a fresh appointment of shebaits by a subsequent deed.
- Whether Defendant No. 1's alleged misconduct justified his removal from the office of shebait, and in particular whether misconduct committed prior to his becoming shebait can constitute ground for removal under the terms of the arpannama.
Arguments of the Parties
Plaintiffs' (Appellants') Arguments
- The Plaintiffs contended that the second arpannama (5 July 1936) was a perfectly valid instrument and, therefore, they were entitled to act as the sole shebaits of the Deities to the exclusion of all Defendants.
- They argued (through Mr. Gupta) that the general proposition preventing founders from altering succession in the absence of reservation did not apply because the succession rules in the first deed were invalid in law (male-only restriction), and thus the founder could make a fresh appointment by a subsequent deed.
Defendant No. 1's (Respondent) Arguments
- Defendant No. 1 contended that the second arpannama was invalid and that Peari had no legal right to alter the appointment of shebaits made in the original deed.
- He also contended that he had not committed improper acts that would justify his removal; although quarrels existed between him and his father, these were said to have arisen from the father's partiality to his second wife and her children rather than from misconduct by Defendant No. 1.
- The other Defendants (minors) adopted Defendant No. 1's written statement and did not separately contest the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gourikumari v. Indra Kumar | Principle that, in the absence of an express reservation in the dedication deed, the founder cannot alter the line of succession of shebaits by a subsequent instrument. | Used to state the settled proposition of law that a founder cannot change the appointed succession unless power is reserved; the Court acknowledged this as well-established law. |
| Narayan v. Bhubanmohini | Same general principle as above: restriction on founder's ability to alter the line of succession absent reservation. | Also cited to confirm the legal proposition relied upon by the parties and the Court. |
| Ganesh Chunder Dhur v. Lal Behary Dhur | If the disposition of shebaitship in a dedication fails, the rights of shebaitship devolve according to the ordinary law of succession. | The Court applied this principle to explain that where the first deed's male-only provision failed, the shebait rights would devolve to all heirs according to ordinary succession rules. |
| Gossamee Sri Greedharjee v. Roman Lolljee Gossamee (Judicial Committee) | When a founder dedicates property to a Deity and attaches a condition (e.g., a rule of succession), the gift is with a condition that, if accepted, must be observed; the condition forms part of the dedication. | Quoted (through Mukherjea, J.) to support the proposition that rules of succession laid down at dedication form an integral condition of the gift and must be treated as part of the dedication. |
| Narayan Chandra Dutta v. Sm. Bhuban Mohini Basu Mallik | Reference (by Mukherjea, J.) affirming the principle from the Gossamee case that conditions attached to a dedication are integral to the gift. | Used to reinforce the conclusion that the rule of succession in the original dedication is part of the dedication itself and cannot be disregarded except where reservation exists. |
| Brindabanji v. Sri Godamji | Support for the view that the condition relating to succession forms an integral part of the dedication. | Quoted to bolster the Court's view that if succession rules are part of the dedication they cannot be altered by the founder unless he reserved such power. |
Court's Reasoning and Analysis
The Court addressed the Plaintiffs' appeal first (No. 1215 of 1940). It began by acknowledging the established rule (supported by Gourikumari v. Indra Kumar and Narayan v. Bhubanmohini) that a founder cannot change the line of succession of shebaits by a subsequent instrument unless an express reservation to that effect was made in the original deed.
The Plaintiffs' counsel argued that this principle was inapplicable because the succession rule in the first deed (limiting shebaitship to male descendants) was itself invalid; therefore, the founder could make a fresh appointment by the second arpannama. The Court noted that both lower courts had held that the restrictive provision in the first deed was invalid and that there was no separate, enforceable gift of shebaiti rights to the sons independent of the dedication. The Court accepted that where a disposition under the deed fails, shebait rights devolve by ordinary succession (citing Ganesh Chunder Dhur v. Lal Behary Dhur).
The crucial question the Court posed and answered was whether the failure of the original disposition (because it contained invalid provisions) gave the founder a right to alter the line of succession by a later instrument even though no reservation was made. The Court answered this negatively. Its reasoning was:
- A dedication to a Deity is irrevocable and the rules of succession laid down by the founder when making the dedication form an integral part of the dedication (drawing on the Judicial Committee's reasoning in Gossamee Sri Greedharjee and subsequent authorities).
- Even if some dispositions in the dedication are invalid, that does not confer on the founder a general right to make fresh dispositions of shebaitship after the dedication unless the founder expressly reserved such power.
- Therefore, a subsequent attempt by the founder to alter the appointed line of succession without reservation is ineffective.
Applying these principles, the Court concluded that the Court of Appeal was correct to hold that the defendants (as heirs under ordinary rules of succession following failure of the invalid male-only clause) were entitled to act as shebaits and that the second arpannama did not entitle the Plaintiffs to sole shebaitship.
Turning to Appeal No. 1113 of 1940 (Defendant No. 1's challenge to his removal), the Court considered the narrower argument that misconduct relied upon for removal must have occurred after the defendant became shebait. The Court rejected that restrictive interpretation of the arpannama's terms, holding that the arpannama's language—that a shebait guilty of misconduct cannot remain in office—should not be read as limited to misconduct occurring only after accession. The Court noted that the trial court had found a long list of acts amounting to misconduct (including beating his father and asserting adverse rights to the debuttar property) and therefore agreed with the appellate court's decision to remove Defendant No. 1 from shebaitship.
Holding and Implications
Core Rulings:
- Appeal No. 1215 of 1940 (Plaintiffs): Dismissed. The Court held that the founder could not alter the line of succession by a subsequent arpannama in the absence of an express reservation, even where some provisions of the original dedication were invalid; consequently, the Plaintiffs were not entitled to act as sole shebaits to the exclusion of the Defendants.
- Appeal No. 1113 of 1940 (Defendant No. 1): Dismissed. The Court held that Defendant No. 1 could be removed for misconduct and that the misconduct relied upon need not have occurred only after he became shebait.
Implications for the parties:
- The Defendants (heirs of the founder by ordinary law of succession after the invalidation of the male-only restriction) are entitled to act as shebaits; the Plaintiffs do not have exclusive shebaitship under the second arpannama.
- Defendant No. 1 was properly removed from the office of shebait on account of misconduct (the removal is affirmed).
- The Court took no order as to costs in this Court (the opinion expressly states no order as to costs).
Broader legal implications: The Court applied existing authorities to confirm that a dedication and the succession rules attached to it are integral and, absent reservation, cannot be altered by the founder; the opinion does not purport to create a new precedent beyond applying these established principles to the facts of the case.
Opinion authored by Mukherjea, J.; Sharpe, J. agreed.
Mukherjea, J.:— The facts giving rise to these two connected appeals which arise out of one and the same suit may be shortly stated as follows: One Peari Mohon Nandy, a resident of Kantal in the District of Dacca, installed, two Idols in his house, and by a deed of arpannama, dated the 21st April, 1920, dedicated a number of properties in favour of these Deities. Under the terms of the arpannama, Peari was to be the shebait during his life-time, and after his death, the shebaitship would devolve upon his sons, grandsons, great-grandsons and other male descendants. There is a clause in the arpannama which clearly indicates that no female heir could become a shebait till the line of male descendants was extinguished.
2. Peari had two sons by his first wife who predeceased him, namely, Radhika and Brindaban. Radhika is Defendant No. 1 in the suit, while Brindaban is dead, and his three sons and heirs who are all minors figure as Defendants Nos. 2 to 4 in the suit. After the death of his first wife, Feari married again, and by his second wife, he had two sons, namely, Amrita and Nidanta who are the Plaintiffs in the suit. It appears that after the death of his first wife, the feelings between Peari and his eldest son Radhika became very much estranged, and on the 5th July, 1936, Peari executed a second deed of arpannama, by which he altered the line of shebaits appointed by the first document. This new deed provided that after the death of Peari, not all his sons, but his sons by the second wife only would be entitled to succeed as shebaits. Peari died soon after the execution of the second deed, and the present suit has been filed by his two sons by the second wife for a declaration that the Plaintiffs are the sole shebaits of the Deities under the second arpannama of the founder, and neither Radhika nor the other Defendants who are the sons of Brindaban have any claim to succeed as shebaits. There was a further prayer that in case the Defendants were found to be shebaits in law they might be removed on account of their misconduct under the terms of the first arpannama itself.
3. The suit was contested by Defendant No. 1 alone. The other Defendants who were represented by a pleader guardian did not put any separate contest, but merely adopted the written statement of Defendant No. 1. The contentions of Defendant No. 1 were substantially of a twofold character. In the first place, it was averred that the line of succession laid down in the second arpannama was invalid in law and that Peari had no legal right to after the appointment of shebaits as made in the original deed of dedication. The second defence was that there was no improper act committed by him which would justify his removal from shebaitship. It is admitted that there were quarrels between him and his father, but the root-cause of all these quarrels, it was alleged, was not any improper conduct on the part of Defendant No. 1, but the extreme partiality of his father to his stepmother whom his father married at the age of 62 and the children born of her.
4. The learned Subordinate Judge who heard the suit decided all the points in favour of the Plaintiffs and gave them a decree. It was held by the Subordinate Judge that the second arpannama was a valid document, and Peari was quite within his rights to after the line of shebaits provided for in the first document inasmuch as the disposition of shebaitship as made by him therein was not valid in law. The Subordinate Judge further held that Defendant No. 1 behaved very badly towards his father and step-mother, and was guilty of several acts of misappropriation and waste with regard to the debutter estate itself, but as he was not a legal shebait under the second arpannama, no question of removing him from his office did at all arise.
5. On appeal the learned District Judge took a different view. According to him, the appointment of shebaits as made in the first document could not be altered by the founder by any subsequent document. The Defendants, therefore, were entitled to act as shebaits as legal heirs of the founder, although the disposition of shebaitship after the death of Peari was not valid in law. The District Judge held further that by reason of misconduct, Defendant No. 1 was liable to be removed from his office of shebait. The result was that the appeal was allowed in part. The Plaintiffs were held to be shebaits along with Defendants Nos. 2 to 4, and Defendant No. 1 was removed from shebaitship with effect from the date of the founder's death.
6. Against this decision, two appeals have been taken to this Court. Appeal No. 1113 of 1940 is by Defendant No. 1, and his contention in substance is that the Court of Appeal below finding him to be a shebait and entitled to succeed along with the other heirs of the founder on the death of the latter, erred in law in removing him from his office on the ground of misconduct which was not established by the facts admitted and found. In the other appeal being No. 1215 of 1940 the Plaintiffs figure as the Appellants, and they have raised the point that the second arpannama was a perfectly valid document and consequently, they were entitled to act as sole shebaits of the Deities to the exclusion of all the Defendants.
Appeal No. 1215 of 1940.
7. We will take up appeal No. 1215 of 1940 first for if the Plaintiffs' contention is accepted, the Defendants will have no right to act as shebaits and the question of removing Defendant No. 1 would not at all arise.
8. Now so far as the Plaintiffs' appeal is concerned, Mr. Gupta did not dispute the proposition of law which seems to be fairly well established by authorities of this Court, namely, that in the absence of express reservation in the deed of arpannama, it is not competent to the founder of a debutter to make a change in the line of succession of shebaits laid down in the deed of dedication. Vide Gourikumari v. Indra Kumar(1) and Narayan v. Bhubanmohini(2). His contention, in substance, is that this principle cannot apply to the present case as the rules of devolution of shebaitship as laid down in the deed of dedication are invalid in law. In such cases, it is argued that it is open to the founder to make a fresh appointment of shebaits by a subsequent deed. In the present case, both the Courts below have held that the provision in the first deed of dedication under which shebaitship was to be confined to the male descendants of the founder is not a valid provision in law. The language of the document further makes this clear that there is no independent and separate gift of the shebaiti rights in favour of the sons of the founder which could be given effect to by a Court of law. The disposition of shebaitship, therefore, fails altogether after the death of Peari. The consequence of this, in our opinion, would be that after the death of Peari, the rights of shebaitship would devolve according to the ordinary law of succession, and all the heirs of the founder would be entitled to act as shebaits, vide Ganesh Chunder Dhur v. Lal Behary Dhur(3).
9. But does the failure of the disposition of the shebaiti rights after the death of the first shebait give the founder a right to after the line of succession laid down in the instrument of dedication although no such power was reserved by him in the deed? The answer in our opinion would be in the negative. A dedication of a property to a Deity is irrevocable and the rules if any laid down by the founder at the time of dedication regulating succession to the office of the shebait should be deemed to be irrevocable also unless the power of revocation is reserved by the grantor.
10. It was observed by Mukherjea, J., in Narayan Chandra Dutta v. Sm. Bhuban Mohini Basu Mallik as follows:—
“The Judicial Committee in the case of Gossamee Sri Greedharjee v. Roman Lolljee Gossamee(4) has very clearly pointed out that when the founder of an endowment dedicates properties to a Deity and appoints a shebait or lays down the order of succession to a shebaitship, he makes a gift with a condition attached, and that the Deity or those who speak for him on earth need not take advantage of the gift; but that if the gift is taken and the condition insisted on, it must be observed.”
11. Whether the principle enunciated by their Lordships of the Judicial Committee in Gossamee Sree Greedharjee v. Ruman Lolljee is strictly applicable to such cases or not, we think that the condition relating to the rule of succession of shebaitship laid down by the grantor when he makes the grant forms an integral part of the dedication itself. Vide Brindabanji v. Sri Godamji(5). If the dispositions are invalid after a certain period, the law will certainly take its course, and the shebaitship would revert to the founder or his heirs, but that would not give the founder a right to make fresh disposition of shebaitship unless he has reserved such powers to himself.
12. The result, therefore, is that we think that the view taken by the Court of Appeal below is right and this appeal is dismissed. We take no order as to costs in this Court.
Appeal No. 1113 of 1940.
13. The other appeal need not detain us long. The only point raised by Mr. Chandra Sekhar Sen who appears on behalf of the Appellant is that although his client the Defendant No. 1 might have been guilty of misconduct prior to the death of his father, as he did not do any bad act after he became a shebait, no ground for removing him from the office of shebait exists, according to the terms of the arpannama. We think that we cannot put such a restricted interpretation upon the terms of the arpannama which clearly says that it the shebait is guilty of misconduct, he cannot remain in the office.
14. The trial Court has given a long list of the acts committed by the Defendant No. 1 which cannot but rank as misconduct.
15. He went even to the length of beating his father, and certainly did assert his own right to the debuttar property adversely to Deity.
16. We think, therefore, that the decision of this point too by the lower Appellate Court is correct, and this appeal should also fail. We dismiss this appeal but make no order as to costs in this Court.
Sharpe, J.:— I agree.
S.C.S
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