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TMI Blog1932 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, 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 Mukherji, is the eldest male member of the family and was the first Defendant in the suit. The Plaintiff Bhupendranath Mukherji is a son of Raja Pyarimohan, who was a. grandson of the testator Jagamohan by his eldest son Jaykrishna. He disputes the right of Manohar to succeed to the shebaitship under Jagamohan'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:- (1) Whether the founder of a Hindu debattar 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Jaykrishna Mukherji, and Haranath Chatterji, a resident of Uttarparha, as "attorneys" for the performance of duties of the shebaits of the said deities. The said "attorneys" shall make settlements and hold possession of all the said properties as maliks thereof, and shall carry into effect the above terms. And neither they nor their heirs shall be competent to alienate the said properties by sale or gift. After the death of Jaykrishna Mukherji, Rajkrishna Mukherji shall be appointed in his place. After the death of the said Rajkrishna, his stepbrother Nabakrishna Mukherji and after the death of the said Naba-krishna, his step brother Bijaykrishna shall be appointed to the office of ''attorney." After the death of my sons, Jaykrishna 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 abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull Bench, therefore, mainly depend on the question whether shebaitship in Hindu law is property of any kind, to which Tagore v. Tagore (1872) 9 B.L.R. 377 ; L.R. IndAp Sup. 47. (supra) 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 Lord Justice Turner in Soorjeemoney Dossee v. Denobundoo Mullick (1857) 6 M.I.A. 526, 555., 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. 6. 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. 7. Dealing with a case f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration. 8. This decision removed a misconception that the powers and duties of the holders of the office referred to above were very similar to, if not in all respects the same as, those of "trustees" in the English sense, which had 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 (1921) I.L.R. 44 Mad. 831 ; L.R. 48 IndAp 302. (supra), their Lordships referred to their earlier decision in Ram Parkash Das v. Anand Das (1916) I.L.R. 43 Calc. 707 ; L.R. 43 IndAp 73., in which their Lordships had described the Mohunt of an asthal or math as one holding the properties in trust for the math, 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mattams 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 nature of the generality of such institutions and the incidents of the property which is devoted to their maintenance. 10. In Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran (1887) I.L.R. 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 connection therewith according to usage. In the case of Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435., Subrahmania Ayyar J. and Bhashyam Ayyangar J., in two very learned judgments and after an elaborate examination of English institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut is in the position of one who, though in certain sense is owner in fee simple, yet in many respects, has the powers 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 matham 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 Sathianama Bharati v. Saravanabagi Ammal ILR (1894) Mad. 266, 276., in which a village had been granted to the head of a goswdmi math to be enjoyed from generation to generation and the deed of gift provided that the grantee was to improve the math, maintain the charity and be happy; the office of the head of the math was hereditary; and from usage it was found that the trusts of the institution were the upkeep of the math, the feeding of pilgrims, the performance of worship, the maintenance of a water-shed and the support of the descendants of the grantee. Muttusami Ayyar J., Best J. concurring, observed as follows:- The evidence d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome 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 Vedic age were also widely different from 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. 16. Dr. Bollensen is prepared to question the correctness of this assertion on the ground that the texts of the Vedic hymns contain clear reference bo 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 comparatively modern origin. In one of the cases already cited [Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435.] a distinction was drawn between temples and maths, 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 math is not a mere trustee but a "corporation sole" having an estate for life in the permanent endowments of the math 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 pages 185, 201, 553, 556) it is said that Hindu law, like Roman law and those derived from it, recognises not only corporate bodies with rights of property vested in the corporation apart from its individual membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to results logically following from such a distinction. For instance, in Doorganath Roy v. Ram Chunder Sen (1876) I.L.R. 2 Calc. 341 ; L.R. 4 IndAp 52., 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. 22. Chatterjea and Page JJ., in the case of Chandi Charan Das v. Dulal Chandra Paik (1926) I.L.R. 54 Calc. 30., held that, in order to convert the absolute debattar 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 Doorganath Roy's case (1876) I.L.R. 2 Calc. 341 ; L.R. 4 I.A. 52. (supra) was not incompatible with the true spirit that moves a pious Hindu to make such a debattar. And in Mr. Golapchandra Shastri's well-known book on Hindu Law (page 778) it has been cynically put, as a corollary following from this decision of the Judicial Committee, that if all the members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson) 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 I in regard to a sort of guardianship over the thing dedicated. 24. 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 hie love for the work being lost and therefore he should use the wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 26. 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 debattar. 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. 27. 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 very carefully considered. The argument is that, under Hindu law, property is either bhu (land), nibandha (translated as 'corody') and drabya (thing); that slaves, inasmuch as they go with land, are classed with bhu, which is land or immoveable property; that drabya is moveable property, and certain hereditary offices carrying emoluments are classed under nibandha; but that the office o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llage joshi. The case was decided by a Full Bench over which Westropp C.J. presided and the meaning of the term immoveable property as used in Hindu law was elaborately discussed by him. In Government of Bombay v. Gosvami Shri Girdharlalji (1872) 9 Bom. H.C.R. 222., it was held that, in considering with reference to prescription whether an allowance not being incidental to hereditary office is or is not immoveable property, the Bombay High Court had generally followed the test, --"Is or is not the allowance *** a charge upon land "or other immoveable property ?'' In all these cases the subject-matter was brought within the meaning of the word "nibandha", which in Hindu law ranks with immoveable property. The subject-matters of these cases, however, were either allowances or hereditary offices to which emoluments are attached. Maharana's case (1873) 13 B.L.R. 254 (264); L.R. 1 I.A. 34 (51). (supra) 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 huq be nibandha within the strict sense of the term is, in their Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Statute of Limitation must be determined by the nature of the thing sued for, and not by the status, race, character or religion of the parties to the suit. 30. 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 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 to the connection 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 (Company Litt. 20a); but the multiplication of hereditary offices of every description is a peculiarity of Hindu com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enquire 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 debattar 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, page 96, paragraph 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, Thakurs, or for other religious and public purposes are not heritable, as the property belongs to the debata 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 on the gadi and the shebait of the newly formed establishment was a mere question of property. 39. 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. 40. 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 Kunth Avdhicarry v. Neerunjun Audhicarry (1874) 14 B.L.R. 166, 169., said:- I think that the reasons for which it has been held that one of such joint owners of property is entitled to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Mitakshara law a person on his birth becomes entitled jointly as shebait of debattar property held by the family. Ram Chandra Panda v. Ram Krishna Mahapatra (1906) I.L.R. 33 Calc. 507. Gifts of shebaitship in favour of a co-shebait has been recognised [Radharani Dasi v. Doyal Chand Mullick (1920) 33 C.L.J. 141.], though this is not allowed except on the ground that such a transfer is for the benefit of the endowment. Gobinda Kumar Roy Chowdhury v. Debendra Kumar Roy Chowdhury (1907) 12 C.W.N. 98. And in the case of Tripurari Pal v. Jagat Tarini Dasi (1912) I.L.R. 40 Calc. 274; L.R. 40 I.A. 37., Lord Macnaghten 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Lal Sett v. Purna Ghandra Basak (1921) I.L.R. 49 Calc. 489. L.R. 49 I.A. 100. Speaking of the nature of these private endowments, Sir Arthur Wilson in his judgment in the case of Jagadindra Nath Roy v. Hemanta Kumari Debt (1904) I.L.R. 32 Calc. 129 (140, 141) ; L.R. 31 I.A. 203 (209). observed: There is no doubt that an idol may be regarded as a juridical 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 kind known to the law. But there may be religious dedication of a less complete character. The cases of Sonatun By sack v. Juggudsoondree Dossee (1859) 8 M.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the repair of the temple, and the other is to go to the upkeep of the managers. There was no reason why the disposer should not nominate the members 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. 46. So in the case of Har Narayan v. Surja Kunwari (1921) I.L.R. 43 All. 291; L.R. 48 I.A. 143., their Lordships said that in determining whether the will of a Hindu gives the testator's 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 circumstance 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. This case, in my opinion, is a clear autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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, if, offering the income 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. This is why in the case of family endowments of the present nature, it has sometimes been said that 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 Tambekar v. Lakhmiram Govindram (1887) I.L.R. 12 Bom. 24] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the personal performance of the religious rites or as in the case of svdras, * * * * * 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 (1925) I.L.R. 52 Calc. 809 (816); L. R. 62 I. A. 246 (251).] 51. 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 Gossami Sri Gridhariji v. Romanlalji Gossami ILR (1889) Cal. 3 (20); L.B. 16 I.A. 137 (144).:- 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 otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution. 52. And as the Judicial Committee has pointed out in the case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) I.L.R. 52 Calc. 809 (816); L.R. 52. I.A. 245 (251)., a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nno Kumari Debya v. Golab Chand Baboo (1875) 14 B.L.R. 450 (459); L.R. 2 I.A. 145(152)., 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 Hunoomanpersaud Panday v. Babooee Munraj Koonweree (1856) 6 M.I.A. 393, 423., but only this that, in this respect, namely, in respect of the power to bind the idol's estate by making a loan, 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 of necessity 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. 55. 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 prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s institution, or of the head of a math. These 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 Tirtha Swami v. Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435., the distinction between these functionaries is explained. 57. 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 Trimbak Bawd v. Narayan Bawa (1882) I.L.R. 7 Bom. 188, 190. the learned Judges of the Bombay High Court, while dealing with a question of limitation, said:- We think that in endowments 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, per formam doni, his right being unaffected by what his predecessor does. 58. This doctrine was examined by the Judicial Committee in the case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23 Mad. 271 (279); L.R. 27 I.A. 69 (77). The facts of that case would app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and property with the first Defendant. 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 of Schedule II of Act XV of 1877, Chockalinga had 12 years from the date of the assignment or 3 years from his attainment of majority to sue for the office, and 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; opinion the ruling in Tagore v. Tagore (1872) 9 B.L.R. 377; L.R. I.A. Sup. 47. is applicable to an hereditary office and endowment as well as to other immovable property. 61. The question is what does this pronouncement mean? The Order of Reference takes the view that "their Lordships do not* 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." 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 (1872) 9 B.L.R. 377; L.R. I.A. Sup. 47. 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 the Tagore case (1872) 9 B.L.R. 377; L.R. I.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or food offered to the deity was not an interest in property and so the rule did not apply. In Promotho Nath Mukherjee v. Anukul Chandra Banerjee (1924) 29 C.W.N. 17., on a review of many of the previous decisions it was affirmed that Gnanasambanda's case (1899) I.L.R. 23 Mad. 271; L.R. 27 I.A. 69. 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 Mathura Nath Mukherjee v. Lakhi Narain Ganguly (1922) I.L.R. 50 Calc. 426, 434, 437., 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 has in "theory no beneficial interest in the endowment," and a view was taken that "the rule in Tagore's case (1872) 9 B.L.R. 377; L.R. I.A. Sup. 47. "was a general rule to which there may be exceptions," and that the nomination of shebaits was an exception to that general rule. The judgment was delivered by Richardson J., who got over Gnanasambanda's case (2), as being a decision on the question of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent of foreign and outside legal conceptions and it would be a serious inroad into their rights if the rules of Hindu and Mahomedan laws were to be construed with the lights of legal conceptions borrowed from abroad, unless where they are absolutely, so to speak, pari materia. The necessity of keeping apart the provisions of Hindu law as regards gifts has also been emphasised by the Judicial Committee in various other cases, amongst which may be referred Tagore v. Tagore (1872) 9 B.L.R. 377; L.R. I.A. Sup. 47., and also the case of this very debattar, in Peary Mohan Mukerji v. Manohar Mukerji (1921) I.L.R. 48 Calc. 1019 ; L.R. 48 I.A. 258.. And in the case ...of Muhammad Rustam Ali v. Mushtaq Husain (1920) I.L.R. 42 All. 609 ; L.R. 47 I.A. 224., Lord Buckmaster was very careful to point all that arguments based upon a supposed position that heads of religious' endowments--in that case a mutawalli--makes a strong appeal to those who are accustomed! to administer the English law with regard to 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removing a shebait from his office may not he identical with those upon which a trustee would be removed in this country. The close intermingling of duties and personal interest which together make up the office of shebait may well prevent the closeness of the analogy. 69. See Peary Mohan Mukerji v. Manohar Mukerji (1921)I.L.R. 48 Calc. 1019 (1027); L.R. 48 IndAp 258 (264).. As has been observed in Vidya Varuthi Thirtha v. Balusami Ayyar (1921) I.L.R. 44 Mad. 831 ; L.R. 48. I.A. 302.,-- 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 enioyment and the amount of the usufruct depending again on usage and custom. 70. From these observations of their Lordships of the Judicial Committee, it would seem to follow that a shebait has some sort of beneficial interest in the endowment or the debattar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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