The Judgment of the Court was delivered by
Kalyan Joyti Sengupta, J.:— Two ladies namely Sm. Lakshmi Sona Dutta and Sm. Dolly Mullick Banerjee have taken out this summons for establishing their rights of Sebaitship in respect of the deity and Debutter property consecrated and dedicated by one Sm. Chitra Dassi, since deceased (hereinafter referred to as the settler) by and under a deed of Ekrarnama in early part of 19th century, the corresponding Bengali year is 13th Jaistha twelve hundred and twenty seven followed by another post script document by the same lady executed in the following year. The aforesaid documents provide for right of Sebaitship amongst her five sons then survived namely Sree Cassynath Mullick, Sree Lokenath Mullick, Sree Hurronath Mullick, Sree Sombhu Nath Mullick and Sree Taranath Mullick, all since deceased in 19th Century.
2. These two ladies are claiming their rights though their father and one of descendents namely Baladev Chandra Mullick who died intestate on 24th November, 2000. Baladev Chandra Mullick since deceased in terms of the aforesaid Ekrarnama asserted his right of Sebaitship, when his turn and pala came under a scheme framed by this Hon'ble Court. On his death these two ladies requested the Official Trustee to allow them to perform Sheba puja and to act as sebait on death of their father. The Official Trustee who has been in possession and/or occupation of the Debuttor property in terms of the Courts judgment and decree has turned down their request on the plea that they are not entitled to act because of the judgment rendered by this Court, no descendent of different Gotra to perform the Sheba Puja. As such these two ladies have come forward, contending that clog putting in the Ekrarnama as to the disqualification to become Sebait as being falling in different Gotra is illegal and invalid in view of the laws now prevailing.
3. The Official Trustee was unable to produce the copy of the judgment referred to in his letter of refusal to accept the request of the plaintiffs. It was not understood how without reading the judgment as not having any copy of the same he could take such a plea.
4. However, the copy of the Ekrarnama has been annexed to the affidavit in support of summons. The relevant clause of disqualification for becoming Sebait are quoted hereunder bereft of other details which I feel the same are irrelevant, for deciding the issue raised here. “……Further those of heirs who may be of another Gotra shall not be competent to perform the Sheba puja of Sri Sri Iswar Radha Gobinda Jew” and the specific prohibition of the aforesaid settler lady mentioned in the Ekrarnama is as follows:
“After my death should any of your heirs at any time be separate or go and live elsewhere he shall still not be able (competent) to take the Sree Sree Iswar Jew Thakur elsewhere and perform his sheva and jatra Mahutsab (there)…..”
“And the heirs of your Bungsho son's so on the succession shall have right to possess and enjoy all these lands and houses save and except as (abovementioned) a gift or sale of the abovementioned property must not be made nor any possession be given to any other person or to the heirs of a different gotra and no person belonging to another gotra by reason of his being an heir or in other way has (shall have) any concern whatever with abovementioned lands and houses….”
5. It seems to me the Official Trustee in view of the aforesaid clog has refused to allow the plaintiffs to act as sebait on death of their father. From genealogical table and facts mentioned in the affidavit in support of summons and the written statement filed by the Official Trustee and further by the added defendant the undisputed position is that after consecration of the above deity and dedication of the property seva puja were performed by the five sebaits appointed by the lady settler after her death by turn.
6. On 12th July, 1876 a suit was filed by one Balai Chand Mullick being son of one of the five sons of the settler namely Sambhunath Mullick, since deceased against the other sebaits for construction of the aforesaid deed of Ekrarnama and the post-script thereof and will of the said Chitra Dassi.
7. On 4th September, 1879 a decree was passed in the aforesaid suit declaring that the said document was valid and further directing the descendant of the settler to perform seva Puja of the deity by pala or turn of one year each by rotation. By the said decree Official Receiver was appointed Receiver of the debuttor property for management as directed by the said decree. The Official Receiver had been in possession of the said management of the property until 9th September, 1929 when an application was made for removal of the Official Receiver and indeed he was removed and in his place and stead the Official Trustee has been appointed for collection of rent issues and profits therefrom and for possession and management of the said estate. In accordance with turn and/or pala the seva Puja is being performed. The Official Trustee was the only defendant in this summary suit.
8. Having heard the learned Lawyer for the Official Trustee I thought it fit having regard to the questions and issues raised herein to add one Kala Chand and Lal Chand as parties defendant as being necessary party from and amongst the group of Taranath to which father of the plaintiffs did belong. Similarly, I allowed the other person and/or descendants of the other four groups being represented by the four sons of the settler as proforma defendants.
9. The judgment and decree as mentioned by the Official Trustee as well as the other parties, of Justice Macpherson on 6th August, 1877 in suit No. 442 of 1876 was produced by the parties. I have gone through this judgment as I thought that the learned Judge might have decided this issue and/or questions raised herein. Upon careful perusal of this judgment as rightly contended by Mr. Das Senior Counsel for the plaintiffs and Mr. P.K Dutta appearing for some of the sebaits this judgment and decree has not decided the issues raised herein. This judgment and decree concerned with the interpretation of the Ekrarnama and the will of the lady and further other related issues. The issues settled by the learned judge for decision of the suit are set out hereunder.
“How far was the dedication by Chittra Dassee carried out by her and her sons in her life-time?
To what extent was the Sudderbattee completed in the life-time of Chittra Dassee and to what extent had it been issued for the purposes of the worship of the idol or religious ceremonies?
Has the Sudderbattee ever been completed? What is its condition now? And how has it been used from time to time?
Has the legacy of or Rs. 10,000 left by the Will of Chittra Dassee for finishing the Sudderbattee ever been so applied? If not, why not? What has become of the money and who (if anyone) is now liable to “make good the same and what steps should be taken for its recovery?
Was the division of the gold ornaments and the throne etc. of the idol valid in law? Where now are the articles then divided? Are the parties or any of them liable to restore gold articles or their value?
Besides these issues there must be enquiries as to the property dedicated to the idol Singhabahinee and the conduct of the worship.
Then there are questions to be determined as to the general management of the Debutter property and the mode in which it has been dealt with by the parties and what are their liabilities respectively with reference to it.
When these matters have been fully placed before the Court it will then be possible to deal finally with the case.”
10. Therefore, it is clear the validity and legality of the disqualification clause for becoming a sebait, of person not belonging to the same gotra was not raised nor settled as such there was no question of rendering any decision.
11. Mr. R.N Dutta appearing for some of the Sebaits submits that on careful and proper interpretation of the aforesaid judgment it clearly manifests that when the document was declared to be valid then all the terms and conditions contained are deemed to have been declared valid and lawful. I am unable to accept this far fetched argument of Mr. Dutta for the simple reason that the plea of res judicata under corresponding provision of the old Civil Procedure Code (as the present Civil Procedure Code came into force in the year 1908) cannot be applied here as no specific issues were framed as such bar of res judicata does not apply in this case.
12. The concept of constructive res judicata at that point of time was totally unknown to anybody else since it has been incorporated into the present Civil Procedure Cod.? in 1908 by Explanation IV. It is true the settled position of the law of statute as regard procedural law is concerned retrospective operation should be given, but some provision of procedural law partakes the character of substantive law. The provision of res judicata in my view though as a matter of procedural law but in substance it is substantive law is the right of particular litigant to approach Court is totally denied by applying the principle of res judicata.
13. Therefore, I overrule the objection of Mr. Dutta as well as the Official Trustee that present plaintiffs cannot maintain this action. This Court is posed with the following questions for this action:
“23. The plaintiffs submits the following questions for the determination of this Hon'ble Court in the instant proceedings:
a) Whether the restriction imposed by the said Deed of Ekrarnama dated 25th May, 1820 and the Post-script thereto dated 27th February, 1822 debarring the descendants of the said Sm. Chitra Dassi not belonging to the same Gotra (Clan) as that of the Settler from becoming sebaits of the said deity Sri Sri Iswar Radha Gobinda Jew is illegal, void and not binding on the plaintiffs, being contrary to Hindu Law of Succession and/or the general principles of the law of the land applicable thereto?
b) Whether or not the Plaintiffs as the only heiresses and legal representatives of the said Baladeb Chandra Mullick have become and are entitled to act as Sebaits of the said deity Sri Sri Iswar Radha Gobinda Jew in place and stead of their said predecessor-in-interest and are entitled to perform seva puja of the said deity as such sebaits and according to the provisions of the Hindu Law and the general law of the land?
c) It be declared that the plaintiffs are lawfully entitled to act as Sebaite of the said deity and to perform deb seva and/or puja in place and stead of their father the said Baladeb Chandra Mullick and that the objections raised by the Official Trustee of West Bengal are invalid, inoperative and not binding on the plaintiffs and further that the rule laid down as to the succession to Sebaiti right in the decree/order of this Hon'ble Court dated 4th December, 1879 passed by the Hon'ble Mr. Justice Macpherson is bad in law and not binding on the plaintiffs.
d) If the answers in the questions framed in Clause (a) and (b) above are in the affirmative and in the plaintiffs' favour then directions be given to the Official Trustee of West Bengal to accept the plaintiffs as such Sebaits and to allow and make payments to the plaintiffs for performing the seva puja and all other periodical festivals of the said deity during their turn or pala of worship being turn or pala which was enjoyed by the said Baladeb Chandra Mullick.”
14. Mr. Das the learned Senior Advocate submits that as far as Lakshmi Sona Dutta namely the plaintiff No. 1 is concerned she as a matter of course is entitled to inherit the right of sebaitship on death of her father as she does not cease to be same gotta, in other words she has not changed her gotra for any reason whatsoever. He submits that the ekrarnama does not preclude any female heir from performing seva puja rather allows asserting her right of sebaitship. Now question is whether Lakshmi Sona is entitled to do so alone, or with her sister Dolly Banerjee (nee Mullick) who admittedly has changed her gotra in view of her marriage.
15. The claim of plaintiff No. 1 is absolute one as Mr. Das contends, in view of the settled position of law by various judgments rendered by the Supreme Court as well as the text “Tagor's Law Lectures”. He contends that nobody can dispute the right of office of sebaits or right of sebaitship is an immovable property not merely an office. He has drawn my attention to the following Supreme Court decisions on this point reported in AIR 1951 SC 293, (1978) 3 SCC 236 : AIR 1978 SC 1393 and (1985) 2 SCC 524 : AIR 1985 SC 905. He has also relied on the Hindu Law of Religious and Charitable Trust Tagor's Law Lectures 5th Edition clause 5.22 at page 220.
16. On this proposition of the law none of the parties is disputing nor do I find any problem in the Ekrarnama. The lady settler seemed to be substantially liberal as such she did not preclude lady from inheriting and/or succeeding the right of sebaitship but her intention was to restrict it among the heirs of the same gotra that is to say within her own family. The word heirs include both male and female under the General Clauses Act as well as Section 3 of Hindu Succession Act, 1956 when there is no specific mention. In my view this clog will be applicable in case of both the gender. In case of male, Gotra is liable to be changed when any adoption takes place, for instance, in this case any son or daughter of this Mullick family is taken on adoption by any other Mullick family having different Gotra or for that matter by any other person in different cast, then this disqualification will be operative. Similarly, in case of marriage of a daughter of this family as in this case here the disqualification obviously will be operative. Naturally, the sons and daughters of a pre-deceased daughter of this Mullick family will also be falling within the disqualification.
17. We are not concerned with the disqualification on account of change of Gotra by reason of adoption or otherwise. In this case whether Dolly because of being married to different Gotra has become disqualified to assert her right of sebaitship through her father or not.
18. Mr. Das obviously contends in negative and in support of his contention he urges that the aforesaid disqualification is contrary to the present law of succession and other laws. The rule of succession will be applicable and/or prevalent on the date of opening of succession. Baldeb died in 2000 and on that date Hindu Succession Act, 1956 as well as other unrepealed Act, Removal of Cast Disabilities Act, 1978 were in existence and/or operative. He has drawn my attention to the Section 4 of the Hindu Succession Act, 1956 and contends this should be read with Sections 24, 25, 26 and 27 and judgment of the Supreme Court reported in (1979) 3 SCC 71 : AIR 1979 SC 1314.
19. Therefore, he contends that the aforesaid clog and/or provision for disqualification is wholly invalid and illegal. In support of this contention he has also relied on an unreported decision of the Division Bench of this Court.
20. Mr. Pradip Kumar Dutt the learned Counsel appearing for some of the group of Sebaits submits that in the Ekrarnama no different mode of succession contrary to Hindu Succession Act, 1956, has been provided. In this case in conformity with the provisions of the present Succession Act both male and female are equally entitled to succeed the right of Sebaitship only prohibition put by the lady is that heir falling in different Gotra is precluded. Such preclusion is not altogether unacceptable to the Court as the same is old-age tradition, convention and usages. Such tradition, convention and usages are as a matter of course, recognized and accepted by the law Courts. Moreover, the plaintiffs have no locus standi as they have no right to bring this action as they are not sebaits in terms of the aforesaid Ekrarnama.
21. The contention of the other group of sebaits are in my view are more or less similar as that have been put forward by Mr. Dutta. Mr. P.K Dutt has sought reliance on two decisions one is of Privy Council reported in 40 IA 97 and a decision of the Division Bench of the Patna High Court reported in AIR 1949 Pat. 193 that was rendered relying on the aforesaid Privy Council decision. At the first instance, I am unable to comprehend the argument of Mr. Dutta that the plaintiffs have no locus standi to bring this action. Firstly, the plaintiff No. 1 in terms of the ekrarnama is entitled, as she does not fall in different Gotra. So the Official Trustee was not justified in refusing her claim to act as sebait.
22. Secondly, both the plaintiffs have challenged the legality and validity of the disqualification put by the lady settler in the Ekrarnama and the Plaintiffs locus should not be judged in reference to the provision of the ekrarnama, as it is wrongly contended by Mr. P.K Dutt but regard being had to the nature of the action having been brought. Therefore, the plea of locus standi as raised by Mr. P.K Dutta is overruled.
23. Two judgments cited by Mr. P.K Dutta cannot be disputed and these two judgments rendered while deciding the right of the respective persons on the strength of the instrument mentioned in the aforesaid judgment. Factually, these two cases stand on absolutely different footings and these are of no help at all in this case.
24. Now, I examine the clog put by the lady should be applicable in this 21st Century, when there are large number of laws. In early part of 19th Century having regard to the system and custom prevailed at that point of time clog put in was not unreasonable, rather I should say it was liberal one as at that point of time the right of inheritance of the ladies was not there under the prevailing law of, usage and custom. Even at that point of time there were draconian customs and usages when certain widow had to go to burning pyre with her deceased husband despite against her will. In those days the ladies were not entitled to inherit any property from their ancestors. Under those circumstances the clog put in by the lady really was intended to keep the Mullick family integrated but by passage of time and with the change of nature and in order to develop the society in more civilized and meaningful manner the laws and customs having force of law prevailing from time immemorial, are changed with the change of the ruler in our country. From history we find during Gupta era one set of family laws. During Mourya era laws were something which we find from the text of Arthasastra of Koutilya. The Muslim ruler came and they also laid down to some extent the law of succession according to their requirements and whises and to protect their revenue.
25. During British days some reforming acts were enacted which we should say are more humanely than ever before, namely Abolition of Sati Rites and Women Re-marriages Act. But the revolutionary change in the law of succession has taken place with enactment of Hindu Succession Act, 1956.
26. What is the impact of this Act? I am not discussing the salient features of the Act for the time being but suffice it to mention Section 4 of the said Act, which is rightly being pointed out by Mr. Das and this Section 4 rather answered the issue raised here. Appropriately I set out Section 4 of the said Act.
“4. Overriding effect of Act. - (I) Save as otherwise expressly provided in this Act—
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”
27. It is clear from the aforesaid Section whatever customs, usage or text mentioned in any instrument which is inconsistent with the provisions of this Act shall be null and void.
28. Therefore, the clog put in the instrument debarring the ladies having changed their Gotras is wholly inconsistent with the Hindu Succession Act, 1956. I find there is strong support of my observation in the judgment of the Supreme Court as cited by Mr. Das reported in (1979) 3 SCC 71 : AIR 1979 SC 1314 in its paragraph 98 thereof. While interpreting and discussing Section 4 of the said Act it has been observed as follows:
“The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in suppression of all customs to the contrary in view of the provisions of S. 4 of the Act……”
29. The requirements of the custom relied upon by the appellants to the effect that right could not be exercised by a person who is not a member of any of the four sub-castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the order of succession laid down in Chap. II of the Hindu Succession Act under which the right devolves on the plaintiff-respondent.
30. In the above Supreme Court decision the fact was that in the instrument there was a provision for disqualification of becoming a baridar which is in the nature of the right of sebaitship and this disqualification was based on customs and usages and it was found in the Supreme Court decision such custom is contrary to the provisions of Hindu Succession Act, 1956.
31. In this case the lady settler must have followed rules of succession then prevailing, as rightly contended by Mr. P.K Dutta, to put clog in the above manner. I, therefore, hold with the agreement of Mr. Das's submission that the aforesaid disqualification on account of change of Gotra is contrary to Hindu Succession Act, 1956 as the same being invalid.
32. If the aforesaid clog is allowed to be operative, then, in my view it would be contrary to public policy as this will encourage firstly, to marry a [person who will be falling within the prohibited degree, from the father side, as one would be tempted to do so in order to retain the right of sebaitship, and this shall be contrary to mandatory provision of Hindu Marriage Act, 1955. That apart by virtue of the provision of Removal of Cast Disabilities Act, the provision mentioned in this ekrarnama as regard disqualification, is inoperative.
33. Under those circumstances, I hold that the plaintiffs have rightly raised objection and this challenge succeeds accordingly. I answer the question raised in the summons in the manner as follows:
Question.
Answer.
No. A.
In affirmative
No. B.
In affirmative
No. C.
In affirmative
34. Therefore, I direct the Official Trustee to allow the plaintiffs to perform their seva puja as being descendents of Baldeb Mullick, since deceased in accordance with the turn and/or pala which had hitherto been exercised by Baldeb either jointly or simultaneously or separately as may be decided by the Official Trustee.
35. Before I part with this matter I am constrained to observe that the Official Trustee while dealing with this matter without looking into the judgment and decree of Macpherson, J. and even without having any copy there of raised objection. Since the matter is of some importance and far-reaching consequence to other heirs I allow the costs of this application to be retained by the officials trustee out of the trust fund. Save and except as above there will be no order as to costs.
36. Learned Advocate for the added defendant prayed for stay of operation of the judgment and order. Accordingly, such prayer is granted for a period of fortnight from date.