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TMI Blog1972 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... i Radhakanta Jew Thakur transferred absolutely his Shebaiti right to the present plaintiff. It is admitted in this case that the disputed properties are the absolute Debutter properties of the Deity. It is also admitted that along with the Arpannama Satish Roy executed one 'Ijarapatta' (lease) in favour of the defendant No. 5, brother of the plaintiff, on the same date for thirty years in respect of the disputed properties. Now, the case of the plaintiff in substance is that by the Arpannama and by the Ijarapatta the entire Shebaiti right of Satish Roy was transferred absolutely to the present plaintiff a co-shebait and out of the rent of Rs. 190/- reserved in the Patta the appellant would be entitled to get Rs. 100/-to carry on the Seba Puja of the Deity forever. The defendants Nos. 1 and 2 grandsons, and the defendant No. 3, a son of Satish Roy, who died on 14-10-1949 set up his will and claimed the Shebaiti right in his share and denied the plaintiff's claim of Shebaiti right. Some of the other defendants who were the Co-shebaits filed written statement supporting the case of the plaintiff. 4. It appears that sons and grandsons of Satish Roy contested the suit at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There does not appear to be any English synonym of the word 'Shebait' though the term 'Pala' has been translated as turn of worship'. Now, worship in the present context clearly signifies service to God in the turn of particular Shebait which only indicates divided rights and duties of Shebaitship of the Idol when there are more Shebaits than one. It can now be safely said on the authority of the proposition laid down by the Judicial Committee in Ramanathan v. Murugappa, (1906) 33 Ind App 139 (PC) that the Shebaits are entitled to carry out their duties and management of- deity's properties in such order as they think proper. The exercise of such Shebaiti rights by rotation by different Shebaits is, it seems to me, commonly called 'Pala' in Bengal. It is also well established that Shebaitship is not mere office but it is admixture both of duties and the right to property which is subject to devolution according to ordinary Hindu Law of Succession. See Full Bench decision of this Court in Manohar v. Bhupendra, ILR 60 Cal 452 : (AIR 1932 Cal 791) (FB) and Ganesh v. Lal Behary, 63 Ind App 448 : (AIR 1936 PC 318). 6. But before 1 proceed further I must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form the Pala. The Appellate Court below in spite of such provisions held that the Shebaitship was not transferred but the plaintiff was given right to perform the Sheba Puja of the deity during the five months 'Pala' of the Shebait, I think such a construction put upon the document is erroneous. It is quite clear even from the operative portion that the 'Pala' was transferred and not merely the right to perform 'Sheba' Puja of the deity. It is specifically provided that the 'Pala' was intended to be transferred absolutely to carry on the 'Deb Sheba' in the turn of worship of the executant after his death by the plaintiff and his heirs and successor. It cannot be doubted that 'Deb Sheba' in the present context would clearly mean the divided rights and duties of the particular Shebait and not merely performing Sheba Puja during the 'Pala'. 8. The reasons given, substantially in support of such construction are, firstly, that the executant reserved for himself the balance of Rs. 90/- out of the annual rent mentioned in the Patta and secondly, if the plaintiff failed to worship the deity properly, he would be entitled to return t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the Shebait that fact by itself will not necessarily establish that his Shebaiti right was not transferred in favour of the transferee under the impugned document. In my view, appropriation of a part of incomes of the Deity's estate by the Shebait himself is not unknown in Hindu religious endowments, see Vidyavarathi v. Balusami, 48 Ind App 302 : (AIR 1922 PC 123). In this case it will not be unreasonable to suppose from the tenor of the documents that the shebaits under the age old practice observed in the family used to appropriate a part of the income to themselves and in the impugned Arpannama the transferor only retained that right under mutual agreement and not the shebaiti rights considered the matter, therefore, from both aspects it must be said that Pala of the She-baits was transferred absolutely. 10. In the view I have taken it is sufficient to dispose of the appeal but the Appellate Court below has further considered the second question as to whether even if the Arpannama was a document of transfer of the Shebaiti right, such a transfer could, be valid and operative against the legal heirs after the death of the executant. In considering this question the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Kalighat temple Palas have been transferred at least during 90 years, though in a limited market which those alone can enter who are qualified to become Shebait by birth or marriage, the time when this custom originated being unknown . It was further held that the proof of the existence of custom need not be carried back by direct evidence to the year 1773 when the Supreme Court was established or even to 1793 when the first Regulation was passed by Indian Legislature. In this case there was a serious dispute on the question of existence of custom and, therefore, on the evidence adduced showing the practice to be existing at least for 90 years, the custom was found to have been established but here in the instant case as I have already stated the question as to the existence of custom did not come in the forefront nor there was any issue framed and no rebutting evidence at least appears to have been adduced by the defendants. In these circumstances, as the standard of proof of such family custom cannot be uniform, it is not right to hold that the custom of transferability of Pala or the turn of worship was not in existence in the family. 12. The other question, namely, whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion but of the circumstances tending to benefit the idol. The recital made by the transferor himself in the document of transfer, if it is otherwise permissible could not be rejected as merely imaginary apprehension of the transferor. The trial Court as a fact found that heirs of the transferors were neglectful of their duties. In any case in absence of any clear and cogent evidence to the contrary, the recital in document must be accepted as representing the true state of affairs. In this case, therefore, there being no evidence showing that the statement by the transferor in the document impressing the urgency and necessity of the transfer in favour of the co-shebait for the worship of the idol, no other course is left open than to accept those statements as correct and in that event, there can be little doubt that the transfer was for the benefit of the deity. The Appellate Court below though referred to the case of Nirade Mohini v. Shibadas ILR 1909 Cal 975 sought to distinguish it from the facts of the present case entirely on a misappreciation of the principles stated there. In my view, the principle laid down in that case that the transfer is permissible if it is for the be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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