Angurbala Mullick vs Debabrata Mullick

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 3 May 1951

Coram: Chandrasekhara Aiyar, M.C. Mahajan, Saiyid Fazl Ali

In the matter titled Angurbala Mullick versus Debabrata Mullick, the Supreme Court of India rendered its judgment on the 3rd of May, 1951. The bench hearing the case comprised Justices Chandrasekhara Aiyar, M C Mahajan and Saiyid Fazl Ali, with Mukherjea, J. delivering the opinion. The appeal before the Supreme Court challenged a decision of the Calcutta High Court dated 19 May 1950, which had affirmed an earlier judgment of a single judge of the Original Side of that Court issued on 9 February 1949 in Suit No 2481 of 1947. The appellant, Angurbala Mullick, was the widow of the late Mrityunjoy Mullick, a wealthy Hindu resident of Calcutta. The respondent, Debabrata Mullick, was a minor who was the only son of Mrityunjoy born to his first wife, Kiranbala, who had predeceased her husband. The central dispute concerned whether, after the death of her husband, the widow was entitled to act as shebait of an idol named Sree Sree Nitto Gopal Jew, which had been founded by Mrityunjoy and his mother, either alone or jointly with the minor son.

To understand the issues raised in the appeal, the Court needed to set out several undisputed antecedent facts. Neither party presented any evidence before the trial judge; the questions presented in the suit were treated as pure questions of law, involving the construction of the indenture that created the endowment and the application of the Hindu Women’s Rights to Property Act (Act XVIII of 1937, as amended by Act XI of 1938). The factual background began with the death of Dhananjoy Mullick, the adoptive father of Mrityunjoy, on 28 August 1907. Dhananjoy left behind his widow, Nitto Sundari, and his adopted son, Mrityunjoy, who was then a minor. On 11 February 1910, Nitto Sundari secured letters of administration over Dhananjoy’s estate, to be managed during the minority of the adopted son. Subsequently, on 13 June 1920, Nitto Sundari purchased a house at premises No 14, Syakrapara Lane in Calcutta, using funds from her late husband’s estate. She later conveyed this property to Mrityunjoy on 10 October 1934, after he had attained majority. On that same day, Nitto Sundari and Mrityunjoy executed an indenture dedicating the properties described in Schedules A and B—including the newly transferred premises—to the deity Nitto Gopal Jew. The indenture recorded that Nitto Sundari, with her son’s consent, had established and consecrated the idol at the said premises and had been performing worship and periodic festivals in accordance with Hindu rites. The document lays down

In the indenture, the parties set out in exhaustive detail the various rites, ceremonies and festivals to be performed for the idol on a daily basis or at specified times, and they also specified how the expenses required for these religious activities were to be met from the income generated by the dedicated properties. The indenture further provided that a remuneration equal to twenty-five per cent of the net income of the debenture property was to be paid to the shebait or shebaits then in office. After enumerating the trusts, the document proceeded to describe the appointment of shebaits and the manner in which the shebaitship would devolve. The indenture stated: “That the said Sm. Nitto Sundari Dassi doth hereby constitute and appoint herself the shebait of the said Thakur for the during the term of her natural life and doth hereby declare that after her death her son the said Mrityunjoy Mullick shall become the shebait of the said Thakur and after his death his wife Sm. Kiranbala Dassi and after her death the heirs of the said Mrityunjoy Mullick shall be and act as the shebait or shebaits of the said Thakur and she doth hereby declare him or them such shebait or shebaits accordingly and doth hereby direct and declare that the daily worship and other periodical festivals and ceremonies of the said Thakur should be performed by such shebait or shebaits. Provided however that in case the said Mrityunjoy Mullick shall happen to die without any issue or without giving any authority to his wife him surviving, to adopt, then in such case it shall be competent for the said Mrityunjoy Mullick to appoint by will or otherwise a shebait who would act as such after the death of his said wife as aforesaid but in case the said Mrityunjoy Mullick shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law.” It was not contested that Nitto Sundari performed the duties of shebait until her death in 1938, after which Mrityunjoy assumed the role. The first wife of Mrityunjoy, identified in the indenture as Sm. Kiranbala Dassi, died on 14 January 1942, leaving an infant son, Debabrata, who is the defendant in the present suit. Shortly after her death, Mrityunjoy married Angurbala, the plaintiff, and five months later, on 4 July 1942, he died. On 29 August 1947, Angurbala instituted suit in the Original Side of the Calcutta High Court seeking a declaration that, according to the terms of the indenture, she was the sole shebait of the deity, or alternatively, that she was entitled to share the shebaitship with the defendant as a co-heir under the provisions of the Hindu Women’s Rights to Property Act. Additionally, she prayed for a right of residence in premises No. 14, Syakrapara Lane.

The defendant denied that the plaintiff possessed any shebaiti right, either exclusively for herself or jointly with the defendant, and asserted that, according to the deed of endowment as well as the applicable law, the defendant alone was the shebait. The defendant further maintained that the plaintiff had no entitlement to reside in the premises identified as No. 14, Syakrapara Lane. By his judgment dated 9 February 1949, the learned trial Judge held that the plaintiff was not the sole shebait of the deity and that she could not claim a joint shebaiti right with the defendant. The Judge also concluded that the Hindu Women’s Rights to Property Act did not apply to the devolution of shebaiti rights. Moreover, the Judge observed that, because the plaintiff was not the legal natural guardian of the defendant, she could not exercise shebait authority on behalf of the defendant while the defendant remained a minor. In contrast, the Judge found that the plaintiff’s claim to a right of residence in premises No. 14, Syakrapara Lane, was well-founded, and accordingly granted her relief for that specific prayer. Consequently, except for the declaration of her right to reside in the aforementioned premises, all other prayers of the plaintiff were dismissed. The plaintiff appealed this decision to an appellate Bench of the Calcutta High Court composed of Sir Trevor Harries, Chief Justice, and Justice Sinha. The counsel appearing for the appellant did not seriously contest the trial Judge’s finding that the plaintiff could not act as the sole shebait under the terms of the indenture or as the natural guardian of the defendant during his minority. The sole issue raised on appeal was whether the plaintiff could be recognized as a joint shebait together with the defendant. The appellate Judges rejected this contention, primarily because the same question had been addressed by the Federal Court in Umayal Achi v. Lakshmi Achi (1945 FCR 1), which held that succession to shebaitship was not altered or affected by the provisions of the Hindu Women’s Rights to Property Act. Accordingly, the appeal was dismissed, and, having obtained a certificate under article 133(1)(c) of the Constitution, the plaintiff-appellant now brought the matter before this Court. The principal argument advanced by Mr. Tek Chand, appearing for the plaintiff-appellant, was that the clause in the indenture governing the devolution of shebaitship provided that the shebaitship would pass to Kiranbala after Mrityunjoy’s death and, upon her death, would vest in the heirs of Mrityunjoy. Since Kiranbala died during the lifetime of Mrityunjoy, the grant of shebaiti right in her favour lapsed, and therefore the heirs of Mrityunjoy are entitled

In determining who must succeed as the next shebaits after Mrityunjoy’s death, the Court explained that the identity of those heirs is governed by the law that was in force at the moment the succession opened. Under the Hindu Women’s Rights to Property Act, which became operative in 1937, a widow of a propositus who dies intestate is placed on the same footing as a son and is entitled to an equal share of the deceased’s property. Consequently, the Court noted that because shebaitship constitutes property, it would, according to section 3 of the same Act, devolve jointly upon the plaintiff and the defendant. The Court then considered a hypothetical argument that the expression “property” in the Act might be interpreted as excluding the shebaiti right. In that regard, counsel for the plaintiff relied on the well-settled proposition that succession to shebaitship follows the ordinary rules of inheritance applicable to secular property under Hindu law. Since the Act modifies certain aspects of the general law of inheritance, the Court observed that those modifications must also be recognized as affecting succession to shebaitship. Additionally, counsel raised, though not with great emphasis, a suggestion that the wording of the indenture could be read as granting the wife of Mrityunjoy a preferential claim over other heirs. While the document expressly mentions Kiranbala, the wife of Mrityunjoy, as the person to become shebait after his death, it was argued that the name “Kiranbala” is merely descriptive of the term “wife,” and therefore any woman who is Mrityunjoy’s wife at the time of his death should be entitled to succeed to his shebaiti rights.

Counsel for the respondent, while not contesting the proposition that shebaitship is a form of property whose devolution is governed, in the absence of any specific direction by the founder, by the ordinary rule of succession under Hindu law, argued that the Hindu Women’s Rights to Property Act is special legislation intended for a particular purpose and does not employ the word “property” in an unrestricted sense. He emphasized that a careful reading of sections 3 and 5 of the Act, together with its preamble, demonstrates that Parliament could not have contemplated, and does not intend to affect, the succession rules applicable to the distinctive and somewhat anomalous category of property that shebaitship represents. The counsel therefore maintained that the Act should not be construed to alter the established inheritance principles relating to shebaitship. In support of this position, he referred to the pronouncement of the Federal Court in the earlier case, stressing that the special nature of shebaitship requires it to be treated separately from the ordinary property regime contemplated by the Act.

In referencing the decision of Umayal Achi v. Lakshmi Achi, reported in the 1945 volume of the Federal Court Reports at page 1, the learned counsel advanced a further contention concerning the interpretation of the specific clause in the indenture earlier described. That clause, according to counsel, prescribes the manner in which the shebaitship is to devolve. Counsel argued that, when the entire deed is read in context, the clear intention of the parties who executed the deed was that the “issue” of Mrityunjoy should be the first to inherit the shebaitship, and that no other descendant of Mrityunjoy could claim the shebaitship either on the basis of the general law of succession or any special statute, provided that any issue of Mrityunjoy remained alive. In addition, Mr Banerjee raised another interpretative question relating to the same deed. He submitted that the words “heirs of the said Mrityunjoy” appearing in the instrument should not be understood as a clause of devolution but rather as an expression of a direct gift to the heirs at the time the grant was made. Consequently, the term “heirs” would refer only to those persons who could legally claim heirship at the moment of the grant, and any later amendment in the law would not alter that original position. The Court then indicated that it would first turn to an examination of the provisions of the Hindu Women’s Rights to Property Act to determine whether the Act’s ambit embraces a right of the peculiar character that shebaitship represents.

The precise legal nature of a shebait cannot be captured in a single definition, yet its essential features are well settled by jurisprudence. The Judicial Committee, in Vidya Varuti v. Balusami, reported in Indian Appeals at page 302, held that the relationship of a shebait to debutter property differs fundamentally from the trustee-beneficiary relationship under English trust law. Under English law, the legal estate in trust property vests in the trustee, who holds it for the benefit of the cestui-que-trust. By contrast, in a Hindu religious endowment the entire ownership of the consecrated property passes to the deity or to the institutional entity regarded as a juristic person, while the shebait, also known as the mahant, functions merely as a manager of that property. Although the shebait is a manager and not a trustee in the technical sense, it would be inaccurate to describe shebaitship as a purely nominal office. The shebait bears duties connected with the endowment and simultaneously enjoys a beneficial interest in the debutter property. The Judicial Committee further observed that, in almost all such endowments, the shebait possesses a share in the usufruct of the debutter property, a share that may arise from the specific terms of the grant, from customary practice, or from usage. Even where the office of shebait carries no remuneration, the shebait nonetheless enjoys a right or interest in the endowed property that, at least in part, has the character of a proprietary right. Hence, the concept of shebaitship blends elements of an office with elements of property, encompassing both duties and a personal interest that cannot be separated.

In this passage the Court observed that the two aspects of shebaitship – the managerial duties and the personal or beneficial interest in the endowed property – are mixed and inseparable, so that one element cannot be detached from the other. The presence of this personal or beneficial interest gives shebaitship the character of a proprietary right and subjects it to the ordinary legal incidents of property. The Court referred to a full-bench decision of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji [I.L.R. 60 Cal. 452] and noted that the same decision was approved by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary [63 I.A. 448] and subsequently affirmed in Bhabatarini v. Ashalata [70 I.A. 57]. According to the Privy Council, as noted in the latter case, the effect of the earlier decisions was to emphasize the proprietary element inherent in the shebaiti right and to acknowledge that, although the right is anomalous in some respects, it has been accepted as a part of Hindu law from an early period. Lord Hobhouse, speaking in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee [16 I.A. 137], stated that under Hindu law, when the worship of a Thakoor has been founded, the shebaitship is presumed to vest in the heirs of the founder unless evidence shows that the founder disposed of it otherwise, or unless there is usage, a course of dealing, or circumstances indicating a different mode of devolution. Accordingly, unless the founder has exercised his inherent right to dispose of the shebaitship in a particular manner, or unless a different custom or usage is proved, the shebaitship, like any other heritable property, follows the line of inheritance from the founder to his heirs.

Turning now to the Hindu Women’s Rights to Property Act, the Court noted that the object of the Act, as set out in its preamble, is to secure better property rights for women. Section 2 of the Act provides that, notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply when a Hindu dies intestate. Section 3(1) then stipulates that when a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law dies intestate leaving separate property, his widow—or, if there are multiple widows, all his widows together—shall, subject to the provisions of sub-section (3), be entitled with respect to the property left by the intestate to the same share as a son. The provision further provides that the widow of a predeceased son shall inherit in the same manner as a son if there is no surviving son of that predeceased son, and shall inherit in the same manner as a son’s son if a son or grandson of that predeceased son survives. The same rule is to apply mutatis mutandis to the widow of a predeceased son of a …

The Court observed that sub-sections two and four of section three were irrelevant to the matter before it. Sub-section three, however, provided that any interest accruing to a Hindu widow under the section would be a limited interest described as a Hindu woman’s estate. The Court then noted that section four expressly stated that the Act would not operate retrospectively. The only other provision cited during the arguments was section five, which defined a person as dying intestate for all property that he had not disposed of by a testament capable of taking effect.

According to the Court, section three paragraph one superseded the traditional Hindu law rule whereby a widow could inherit her husband’s property only in the absence of male issue. Under the new provision, a widow was entitled to the same share as a son, whether or not male issue existed. The two provisos attached to this paragraph extended the same entitlement to the widow of a predeceased son and to the widow of a predeceased son of a predeceased son. The language “any property” in section three paragraph one was interpreted prima facie to encompass all categories of interest that qualify as property under law, unless another provision of the Act expressly limited that meaning. The Court stressed that the property in question must be heritable property, the only kind of property for which succession questions legitimately arise.

Counsel argued that the purpose of the statute, as expressed in its preamble, was to grant women better property rights than those available under ordinary Hindu law. The Court, however, held that the preamble did not clarify whether the Act covered the rights and interests of a shebait. Counsel further relied on sub-section three of section three, which characterises the widow’s interest as a limited Hindu woman’s estate. Counsel contended that the distinction between a Hindu woman’s estate and the unrestricted rights of a male heir could apply only to ordinary secular property, and that the distinction became meaningless when applied to shebaiti rights because a male and a female shebait enjoy identical interests. The Court found this argument unconvincing. It noted that the same situation arises when a shebaiti right passes to a female heir under the ordinary law of inheritance. If a shebait dies

When a man died leaving only a widow and no male issue, the widow would become the shebait under the ordinary law, but her rights in the shebaiti would be limited in exactly the same way as if the successor had been a son. The reason for this is that the shebaiti right carries certain inherent limitations and restrictions that apply regardless of whether the shebaitship passes to a male or a female heir. Although the restriction on the power of alienation is identical for both male and female shebaits, there remains a further distinction that relates to another characteristic of a Hindu woman’s estate. When a Hindu woman heir succeeds to the property of a male propositus, she is not permitted to pass on the interest she has inherited to her own heirs after her death. Instead, the property, upon her death, passes not to her heirs but to the heirs of the last male owner. This principle also operates when the right that devolves upon a widow is the right of a shebait; after the widow’s death the shebaiti right does not go to her stridhana heirs but reverts to the heirs of the last shebait, as affirmed in Anuragi Kuer v. Paramanand, A.I.R. 1939 Pat. 1. Consequently, sub-section (3) of section 3 provides no aid to the petitioner’s case. Counsel for the petitioner then argued that section 5 of the Hindu Women’s Rights to Property Act clearly indicates that the Act was intended to apply only to property over which a testamentary disposition could be made. It was noted that this section had been inserted by the amending Act XI of 1938 to define the expression “dying intestate”. The provision declares that, for the purposes of the Act, a person shall be deemed to die intestate with respect to any property of which he has not made a testamentary disposition capable of taking effect. Counsel for the petitioner interpreted the section as qualifying the meaning of the word “property” used in section 3(1), or alternatively as imposing a limitation on it. The contention was that the language of the section would be wholly inappropriate if the Act were to apply to properties such as shebaitship, where no testamentary disposition is possible. The Court found this argument unpersuasive. Section 2 of the Act, previously referred to, makes the provisions of section 3 operative only when a Hindu dies intestate. Ordinarily, a person is regarded as dying intestate when he leaves no will disposing of his property. A question could arise as to whether the Act applies when a will has been executed but, for some reason, is incapable of taking effect; the purpose of the amendment in 1938 was precisely to remove such doubt.

In this case, the Court observed that the wording of section 5 of the 1938 Act is identical to the wording of section 30 of the Indian Succession Act, and that both provisions pursue the same purpose. The Court explained that merely drafting a will does not prevent the Act from applying. For the Act to be excluded, the will must be an operative will; if the will is void or otherwise incapable of taking effect, the testator must be treated as having died intestate. The Court further noted that when property is described as “non-testamentable,” as counsel for the petitioner argued, no testamentary disposition of that property can be effected in law, and consequently the testator must be deemed to have died intestate with respect to such property. From this analysis, the Court concluded that none of the provisions of the Act support an interpretation that limits the term “property” in section 3(1) to exclude shebaitship, which Hindu law recognizes as a form of property.

Next, the Court referred to the Federal Court decision in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1], which had been heavily relied upon by the learned appellate judges of the High Court. The Court summarized the facts of that case in a concise manner. Arunachalam Chettiar, a resident of Madras, owned substantial movable and immovable property both within and outside British India. At his death he left two widows and the widow of a predeceased son. Although he had executed a will, the legacies bequeathed therein covered only a small fraction of his estate; the remainder of his considerable wealth therefore fell to him as an intestate. In addition, the deceased possessed several trust properties that were the subject of religious and charitable trusts, and his will directed that the management of those trusts should pass to his heirs.

The widow of the son filed a suit before the Subordinate Judge at Devakottai seeking administration of the estate, partition, and separate possession of a half share, invoking the Hindu Women’s Rights to Property Act. The two widows and the executors named in the will opposed the suit, contending, among other points, that the Hindu Women’s Rights to Property Act was ultra vires the legislature and, in any event, could not apply because the deceased had not died intestate. The trial judge first held that the Act was not ultra vires and that it applied to all property except agricultural land. This finding was upheld by the High Court on appeal and later affirmed by the majority of the Federal Court judges on further appeal. The trial judge’s second finding was that the deceased had, with respect to a substantial portion of his property, died intestate, and consequently the plaintiff was entitled to a half share of that portion.

The Court noted that the plaintiff had been found entitled to a half share of the estate. The High Court affirmed this finding but varied it by holding that the plaintiff’s claim to movable property situated outside British India could not be allowed. However, the Federal Court overturned the High Court’s variation on that point and restored the trial judge’s original decision allowing the claim. The matter presently before the Court concerned the devolution of the trust estates that the testator had held. Both the trial court and the High Court had agreed that these trusts should pass to the heirs of the deceased under the ordinary Hindu law and that the Hindu Women’s Rights to Property Act did not apply to the trusts. The Federal Court, by a majority of its Judges, upheld that same conclusion, and the issue was specifically addressed in the judgment of Justice Varadachariar. Justice Varadachariar expressed the view that the Hindu Women’s Rights to Property Act was intended to apply only to property beneficially owned by the propositus and was not applicable to rights that arose from trusteeship. The Court considered that, on the face of the decision, this interpretation did not preclude the appellant’s claim. Firstly, the nature of the trusts in question was uncertain. The judge observed in his judgment that there was little or no evidence regarding the terms of the foundations of any of the trusts that were said to be “managed” by the deceased. This observation, together with the terms of the documents referred to in the judgment, suggested that the deceased acted merely as a manager of the trusts and, in respect of some trusts, he managed them jointly with other persons. In the High Court, Chief Justice Sir Lionel Leach had expressly held that the trust properties could not be regarded as the separate property of the testator and, therefore, Act XVIII of 1937 could not be applied to them. Justice Varadachariar, referring to the documents relied upon by counsel for the appellant, observed that the documents provided only for “management by his heirs.” The Court found no material indicating that the trustees of the trusts that formed the subject-matter of the suit possessed any beneficial or personal interest in the trust property; on the contrary, the indications pointed in the opposite direction. Consequently, there was no question in the present case of overturning the legal proposition set out by Justice Varadachariar, namely that the Hindu Women’s Rights to Property Act could not govern succession to property over which the propositus had no beneficial enjoyment. Nonetheless, the Court held that it could not, on the basis of that decision alone, articulate a broad rule of law declaring that succession to shebaitship, which normally involves an element of beneficial or personal interest, would be excluded from the operation of the Act.

In this case, the Court noted that the learned Judge had made a few observations in his judgment which were not expressed with great clarity, and from those remarks it was possible, though not certain, to infer a conclusion that might favour the respondent. The Court, however, held that such observations must be interpreted in the context of the established facts and the actual decision that was rendered. The Court pointed out that the Judge had observed, in very general terms, that Hindu law treats trusteeship as property for certain purposes. It was emphasized that the Judge never used the specific term “shebaitship” and did not limit his comments to religious trusts alone. Moreover, the Court observed that trusteeship cannot be assumed to be identical with shebaitship.

The Court further explained that the Judge’s reference to the limited objective of the Act suggested that the Judge was envisioning a trust in which the trustee possessed no personal interest in the trust property. The Court reiterated that the purpose of the Act, as previously stated, was to enhance the rights of women in relation to property. Consequently, if a trusteeship, even when regarded as property, confers no remuneration, no beneficial interest, and consists solely of a bundle of obligations and duties, it could be argued that extending the rights under the Act to a Hindu widow in such a situation would not materially improve her position. By contrast, the Court observed that the situation would be markedly different where the office carried a substantial beneficial interest that was inseparably linked to the duties of that office.

The Court also considered that the Judge appeared to use the phrase “private property” in a rather loose manner, intending it to mean personal property over which the owner enjoys a beneficial interest. The Court found the Judge’s citation of section 3(3) of the Hindu Women’s Rights to Property Act to be of limited assistance in interpreting the Act. Ultimately, the Court held that the decision must be taken as it stands, and it would be inappropriate to invoke a specific reason given by the Judge in order to extend the decision beyond what the Judge actually intended to declare.

In support of this approach, the Court referred to a Division Bench of the Madras High Court in the case of P. Suryanarayanacharyulu v. P. Seshamma. In that case, the issue concerned the rights associated with the hereditary religious office of archakatvam, whose holder(s) were entitled to enjoy the income of the endowed property. The Madras High Court held that the principle laid down by the Federal Court in Umayal Achi v. Lakshmi Achi (1945) F.C.R. 1 did not apply to a matter involving the office of archakatvam. The Court noted that, although the observations of the learned Judge in the Federal Court were broad, the Federal Court’s decision was based solely on the principal ground that the Act governs succession to property beneficially owned by the propositus.

The Court observed that the Federal Court’s decision was based solely on the principal ground that the Act governs succession to property beneficially owned by the propositus, and that the reasoning applied in that case should also apply to the hereditary shebait of a private debutter. In the present matter, the Court noted that twenty-five per cent of the net income of the endowed properties had been allotted to the shebait of shebaits then in office as remuneration. Accordingly, the Court concluded that none of the provisions of the Hindu Women’s Rights Property Act exclude from its operation the succession to shebaitship, which is a recognized form of property under Hindu law. Assuming that the word “property” in Act XXIII of 1937 is to be understood in its ordinary, commonly-accepted sense and not to be extended to a special or peculiar category, the Court held that the contention raised by counsel for Mr Tek Chand was well founded. The Court explained that succession of shebaitship, although it contains an element of religious duty, follows the same rules that govern succession to ordinary or secular property. While the general law of succession has been modified by Act XVIII of 1937, the Court found no convincing reason why the law as it presently stands should not be applied to the devolution of shebaitship. Regarding the final contention of Mr Tek Chand—that the indenture itself gave the wife of Mrityunjoy and Kiranbala a prior right to succeed to shebaitship before any issue of Mrityunjoy—the Court found the argument manifestly untenable and, noting that counsel was not seriously pressing the point, declined to discuss it further. The Court then turned to the remaining submissions raised by counsel for Mr Banerjee, which hinged on the construction of certain clauses in the indenture. The Court expressed that it was not persuaded by the argument that the words “heirs of the said Mrityunjoy” should be read as a grant rather than as a reference to inheritance, because such a construction would contradict the language and overall tenor of the document. The Court observed that Mrityunjoy was the owner of the dedicated properties and the true founder of the endowment, while his mother participated in the dedication by consecrating and establishing the deity and tending to its worship. Consequently, it was appropriate that Mrityunjoy requested his mother to become the first shebait, as reflected in the indenture. After the death of Nitto Sundari, the indenture provided that Mrityunjoy himself would become the shebait, with the sole exception of a specific provision made in favour of Kiranbala.

In this case the Court observed that after the death of Mr Mullick’s wife, Smt Kiranbala Dassi, the devolution of shebaitship was directed to pass to the heirs of the founder and that the document gave no indication that those heirs were intended to constitute an independent gift. The Court further noted that the same point had been raised before the Federal Court in Umayal Achi v Lakshmi Achi [1945] F.C.R. 1, where the will directed that the trust estates should go to the heirs; Justice Varadachariar had then held that it was unreasonable to construe such words as creating a gift rather than a devolution. Mr Banerjee argued that, reading the relevant provisions of the indenture as a whole, it was clear that the executants intended the issue of the founder, Mr Mullick, to enjoy preference over any other heirs in the succession to shebaitship and that a non-issue heir could not succeed so long as an issue remained alive. The Court reproduced the pertinent clause which provides, firstly, that after the death of Nitto Sundari her son Mr Mullick shall become the shebait, secondly that after him his wife Smt Kiranbala Dassi shall hold the shebaitship, and thirdly that after her death the heirs of Mr Mullick shall act as shebaits. The indenture also contains a proviso stating that if Mr Mullick should die without any issue or without authorising his wife to adopt a son, he may, by will or otherwise, appoint a shebait who would succeed after his wife’s death; but if he dies without any issue, the shebaitship of the Thakur after his wife’s death shall devolve upon his heirs under Hindu law. Mr Banerjee stressed the latter part of the proviso, contending that it clearly directs that only on the failure of issue may the heirs of Mr Mullick become shebaits, and he invited the Court to read the word “heirs” in the preceding clause as limited to the issue of Mr Mullick. The Court rejected that construction, explaining that a proviso normally operates as an excepting or qualifying clause that removes from the preceding provision the situation that would otherwise be covered. Accordingly the Court held that the term “heirs” cannot ordinarily be confined to issue alone; it must be understood in its ordinary sense to mean all persons who are entitled to the property under the law of inheritance.

In the present case the Court observed that the term “heirs” was employed in its ordinary and natural meaning and was not limited to any special class of persons. The provision that preceded the proviso set out the general rule governing the devolution of shebaitship, and the word “heirs” under that rule was understood to include every person who, under the law of inheritance, was entitled to succeed. The proviso, therefore, functioned as an exception to the general rule rather than as a definition that narrowed the meaning of “heirs.” According to the Court, the effect of the proviso was to grant Mr Mrityunjoy a power to nominate a shebait who would succeed after his death, but only on the condition that he died without any issue and that his wife was not given any authority to adopt a son. The Court noted that the word “issue” embraced both sons and daughters, and consequently the power of appointment could not be exercised by Mr Mrityunjoy if a daughter was alive, even though a son might be absent. If the contemplated contingency occurred – that is, if Mr Mrityunjoy died without issue and his wife had no power of adoption and he made no appointment – the Court explained that the remaining heirs of Mr Mrityunjoy would then become shebaits, as expressly stated in the concluding part of the proviso. The expression “his heirs” at the end of the proviso was therefore read to refer to heirs other than a son or a daughter of Mr Mrityunjoy. Since, in the facts before the Court, Mr Mrityunjoy actually left a son, the specific contingency described in the proviso never arose, and consequently the proviso could be disregarded for purposes of construction. The Court further held that it would be improper to read into the proviso an implication that contradicted the main provision, and that such an implication was not supported by any language in the document. In this regard the Court concluded that the argument advanced by counsel for the respondent, which sought to limit the word “heirs” to issue only, could not succeed.

Having reached this conclusion, the Court held that the appeal was successful and accordingly set aside the judgments and decrees of the lower courts, except for the declaration of the plaintiff’s right of residence that had been made by the trial court and was left undisturbed. In addition, the Court declared that the plaintiff was entitled to enjoy joint shebaitship together with the defendant over the debuttar created by the indenture dated 10 October 1934. The Court also ordered that the taxed costs incurred by both parties in all the courts be paid out of the debuttar estate. The judgment was delivered by Justice Chandrasekhara Aiyar, with concurrence noted from the other members of the bench.

He stated that he accepted the conclusion reached by his three learned brothers in the judgment that had just been pronounced, but he wished to add a few observations on two points on which he did not fully share their view. Regarding the argument advanced by Mr. Bannerjee that the term “property” in the Hindu Women’s Rights to Property Act could not be interpreted so broadly as to encompass a shebait right, he noted that Bannerjee relied on sub-clause (3) of section 3, which provides that “any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman’s estate.” Bannerjee contended that the notion of a limited estate, distinguished from an absolute interest, was inapplicable to a right of property. The judge explained that this point merited careful consideration, emphasizing that the discussion was not about property endowed to a Thakur or a deity as a religious endowment, but about shebaitship itself as a category of property. He asked whether it could be asserted, with reference to shebaitship, that a Hindu widow succeeding to the office possessed only a “Hindu woman’s estate” as opposed to a full or absolute estate taken by a male heir, and whether a male heir thereby enjoyed superior rights. He observed that, with respect to shebaitship, the office did not confer rights beyond the holder’s lifetime, regardless of gender, and was generally inalienable, being res extra commercium. Neither a male nor a female heir could alienate it, and any limitations on alienability arose from the nature of the property itself, not from the nature of the heir’s estate. He further remarked that, in the very nature of things, there could be no alienation for necessity, surrender, or acceleration of the estate in favour of the next successor. This line of reasoning, he said, was plausible and supportive of the view expressed in Umayal Achi v. Lakshmi Achi, where Sir Varadachariar observed that sub-clause (3) of section 3 is appropriate for private property where a woman’s estate differs from the interest taken by a male heir, but that, in the case of trusteeship or a similar office, the law makes no distinction between the interest taken by a male heir and that taken by a female heir.

Nevertheless, the judge held that this reasoning did not decisively outweigh the several considerations articulated in the judgment delivered earlier by his learned brother Mukherjea J., who had construed the word “property” in a broader sense so as to include the shebaiti right as well. He pointed out that there was no legal objection to a woman being a shebait under Hindu law, and consequently there was no specific reason to exclude her from succeeding to the

The Court noted that the statute in question imposes no restriction or prohibition—neither in explicit terms nor by necessary implication—on a woman’s right to succeed to the same position. The Court then turned to the interpretation of the deed of indenture executed by Nittamony Dasi and Mrityunjoy. It expressed the view that the technical rules used for interpreting statutory provisos and exceptions should not ordinarily be imported when interpreting deeds and documents prepared by laypersons. In ordinary deeds, a proviso may function as an explanation of the main provision, and therefore the interpreter must consider not only the form of the language but also its substance, the underlying purpose of the deed, the surrounding context, and the surrounding circumstances to ascertain the true meaning or intention of the parties involved. Applying this approach and adopting a broad construction, the Court concluded that, as made clear by the proviso, Mrityunjoy intended that his biological issue, or any person his wife might adopt on his authority, should be the first to succeed to the shebaiti. If such an issue did not exist, the shebaitship should pass to any person nominated by him in his will. Failing both a surviving issue and a testamentary nomination, the right was intended to devolve upon his heirs according to Hindu law, with the proviso serving to explain the term “heirs” used in the preceding clause. Consequently, the Court held that the respondent would succeed to the office in preference to the appellant. While acknowledging that the construction adopted by the learned brothers was also possible, the Court did not express dissent from their result and consequently allowed the appeal.