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TMI Blog1978 (5) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... and if the latter, whether it is admissible in evidence on the ground that it was not duly stamped and registered as required by law ? When the plaintiff referred to the disputed document in his evidence and proceeded to prove the same, an objection was raised on behalf of the defendants that the document was inadmissible in evidence as being not duly stamped and for want of registration. The trial court did not decide the, objection when raised but made a note : Objected. Allowed subject to objection , and proceeded to mark the document as Exhibit. 1. When at the stage of arguments, the defendants contended that the document Ext. 1 is inadmissible in evidence, the learned trial judge rejected the contention taking recourse to section 36 of the Stamp Act. On the question of registration it was held that the document is not compulsorily registrable insofar as the subjectmatter of the suit is concerned, viz., turn of worship which in the opinion of the learned trial judge movable property. On appeal by the defendants the judgment of the trial judge was reversed, inter alia, holding that the document Ext. 1 was a gift and as it involved gift of immovable property, the document wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided-, it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-theless be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, s. 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be trial Court before which the objection is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this background while holding that the document Ext. 1 would be inadmissible in evidence as it is not duly stamped, we would not decline to take it into consideration because the trial Court is bound to impound the document and deal with it according to law. Serious controversy centered, however, round the question whether right to worship by turn is immovable property gift of which can only be made by registered instrument. Hindu law recognises gift of property to an idol. In respect of possession and management of the property which belongs to the Devasthanam or temple the responsibility would be in the manager who is described by Hindu law as Shebait. The devolution of the office of Shebait depends on the terms of the deed or will by. which it is created and in the absence of a provision to the contrary, the settlor himself becomes a Shebait and the office devolves according to line of inheritance from the founder and passes to his heirs. This led to an arrangement amongst various heirs equally entitled to inherit the office for the due' execution of the functions belonging to the office, discharging duty in turn. This turn of worship is styled as 'Pala' in West B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion again arose in Balyantray alias Tatiaji Bapaji v. Purshotam Sidheshvar and another(9 Bombay High Court Reports 89), where, in view of a conflict in decision between Krishnabhat (supra) and Baiji Manor v. Desai Kallianrai Hukmatrai(6 Bombay High Court Reports 5 5,), the matter was referred to a Full Bench of 5 Judges. The question arose in the context of the limitation Act in a suit to recover fees payable to the incumbent of a hereditary office, viz., that of a village Joshi (astrologer)., The contention was that such a hereditary office of village Joshi is immovable property. After exhaustively referring to the texts of Yajnavalkay and the commentaries thereon Westropp, C.J. observed that the word corody' is not a happy translation of term Nabandha. It was held that Hindu law has always treated hereditary office as immovable property. These two decisions were affirmed by the Judy Committee of the Privy Council in Maharana Fattehsangji Jaswantsangji v. Desai Kalliaraiji Hekoomutraiji(1 I.A. 34). The principle that emerges from these decisions is that when the question concerns the rights of Hindus it must be taken to include whatever the Hindu law classes as immovable alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass. Section 2 (26) of the General Clauses Act defines immovable property to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. It may be mentioned that the definition of immovable property in Registration Act lends assurance to treating Shebait's hereditary office as immovable property because the definition includes hereditary allowances Offence of Shebait is hereditary unless provision to countrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property, duties and personal interest axe mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of Shebait as immovable property, and it h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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