Rankin, C.J:— The appellant, Monohar Mukerjee, is defendant 1 in the suit which was brought on 14th April 1923, to obtain a decision as to the person entitled to be shebait of two family deities established by the common ancestor of the parties, one Jaga Mohan Mukerji who died in 1840.
2. By his Will Jaga Mohan endowed the Thakurs with certain debutter properties. As regards the office of shebait he directed in effect that his eldest son should be the first shebait and after his death his other sons in the order named successively. He gave a further direction that after the death of all his sons, the eldest male in the family should be the sole shebait and that no daughter's son or daughter should hold the office. Monobar Mukherji, the appellant, is the eldest male member of the family. He claims to be entitled to the office of shebait under the terms of his grandfather's will. The learned Subordinate Judge has held that the provision that the shebaiti should devolve upon the eldest male member is illegal, a Hindu not being competent to direct that a shebaiti right should descend to his heirs by a course of descent unknown to Hindu law. He has accordingly declared that upon a proper construction of the will of Jaga Mohan Mukerji, the shebaiti right is now vested in his heirs as upon an intestacy. The appellant contends that this decision should be reversed, first because the validity of the provision made by the will of Jaga Mohan'has been affirmed in previous suits between the parties and is res judicata between them and, secondly, upon the more general ground that the provision is not contrary to law but is valid and effective.
3. Having overruled the pleas of res judicata we find it necessary to deal on the merits with the question whether the testator as founder of the idols and grantor of the endowment has validly directed that the office of shebait should be held from time to time by the eldest male member among his descendants or whether his direction is ineffectual to carry the office to the hands of Monobar Mukherji the appellant who fulfils the testator's conditions but was not born in the testators lifetime. Hitherto the protracted litigation over this shebaiti has proceeded upon the footing that the will makes a complete dedication of the property specified in item 5 of the Scheduie thereto. The plaint raises no question as to this still less does it contain any suggestion that the gift of Jaga Mchan to the idols is in any way invalid. No such points were raised at any time in the trial Court. Before us the Advocate-General for the plaintiff pointed to the provision that the surplus moneys of the endowment should be spent upon maintenance of childless widows of the family and the construction of roads for public use and the excavation of tanks. He suggested that these last objects not being part of the worship of the idols the debutter was not an absolute dedication to the idols. This contention was not pursued sufficiently to enable me to understand how it affects the case before us; it is not in my opinion open to the plaintiff and I do not appreciate how it assists the plaintiff to uphold the decision of the trial Court or is otherwise of use to him. But in any case, a direction that the shebait shall spend any surplus income on certain charitable objects or pious acts is not uncommon in Hindu debutters, and does not make the dedicacation incomplete. The dedication if merely colourable will be bad but the provisions here in question affect surplus income only and are subordinate to the main religious purpose, A Hindu God may be allowed to do some works of charity.
4. In the case of land it would seem to be clear that a person not born in the lifetime of the testator cannot take an interest directly and on his own account by the will of a Hindu, and also that it is not competent to a testator by his will to create an interest descendible in a manner unknown to Hindu law. If a shebaiti right is immovable property in the full sense of that expression, it is clear that the judgment under appeal must be affirmed. Gnana Sambanda Pandara Bannadhi v. Velu Pandaram . [1900] 23 Mad. 271 is relied upon by the respondent as direct authority to the effect that a shebaiti right is as much within the rule of Ganendramohun Tagore v. Juttendro Mohun Tagore . [1872] I.A Sup. 47 as is the devise of land.
5. From time to time in this Court both the meaning and the correctness of the observation made by Sir Richard Couch in delivering the judgment of the Judicial Committee in Gnana Sambanda's case have been canvassed and difficulty has been felt in deciding whether the rule that Tagore v. Tagore applies to a shebaiti right is to be treated as an obiter dictum. In 1924 Suhrawardy and Duval, JJ. in Pramatha Nath v. Anukul Chandra . A.I.R 1925 Cal. 225 held that a direction to the same effect as the provision in this case was invalid as being contrary to the principle that a gift to an unborn person is invalid under the Hindu law. Almost at the same time however, another Division Bench in Sripati Chatterjee v. Khudiram Banerji . A.I.R 1925 Cal. 442 dealing with the question whether the appointment of a shebait was revocable by the donor in his lifetime, answered that question in the affirmative. Chakravarty, J., a learned Hindu Judge, proceeding upon the principle that the dedicated property belongs to the Thakur and that a shebait is a mere officer and has no right therein states the law as follows:
“Now it may be borne in mind that the rule laid down in Tagore's case prohibiting a Hindu from creating a line of succession unknown to Hindu law, does not apply to the appointment of a shebit of a family Thakur and the reason is obvious that an appointment to such an office itself creates no interest in the property. The appointment of shebait therefore is obviously not a gift of any property to the shebait but is purely an appointment to the office without, it may be, any remuneration whatsoever.”
6. The matter in this province is of great, importance because in a very large number of cases, it is found that devolution of shebaiti is directed in a manner different from the ordinary rule of succession under the Dayabhaga. This is by no means confined to old deeds or wills which like the one before us is older than the decision in the Tagore case, As property descends through sons without reference to primogeniture the number of persons sharing the shebaiti right be comes in a short time inconveniently large for any purposes of management if the right goes to the heirs at Hindu law.
7. Under Hindu law the question whether property is to be regarded as immovable or moveable is of importance in many ways. On it may depend the right of alienation and in some cases of succession. Slaves for example were regarded as immovable property. When under British rule a law of limitation was introduced we find Regn. 5 of 1827 speaking of “lands, houses, hereditary offices or other immovable property” and under the first Limitation Act (14 of 1859) contained no definition of immovable property it was held that hereditary offices if tenable solely by Hindus were included in that category: Maharana Futtehsangji v. Desai Kullianaraiji . [1873] 13 B.L.R 254.
8. From time to time decisions have been given that nibandha (for which the absolute English term corody was forced into use as a translation) is also to be classed as immovable. In one of these cases Collector of Thana v. Krishnanath . [1880] 5 Bom. 322. Melvill, J., discussed the case of hereditary offices in view of the Privy Council decision in Maharana's case. He said:
“Conspicuous among such cases (and indeed it is the only case in which the Judicial Committee has expressly approved of the application of the exception) is the instance of an hereditary office in a Hindu community incapable of being held by any person not a Hindu. It is clear that this is a kind of incorporeal hereditament which it would be very difficult to classify with reference merely to the connexion of a particular hereditary office with land. Such a classification may be possible in the rare instances in which questions regarding hereditary offices or dignities may arise in England; but the multiplication of hereditary offices of every description is a peculiarity of Hindu communities and most of them are of such a character that it would be scarcely possible to say whether they savour of the reality or not. In every considerable Deccan Village there are at least twelve such offices and a Court might well find it impossible to determine upon general principles and without reference to Hindu law whether the office of an hereditary blacksmith potter or astrologer is or is not immovable property.”
9. The legislature in 1871 solved the difficulty so far as limitation was concerned by giving a 12 year period for all suits for possession of an hereditary office. (Article 128, Act 9 of 1871, repeated as Article 124 of the Acts of 1877 and 1908.) In 1882 a case came before the Bombay High Court Trimbak v. Narayan . [1883] 7 Bom. 188. in which a person entitled to a one-third share in the management of certain lands granted for the maintenance of a Hindu God had suffered an execution sale in 1870 of this share. No proceedings had been taken to set aside the sale but his son in 1879 sued to recover possession of it from the person to whom the auction-purchaser has sold it. The case raised no question under Article 124, Lim. Act, but it was decided on a principle which would have altered the effect of that article and altered the law as it had been declared under the Act of 1859. From the report it is not quite clear whether the land had been granted to the deity and was debutter in the strictest sense or whether it had been granted to the plaintiff's ancestor upon the trusts which amounted to a charge in favour of the deity. In a previous suit the petitioner's father had obtained a decree against his cosharers apparently but not certainly a sort of partition declaring that he should have the exclusive management every third year and this is the right which was sold in execution. Without deciding whether the auction-purchaaer took anything by his purchase the Court held that whether he did or not and whether or not the petitioner's father could have got himself reinstated without suing, to set aside the sale the petitioner was not affected by the sale.
“We think that in endowments of this nature when the founder had vested in a certain family the management of his endowments each member of the family succeeds to the management to use technical language per forma doni.”
10. Now in Gnanasambandha's case which is the crucial authority for the present purpose this principle was pressed in argument upon Article 124, Lim. Act of 1877. Clearly it would have overthrown the law as declared under the Act of 1859 with reference to Hindu hereditary offices which law the Act of 1871 had intended to apply to all hereditary offices. The struggle had been to get the longer period of 12 years applied to these offices and it was now contended that each person succeeding to the right had a fresh start regardless of anything his predecessor might have done or suffered. Whatever Article 124 meant and it applied to all hereditary offices whether Hindu or not it did not mean that. Its intention was to treat hereditary offices like land for the purposes of barring suits for possession of the office and extinguishing the right to possession after a certain period. The inheritor of such an office cannot therefore be entitled to deny that he derives his right from or through his predecessor.
11. Now the facts in Gnanasambanda's case were that the origin of the endowment was obscure; the lands had at one time been possessed and managed by Government who had handed them over to the two members of the petitioner's family in a way which showed that they were regarded only as the present members of a joint family entitled to hold and manage the endowment. The petitioner's suit was for a declaration of his right to a share in the management and the added claim for possession of the lands was ancillary to his claim to the office.
12. The Judicial Committee treated the matter in that way saying there was no distinction between the office and the property of the endowment. In argument counsel for the petitioner had endeavoured to put the case not as a claim to an office but as a claim by a person interested in the trust to have the property applied to the trust purposes but it does not appear that was the form of the suit or even that the respondent was misapplying the property. To a suit so framed it may be that Article 144 would have been no answer as the respondent took with notice of the trust. But the claim was to the office and the claim to the land was for possession by the plaintiff. If he had no right to the office he had no right to possession of the land and there seems to be no error in adding that the respondent's possession even if not adverse to the trust was adverse to the plaintiff. I do not think therefore that we need concern ourselves with the criticisms passed by Devadoss, J., upon this decision in Rama Reddi v. Ranganadan . A.I.R 1926 Mad. 769. It does not appear however that the judgment delivered by Sir Richard Couch went further than was necessary for the decision of the case. The office was hereditary in the ordinary Hindu sense and Article 124 applied to it on the footing that the statute once it began to run against a holder continued to run against the inheritor from him. In so treating a Hindu the statute was treating him according to the ordinary Hindu rules of succession to property as laid down in Tagore v. Tagore under which successive heirs do not take successive life estates but are full members. It was treating the office for purposes of limitation on the old Hindu principle that it was immovable property of the family of which, e.g, partition could be obtained but which, apart altogether from any notions about breach of trust an individual member by his family law could not alienate at will. Whether every hereditary office is hereditary in the sense that each succeeding holder takes “from or through” the last may be a question but that is what heredity means in Hindu law. In saying however that the Hindu law of inheritance did not permit the creation of successive life “estates in this endowment” and that
“the ruling in Tagore v. Tagore is applicable to an hereditary office and endowment as well as to other immovable property.”
13. Their Lordships do more than put a construction on the Limitation Act and apply Article 124 to the case of an office which is hereditary in the ordinary Hindu sense. They speak of “estates in this endowment” and appear to mean that the right to hold the office comes under the rule that a person not in existence in the lifetime of the donor or founder cannot take by the gift and must take under the gift if at all, by transfer or inheritance from or through a donee competent to accept the gift. Now both in reason and in practice it is the first part of this rule which gives importance to the second. The primary question seems to be whether the rule against gifts to the after-born-applies to appointments to the office of shebait.
14. On this, it is not perhaps enough to say that the shebait takes no estate whatever in the dedicated property but is a mere manager for the idol. So far as the property is concerned that is true; a shebait is very different in this respect from a trustee, though otherwise as administrator of the property he may be said to be in the same position as a trustee. But it cannot be said that a shebait is a mere manager of property. He arranges for the worship of the God and represents and speaks for the God. As Lord Macnaghten said of the manager of a temple
“as regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office or dignity: Ramanathan v. Murugappa . [1906] 23 Mad. 283.”
15. As we have seen the office itself is hereditary it is regarded in Hindu law as immovable property. Still, if the rule against after-born takers must be applied to a shebaiti serious consequences seem to follow. No doubt consistently with the rule the founder could give the office to X in absolute right so that he could alienate it freely. But a Hindu could not by his will gave land to X for life thereafter to his nominee whether after-born or not. Nor could he introduce any other form of election or nomination to direct the future ownership of the land into the hands of after-born persons. If the office is property and if the after-born cannot take by the founder's deed or will it is idle in my judgment to say that the founder can lay down a rule of succession to the managership. Richardson, J., in Mathura v. Lakhi . A.I.R 1924 Cal. 68 appears to have considered that a shebaiti was within the exception to the rule against after-born takers just as in Jatindra Mohan v. Ghanasham Chaudhury . A.I.R 1923 Cal. 27 a corody or annuity was held to be and says:
“Property cannot be made inheritable otherwise than the law allows, but there may be exceptional cases in which Hindu law sanctions a departure from the rule that the donee must be in existence (p. 435).”
16. I cannot think that this line of reasoning is right, If there is no necessity for the donee to be in existence then any after-born person can take as persona-designata. It seems impossible to hold that the shebaiti can be directed to go to the oldest man in the village but not to the eldest male member among the founder's descendants. It cannot be that an heir may not take under the founder's direction merely because being an heir the shebaiti succession would to that extent approximate to the Hindu law of inheritance while differing from it. Heredity after all is not a disqualification. Prom this point of view I cannot with great respect to the learned Judges who decided Pramath v. Anukul Ghandra agree with them in their method of approach to the present question. They answer the objection that the eldest member is not the heir and the descent of the office is not hereditary by saying in effect the taker has to be an heir as well as to be the oldest. This is what makes the provisions bad (c.f p. 569).”
17. In this way only, like Richardson, J., they leave room for the possibility of election or nomination of after-born persons to the office under directions given by the founder. But in truth there is no ground for distinction that while in the latter case the testator is not inventing a new form of estate unknown to Hindu law, the testator in a case like the present is inventing a new form of inheritance. What he cannot do directly he cannot do indirectly: Bai Motivahoo v. Bai Mamoobai . [1897] 21 Bom. 709. If the rule against after-born takers does not apply, the principle of inheritance need not be called in aid at all. Successive life estates are not part of the Hindu law of inheritance but a man can be appointed to an office for life and save as regards-after-born persons no difficulty has ever been suggested. We invert the meaning of Tagore v. Tagore if we disqualify a man from taking by the will not because he is after-born but because he is in some sense or even in the strict Hindu sense an heir. What he can take by virtue of the will is one thing; what he cannot take by the will be may still take by inheritance according to law but that is another thing. The cases of Pramatha Nath v. Anukul Ghandra and Mathura Nath v. Lakhi seems to me to require reconsideration. The observations made in Gnanasmbandha's case are I think producing results which their Lordships can hardly have contemplated as they were dealing both in that case and in Trimbiik's case with plain cases of hereditary succession at the Hindu law. I think that unless the view taken by Chuckerbutty, J., in Sripati's case be accepted then logically there is an end of the founders right to lay down rules of succession of any kind which may carry the office to the hands of a person not in existence at the time of the founder's death, and I further think that such a right if it exists cannot be limited by a restriction based upon heirship.
18. In this view I would refer certain questions to a Full Bench. The case law has been carefully canvassed in Pramatha's case, and it is not necessary that we should do so again. The questions which I would formulate for consideration by the Full Bench are as follows:
(1) Whether the founder of a Hindu debutter is competent to lay down rules to govern the succession to the office of shebait.
(2) Whether a person succeeding to the shebaiti under such rules is a grantee or donee of property and whether his right to succeed to the office is subject to the rule that a gift cannot be made by a Hindu to a person not in existence at the time of the gift.
(3) Whether rules for succession to the office of shebait are rendered invalid by reason that they provide for the office to be held by some among the heirs of the founder to the exclusion of others in a succession differing from the line of Hindu inheritance?
(4) Whether Sripati v. Khudiram was correctly decided in so far as it was in that case held that the rule laid down in Tagore's case prohibiting a Hindu rom creating a line of succession unknown to Hindu law does not apply to the appointment of a shebait of a family thakur.
(5) Whether Pramatha v. Anukul, was correctly decided in so far as it was in that case held that as regards persons not in existence in the founder's lifetime a direction could not validly be given by the fouuder in his will that the person senior in age among the heirs of the first shebait should succeed to the office of the shebait.
(6) Whether the provision contained in the will of Jago Mohan Mukherjee to the effect that the eldest male member of his family should be sole shebait is in law ineffectual to entitle the appellant Manohar Mukherji to the office in view of the fact that he was not in existence until after the testators' death.
C.C Ghose, J.:— I agree.
Opinion
Mukerji, J.:— This appeal in connexion with which this reference has been made has arisen out of a suit for the construction of a will, for establishment of title to shebaitship” of a debutter estate and for other incidental reliefs. The will concerned was executed by one Jago Mohan Mukherjee in 1227 (1840). By it Jago Mohan made a testamentary disposition of all his properties and created a debutter in respect of some of them. As regards the office of shebait he directed in effect that his eldest son should be the first shebait and after the death of the said eldest son his other sons in the order named, successively, and after the death of all his sons the eldest male member of the family, amongst the sons, sons' sons and so on, from generation to generation daughter or daughter's son being excluded so long as there would remain any male member as aforesaid, would be shebaits. The appellant Manohar Mukherjee is the eldest male member of the family and was defendant 1 in the suit. The plaintiff Bhupendra Nath Mukherjee is a son of Raja Peary Mohan who was a grandson of the testator Jago Mohan by his eldest son Joy Krishna. He disputes the right of Manohar to succeed to the shebaitship under Jago Mohan's will. For the purposes of this reference it is not necessary to refer to the pleadings or the points in controversy in the suit, beyond what may be gathered from the questions formulated for consideration, which are the following. (His Lordship then stated the questions and proceeded.) The provisions in the will which have given rise to these questions are the following:
“From the profits of the Collectorate taluks, Putni taluks, and rent free lands etc., which I specify in No. 5 of the schedule at the foot of this will and set apart for meeting the expenses of the sheba of the deities Sridhar Thakur and Gopaleswar Shiba Thakur established by me and the annual Durga Puja and Sradb, etc., of the ancestors and other pious acts, the sheba and Puja, etc., of the said Thakurs shall be performed and the surplus money shall be devoted to the suitable maintenance of the childless widows in the family and the construction of roads, etc., for public use and excavation of tanks and other pious acts; but as a provision against drought and other providential calamities money sufficient for the payment of one year ??? revenue shall be gradually accumulated from the surplus money, and Government promissory notes shall be purchased therewith and kept in stock and then the surplus shall be applied suitably to the construction of roads etc., and other pious acts. I appoint my eldest son Joy Krishna Mukherjee, and Hara Nath Chatterjee a resident of Utter-para, as ‘attorney’ for the performance of duties of the shebaits of the said deites. The said ‘attorneys’ shall make settlements and hold possession of all the said properties as maliks thereof, and shall carry into efiect the above terms and neither they nor their heirs shall be competent to alienate said properties by sale or gift. After the death of Joy Krishna Mukherjee Raj Krishna Mukherjee shall be appointed in his place. After the death of the said Raj Krishna, his stepbrother Naba Krishna Mukherjee and after the death of the said Naba Krishna his stepbrother Bijoy Krishna shall be appointed to the office of ‘attorney.’ After the death of my sons, Joy Krishna and others, amongst their sons, son's son and so on in succession, the eldest male member in the family shall alone be appointed as ‘attorney’ for the time being and shall perform the above-mentioned Deb Sheba and other pious acts. As long as there will remain any male child living in this family no daughter's son or daughter shall be appointed to the office of ‘attorney’ for the performance of the said acts. Again Hara Nath Chatterjee the other ‘attorney’ of the said fund shall continue as ‘attorney’ during his lifetime and acting in concert with the other ‘attorney,’ my son shall perform the said sheba and other acts. After the death of the said Chatterjee ‘attorney’ his heirs shall have no concern with the said office of ‘attorney.’ My sons and their heirs in succession do the duties in the manner aforesaid.”
19. The group of properties described in item 5 of the schedule were thus made a debutter mehal; and it was also provided that certain other properties detailed in item 4 of that schedule would also be included in the said debutter mahal if a certain contingency happened.
20. In Tagore v. Tagore, their Lordships of the Judicial Committee laid down that a private individual who attempts by gift or will to make property inheritable otherwise than the law directs is assuming to legislate, and the gift must fail and the inheritance take place as the law directs, that all estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance, are void as such, and that by Hindu law, as a general principle, a person who is to take must either in fact or in contemplation of law, be in existence at the time when the gift or bequest is to take effect, and the estate to be taken must be an estate recognized by that law. Their Lordships in dealing with the case observed:
“The questions presented by this case must be dealt with and decided according to the Hindu law prevailing in Bengal, to which alone the property in question is subject. Little or no assistance can be derived from English rules or authorities touching the transfer of property, or the right of inheritance or succession thereto. Various complicated rules which have been established in England are wholly inapplicable to the Hindu system, in which property whether moveable or immovable, is in general subject to the same rule of gift or will, and to the game course of inheritance.”
21. The questions referred to the Full Bench therefore mainly depend on the question whether shebaitship in Hindu law is property of any kind to which Tagore v. Tagore may apply or is merely an office to which the founder of an endowment is competent to appoint or nominate persons in any order of succession, which may have the effect, so far as the founder is concerned, to use the words of Turner, L.J, in Soorjo Monee Dassee v. Deno Bundhoo Mullick . [1865] 6 M.I.A 526 of “creating a new form of estate or altering the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy.”
22. For a correct appreciation of the incidents of the office of a Hindu shebait a slight digression is necessary into the history of Hindu religious institutions and endowments. Literature bearing on them is somewhat scanty. Nevertheless, a study of such materials as are available enables one to form a reasonably clear idea of the general characteristics of the powers and duties, or rights and obligations, of shebaits or persons holding offices more or less analogous to those of shebaits. Dealing with a case from Southern India, the particular institution concerned in that case being a mutt of which the head used to be called the Vidya Varuthi Thirtha v. Balusami Ayyar . A.I.R 1922 P.C 123 their Lordships of the Judicial Committee had occasion to consider the general nature of Hindu religious institutions. Their Lordships said thus:
“It is also to be remembered that a “trust” in the sense in which the expression is used in English law is unknown in the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to Brahmins, Goswamis, Sanyasis, etc. When the gift was to a holy person it carried with it in terms or by usage and custom certain obligation. Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a “juristic entity” vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same “juristic” capacity, and gifts are made to them eo-nomine. In many cases in Southern India, especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the name of mutt were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application of the funds of the institution, but always subject to certain obligations and duties, equally governed by custom and usage. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode, of enjoyment and the amount of the usufruct, depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a “trustee” in the English sense of the terra, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration.”
23. This decision removed a misconception that the powers and duties of the holders of the offices referred to above were very similar to, if not in all respects the same as, those of “trustees” in the English sense, which bad till then prevailed in India and had found expression in numerous decisions of the Indian Courts. “Words used in some of the previous decisions of the Judicial Committee, wrongly understood, contributed in no small measure to encourage such misconception. In Vidya Varuthi's case their Lordships referred to their earlier decision in Ram Prahas Das v. Anand Das . A.I.R 1916 P.C 256 in which their Lordships had described the mohunt of asthal or mutt as one holding the properties in trust for the mutt, and observed that they had used the term “trustee” in a general sense, as in previous decisions of the Board, by way of a compendious expression to convey a general conception of the obligations attaching to his office, but that they did not attempt to define the term or to hold that the word in its specific sense was applicable to the laws and usages in this country. Their Lordships further pointed out that it was in view of this fundamental difference between the juridical conceptions on which English law relating to trusts is based and those which form the foundation of the Hindu system, that the Indian Legislature in enacting the Trusts Act 2 of 1882, deliberately exempted from its scope the rules of law applicable to Mussalman wakf and Hindu religious endowments. But this decision of the Judicial Committee is still more important for the purposes of the questions which we are now considering, because in it a definite pronouncement was made, as will appear from the portion of the decision quoted above, that so far as religious institutions are concerned they possess a juristic capacity and gifts are made to them eo-nomine and the persons who are heads or superiors of the institutions have ample discretion in the application of the funds of these institutions subject to certain obligations and duties governed by custom and usage, and that in the case of a gift directly made to an idol or a temple the seisin to complete the gift is necessarily completed by human agency, and that the manager or the custodian of the idol of the institution is in almost every case given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending again on usage and custom. This pronouncement clearly shows that the idea of a manager or custodian of the idol or its endowed property having a right to a part of its usufruct, far from being repugnant to the Hindu notion of a religious endowment, is but a normal feature of it.
24. In Vidya Varuthi's case their Lordships referred to certain Madras cases which, though they are not cases of gift to idols, have brought this feature of Hindu religious endowments prominently to relief and are therefore not wholly irrelevant. To some of these and a few others I shall now refer. In Sammantha Pandara v. Sellappa . [1879] 2 Mad. 175., it was observed:
“The property is in fact attached to the office and passes by inheritance to no one who does not fill the office. It is in a certain sense trust property; it is devoted to the maintenance of the establishment, but the superior has a large dominion over it and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution……. We do not of course mean to lay down that there are not mathams which may have been established for purposes other than those we have described nor that the property may not in some cases be held on different conditions and subject to different incidents. We have described the generality of such institutions and the incidents of the property which is devoted to their maintenance.”
25. In Gyana Sambandha v. Kandasami . [1887] 10 Mad. 375., the learned Judges pronounced that the head of the institution held the matham under his charge and its endowment in trust for the maintenance of the math for his own support, for that of his disciples and for the performance of religious and other charities in connexion therewith according to usage. In the case of Vidyapurna Tirtha Swami v. Vidya Nidhi Tirtha Swami . [1903] 27 Mad. 435, Subramania Ayyar, J., and Bhashyam Ayyangar, J., in two very learned judgments and after an elaborate examination of English Institutions which they conceded to be analogous to Hindu maths held that while the Dharmakarta or custodian of a temple is a mere trustee and has no beneficial interest in the endowment but occupies the fiduciary position of a mere trustee, in the case of maths, though there are idols connected therewith the worship of which is quite a secondary matter and the principal purpose of such an institution being the maintenance of a line of competent religious teachers, the Swami or spiritual teacher or Acharjya is a real owner or a life-tenant and not a mere trustee: see in this connexion Sreenivaschariar v. Evalappa Mudaliar . A.I.R 1922 P.C 325, Vidyapurna's case was considered to be in conflict with the two earlier ones cited and accordingly a reference was made to a Full Bench in the case of Kailasam Pillai v. Nataraja Thambiran . [1909] 33 Mad. 265. Two of the Judges constituting the Full Bench held that the incidents attaching to the properties of the endowment depended in each case upon the conditions on which they were given or which might be inferred from long continued and well established usage and custom of the particular institution and it is on them that one could say whether the head of the math was a trustee or a life tenant. The third Judge Sankaran Nair, J., pointed out that in the case of these maths:
“Any surplus that remains in the hands of the Pandara Sannadhi, he expected to utilize for the spiritual advancement of himself, his disciples or of the people. He is not accountable to any one and is not bound to utilize the surplus. He may leave it to accumulate.”
26. And the learned Judge also observed:
“It is also true in my opinion that he is under a legal obligation to maintain the math, to support the disciples and to perform certain ceremonies which are indispensible. That will only be a charge on the income in his hands and does not show that the surplus is not at his disposal……. In the absence of evidence to the contrary the Pandara Sannadhi as such is not a trustee. He is not also a life-tenant for the reason already stated.”
27. In Muthusamiar v. Mathnithi Swamiyar . [1915] 38 Mad. 356, Miller, J., said that amathaathipathi (head of a math) being the owner of an inheritance, is not a tenant for life but is in the position of one who, though in certain sense is owner in fee simple, yet in many respects, has the power of a tenant for life; and Sadasiva Ayyar, J. observed that the position of a mathathipathi is neither that of an absolute heir as he cannot ordinarily alienate the corpus nor that of a mere tenant for life as he represents fully the ownership of the matam properties for certain purposes, and is therefore in many ways analogous to that of the estate of a Hindu female heir to a male's estate. Another case referred to is the case Sattianatha Bharati v. Saravanabagi Ammal . [1893] 18 Mad. 266, in which a village had been granted to the head of a Gossami mutt to be enjoyed from generation to generation and the deed of gift provided that the grantee was to improve the mutt, maintain the charity and be happy; the office of the head of the mutt was hereditary; and from usage it was found that the trusts of the institution were the upkeep of the mutt, the feeding of pilgrims, the performance of worship, the maintenance of a water shed and the support of the descendants of the grantee. Muthusami Ayyar, J. and Best, J., concurring, observed as follows:
“The evidence does not show that in each generation the village was divided subject to the obligation of contributing to the cost of maintaining the charities, or that any portion of the village was specially set apart as trust property and the rest as partible property as would ordinarily be the case if the village were granted for the personal benefit of the grantee and his heirs subject to the fulfilment of certain trusts annexed to the grant. The conclusion to which we come is that the village was granted as an endowment for the mutt and the charities connected with it, and that what might remain after due execution of the trusts was intended to be applied to the maintenance of grantee or his descendants…… The Subordinate Judge considers that only money payments should have been made and no lands ought to have been allotted. We do not concur in this opinion; whether maintenance is provided by an assignment of land or paid in cash from time to time, there is no difference in principle, provided the allotment is purely by way of providing maintenance.”
28. The cases referred to above deal exclusively with the position of the superior of a mutt in relation to its endowment. But their Lordships in Vidya Varuthi's case also referred to certain other decisions respecting the powers of the managers of religious institutions generally. Amongst them one was the case of Mahomed v. Ganpati . [1890] 13 Mad. 277., in which Shephard, J. (Muttusami Ayyar, J., concurring) held as regards the dharmakarta of a temple, that he does not derive his title from his predecessor and is not bound by his acts and that:
“subject to the law of limitation the successive holders of an office enjoying for life the property attached to it are at liberty to question the disposition's made by their predecessors.”
29. In support of this proposition the learned Judge relied upon Papaya v. Ramana . [1894] 7 Mad. 85. (lands attached to and forming the emoluments of the office of a karnam), Jamal Saheb v. Murgaya Swami . [1885] 10 Bom. 34. (lands attached to a matt, but forming the service emolument of the jangam or presiding lingait priest of the mutt) and Madho Koery v. Tehait Ram . [1882] 9 Cal. 411. (lands appertaining to a ghatwali mehal).
30. These cases sufficiently show that some amount of personal interest, wherever it is permissible either by the terms of the grant or by custom or by usage of the institution has never been regarded as militating against the essence of a Hindu religious endowment. Indeed such a position is not merely not in conflict with but, on the other hand, is in entire conformity with Hindu notions. The religion of the Vedas differs widely from the present popular religion of the Hindus and the forms of worship that prevailed in the video age were also widely different rom those prevailing at present under popular practice. Max Muller says:
“The religion of the Vedas knows of no idols. The worship of idols in India is a secondary formation, a later degradation of the more primitive worship of ideal Gods.”
31. Dr. Bollensen is prepared to question the correctness of this assertion on the ground that the texts of the vedic hymns contain clear reference to images of the Gods. But as Pandit Prannath Saraswati has pointed out:
“It is not necessary to enter into any detailed examination of these texts, but it will be sufficient to say that they do not necessarily and irresistibly lead to the desired conclusion, but are quite susieptible of the meaning, quite in harmony with the traditions of oriental commentators and with the opinion deliberately expressed by so eminent an authority on the Vedas as Max Muller. The Gods are described in the hymns with many human attributes, a necessity of the human mind and language, but it does not necessarily follow therefrom that images of these Gods clothed in such human attributes were artificially prepared and worshipped: Tagore Law Lectures 1892, p. 36.”
32. The learned Pandit has said however that in later vedic lierature there is unequivocal evidence of the existence of images of Gods and temples raised for their accommodation (Ibid p. 38). Another learned commentator on Hindu Law Mr. J.C Ghose, whose commentaries on Hindu Law have often been referred to in Indian decisions and were also relied upon by the Judicial Committee in Vidyavaruthi's case has said:
“It is only from the time of Buddha that we find mention of temples, monasteries, hospitals for men and beasts and of endowments for religious and charitable purposes * * * There were no images of Budha during his lifetime. But after his death, the introduction of tantrikism both in Buddhism and Hinduism led largely to the erection of temples and setting up of images: Tagore Law Lectures, 1904, Vol. 2, p. 19.”
33. Whatever might have been the exact forms of Hindu endowments at different periods of history, what Mr. Mayne appears to have said in his Hindu Law and Usage (para. 393) as their origin, namely, that gifts to religious and charitable purposes were naturally favoured by the Brahmins as they are everywhere the priestly class, can hardly be maintained. It has demonstrated by Hindu jurists of eminence that the present system of Hindu endowments is the evolutionary product of the religious history of the people from the most ancient times and its roots can be traced back even to the Vedas. Their genesis may be traced to a more natural source, that is to say, the common feelings of human nature, namely, charity, and the desire to acquire religious merit. The sages of yore made a distinction between ishta or sacrificial gifts, and purta or charity, and they said that the former led to heaven and the latter to salvation (Ishtena labhatey Swargam Purtenamoksham apnuat), and in that way placed charity on a higher footing than religious ceremonies and sacrifices. The distinction between religious and charitable endowments so far as the State and the Courts were concerned is of comparitively modern origin.
34. In one of the cases already cited Vidyapurna v. Vidyanidhi, a distinction was drawn between temples and mutts, it being held that the custodian of a temple is a mere trustee, the property being deemed vested in the presiding God treated as a juristic person but the head of a mutt is not a mere trustee but a “Corporation sole” having an estate for life in the permanent endowments of the mutt and an absolute property in the income derived from its offerings subject only to the duty of maintaining the institution. Jurists have pointed out that the idea of corporate bodies or “corporation sole” is not to be found in the Smritis though in West and Buhler's Hindu Law (see pp. 185, 201, 553, 556), it is said that Hindu Law, like Roman Law and those derived from it, recognizes not only corporate bodies with rights of property vested in the corporation apart from its individual members, but juridical persons or subjects called foundations: see also Manohar Ganesh v. Lakshmiram Gobindram . [1887] 12 Bom. 247.. Unfortunately, in Courts which are familiar with doctrines of western jurisprudence, Roman legal conceptions and English notions of trust permeated a good deal too freely into the law of Hindu religious endowments taking of course the expression to include charitable endowments as well. Endowments and trusts were unknown in early times, and yaga which, according to the Mim-ansa, is the parting of a thing that it might belong to the deity, was all that one cared for, offering it to the fire to which was entrusted the duty of carrying it to the gods after making them fragrant. Gifts to charities were made out and out and as Mr. J.C Ghose has observed:
“When this once universal practice of the fire fell into disuse, and images of deities came into vogue, the performance of their daily worship became an object which had to be secured by those who sat it up. It was necessary to preserve the property dedicated and not to throw it to the fire, and endowments had to be created. But originally there were no trust deeds. Certain ceremonies were prescribed for making the offering or dedication, amongst, which the pouring of a libation of water was indispansible among Hindus and Buddhists (Tagore Law Lectures, 1904, Vol. 11, p. 91.)
35. In later times Hindu law made property dedicated for pious uses, impartible. Of this reference is to be found in various texts and authorities which are found collected in Pundit Prannath Saraswati's Hindu Law of Endowments (Tagore Law Lectures 1892, pp. 177 and 179) and there is also to be found there a discussion as to the meaning of the expression Yoga Kshemam, in Mann IX, 219, about which there is a considerable conflict, some authorities maintaining that the expression indicates the notion of a fund for religious or charitable purposes and others denying that is the meaning of the expression. It is unnecessary to go into the details of this controversy here. Religious endowments or debutter are of two kinds, public and private. In a public endowment the dedication is for the use or benefit of the public. But when property is set apart for the worship of a family god in which the public are not interested the endowment is a private one. Courts have given effect to results logically following from such a distinction. For instance, in Kunwar Doorganath Roy v. Ram Chunder Sen . [1876] 2 Cal. 341 the Judicial Committee observed:
“When the temple is a public temple the dedication may be such that the family itself could not put an end to it; but in the case of a family idol, the consensus of the whole family might give the estate another direction.”
36. Chatterjea and Page, JJ. in the case of Chandi Charan Das v. Dulal Chandra . A.I.R 1926 Cal. 1083 held that in order to convert the absolute debutter property of a family Thakur into secular property it is necessary and that a consensus of all persons interested in the worship of the deity including all the members of the family, male and female, should be obtained, but doubted whether Konwar Doorganath Roy's case was not incompatible with the true spirit that moves a pious Hindu to make such a debutter and in Mr. Golap Chandra Shastri's well-known, book on Hindu Law (p. 778) it has been cynically put, as a corollary following from this decision of the Judicial Committee that if all the members of the family renounce Hinduism and choose to throw the family god into the waters of the Ganges, and themselves enjoy its property, no outsider can raise any objection, the endowment being a private one. That the family god is not so very helpless has, fortunately been held by the Judicial Committee in Pramathanath Mullick v. Pradyumna Kumar Mallik . A.I.R 1925 P.C 139. This distinction however is not to be found in the original texts of Hindu law and is a distinction of comparatively recent origin, based no doubt on sound principle and necessitated presumably by change of social conditions.
37. To find out the real incidents attaching to shebaitship one must investigate into the question as to what is the true effect of dedication of property in Hindu law. The principles underlying the dedication are the same both in the case of institutions and in the case of idols though the details of the rituals are different and diverse. The two cardinal essentials are the Sankalpa or the formula of resolve and the Utsarga or the renunciation. By the dedication the donor divests himself of his proprietary rights absolutely, but so long as there is no appropriation of the property for the purpose for which it is dedicated there is an obligation on him to see to its preservation, and accordingly a corresponding right of control so long as the property itself exists. The erudite scholar Mandalik in his Hindu Law Appx. 2, p. 337, on Public Charities, says thus:
“The repair and control of the things thus dedicated, and the ownership of which has been renounced, generally vest with the renouncer according to the usage of the country. Mitra Misra in the Viramitrodaya, Vyavaharadhyay in discussing the ownership remarks as follows:”
“But ownership, so far as protection is concerned, does exist in the donor even when his ownership, consisting of the power of disposition at pleasure, has been withdrawn (by renunciation) until the final accomplishment of the purpose of the donor, who seeks a certain merit according to precepts (on gifts); for the act imported by the word gift will not be complete until the ownership of another has arisen. The ownership will in this instance (exist) in the same way as (it does in) the case of substances sacrificed, lest sin arising out of the prohibitions about their being touched by prohibited (animal or person) should stick (to the sacrifice). In this way, (i.e, on the above hypothesis), the possibility of a stranger appropriating (a thing given in the former case) and of the forbidding (an unclean touch) being precluded (in the latter case) will not arise, although the ownership of another (viz., the donee) has not arisen in the thing given. The practice of the learned too in both cases in respect of protection is based on that (limited kind of ownership which has been referred to before). The above supports the usage of the country as to the dedicator's rights in regard to a sort of guardianship over the thing dedicated.”
38. The dedicator no doubt gives up all his rights, so much so that in the case of a tank which is dedicated some say that the water which has been renounced should be given up by the renunciator and not used by him, like the agneya purodasa (a certain portion of the boiled sacrificial rice), but others say that since the renunciation has been in view of all beings including himself, and therefore he is one of the objects indicated, the non-inclusion of one's self would lead to his love for the work being lost and therefore he should use the water; and the same is the case with fruits produced in a renounced grove. (Ibid, p. 336 quoting Mayukha). As regards an idol after it has acquired existence as a juridical personage the sankalpa or the resolve makes the deity himself the recipient of the gift, and the utsarga divests the donor of his proprietorship; though by judicial decisions it is now settled that the principle of Hindu law which invalidates a gift other than to a sentient being capable of accepting it, does not apply to a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's death and does not make such a bequest void: see Bhupatinath v. Ram Lal . [1910] 37 Cal. 128, Deeds not being in use, it was one form of dedication that applied to all endowments, public and private, the effect whereof was to transfer the property dedicated form the donor to the donee, the deity. But this analogy of a human transfer need not be carried too far, for the deity is not in need of property, nor does it hold any: what is given to the deity becomes available to all.
39. The deity is the recipient of the gift only in an ideal sense; the dedicated property belongs to the deity in a similar sense; in reality the property dedicated is in the nature of an ownerless thing. In ancient times except in cases of property dedicated to a brotherhood of Sanyasis all endowments ordinarily were administered by the founder himself and after him his heirs. The idea of appointing a shebait is of more modern growth. When a Hindu creates an endowment, its management is primarily in him and his heirs, and unless he appoints a shebait he himself fills that office and in him rests that limited ownership, notwithstanding that, on the one hand, he is the donor and, on the other, the recipient on behalf of the deity, the juridical person which has to be exercised until the property offered to the deity has been suitably disposed of. The true principle of Hindu law is what is mentioned in the Chhandogya Upanishada, namely, that the offerings to the Gods are offerings for the benefit of all beings (Ch. 5, p. 24 K 2-5) and Baghunandan has quoted a text of Matsya Sukta which says:
“Having made offerings to a God the sacrificial fee also should be given to the God. The whole of that should be given to a Brahmin, otherwise it is fruitless.”
40. In the distribution of prasad and matters of that character, the shebait has in practice a very large discretion. The discretion must necessarily from the very nature of things be much larger in the case of a private than in the case of a public debutter. This idea of limited ownership is the essence of the position of the manager or custodian of a dedicated property, by whatever name he may be called. That this idea is the only basis on which decisions of the highest authority as regards the rights and powers of shebaits may be justified will be seen hereafter when some of these decisions will be referred to.
41. But before referring to these decisions it will be convenient to deal with an argument which has been put forward on behalf of the appellant and which has got to be bery carefully considered. The argument is that under Hindu law property is either Bhu (land), Nibandha (translated as corrody) and Drabya (thing), that slaves inasmuch as they go with land are classed with bhu which is land or immovable property, that drabya is moveable property, and certain hereditary offices carrying emoluments are classed under nibandha; but that the office of a shebait which carries no emolument at all cannot be classed within the category of nibandha. Certain texts from Yajnavalkya and Dayabhaga were cited in support of this contention, and some cases also have been referred to. The cases may be dealt with first. In Keshavbhat v. Bhagirathibai . [1865] 3 Bom. H.C.R 75., which was a suit by the widow of one of the descendants of the grantee of a varshangam or annual allowance paid from the Government Treasury for the performance of religious service in a Hindu Temple to recover the arrears due to her husband's branch of the family from another descendant who had received the whole stipend, all that was decided and has any bearing on the question before us was that by the usage of the family the duties of the office had been performed in rotation and the stipend distributed amongst the descendants of the grantee in certain fixed proportions and that it was not competent to the defendant to raise the question of non-divisibility of the varshanam. In Raiji Manor v. Desai . [1869] 6 Bom. H.C.R 56., it was held, following Makarana Fatesinghji v. Desai . [1866] 4 Bom. H.C.R 189., which was the case of a todagiras hak and was good law till then, that where a hak is not charged upon or payable out of land, a suit for its recovery must be brought within six years from the last payment made on account of it. The hak in that case was a pagdi allowance which was not payable out of land. The question in that case was whether the hak was money or immovable property for the purposes of limitation prescribed by Act 14 of 1859.
42. In Krishnabhat v. Kapabhat . [1869] 6 Bom. H.C.R 137., a similar question of limitation arose and it was held that in a suit between Hindus the office of hereditary priest to a temple though not annexed to or held by virtue of ownership of any land, yet being by Hindu law classed as immovable property should be held to be immovable property within the meaning of the Limitation Act. The authorities in the shape of Sanskrit texts cited before us on behalf of the appellant are referred to in the judgments of Couch, C.J, and Gibbs, J., in that case. In Balvantrav v. Purshotam . [1872] 9 Bom. H.C.R 99. a similar view was taken as regards fees payable to the incumbent of an hereditary office of a village Joshi. The case was decided by a Full Bench over which Westropp, C.J, presided and the meaning of the term immovable property as used in Hindu law was elaborately discussed by him. In Government of Bombay v. Goswami Sri Giridharlalji . [1872] 9 Bom. H.C.R 222., it was held that in considering with reference to a prescription whether an allowance not being incidental to hereditary office is or is not immovable property the Bombay High Court had generally followed the test:
“Is or is not the allowance a charge upon land or other immovable property?”
43. In all these cases the subject matter was brought within the meaning of the word “nibandha,” which in Hindu law ranks with immovable property. The subject matter of these cases however, were either allowances or hereditary offices to which emoluments are attached, Maharana's case went up to the Judicial Committee. It was heard in 1873 after all the aforesaid cases of the Bombay High Court had been decided and their Lordships observed thus:
“Whether a toda giras hak be nibandha within the strict sense of the term is, in their Lordships' opinion, a question not free from doubt. The original test of Yajnavalkva' which is the foundation of all the other authorities cited by Westropp, C.J implies that the subject rendered by the word corrody in 2 Colebrook's Digest, placitum 24, is sometimes created by royal grant. This, too, is included in Professor Wilson's definition of nibandha. That the word in the subsequent glosses on Yajnavalkya's text is used in a wider sense may be due to the want of precision for which Hindu ??? are remarkable. It is however unnecessary to consider this point because their Lordships are of opinion that the question whether toda giras hak is an interest in immovable property within the meaning of Act 14 of 1859 is one which ought not to be determined by Hindu law.”
44. Subsequent to the decision of the Judicial Committee quoted above, a question of limitation again arose in the Bombay High Court in connexion with an annuity granted by a Hindu Sovereign, the Peishwa, to a Hindu temple which was not made a charge upon the land. The two learned Judges in that case differed in their interpretation of the observations of the Judicial Committee in the aforesaid case. Sargent, J., was of opinion that the question should be determined upon the meaning of immovable property as understood in Hindu law notwithstanding the decision in Maharana's case, while Melville, J., took a contrary view. This difference does not concern us. But, Sargent, J., held that it is the fixed and permanent character of the allowance, from whatever source derived which by Hindu law entitles it to rank with immovables and if the grant could be deemed to be one in perpetuity and the fund out of which the perpetual allowance was derived forms a permanent source the allowance has all the characteristics of permanency and durability which is essential to bring it, according to Hindu law, within the term immovable property. He held that such allowances came within the meaning of the word nibandha, Melville, J., referred to the proposition laid down by the Judicial Committee in Maharana's case:
“Their Lordships think that the applicability of particular sections of this general statute of limitations must he determined by the nature of the thing used for, and not by the status, race, character or religion of the parties to the suit.”
45. And then observed:
“But there may be cases in which the test prescribed by the rule fails or is very difficult of application; and then will come in the operation of the exception to the rule and it may become the duty of a Court to seek for guidance in some arbitrary definition contained in the religious law of the claimant. Conspicuous among such cases (and, indeed, it is the only case in which the Judicial Committee has expressly approved of the application of the exception) is an instance of a hereditary office in a Hindu Community incapable of being held by any person not a Hindu. It is clear that this is a kind of incorporeal heriditament which it would be very difficult to classify with reference to the connexion of a particular hereditary office with land. Such a classification may be possible in rare instances in which questions regarding hereditary offices or dignities may arise in England (Co. Litt 20 a) but the multiplication of hereditary offices of every description is a peculiarity of Hindu communities, and most of them are of such a character that it would be scarcely possible to say whether they savour of the reality or net. In every considerable Deccan village there are at least twelve such offices, and a Court might well find it impossible to determine, upon general principles and without reference to Hindu Law, whether the office of a hereditary blacksmith, potter or astrologer is or is not immovable property.”
46. With all deference to the argument based on the authority of these cases I must say I do not see that such an argument leads us anywhere. Assuming that a hereditary office to which no emolument is attached or to which no emolument arising out of land is attached is not nibandha under the Hindu law and so, on that ground, is not immovable property under that law, whit has yet to be considered is whether the right of a shebait is property in the sense in which property is understood in Hindu law. Macnaughten in his Principles and Precedents of Hindu Law, Vol. 1, p. 1 says:
“Property according to the Hindu law is of four descriptions real, personal, ancestral and acquired. I use the term real and personal in preference to the terms moveable and immovable, because although the latter words furnish a more strict translation of the expression in original yet the Hindu law classes amongst things immovable, property which is of an opposite nature, such as slaves and corrodies or assignments of lands.”
47. He has quoted Jagannatha, Digest Vol. 2 where it is said, following the Nyaya doctrine, that:
“ownership is a relation between cause and effect, attached to the owner who is predicated of a particular substance, and subsisting in the substance by connexion with the predicable.”
48. An unlimited or an unrestricted power to deal with or of disposal over the thing is not necessarily an incident of the right to property in Hindu law. On the other hand, as-Strange in his slements of Hindu Law, 1825 Edition, Vol. 1, p. 14, has pointed out. The principle that seems to pervade the Hindu Law is that all property is held in trust not for the exigencies of the State merely, but for those of a man's family, in so much that proprietary right cannot be said to be inherent in a Hindu but with considerable limitation and restriction. Though the element of limitation or restriction is carried to a greater degree in the case of that kind of right which the head of an endowment or a shebait exercises over endowed property, the right is none the less a kind of property, which the Hindu law, as far as may be gathered, has never refused to recognise. Whether a restricted or a wider meaning should be given to the word “Nibandha” is a matter which we need not inquire into, for on that point opinions differ and differ very considerably. But I can find no authority for the proposition that the limited ownership which a shebait in ordinary cases exercises over debutter property is not property in the eye of Hindu Law. On the other hand there is ample authority the other way. In Elberling's Treatise on Inheritance p. 96, para. 205, it is said:
“Privileges and rights belonging to the family are generally heritable and divisible amongst the heirs, like other property, endowed lands and property given to Pagodas, Thakoors, or for other religions and public purposes are not heritable, as the property belongs to the Debta of the institution; such property cannot therefore be divided, and if a division has been made, it is void. But the surplus of the income, after all proper and necessary expenses have been defrayed may be divided by the heirs according to their respective shares.”
49. It has already been observed that the distinction between public and private debutter is a thing of comparatively modern growth. In Strange's Hindu Law, 1825 Edition, Vol. 2, p. 302 is to be found the opinion of Mr. Colebrooke:
“The hereditary privileges of the family, with the income arising from them, are divisible amongst heirs like other patrimony, under the general rules of inheritance. At most of the religious establishments of the Hindus, and at their great temples, the various offices attached to them are considered as hereditary, together with perquisites belonging to them.”
50. The question as to what is the nature of the rights which the founder of a religious endowment or his heirs are competent to exercise over the property of the endowment appears to have been canvassed in some of the earlier decisions of this Court, e.g, The elder widow of Raja Chutter Sein v. His Younger Widow . [1806] 1 Sel Rep. S.D.A 180., Jagat Chunder Sein v. Krishwanand . [1814] 2 Sel Rep. S.D.A 126., Radha Bullab Chandra v. Juggat Chunder Chowdre . [1826] 4 Sel Rep. S.D.A 151. Kessnanund v. Nursingh . [1863] 1 Marsh 485.. Not much assistance can be derived from the decisions in these cases. In Rudha Bullab Chandra's case an investigation was seriously started to find out the exact nature of the rights, but eventually it came to nothing, because the opinions of the Pundits who were consulted were conflicting and the Court, suspecting that the Hindu law was entirely silent on the subject preferred to decide the case under the Regulations and the previous Vyavasthas. In Kessnaund's case it was observed that it was competent to persons upon whom the management of lands dedicated to religious purposes devolved to separate by mutual consent and form distinct religious establishments and that it was no breach of the trust for religious purposes, if the manager with the funds in his possession formed an independent religious establishment. It was said that such an act may have been an infraction of the rights of property, but did not amount to the seizing of the subsistence of priests within the meaning of the text of Adi Puma cited in Colebrook's Digest, Book 2, Ch. 4, S. 2, Article 37. It was observed that the manager as shebait, may not have possessed an estate in the property of the original foundation sufficient to enable him to bind his successor by a gift but the question between his successor of the gudee and the shebait of the newly formed establishment was a mere question of property.
51. The decision last mentioned, in my opinion, sufficiently negatives the contention that shebaitship in Hindu law is a mere office and no property and on the other hand sufficiently establishes that having regard to the rights which ordinarily attach to the office of a shebait, the office and the property of the endowment go together and that when it is a question between two persons one claiming and the other disputing a right to be the shebait, the question is a question of property. To pass on to later cases. A suit for the partition of the right to perform the religious services of an idol has always been regarded as a suit for partition of property. Couch, C.J, in the case of Mitta Kanth Adhikari v. Neerunjan Adikhari . [1874] 14 B.L.R 166 said:
“I think that the reasons for which it has been held that one of such joint owners of property is entitled to a partition apply to this case. The circumstance that it is a right to perform the worship of the idol is not one which deprives any of the joint owners of the right to a partition which, compels the Court to say that they shall be obliged to perform the service jointly and to undergo the many inconveniences which might arise from such a state of things.”
52. Another passage from the judgment of Couch, C.J, in this case has been quoted with approval by the Judicial Committee in the case of Pramatha Nath v. Pradyumna Kumar. It runs thus:
“The suit is founded on the right of the plaintiff, as property, to a partition. No doubt the plaintiff is entitled to that.”
53. The religious office itself of course cannot be the object of sale, and jewels and other materials used in religious worship, to custody of which the alleged vendor is entitled and to the careful custody of which he is bound, are by all systems of law and by the Hindu law more emphatically than by any other, absolutely extra commereium: see Rajah Varma Valia v. Ravi Varma Kutty . [1873] 7 M.H.C.R 210.. In the absence of custom or usage to the contrary a right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder: see Rajah Vurmah Valia v. Ravi Vurmah . [1876] 1 Mad. 235 and other cases sited at p. 189 (of 20 C.L.J) in the judgment of this Court in Mahamaya Debi v. Haridas . A.I.R 1915 Cal. 161. But palas or turns of worship may be by custom heritable, divisible and bequeathable, the heir who iuherits being male or female, and they may also by custom be transferable with certain restrictions, as in the case of the Shrine at Kalighat where the custom of such transfers is confined to the co-shebaits or the members of families to whom a shebait can give his daughter in marriage: see Mahamaya Debi v. Haridas. It is the essence of a family endowment amongst Hindus that no intruder shall be permitted to intrude himself into the management of the endowment and on the death of a member who enjoys the right to a turn of a worship and other privileges devolve on the other surviving members of the joint family Ukoor Das v. Chunder Sekhar Das . [1865] 3 W.R 152.. In a family governed by the Mitakshara law a person on his birth becomes entitled jointly as shebait of debutter property held by the family: Ram Chandra Panda v. Bam Krishna Mahapatra . [1906] 33 Cal. 507..
54. Gifts of shebaitship in favour of a co-shebait has been recognized, Radharani v. Doyal . A.I.R 1921 Cal. 785, though this is not allowed except on the ground that such a transfer is for the benefit of the endowment Govinda v. Debendra . [1907] 12 C.W.N 98., and in the case of Tripurari Pal v. Jagattdrini Dasi . [1912] 40 Cal. 274 Lord Maenaghten spoke of a clause in a will that he had to construe as meaning an absolute gift of the shebaitship, though the words in the will were only these:
“My present begotten son Mukunda Murari will be shebait for the performance of the ceremonies.”
55. His Lordship overruled the interpretation which the High Court had put on the document that a right to shebaitship for life was meant and held that the absolute gift was not cut down by anything that followed. The right of management may form the subject-matter of a family arrangement and if the manager has taken its benefit the arrangement is upheld by the Court: Ramanathan Chetti v. Murugappa Chetti . [1906] 29 Mad. 283. The right to the office of a shebait may, no other difficulties standing in the way, for all practical purposes be acquired by adverse possession. As an instance of this may be cited the case of Jagannath Das v. Birbhadra Das . [1892] 19 Cal. 776. which was a suit to oust a shebait from his office the appointment to which had been made by nomination and in which Prinsep and Banerjee, JJ., held that if no suit is brought within the period prescribed by Article 120, Sch. 1, Lim. Act, the shebait would by reason of his holding the office for that period acquire a complete title for the purpose of any litigation, or anything connected with affairs of the endowment. The right to the land such as a shebait has is only secondary to and dependent on his office and if the right to recover the office is barred the right to recover the land is also birred: Tamrairazu v. Pantina . [1872] 6 M.H.C.R 301., Kidambi Raghava Chariar v. Tirimalai Asari . [1902] 26 Mad. 113.. It is in the shebait and not in the idol that the right of suit in respect of the endowed property vests and he it is whose minority counts for the purposes of law of limitation: Maharaja Jagadindra Nath Roy v. Hemanta Kumari . [1901] 32 Cal. 129.
56. Broadly speaking there are three kinds of endowments that may be had in respect of a private debutter: (1) where the whole property and its income are directed to the idol: (2) where properties are dedicated to the idol but a portion of the usufruct is given to the beneficiaries including the shebait and (3) where the secular property is charged with the expenses of the worship of the idol. The extent of the right which a shebait enjoys in respect of each of these classes of endowment is different, but I venture to think that the nature of the right in respect of all these classes is fundamentally of the same character. In some cases he has a larger discretion than in others and in some cases again he has also a proprietary right to the usufruct or a part of it upon the very terms of the endowment which he-has not get in others but in all each cases he has as such shebait certain rights of a limited character in the endowed property. It is not quite easy in all cases to determine within which of the three classes aforesaid the endowment falls. A gift may be addressed to a particular person and it may be provided that out of the income of certain properties he should perform the worship of certain family idols. In such a case, if no provision for a permanent arrangement has been made it may be inferred that there was no gift express or implied to the idols: see Gopal Lall v. Purna Chandra . A.I.R 1922 P.C 253. Speaking of the nature of these private endowments, Sir Arthur Wilson in his judgment in the case of Maharaja Jagadindra Nath Roy v. Rani Hemanta Kumari observed:
“There is no doubt that an idol may be regarded as a jurdicial person capable as such of holding property, though it is only in an ideal sense that property is so held and probably this is the true legal view when the dedication is of the completest character. But there may be religious dedication of a less complete character.”
57. The cases of Sonatun Bysack v. Jugut Sundari Dossee . [1859] 8 M.I.A 66 and Ashutosh Dutta v. Doorga Churn . [1879] 5 Cal. 438 are instances of less complete dedications in which notwithstanding a religious dedication property descends (and descends beneficially) to heirs subject to a trust or charge for the purpose of religion. Their Lordships desire to speak with caution, but it seems possible that there may be other causes of partial or qualified dedication not quite so simple as those to which reference has been made. But assuming the religious dedication to have been of the strictest character it still remains that the possession and management of the dedicated, property belongs to the shebait.
“And this carries with it the right to bring, whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait and not in the idol.”
58. It is not the words of the deed of endowment but rather its effect that one has to construe in trying to find out to what extent the dedication is interacted to be complete or absolute, and no fixed rule can be laid down as applicable to the construction of endowments. In a case in which there was no deed, namely, the case of Ram Prakas Das v. Anand Das their Lordships said:
“But these rules, so to be inferred, must not is their Lordships view be inconsistent with or repugnant to the very nature and purpose of the, endowment.”
59. For instance in the case of Jadunath Singh v. Sita Ramji . A.I.R 1917 P.C 177, the Judicial Committee, while holding that the deed in that case should be read just as it appeared, observed:
“If the income of the property had been ??? a question might have been raised, in tilt ??? as throwing some doubt upon the integrity of the settlor's intention, but as the entire income is only Rs. 800, it is obvious that the payment to these ladies is of the most trifling kind and certainly not an amount which one would except in a case of this ??? There, is, in the beginning, a clear expression a intention to apply the estate for the benefit of the idol and the temple, and then the rest is only a gift to the idol ??? by a direction that of go to the whole which had already been given part is to be applied to the upkeep of the idol itself and the repair of the temple, and the other is to the upkeep of the managers. There was no reason why the dispenser should not nominate the member of his family as his managers, as he has done so and there is nothing in that which militates against the propriety of his ear-marking a certain part of the money to remunerate them as managers so long as they should so continue.”
60. So in the case of Har Narayan v. Surja Kunwari . A.I.R 1921 P.C 20 their Lordships said that:
“in determining whether the will of a Hindu gives the testators estate to an idol subject to a charge in favour of the heirs of a testator or makes the gift to the idol a charge upon the estate, there is no fixed rule depending upon the use of particular terms in the will; the question depends upon the construction of a will as a whole and that the circumstances such as that the ceremonies to be performed were fixed by the will and would absorb only a small proportion of the total income may indicate that the intention was that the heirs should take the property subject to a charge for the performance of the religious purposes indicated.”
61. This case is my opinion is a clear authority or the proposition that notwithstanding a dedication in favour of an idol of an entire estate a reservation of a portion of the income of the endowed estate for the remuneration of the manager will not invalidate the endowment either as a whole or as to the extent of the income so reserved. So also, it has been held by the Judicial Committee in the case of Ganendra Nath Das v. Surendranath Das . A.I.R 1920 P.C 27 that a provision for the residence of the shebait in a part of the endowed property set apart for the family idols is a perfectly valid and reasonable provision. In an unreported judgment of this Court citad in Mr. J.C Ghose's Hindu Law, Vol. 1, p. 936, Banerji, J., said on a construction of a grant that though:
“It is true that the grant in one place says that the village is made debutter property of the idol and though it is also tree that the document further provides that if it discovered that the grantee is neglecting ??? he will be dismissed when on ??? the ??? of the thing one gads that the, enjoyment of the usufruct is left with the grantee and his successors ??? the property was held to be the property ??? grantee and his successors subjects to the, ??? of certain duties.”
62. That ??? though a grant is not a personal grant but Primarily intended for the ??? there can be a interest ??? the grantee and his ??? is administered sufficiently recognised in the following decisions Kolandi v. Sankara . [1882] 5 Mad. 302., Rupa Jagshet v. Krisknaji Gobinda . [1984] 9 Bom. 169., Bishon Chand v. Nadir Bossen . [1887] 15 Cal. 329 at p. 339, Bhvggobutty Prosanno Sen v. Guru Prosanna Sen . [1898] 25 Cal. 112.; Mahim Chand Shankar v. Hara Kumar Das . [1915] 42 Cal. 561 and other cases too numerous to mention. Of course if there are specific trusts the shebait will have to carry them out to the letter, or if any specified amounts are to be spent-for some particular items of worship they too have to be spent in the manner directed but if the only provision is that the worship is to be carried on the shebait so long as be does carry them on the accordance with the usage of the particular debutter or such custom as may have attached thereto and has not committed acts which may amount to maladministration or mismanagement must naturally have a very large discretion as to what to spend and in what way. The expenses to be incurred must of course be consistent with the dignity of the endowment. The deity would not take or consume anything and to take an extreme case of offering the in come to the worship of the deity, the shebait distributes it amongst the beneficiaries there is hardly any reason to say that he has not discharged his duty.
63. This is why in the case of family endowment of the present nature it has sometimes been said an account from the shebait is impossible. An idea of the extent to which shebaits can think of going may well be gathered from what was claimed on behalf of the shebaits of a public endowment in the well-known, Dakor case Manohar Ganesh v. Lakhmiram Govindram and was fortunately-overruled by West, J., though on the, analogy of the law of trusts. I am not, suggesting for a moment that the decision is not absolutely correct even apart from the law of trusts but only quoting, an extract from the judgment to show the character of the claim:
“The defendants take the position that they as a body are the owners for all secular ??? of the idol whom in the spiritual sense they ???. The offerings made at the shrine, the cattle ??? even the land presented by devotees are they ??? their property free from any secular ??? as none has ever in practice or in the intention of the donors been annexed to the gifts by which religious merits was sought and gained. They held the properties thus acquired and have for centuries held it as a sort of sacred guild with thereditary succession to the several members. It is not held on any trust for the support of ceremonies or with any obligation annexed to it that can be enforced in any secular Court. The duty of providing a regular worship of the deity is of a purely moral kind which they discharge merely to satisfy their consciences only the nature and limits of which have never been settled otherwise than by their own will and judgment.”
64. I should not however be understood as suggesting that even the shebaits of a private endowment can ever be permitted to go so far. Nowhere have the duties of a shebait in his relation to the worship of the deity been more vividly enumerated than in the judgment of Mookerji, J., in the case of Rambrahma Chatterji v. Kedar Nath . A.I.R 1923 Cal. 60 He says:
“We need not describe in detail the normal type of continued worship of a consecrated image, the sweeping of the temple, the process of smearing, the removal of previous day's offerings of flowers, the presentation of fresh flowers, the respectful oblation of rice with flower and water and other like practice, it is sufficient to state that the deity is in short conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servants. The daily routine of life is gone through with minute accuracy the vivified image is regaled with the necessaries and luxuries of life in due succession even to the changing of clothes, the offering of cooked food and the retirement to rest.”
65. He is the manager of the idol's properties and is the ministrant and custodian of the idol itself.
“The person founding a deity and becoming responsible for these duties is de facto and in common parlance called shebaits. The responsibility is of course maintained by a pious Hindu either by the personal performance of the religious rites or as in the case of Sudras… by the employment of a Brahmin priest to do so on his behalf. Or the founder any time before his death or his successors likewise may confer the office of shebait on another”: Pramatha Nath Mullick v. Pradyumna Kumar Mullick.
66. Appointed by the founder of the endowment in whom and whose heirs all these duties lie he is but an “attorney” and not unhappily is that word used in the will that is under consideration. As was said by Lord Hobhouse in Greedhareejee v. Rumanlollji . [1889] 17 Cal. 3:
‘According to Hindu law when the ownership of a Thakur has been founded the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it other wise or there has been some usage course of dealing or some circumstances to show a different mode of devolution.”
67. And as the Judicial Committee has pointed out in the case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick a similar principle appears in Jagannath Prosad v. Runjit Singh . [1897] 25 Cal. 354., Sheoratan Kunwari v. Ram Pargash . [1896] 18 All. 227 and Jai Bansi v. Chattar Dhari Singh . [1870] 5 B.L.R 181. Peet Kunwar v. Chatter Dahri Singh . [1870] 13 W.R 896.. That this rule must from the very nature of the right be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship is emphasised by the decision of the Judicial Committee in the case of Mohan Lalji v. Gordhan Lalji . [1913] 35 All. 283. In the case of Ramanathan Chetti v. Murugappa Chetti in which the office of manager of a Hindu temple was vested by inheritance in eight male descendants of the last holder by his two wills, four by each, Lord Maenaghten said:
“The manager is by virtue of his office the administrator of the property attached to it. As regards the property the manager is in the position of a trustee. But as regards the service of the temple and the duties that appertain to it he is rather in the position of the holder of an office or dignity which may have been originally conferred on a single individual, but which in course of time has vested by descent in more than one person.”
68. It has now been held by all the Indian Courts that when the shebaitship does revert to the heirs they have the right to nominate a fresh shebait, presumably on the ground that the right of nomination is appurtenant to the right of management: see Boidyo Gouranga Sahu v. Sudevi Mata . [1916] 40 Mad. 612. Where however a course of devolution has been proved which makes it certain that the usage his not been according to the ordinary rules of Hindu law a plaintiff seeking to be declared a shebait cannot succeed under such rules: Janoki Debi v. Sri Gopal Acharjya,75. Shebaitship in its true legal conception involves two ideas: The ministrant of the duty and its manager, it is not a bare office but an office together with certain rights attached to it. A shebait's position towards the debutter property is not similar to that in England of a trustee towards the trust property, it is only that certain duties have to be performed by him which are analogous to those of trustees. In Prosonna Kumar Debya v. Golap Chand Babu . [1875] 2 I.A 145 P.C. their Lordships did not say that the powers of a shebait are in all respects the same as those of the manager of an infant heir as defined by Knight Bruce, L.J, in Hunooman Pershad Panday v. Mt. Babooe Munraj Koonweree . [1856] 6 M.I.A 393, but only this that in this respect, namely, in respect of the power to bind the idol's estate by making a loan, that such power was analogous to that of the manager of an infant heir and their Lordships further said:
“It is only in an ideal sense that property can be said to belong to an idol; and the possession and management of it must in the nature of things be entrusted to some person as shebait or manager. It would seem to follow that the person so entrusted must necessarily be empowered to do whatever may be required for the service of the idol, and for the benefit and preservation of its property at least to as great a degree as the manager of an infant heir.”
69. Sufficient has already been said before to establish that the shebait deals with the property in his custody or management as if he has some property, though not the full rights of property, in it, the legal property vesting in the idol though he cannot alienate the property of the deity except for legal necessity he may create proper derivative tenures and estates comfortable to usage [Maharani Shibessuri Debi v. Mothooranath . [1869] 13 M.I.A 270] and an alienation without necessity will enure only for the period of the tenure of his office: Abhiram Goswami v. Shyama Charan Nandi . [1909] 36 Cal. 1003, Palainappa Chetty v. Devasilcamony Pandara . A.I.R 1917 P.C 33 and Vidya Varuthi v. Balasami as though he were a limited owner. It is in him and not in the idol that the right of suit is vested and it is his minority that counts for the purpose of limitation: Maharaja Jagadindra Nath v. Hemanta Kumari. In the case of Greedhareejee v. Raman Lolljee in which a person, as plaintiffs claimed to be a rightful shebait and as an incident thereto claimed the things which had been offered to the idol and the possession of a temple in which the idol had for some time been located. Lord Hobbouse said:
“Even apart from paras. 6 and 7 of the plaint which expressly put forth his spiritual character as the foundation of his claim, the nature of the suit is for the proper conduct of Thakur's worship. It rests quite as much on the right of the Thakur to have the conduct of his worship and his own custody placed in the right hands as upon the personal right of the plaintiff to the property.”
70. The endowment we are now considering was before the Judicial Committee in the case of Peary Mohan v. Manohar Mukerji . A.I.R 1922 P.C 235 and the office of the shebait of this endowment was in that case described by their Lordships as an office made up of the close intermingling of duties and personal interest. Peary Mohan's case was one of the cases cited before the Judicial Committee in the case of Srinivasa Chariar v. Evalappa Mudaliar, which was the case of the Dharmakarta of a temple. Their Lordships said:
“The position of Dharmakarta is not that of a shebait of a religious institution or of the head of a mutt. Those functionaries have a much higher right with larger power of disposal and administration and they have a personal interest of a beneficial character. In the very learned judgments delivered in Vidyapurna v. Vidyanidhi the distinction between these functionaries is explained.”
71. Such being the nature of the right of a shebait in Hindu law it is impossible to regard it as anything else than property within the meaning of that law. In the case of Trimbah v. Narayan the learned Judges of the Madras High Court while dealing with a question of limitation said:
“We think that an endowment of this nature where the founder has vested in a certain family the management of his endowment, each member of such family succeeds to the management to use technical language, performam doni, his right being unaffected by what his predecessor does.”
72. This doctrine was examined by the Judicial Committee in the case of Gnana Sambandha v. Velu. The facts of that case would appear from the judgment of the Madras High Court reported in Vlu Pandaram v. Gnana Sambandha . [1896] 19 Mad. 243. From the facts as reported there the following appears:
“The charity in question was alleged to have been founded by the ancestors of the plaintiff and defendant 2 and the lands described in the plaint schedule attached to it were granted by them for the use of the charity in order that the income thereof might be appropriated and employed for the worship and the celebration of certain festivals. It was further alleged that it had been arranged that the management of this charity and the property so granted should vest in the members of their own family from generation to generation.”
73. It does not appear that there were any emoluments expressly attaching to the office of the manager. Shortly put, the claim of the plaintiff was to get rid of two alienations each of a half share of the management one made in 1860 by the mother and guardian of defendant 2 Chockalinga's father in favour of the predecessor-in-title of defendant 1 Gana Sambandha and the other made by his own father Nataraja in 1869 in favour of said defendant 1. Nataraja died in 1884 leaving the plaintiff, his son, a minor. The plaintiff was born in 1873 or 1874, four or five years after the sale by Nataraja, and attained majority in 1891. The plaintiff sued the two defendants to establish his right to the management of an endowment connected with a temple and to the possession of the lands forming its endowments either absolutely or jointly with Chockalinga. The plaintiff's contention was that the endowment had been founded by the ancestors of him and defendant 2, that it was arranged that only the members of their family should hereditarily hold the properties, that he did not derive his rights from or through his father Nataraja, that on the death of Nataraja in 1884 a fresh right to sue accrued to him and limitation began to run from that date or rather from the date on which he attained majority. The trial Court held that the plaintiff was entitled to recover his father's half share in the management but that his claim to the other half share which had belonged to defendant 2's father was barred. That Court passed a decree giving the plaintiff joint possession of the management and property with defendant 1. On appeal, the High Court held that the right of the plaintiff accrued on the death of his father and not before and in that view made a decree in his favour entitling him to the sole management and possession of the endowment and its properties. On appeal to the Judicial Committee their Lordships first of all premised the position that notwithstanding the assignments-title remained with Chockalinga and Nataraja, but the possession which the purchaser had taken was adverse to them. This necessitated a consideration of the question of limitation. They first of all took up the question of Chockalinga's title and held that under Article 124. Sch. 2, Act 15 of 1877, Chockalinga had 12 years from the date of the assignment or three years from his attainment of majority to sue for the office, that he had not done so, and so his title was extinguished. They then said:
“Their Lordships are of opinion that there is no distinction between the office and the property of the endowment. The one is attached to the other; but if there is, Article 144 of the same schedule is applicable to the property. That bars the suit after 12 years' adverse possession.”
74. Up to this point their Lordships were dealing with Chockalinga's title, and they held that Chockalinga had lost his title’ to the office under Article 124, and as he could not recover the office he could not also recover the property because the one is attached to the other, but if the two are not attached to each other and are separate then also he could not recover the property by reason of Article 144. Their Lordships then said that Nataraja also was barred and his right was extinguished. It is clear that the only way in which the plaintiff Vein could succeed was by showing that he did not claim through his father Nataraja. On his behalf reliance was placed on Trimbak's case in which the view was taken that when the founder of an endowment has vested in a family the management of it each member succeeds to the management per formam doni, and if this principle be correct, Vein could found his right to the management on his father's death not as having been inherited by him from his father but independently of him and say that though Chockalinga and Nataraja were barred, he was not. Their Lordships proceeded to deal with this position. They held that as the origin of the endowment-is not known it was to be assumed as having been by a gift from the founder. They held that as it was a gift and Tagore case applying to it, the Hindu law did not permit the creation of successive life-estates in it, and so Yelu's contention as well as the was propounded in Trimbak's case on which it was founded, namely, that such successive holder, might claim per formam doni, could not prevail. So far, there was no decision in their Lordship's judgment as to what was the correct position for Velu to take under the Hindu law, namely, whether he took from his father or whether he from the founder. So far, their Lordships had only said that under the Hindu law he could not possibly say that he took through his father because such an estate in him would contravene Tagore v. Tagore. Then their Lordships proceeded to say:
“The respondent Velu can only be entitled as heir to his father Nataraja and from and through him and consequently his suit is barred by Article 124. In their Lordships' opinion the ruling in Tagore v. Tagore is applicable to an hereditary office and endowment as well as to other immovable property.”
75. The question is, what does this pronouncement mean? The order of reference takes the view that
“their Lordships do no more than put a construction on the Limitation Act and apply Article 124 to the case of an office which is hereditary in the ordinary Hindu sense.”
76. With very great respect I venture to think that the passage in the decision just quoted goes further than that: in my opinion it means that the only title which would be a good title in Velu would be one claimed by him as heir of his father and from and through him, but that to such a claim Article 124 was a bar and I think their Lordships made it further clear by pointing out that Tagore v. Tagore was applicable to an hereditary office and endowment as well as to any other immovable property thus negativing the possibility of a title per formam doni being set up. In my judgment this decision directly decided that the rule in Tagore case applies to such an estate as that of a shebait and it is not reasonable to read it merely as deciding a question of limitation. There is no doubt whatever that the aforesaid decision of the Judicial Committee has always been understood as meaning that Tagore v. Tagore is applicable to such an estate as is involved in a hereditary office attached to an endowment. A few decisions of this Court only may briefly be referred to in this connexion. Gopal Chunder Bose v. Kartick Chunder Dey . [1902] 29 Cal. 716 P.C. in which in interpreting a will Macpherson and Hill, JJ. negatived a contention before them that they were merely considering an appointment of persons to “Superintend an endowment and not dealing with an actual bequest or gift of immovable property, saying that it would appear from Gnana Sambandha's case that the ruling in Tagore's case, is applicable to a hereditary office and endowment as well as to other immovable property and Lord Maenaghten in affirming that decision observed that the High Court had given a perfectly correct interpretation of the will and no other interpretation was possible: Tagore v. Tagore was not applied in the case of an endowment in Manorama Dasi v. Kali Churan Banerji . [1903] 31 Cal. 166, not because it was not applicable but because the contingency which would make the disposition but had not yet come to pass. In Ram Chandra v. Ram Krishna and Gnana Samlandha's case was relied upon, in the case of the shebait of a Mitakshara debutter, as indicating that the same rule applies to a hereditary office as to the family property. In the case of Rissessur Prasanna Sen v. Bhagabati Prasanna Sen . [1906] 3 C.L.J 606., while it was affirmed that under Gnana Sambandha's case and Tagore's case applied to a hereditary office such as that of a shebait, on the facts as they actually stood the provision did not offend the rule. It was applied in Kunjamani Dassi v. Nikunja Behari . [1915] 32 I.C 823., a case of a family de-butter, holding that Gnana Sambandha's case was an authority for its application. In Rambrahma v. Kedarnath, it was held that a share in the Bhoge or food offered to the deity was not an interest in property and so the rule did not apply. In Pramatha Nath Mukerjee v. Anukul Chandra on a review of many of the previous decisions it was affirmed that Gnana Sambandha's case, was a distinct and clear authority for the application of the rule. There are only two decisions in which a different view has been taken of the applicability of the rule. In the case of Mathuranath Mukherjee v. Lakhi Narain Ganguli, while considering that the managership of an endowment is “property” a distinction was made on the ground that
“it was property of a special kind, the manager having in theory no beneficial interest in the endowment and a view was taken that the rule in Tagore's case was a general rule to which there may be exceptions, and that the nomination of shebaits was an exception to that general rule.”
77. The judgment was delivered by Richardson, J., who got over Gnana Sambandha's case as being a decision on the question of limitation only, and observed:
“The observation (meaning in Gnana Sambandha's case, has little or no bearing on the question with which we have to deal. We are not dealing with the nature of the estate which a shebait takes in his office but with the question whether the widow could lawfully appoint defendant 1 to be her successor.”
78. With the utmost respect I venture to think that the distinction is unauthorized and I also confess that I do not follow what the last portion of the observation quoted above exactly means. In the case of Sripati Chatterjee v. Khudiram Chandra, Chakravartty and Greaves, JJ., concurring, expressed the view that the shebait has no right to the property but is merely an officer with the rights and limitation applicable to the guardian of a minor and that the rule in Tagore's case does not apply to the appointment of shebait of a family Thakur. The learned Judge was to a considerable extent pressed by a text which he referred to in support of the proposition that a gift to a Thakur cannot be misappropriated. In Golebrooke's Digest Vol. 2, Ch. 4, S. 2, Article 1-37 the text appears thus:
“But he who seizes the subsistence of priests, whether given by himself or by another, is born of a reptile in order for fifty thousand years.”
79. Colebrooke's comment on it is as follows:
“It is shown by texts cited in the Ekadasitatwa (38 and 29) that a man seizing holy property is guilty of crime equal to the murder of a priest; and seizing the property of a kshatriya and the rest he is guilty of a crime equal to the murder of a soldier and so forth.”
80. The text in my judgment has no application to the case of a shebait who fails not to perform the duties attached to his office but who after performing the worship of the deity with gifts made in his favour takes such temporal benefits out of them as is not forbidden by law but is sanctioned by usage or custom. The text as already stated, was referred to in the case of Kesnanund v. Nursing.
81. As observed by the Judicial Committee in the case of Vidya Varuthi v. Balusami, there are two systems of law in force in India, both self-contained and both wholly independent of each other, and wholly independent of foreign and outside legal conceptions and is would be a serious inroad into their rights if the rules of Hindu and Mahomedan laws were to be construed with the light of legal conceptions borrowed from abroad, unless where they are absolutely, so to speak pari materia. Their necessity of keeping apart the provisions of Hindu law as regards gifts has also been emphasized by the Judicial Committee in various other cases, amongst which may be referred Tagore v. Tagore, and also the case of the very debutter in Peary Mohun v. Manohar and in the case of Muhammad Rustam Ali v. Mushtag Hussain . A.I.R 1921 P.C 105, Lord Buckmaster was very careful to point all that arguments based upon a supposed position that heads of religious endowments—in that case a muttawali—makes a strong appeal to those who are accustomed to administer the English law with regard to the trustees. The questions raised therefore have to be decided on notions of Hindu law and giving them the best consideration I can, I have come to the conclusion that the questions referred to us should be answered as follows:
Q. 1—A. Yes but subject to the restriction that he cannot create any estate unknown or repugnant to Hindu law.
Q. 2.—A. Yes.
Q. 3.—A. Yes.
Q. 4.—A. No.
Q. 5.—A. Yes.
Q. 6.—A. Yes.
C.C Ghose, J.:— I was a party to the order of reference in this case; but having had an opportunity of hearing the fuller discussion that has taken place before us and having had the advantage of reading the judgment prepared by my learned brother Mukerji, J., I agree with him in the answeis which he proposes to give to the questions set out in the order of reference.
Mitter, J.:— I have had the pleasure and advantage of seeing beforehand the judgment of my learned brother Mukerji, J. which has just been read. I concur with him that the answer to the questions referred to the Full Bench should be as he has stated and I agree with the reasons upon which he has based those answers. The questions referred to the Full Bench are involved in some difficulty. The difficulty is partly occasioned by the fact that principles which at first sight seem to be in conflict have to be interpreted and reconciled. The language used in some of the cases in describing a shebait as a trustee has also contributed to the difficulty. The words shebait and trustee are used as synonymous and convertible terms not only in the early decisions but also in this observations made by such great authority on Hindu law as Mr. Mayne; the difficulty is further enhanced by the paucity of Hindu law texts as to the true nature of the office of the shebait of a Hindu deity. But, notwithstanding the difficulties to which I have referred, on the state of the authorities which have been discussed in very great detail by my learned brother Mukerji, J. it is impossible to arrive at any other conclusions than those reached by him. I desire to draw prominent attention to the fact that the nature of the office of shebait of this very debutter estate created by Jaga Mohun Mukherji in the year 1840 was described by their Lordships of the Judicial Committee of the Privy Council in terms which would go to show that a shehait of a Hindu deity is not a bare trustee in the English sense of the term. Lord Bnckmaster who delivered the judgment of the Judicial Committee in the case expressed himself thus:
“The ground for removing a shebait from his office may not be identical with those upon which a trustee would be removed in this country. The close intermingling of duties and personal interests which together makeup the office of shebait may well prevent the closeness of the analogy: see Raja Peary Mohan v. Monohar. As has been observed in Vidya Varuthi v. Balusami Ayyar when the gift is directly to an idol or temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct, depending again on usage and custom.”
82. From these observations of their Lordships of the Judicial Committee in 48 I.A it would seem to follow that a shebait has some sort of beneficial interest in the endowment or the debutter estate. I agree therefore that the right of a shebait is some sort of property under the Hindu law, although it is not necessary on the terms of the reference to determine the precise Dature of the property. The office of shebait in the present case is an hereditary office and the ruling in Tagore v. Tagore has, been made applicable to an hereditary office and endowment as well as to other, immovable property by their Lordshipsi of the Judicial Committee of the Privy Councial in the case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram. The rule of succession therefore to the shebaitship laid down by Jaga Mohan Mukherji in so far as it created an estate unknown to the Hindu Law must be regarded as ineffectual in law.
Guha, J.:— I agree entirely with my learned brother Mukerji J., in the answers be has given to the questions referred to the Full Bench. I also agree with the reasons stated by my learned brother and the conclusions arrived at by him in his judgment.
M.C Ghose, J.:— I agree with the judgment of my learned brother Mukerji.
R.K
83. Reference answered.
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