1978 (5) TMI 126 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the document Ext. 1 is a will or a gift.
2. Admissibility of the document due to lack of proper stamping and registration.
3. Whether the right to worship by turn in a Hindu temple constitutes immovable property.

Detailed Analysis:

1. Whether the document Ext. 1 is a will or a gift:

The primary issue was to determine the nature of the document Ext. 1 executed by deceased Mst. Acharaj. The plaintiff claimed it was a will, entitling him to a right of worship by turn for 10 days in an 18-month cycle in the Kalyanji Maharaj Temple. However, upon examining the document, it was found to be a deed of gift rather than a will. The court noted the recital in the deed stating, "now Ram Rattan will acquire legal rights and possession of my entire property from the date the will is written the details of the property are in Schedule 'A' and after him, his legal heirs will acquire those rights." This indicated that the document intended to pass the title to the property in presenti, thus classifying it as a gift rather than a will.

2. Admissibility of the document due to lack of proper stamping and registration:

When the plaintiff attempted to introduce the document as evidence, the defendants objected, arguing it was inadmissible due to being improperly stamped and unregistered. Initially, the trial court allowed the document to be marked as Exhibit 1, subject to objection. However, the court failed to judicially determine the admissibility of the document at that stage. According to Section 36 of the Stamp Act, once a document is admitted in evidence, its admissibility cannot be questioned later on the grounds of insufficient stamping. But, since the trial judge had not judicially determined the objection, Section 36 was not applicable. The court emphasized the need for the trial court to impound the document and recover the requisite stamp duty and penalty as per Sections 33 and 35 of the Stamp Act before admitting it into evidence. The plaintiff had not paid the duty or penalty, rendering the document stricto sensu inadmissible.

3. Whether the right to worship by turn in a Hindu temple constitutes immovable property:

The core of the dispute was whether the right to worship by turn (Osra) in a Hindu temple is considered immovable property. The court explored the concept of Shebaitship under Hindu law, which combines elements of office and property, duties, and personal interest. The court cited various precedents and texts of Hindu law, concluding that the hereditary office of Shebait is regarded as immovable property. The court referenced the case of Angurbala Mullick v. Debabrata Mullick, which recognized the right of a family to succeed to the religious office of Shebaitship as immovable property. The court also noted that Hindu law and judicial decisions over a century have consistently treated hereditary offices, including Shebaitship, as immovable property. Given this classification, any transfer of such property must be executed through a registered instrument. Since Exhibit 1 was not registered, the High Court rightly excluded it from evidence.

Conclusion:

The Supreme Court upheld the High Court's decision, concluding that the document Ext. 1 was a gift deed and not a will. It was inadmissible in evidence due to improper stamping and lack of registration. The hereditary office of Shebait, including the right to worship by turn, was deemed immovable property, necessitating a registered instrument for its transfer. Consequently, the plaintiff's suit was dismissed, and the appeal failed.