Sree Sree Ishwar Sridhar Jew vs Sushila Bala Dasi And Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 201 of 1952
Decision Date: 16 November 1953
Coram: Natwarlal H. Bhagwati, B.K. Mukherjea, Vivian Bose
In this case the Supreme Court of India recorded a judgment dated 16 November 1953 concerning a dispute between Sree Sree Ishwar Sridhar Jew as petitioner and Sushila Bala Dasi together with other respondents. The judgment was authored by Justice Natwarlal H. Bhagwati, who sat with Justices B. K. Mukherjea and Vivian Bose as the bench. The official citation of the decision appears as 1954 AIR 69 and 1954 SCR 407, and it has subsequently been referenced in later reports identified as R 1965 SC 1874 (17) and R 1974 SC 740 (10). The matters addressed fall within the ambit of Hindu law relating to religious endowments, specifically the dedication of property to an idol, the nature of any charge in favour of heirs versus a charge for the idol, the construction of wills, the principles of adverse possession, and whether a shebait’s possession can be adverse to the idol.
The headnote outlines the central legal issue as determining whether the idol itself constitutes the true beneficiary, subject to a charge benefiting the testator’s heirs, or whether the heirs are the true beneficiaries, subject to a charge covering the upkeep, worship and expenses of the idol. The Court indicated that this determination must be made by considering the entire deed or will by which the properties were dedicated. Earlier authorities were cited, including Pande Har Narayan v. Surja, Kunwari (I.L.R. 47 I.A. 143), which held that a provision allowing sevayats to reside in the premises for daily and periodic worship does not diminish the absolute character of a dedication to the idol. The Court also referred to Gnanendra Nath Das v. Surendra Nath Das (24 C.W.N. 1026), which stated that a shebait, while remaining the shebait, cannot claim adverse possession against the idol. The decision in Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (I.L.R. 60 Cal. 54) was approved, and the judgment of the Calcutta High Court was affirmed.
The matter proceeded as Civil Appeal No. 201 of 1952 under the civil appellate jurisdiction. The appeal arose from a judgment and decree dated 5 March 1951 rendered by the High Court of Judicature at Calcutta, whose Chief Justice was Harries and Justice Banerjee sat. That judgment itself modified an earlier judgment and decree dated 15 June 1950, issued in the ordinary original civil jurisdiction of the same High Court in Suit No. 2379 of 1948, which had been recorded as Original Decree No. 118 of 1950. Counsel appearing for the appellant was N. C. Chatterjee, assisted by S. N. Mukherjee. For the respondents in the civil appeal and for the petitioner seeking special leave, N. N. Bose appeared, assisted by A. K. Dutt. The Attorney-General for India, M. C. Setalvad, represented respondents numbered one, two and three in the petition for special leave, with B. Sen assisting. The judgment was delivered by Justice Bhagwati on 16 November 1953. The Court described the proceeding as an appeal under a certificate granted pursuant to article 133(1) of the Constitution, challenging a judgment and decree of the Appellate Bench of the Calcutta High Court, which had modified on appeal the earlier judgment and decree of Mr. Justice Bose rendered at the original side of that court. The factual background began with the statement that Dwarka Nath Ghose was the owner of certain movable and immovable properties.
Dwarka Nath Ghose possessed a substantial amount of both movable and immovable property. On the tenth day of June in the year 1891 he executed and published his last will and testament. In that will he devoted to the family deity Shree Shree Iswar Sridhar Jew two immovable assets, namely the premises identified as No. 41 and No. 40/1 located on Grey Street in the city of Calcutta. He also named his two sons, Rajendra and Jogendra, as executors of his testament. Furthermore, the will stipulated that his second wife, Golap Sundari, together with the two sons Rajendra and Jogendra, were to perform the ritual service (seva) of the deity, and that after their deaths the right to perform such seva would pass to their heirs and successors.
Dwarka Nath died on the sixteenth day of March 1892. At the time of his death he was survived by his widow Golap Sundari and his two sons Rajendra and Jogendra. Several years later, on the nineteenth day of July 1899, Rajendra executed his own last will and testament. In that document he reaffirmed the dedication previously made by his father concerning the two premises on Grey Street and he appointed his brother Jogendra as the sole executor of Rajendra’s will. Rajendra died shortly thereafter on the thirty-first day of January 1900, and Jogendra obtained probate of Rajendra’s will on the twenty-fourth day of April 1900. Subsequently, Jogendra also secured probate of the will of their father Dwarka Nath on the thirty-first day of August 1909.
On the fourth day of September 1909, the three sons of Rajendra—Bhupendra, Jnanendra, and the minor Nagendra—filed a suit, designated as Suit No. 969 of 1909, before the original side of the Calcutta High Court. The defendants in that suit were Jogendra, Golap Sundari, and Padma Dassi, the widow of Sidheswar, who was another son of Rajendra. The plaintiffs sought a construction of the wills of Dwarka Nath and Rajendra, a partition of the associated properties, and other reliefs. The family idol was not made a party to the proceedings.
The suit was eventually compromised, and on the twenty-fourth day of November 1910 a consent decree was issued. By that decree Jogendra and Golap Sundari relinquished their rights to the sevayatship, and the three sons of Rajendra—Bhupendra, Jnanendra, and Nagendra—were recognized as the sevaits of the deity. The decree also allocated a portion of premises No. 41 Grey Street to the branch of Rajendra, while the remaining portion of that same premises was allotted to Jogendra absolutely. In consideration of a payment of Rs 6,500 to the plaintiffs, Jogendra was declared the absolute owner of premises No. 40/1 Grey Street. The portions assigned to Jogendra were later renumbered as 40/2-A Grey Street, and the portion of premises No. 41 allotted to the Rajendra branch was subsequently numbered 41-A Grey Street.
Jogendra died on the fifth day of August 1911. In his will he appointed his wife, Sushilabala, as executrix. She obtained probate of Jogendra’s will on the sixth day of August 1912. Thereafter disputes arose among the sons of Rajendra—Bhupendra, Jnanendra, and Nagendra. An arbitrator, Kedar Nath Ghosh, was appointed to resolve these conflicts. The arbitrator rendered his award on the twelfth day of October 1920, granting the exclusive right to premises No. 41-A Grey Street to Nagendra as his share of the family properties. Following that award Nagendra executed several mortgages on the said premises, the first of which was created in favour of Snehalata.
The first mortgage on the premises was executed in favour of Snehalata Dutt on 19 May 1926. The second mortgage was executed on 4 June 1926 and the third mortgage was executed on 22 February 1927. On the following day, 23 February 1927, Nagendra executed a deed of settlement concerning the same premises. By that deed he appointed his wife, Labanyalata, and his wife’s brother, Samarendra Nath Mitter, as trustees charged with carrying out the directions contained in the deed. Pursuant to the deed of settlement, Nagendra relinquished possession of the premises and transferred it to the appointed trustees.
In 1929 Snehalata Dutt instituted Suit No. 1042 of 1929 seeking the realisation of the mortgage security. The suit named as defendants Nagendra, the trustees appointed under the deed of settlement, and the subsequent mortgagees. The court passed a consent decree in that suit on 9 September 1929. Nagendra died in June 1931. Consequently, the premises were ordered to be sold in execution of the mortgage decree. The sale was conducted on 9 December 1936 and the property was purchased for a sum of Rs. 19,000 by three purchasers: Hari Charan Dutt, Hari Pada Dutt and Durga Charan Dutt.
The purchasers applied to the court on 12 January 1937 for a decree setting aside the sale, but the application was rejected on 15 March 1937. One of the purchasers, Haripada Dutt, died on 3 June 1941 leaving three surviving sons—Pashupati Nath Dutt, Shambhunath Dutt and Kashinath Dutt—who are the present appellants. Hari Charan Dutt conveyed a one-third share in the premises to his three sons on 4 March 1944, and Durga Charan Dutt conveyed his one-third share to them on 3 May 1946. As a result, the three brothers became owners of the entire premises that had been bought at the auction held on 9 December 1936.
On 19 July 1948 the family idol of Dwarka Nath, Sree Sree Iswar Sridhar Jew, through its next friend Debabrata Ghosh, the son of Nagendra, instituted the suit from which the present appeal arises. The suit was filed against the three Dutt brothers, as well as against Susilabala and the two sons of Jogendra, among others. The prayer in the suit sought a declaration that premises Nos. 41-A and 40/2-A Grey Street are the absolute property of the idol and that the idol is entitled to possession thereof. It also asked for a declaration that the consent decree dated 24 November 1910 in Suit No. 969 of 1909, the award dated 12 October 1920, and any dealings by the heirs of Jogendra and/or Rajendra affecting the rights in the said premises are legally invalid, inoperative and not binding on the idol. Additional reliefs sought included an account of the dealings with the premises, a scheme for managing the debutter properties, provisions for worship, and orders for discovery, appointment of a receiver, injunction and costs. The appellants and Susilabala together with the two Jogendra sons filed written statements denying the idol’s claims and contended, inter alia, that there was no valid or absolute dedication of the suit properties to the idol.
The parties contended that the two plots in question had been taken over by the defendants through adverse possession, and that consequently the religious institution’s title to those plots had been extinguished. The trial of the suit was conducted before Mr. Justice Bose, who held that plot number 41-A on Grey Street rightfully belonged to the idol and accordingly made all the declarations that the plaintiff had prayed for in respect of that plot. The judgment further declared that the idol was entitled to possession of plot 41-A together with mesne profits for the three years preceding the institution of the suit, up to the date when possession would be delivered. However, the court imposed a condition that the idol should pay to the appellants a sum of Rs 19,000, together with interest calculated at six per cent per annum from 19 July 1945 until the amount was either paid or deposited in the court in favour of the suit. In contrast, the learned judge dismissed the part of the suit that dealt with plot number 40/2-A on Grey Street. In his view, Sushilabala, acting as executrix of her husband’s estate, together with her two sons, had acquired title to that plot by adverse possession, thereby extinguishing the idol’s alleged title. The appellants consequently filed an appeal against this judgment on 18 August 1950, identified as Appeal No. 118 of 1950. The idol, on 20 November 1950, submitted cross-objections challenging both the decree directing the payment of Rs 19,000 with interest and the dismissal of its claim concerning plot 40/2-A. Both the appeal and the cross-objections were subsequently heard before the Hon’ble Judges Harries C.J. and S.N. Banerjee J. The Bench delivered its judgment on 5 March 1951, dismissing the appellants’ appeal and allowing the idol’s cross-objection with respect to the Rs 19,000 decree. Regarding the idol’s cross-objection relating to plot 40/2-A, which was directed against Sushilabala and the two sons of Jogendra, the learned Judges held that such a cross-objection against the co-respondents was not maintainable and consequently dismissed it, ordering the idol to pay costs.
Thereafter, on 31 May 1951, the appellants moved the High Court for permission to appeal to this Court against the judgment and decree of the Calcutta High Court. A certificate under Article 133(1) of the Constitution was issued on 4 June 1951, and the High Court formally admitted the appeal on 6 August 1951. Subsequently, on 22 November 1951, the idol applied to the High Court for leave to file cross-objections against the portion of the judgment and decree that had dismissed its claim to plot 40/2-A. The High Court refused the application, observing that there was no rule permitting cross-objections to be raised before the Supreme Court. Nevertheless, those cross-objections were printed as part of the additional record. By an order dated 24 May 1953, this Court permitted the idol’s petition for filing cross-objections to be treated as a petition for special leave to appeal the specific part of the decree that was against it, subject to any limitation issues that might arise.
Both the appeal and the petition for special leave to appeal were placed before the Court for hearing and final disposal. While the appeal was fully argued, the parties reached an agreement concerning the petition for special leave. On that basis the idol consented to withdraw the petition on terms that had been recorded between the parties, and consequently the petition was allowed to be withdrawn. As a result, no objection now remained against the decree of the trial court that dismissed the idol’s claim to premises No. 40/2-A Grey Street. The appeal therefore concerned only premises No. 41-A Grey Street.
The appellants advanced several contentions. First, they asserted that the dedication of premises No. 41 Grey Street made by Dwarka Nath in his will amounted only to a partial dedication. They further claimed that Dwarka Nath’s sons, Rajendra and Jogendra, together with his widow Golap Sundari—who had been appointed sevayats of the idol—were competent to manage premises No. 41 Grey Street after providing the required provision for the idol, as they purported to have done under the settlement dated 24 November 1910. Second, they contended that Nagendra, by virtue of an award dated 12 October 1920, claimed absolute title to premises No. 41-A Grey Street and that his subsequent possession of the premises was adverse. According to the appellants, this adverse possession continued for more than twelve years, thereby extinguishing any right the idol might have had in those premises.
The Court examined the first contention and found it clearly untenable when read in light of the language of Dwarka Nath’s will. Clause 3 of that will provides:
“With a view to provide a permanent habitation for the said deity, I do by means of this will, dedicate the aforesaid immovable property the said house No. 41 Grey Street together with land thereunder to the said Sri Sri Issur Sridhar Jew. With a view to provide for the expenses of his daily (and) periodical Sheba and festivals, etc., the 3 ½ Cattahs (three and half Cattahs) of rent-free land more or less that I have … on that very Grey Street No. 40/1 … I also dedicate to the Sheba of the said Sri Sri Sridhar Jew Salagram Sila Thakur. On my demise none of my heirs and representatives shall ever be competent to take the income of the said land No. 40/1 and spend (the same) for household expenses. If there be any surplus left after defraying the Debsheba expenses the same shall be credited to the said Sridhar Jew Thakur’s fund and with the amount so deposited repairs, etc., from time to time will be effected to the said house No. 41 with a view to preserve it and the taxes etc., in respect of the said two properties will be paid …”.
The language of the will makes it evident that Dwarka Nath intended an absolute dedication of both the house at No. 41 Grey Street and the associated land, reserving no right for his heirs or representatives to claim income or interfere with the deity’s use of the property. Consequently, the Court concluded that the appellants’ claim of a partial dedication was inconsistent with the express terms of the will.
The purpose of the dedication was to enable the daily and periodic seva and the festivals of Sri Issur Sridhar Jew Salagram Sila Thakur, and the testator stipulated that his second wife, Golap Moni Dasi, together with his first son, Rajendara Nath, and his second son, Jogendra Nath Ghose, who were born of his first wife, should, while residing in house No 41 Grey Street that he had dedicated, properly and agreeably perform the seva of the deity.
The testator further provided that, upon the death of his two sons, their representatives, successors and heirs should successively continue to perform the seva in the same manner, thereby ensuring an uninterrupted line of worship.
According to the will, the executors appointed by the testator, having caused the two properties to be entered in the Calcutta Municipality’s records in the name of Sri Sri Issur Sridhar Jew Thakur, were required to pay the municipal taxes and to receive the municipal bills in his name.
The will expressly declared that none of the testator’s representatives, heirs, successors, executors, administrators or assigns were to have any interest or right in the two properties, and that no person was ever to be competent to sell, mortgage, or otherwise dispose of the properties, nor could the properties be sold to satisfy any debts of any individual.
The Court observed that a dedication may be either absolute or partial, and that a property may be given outright to an idol or may be subjected to a charge in favour of the idol.
The question of whether the idol itself was the true beneficiary, subject to a charge in favour of the testator’s heirs or specified relatives for their upkeep, or whether those heirs were the true beneficiaries subject to a charge for the idol’s upkeep, worship and expenses, could be settled only by examining the entire will, as noted in Pande Har Narayan v. Surja Kunwari.
Clause 3 of the will, the Court found, manifested an absolute dedication of premises No 41 Grey Street to the idol as its permanent habitation, granting only the sevayats the right to reside there for the purpose of performing daily and periodic seva and festivals.
The premises were expressly declared to be dedicated to the deity, to be registered in municipal records in the deity’s name, and the municipal bills were required to be taken in his name, with no interest or right allowed to any of the testator’s representatives, heirs, successors, executors, administrators or assigns.
This language demonstrated a clear intention of the testator to absolutely dedicate the premises to the deity, making any claim of a partial dedication untenable.
The argument advanced by Shri N.C. Chatterjee—that the right to reside granted to the sevayats detracted from the absolute character of the dedication—was rejected, as the Court held that such a right did not diminish the absolute nature of the dedication.
In this case the Court examined the language of the will and concluded that the testator intended to make an absolute dedication of the premises known as No. 41 Grey Street to the deity. The Court held that it was impossible to argue that the dedication was only partial. The sole argument advanced by counsel for the respondents, Shri N. C. Chatterjee, was that the will also gave a right to reside in the premises to the sevayats and that, in his view, this residence right weakened the absolute character of the dedication. The Court found that this argument could not succeed. To support its conclusion, the Court referred to the judgment of Lord Buckmaster in the Privy Council case of Gnanendra Nath Das v. Surendra Nath Das, where the learned Lord observed that although the shebait (the manager of the estate) was entitled to reside with his family in the dwelling-house, the dwelling-house was expressly set apart for the family idols and that granting residence to the shebait was a reasonable device to enable the person who supervised the whole estate also to fulfil his duties by living in that house. Applying that reasoning, the Court held that the first contention of the appellants failed and that the dedication of premises No. 41 Grey Street to the idol was indeed an absolute dedication, leaving no scope for any partial interest retained by the testator’s representatives, heirs, successors, executors, administrators or assigns.
Turning to the second contention raised by the appellants, namely the alleged adverse possession by a person named Nagendra, the Court examined the provisions of clause 3 of Dwarka Nath’s will. That clause stipulated that the representatives, successors and heirs of Dwarka Nath’s two sons, Rajendra and Jogendra, were to perform the seva in the manner described in the will. Nagendra was identified as one of the heirs and as a legal representative of Rajendra. The Court noted that Nagendra was a minor on 24 November 1910, the date on which the parties to suit No. 969 of 1909 reached a settlement, as recorded in the report at page 1030 of the 1920 volume of the Court of Wards Reports. At that time his two elder brothers, Jnanendra and Bhupendra, were appointed sevayats, while a right was reserved for Nagendra to join them as a sevayat upon attaining majority. The Court further pointed out that Mr. Justice Bose had made a clear finding of fact on the specific issue of whether Nagendra acted as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh. Justice Bose concluded that Nagendra did act as such a shebait and that his possession of premises No. 41A Grey Street was possession held on behalf of the idol. This factual finding was not challenged in the appellate court, and the Court held that it was now too late to reopen the question. Consequently, if Nagendra was a sevayat of the idol, his possession could not be described as adverse to the idol. Accordingly, any dealings by Nagendra with the premises after 12 October 1920 could not be taken as evidence of adverse possession against the deity.
The Court noted that the idol could not be subject to any claim of adverse possession. It then referred to the position of a sevayat and the effect of his dealings with property dedicated to the idol, as explained by Rankin C.J. in the case Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (1). Rankin C.J. was quoted as saying: “But, in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between them. The fact of their possession is in accordance with the idol’s title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idol’s right. I am quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebait’s knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idol’s behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. (1) (1933) 60 Cal 54 at 77. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol.” The Court therefore applied this reasoning to the present facts, concluding that the sevayat’s conduct could not give rise to an adverse claim against the idol.
The Court further noted that the appellants had argued that the appellate court should not have disallowed a monetary sum of Rs 19,000. However, the Court found that this objection had not been pursued with the necessary vigor before it and that the matter had not been put forward in a manner that demanded judicial scrutiny. Because the objection was not seriously pressed, the Court declined to examine it in detail. After reviewing the substantive issues, the Court concluded that the appeal could not be sustained. Accordingly, the Court ordered that the appeal be dismissed and that the costs of the proceedings be awarded against the appellant. The final order was recorded as an appeal dismissal. The judgment also identified the counsel appearing on each side: the appellant was represented by an agent named P. K. Chatterice; the respondent numbered one in the appeal, who also acted as the petitioner in the petition for special leave, was represented by an agent called Sukumar Ghose; and the respondents numbered one, two and three in the petition for special leave were represented by an agent identified as P. K. Ghose.