http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: BADRI NATH & ANR.

       Vs.

RESPONDENT: MST. PUNNA (DEAD) BY LRS & ORS.

DATE OF JUDGMENT15/02/1979

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. KRISHNAIYER, V.R. DESAI, D.A.

CITATION:  1979 AIR 1314            1979 SCR  (3) 209  1979 SCC  (3)  71

ACT:      Hindu Succession  Act, 1956-S.  4-Scope of-Share  of  a baridar (turnholder)  in the  offerings  of  a  temple-if  a heritage right  nature  of  office  of  baridar-Custom  that offerings should go to specified sub-castes-if valid.

HEADNOTE:      The   plaintiff’s   (respondent’s)   father   and   the defendants (appellants)  were entitled  to receive a defined share in  the offerings  made  at  a  holy  shrine.  On  her father’s death  the  plaintiff  claimed  his  share  in  the offerings alleging  that both  under the  law of inheritance and by  virtue of  her father’s will executed in her favour, she was entitled to his share; but the defendants interfered with her right to collect that share.      In the  plaintiff’s suit  the defendants contended that only members  belonging to  four specified  sub-castes  were entitled to  receive the  offerings and the plaintiff having lost her  sub-caste by  reason of her marriage outside those sub-castes she  was not  entitled to her father’s share. But this argument  was rejected  by the  trial court  which held that on  the death  of the  baridar (turnholder)  his  heirs inherited his  right  to  receive  offerings  just  as  they inherited  his   other  property  and  that  therefore,  the plaintiff was entitled to the offerings both under the Hindu Succession Act and the will executed by her father.      On appeal  a Division Bench of the High Court held that where offerings  were received  by persons  independently of any obligation  to render  services, they were alienable and attachable and that the custom which restricted the right to a share  in the  offerings  only  to  members  of  the  four specified subcastes, could not be given effect to in view of the  provisions   of  the  Hindu  Succession  Act  and  that therefore, the  plaintiff was  entitled to  succeed  to  the right though she did not belong to any of the sub-castes.      On further  appeal to  this Court  it was  contended on behalf of  the appellant  that (1)  the right of the baridar was not a transferable right and (2) the right to a share in the offerings and the duties attached to it must be regarded as an  office like  that of a shebait and cannot be regarded as heritable property.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

    Dismissing the appeal, ^      HELD: The  right of  the  baridar  was  a  transferable right.      1.  To  begin  with,  the  right  to  a  share  in  the offerings, according  to the  settlement record prepared for the  village  and  a  resolution  passed  by  the  Dharmarth Committee,  was  restricted  to  the  four  sub-castes,  and similarly the baridars did not perform any duties in return. Sometime later,  however, certain  obligations, such  as  to provide permanent  servants, to  look after visitors and the like, were  superimposed on  that right. Though the right to receive  a  share  in  the  offerings  was  subject  to  the performance of those duties none of them 210 was in nature priestly or required a personal qualification. All of  them were  of a  non-religious or  secular character which could be performed by the baridar’s agents or servants incurring expense  on his account. When the right to receive the  offerings  made  at  a  temple  is  independent  of  an obligation to  render services  involving qualifications  of personal nature,  (such as  officiating the  worship) such a right is heritable as well as alienable. [217 B-H]      Balmukand &  ors. v. Tula Ram & ors., AIR 1928 All. 721 approved.      2. (a) The right of the baridars cannot be equated with the right  and duties  of a  shebait. The  baridars were not managers of  the shrine  in the  sense that  a shebait is in relation to  a temple  in his charge. The overall management of the  temple vested  in the  Board of  Trustees  known  as Dharmarth Committee. [218 E]      (b) It  is not  correct  to  say  that  shebaitship  is neither more  nor less  than an  office and is not heritable property. Shebaitship  cannot be described as a mere office. In addition to certain responsibilities it carries with it a definite right  to property.  It is well-established that in the concept  of Shebait,  both the  elements of  office  and property, duties  and personal interest are mixed up and one element cannot  be detached  from the  other. Old  texts  as courts have  recognised heriditary  office of shebaitship as immovable property. [218 F; 220 A-B]      Angurbala Mullick  v.  Debabrata  Mullick,  [1951]  SCR 1125; Ram  Rattan v.  Bajrang Lal  & ors.  [1978] 3  SCR 963 followed.      3. The  right to  share the  offerings  being  a  right coupled with  duties other  than  those  involving  personal qualifications and being heritable property, it will descend in accordance  with the dictates of the Hindu Succession Act in supersession of all customs to the contrary in view of s. 4 of that Act. [220 H]      In the  instant case, in the light of s. 4 of the Hindu Succession Act  the requirement  that the right could not be exercised by  a person not belonging to any of the four sub- castes becomes ineffective. [220 H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1118 of 1972      (Appeal by  Special Leave  from the  Judgment and Order dated 18-1-72  of the Jammu and Kashmir High Court in L.P.A. No. 6 of 1969.)      L.N. Sinha, Satish Gupta, K.J. John and P.P. Singh, for the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

    R.K. Bhat and D.C. Anand for respondent 1B-1K.      The Judgment of the Court was delivered by      KOSHAL, J.-This  appeal by special leave has arisen out of a  suit brought  by Smt. Punna, respondent No. 1, against the two  appellants and respondent No. 2 for the issuance of a perpetual injunction restraining the three defendants from interfering with  her right to recover her father’s share of six annas in a rupee in the offerings made 211 at the  sacred shrine  of Shri  Vaishno  Devi  Ji  which  is situated on  the Trikutta Hills. The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge, in a second appeal by a learned Single Judge of the High Court of Jammu & Kashmir and in a Letters Patent Appeal by  a Full Bench of that Court. It is the judgment of the Full  Bench (which  is dated  the 18th of January, 1972) that is impugned before us.      2. The  averments made  in the plaint may be summarised thus. The  plaintiff is the daughter of one Bagu who died in or about  the year  1959. During  his life time Bagu and the three defendants were entitled to receive the offerings made at the  shrine of  Shri Vaishno  Devi  Ji  on  certain  days falling within every seventh Bikrami year so that Bagu would have 6/16th  share therein and the defendants collectively a similar share. After the death of the plaintiff’s father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019, the plaintiff  having succeeded  to the  share of her father both under  the law  of inheritance  and by virtue of a will executed by  him in  her favour. The plaintiff had to resort to the  suit as  the defendants had started interfering with her right to collect her share of the offerings.      3. The  defendants contested  the suit. They challenged the will set up by the plaintiff as a forged one and further pleaded that  only members  of four  sub-castes namely, Khas Thakars,  Darora   Thakars,  Manotra  Thakars  and  Samnotra Brahmins were  entitled to  receive the  offerings and  that while Bagu  was  entitled  to  a  share  in  the  same,  the plaintiff was  not as she had lost her original sub-caste by marriage outside  the four  sub-castes mentioned  above. The offerings, according to the defendants, were also not liable to devolve by inheritance or demise.      4. The  findings arrived  at by  the trial  court  were these:      (i)  On the  death of a baridar (which expression, when           literally translated, means turn-holder) belonging           to any of the aforementioned sub-castes, his heirs           inherited his  right to  receive offerings just as           they inherited his other property.      (ii) Under section  4 of  the Hindu Succession Act, any           custom or  usage inconsistent  with the provisions           of that Act becomes ineffective.      (iii)Even under  section 6  of the Hindu Succession Act           read with the Schedule appended therto the pro- 212           perty of  Bagu would  devolve on  the plaintiff in           case Bagu died intestate.      (iv) Gagu executed  a  valid  will  in  favour  of  the           plaintiff devising to her the right to receive the           offerings, apart from other properties.      (v)  The plaintiff  was entitled,  in view of the above           four findings  to inherit  the  right  to  receive           offerings not  only by  reason of the provision of           sections 4  and 6 of the Hindu Succession Act, but           also because of the will.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

    (5) At  the hearing of the Letters Patent Appeal by the Full Bench,  the following  four contentions  were raised on behalf of the defendants:      (i)  The chance  of future worshippers making offerings           to the  deity is  a mere possibility of the nature           referred to  in clause  (a) of  section 6  of  the           Transfer of Property Act and is not property which           can be transferred or inherited.      (ii) The  right   to  receive   offerings  is   not   a           transferable or heritable right.      (iii)The provisions  of the Hindu Succession Act do not           apply to the case in hand.      (iv) According to  the custom  governing the  shrine of           Shri Vaishno Devi Ji, only the abovementioned four           subcastes were entitled to share the offerings.      All these  contentious were  rejected by the Full Bench as untenable.  In regard to the first of them the Full Bench followed Balmukand  and Others  v. Tula  Ram and  Others  in which it  was held  that the right to receive offerings when made is  a definite  and fixed  right and does not depend on any possibility  of the  nature referred to in clause (a) of section 6  of the Transfer of Property Act, because the fact that offerings  whether large  or small are bound to be made is a certainty.      In relation  to the  second contention,  the Full Bench noted the  contents of paragraph 422 of "Principles of Hindu Law"  by  Mulla    which  states,  inter  alia,  that  where offerings, though  made to  idols, are  received by  persons independently of any obligation to render ser- 213 vices, they  are alienable and attachable. Reference in this connection was  also made  to Balmukand  and Others v. Tulla Ram and Others (supra) wherein the following passage occurs:           "but when  the right to receive the offerings made      at a  temple is  independent of an obligation to render      services involving qualifications of a personal nature,      such as  officiating at  the worship  we are  unable to      discover any  justification for  holding  that  such  a      right is  not transferable.  That the  right to receive      the offerings  when made  is a  valuable right  and  is      property, admits of no doubt and, therefore, that right      must, in  view  of  the  provisions  of  section  6  of      Transfer of  Property Act,  be held to be transferable,      unless its  transfer is  prohibited by  the Transfer of      Property Act  or any  other law  for the  time being in      force." In  view  of  these  observations  which  were  adopted  and followed in  Nand Kumar Dutt v. Ganesh Dass, the Full Bench, being in agreement therewith, proceeded to determine whether the right  to receive  the offerings in the present case was or was not independent of services of a priestly or personal nature. The  following translation  of an  extract from  the Wajib-ul-Arz relating  to village  Purana Daiur  wherein the holy shrine is situated, was then taken up for consideration :           "Leaving aside cash, whatever is the ’Charatth’ at      the temples of ’Ad Kanwari’ and ’Sri Trikutta Devi’ the      entire Darora  community distributes  that among itself      and of  (?) other  attached areas  of  Pangal,  Sarron,      Batan,  Kotli,   Gran,  Parhtal   etc.   according   to      hereditary shares.  And the  castes ’Thakar  Khas’  and      ’Minotra’ are  included in  it. Darora  caste take  two      shares and  Manotra and Khas castes also take one equal      share of  Charatth’. That  is divided as per hereditary      shares. There is no service in lieu thereof. Only it is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

    described as  the blessings  of Goddess.  Rupees twenty      one hundred (two thousand one hundred rupees) go to the      Government. Every  baridar keeps his man present in the      temple who  receives the  ’Charatth’. Pujaries  get pay      from us." and it  was interpreted  to mean  that the right to share in the offerings made at the holy shrine had no connection with any priestly  functions or  with  other  services  involving qualifications of  a personal  nature and  therefore  was  a heritable as well as allenable right. This very con- 214 clusion was  reached by the Full Bench on a consideration of the deposition  of the  Patwari of  the concerned circle and the Ain-i-Dharamarth  which purports  to be the constitution of a  Board of Trustees appointed by the State to manage the shrine.      In relation  to the  third contention,  the Full  Bench noted that  the properties to which the Hindu Succession Act does not  apply are  only those  which find  enumeration  in section 5  thereof, that the right to share the offerings is not one  of those  properties and  that, therefore,  such  a right could  not but  be governed  by the  provisions of the Act.      In repelling  the last contention the Full Bench relied upon the  provisions of the Hindu Succession Act which over- rides all customs or usage being part of the Hindu Law as in force immediately  prior to  the commencement of the Act and concluded that  the custom  of the  right to  share  in  the offerings being restricted to members of the four sub-castes abovementioned could  not be  given effect  to and  that the plaintiff was  fully entitled  to succeed  to that  right in spite of  the fact  that she  did not belong to any of those sub-castes.      It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench.      6. At  the very  outset Mr. L.N. Sinha, learned counsel for the  appellant, has drawn our attention to the fact that the extract  from the Wajib-ul-Arz taken note of by the Full Bench of  the High  Court relates  not to the temple of Shri Vaishno Devi Ji but to a couple of other temples situated in its vicinity,  namely, the  temples of ’Ad Kanwari’ and ’Sri Trikutta Devi’  and has  urged that  the extract  could  not possibly relate  to the temple of Shri Vaishno Devi Ji which was the  main temple in the complex and a reference to which could not  have been omitted from the extract in case it was intended to  apply to that temple also. A careful perusal of the extract  shows that  Mr.  Sinha’s  contention  is  well- founded because  there is  not so much as a hint to the main temple in the extract. According to Mr. Sinha, the duties to which the  right to  share  the  offerings  is  subject  are detailed in the settlement record prepared for village Daiur (Shri Vaishno  Devi Ji)  for the  year 1965-66 Bikrami and a resolution passed  by the  Dharamarth Committee on Sawan 27, 1983 Bikrami. These documents may be set out in extenso:                      Settlement Record           "In the  column of ownership, the State is entered      as owner;  in the  column of possession-Dharmarth Trust      entered as  in possession.  ’Mandir Gupha’  situate  on      land compris- 215      ing 7  marlas  bearing  Khasra  No.  166  and  ’Bhawan’      situate on  land comprising 4 marlas bearing Khasra No.      167. The  sub-caste Thakar  Darora, Manotra,  Khas, and      Brahmin  Samnotra   have  been  sharing  the  offerings      according to  the shares  mentioned below from the very

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

    beginning. Thakar  Daroras  and  Brahmin  Samnotra  are      entitled to three shares and one share respectively out      of 2/3  of the  total offerings whereas Thakar Manotras      and Khas  are entitled to share equally in the rest 1/3      of the total offerings.           "Darora Thakars  are sub-divided into further four      subcastes namely;  (i) Darora  Sunk  (ii)  Darora  Jaga      (iii) Darora  Pai and (iv) Darora Deoch and each one of      them has  one equal share. Similarly Brahmin (Samnotra)      have also  divided their  share into  four shares which      are received as under:           Samnotra Brahmins  from the  branch of ’Darya’ one      share, Brahmins  from the branch of ’Bairaj’ one share;      Brahmins from  the branch  of ’Gobind’  one share;  and      Brahmins  from   the  branch  of  ’Ganesh’  one  share.      Therefore ’Darora  Sunk’ and  Samnotras from the branch      of ’Bairaj’  have their  turn together  in the one year      and  they   divide  the   offerings  for  that  in  the      proportion of  3.1 (i.e.  3 shares of Darora Sunk and 1      share  to   Samnotras  from   the  branch  of  Bairaj).      Similarly Brahmins  from the  branch  of  ’Darya’  have      their turn  with ’Darora Jaga’ Brahmins from the branch      of ’Ganesh’  with ’Darora Parath’ and Brahmins from the      branch of  ’Ganesh’ with ’Darora Deoch’ and Brahmins in      each case  receive 1/4th  share and Darora Thakars have      3/4th share.           "In the  beginning nothing  was taken  from  these      persons (baridaran) in consideration of their receiving      the offering.  But because the Sadhus would often go to      the shrine  and due  to the mismanagement of their stay      and meals  over there,  there were  always riots at the      shrine. Therefore,  in the year 1907 Bikrami during the      regime of  Maharaja Gulab Singh an amount of Rs. 1150/-      was fixed  as ’Aian’ to be paid by the baridars for the      management of  stay and meals for Sadhus at the shrine.      The said  amount was  to  be  deposited  in  the  State      Treasury. Thereafter  in 1920  Bikrami another  hundred      rupees  were   added  to  the  above  said  amount  and      thenceforth Rs.  1250/- were  fixed per annum which was      being deposited  in  the  State  Treasury.  After  1940      Bikrami the said 216      amount of  Rs. 1250/-  was  being  deposited  with  the      Dharmarth Trust and this continues till today. The said      amount is  recovered from  Thakar  sub-castes.  Besides      this, so  many other  things (such as silk chunis etc.)      are received  from the  said  Thakar  baridars.  Thakar      baridars are  also liable  to provide  three  permanent      servants and  six more peons during the season and will      be liable  to pay  them. The said Thakars are liable to      arrange the  carriage and  pay for the ’Parshad’, etc.,      from Katra  to Vaishno  Devi temple. With regard to the      cattle kept by the Dharmarth Trustees, the said Thakars      are liable to arrange for taking them from one place to      another. If  any Government  servant visits  the shrine      the said  Thakars will  be liable  to arrange  for  the      carriage of his luggage, etc. The said Thakars are also      liable to perform the following duties:           (1)  Cleanliness  of   the  Gupha   (Vaishno  Devi                temple) and the compound appurtenant thereto.           (2)  To  carry  Puja  material  inside  the  Gupha                (temple along with the Pujari.           (3)  If during mela season there is any trouble to                any pilgrim  or he  becomes, sick,  etc,  the                said  Thakars   are  liable  to  make  proper

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

              arrangements for  the  removal  of  any  such                trouble."      RESOLUTION OF THE DHARMARTH COMMITTEE           "(a) Dharmarth  Trust shall  charge its usual Aian      (rent) from  the baridaran  which shall be paid by them      before they distribute their share of the offering. The      baridar who  refuses or  avoids the  payment of rent to      Dharmarth shall not be entitled to receive his share of      the  offering  and  the  same  shall  be  attached  and      deposited  with   the  manager,  Dharmarth  Trust.  The      baridar whose  share has been thus attached can receive      his share  on payment  of the rent due to the Dharmarth      Trust."           "(b) Unanimously  it is  passed that the strangers      or persons  other than  baridars (i.e. four sub-castes)      shall have  no right  to get  the Puja performed in the      shrine."           "(c)  In   case   any   baridar   or   his   legal      representative, due  to any  reason, cannot  attend  in      person then  it will  be the duty of other co-sharer to      deposit the absentee’s share with 217      the Manager,  Dharmarth Trust  and  when  that  baridar      comes present,  the  Manager,  Dharmarth  Trust  shall,      after deducting  the due,  if  any,  from  him  to  the      Dharmarth, pay his share to him. The baridaran shall be      bound to  perform the  duties (such as Kah, Kunda, Argi      etc. as being performed by them previously)."      According to  these documents  the right  to share  the offerings is  restricted to  members of  the four sub castes abovementioned, and  although to begin with baridars did not perform any  duties  in  return,  certain  obligations  were superimposed  on  the  right  from  the  year  1907  Bikarmi onwards. Those obligations are:           (a)  A duty to deposit a fixed annual sum with the                Dharmarth Trust  to be  spent on arrangements                for lodging  and boarding  of Sadhus visiting                the shrine.           (b)  To  provide   three  permanent  servants,  in                addition to six peons, during the "season".           (c)  To pay  for the  ’prasad’ and  to arrange its                transport from Katra to Vaishno Devi temple.           (d)  To  arrange  for  the  cattle  owned  by  the                Dharmarth Trust being taken from one place to                another.           (e)  To arrange for the carriage of the luggage of                Government servants visiting the shrine.           (f)  To  keep   the  temple   and   the   compound                appurtenant   thereto    in   a    state   of                cleanliness.           (g)  To  carry  inside  the  temple  the  material                required for worship by the priest.           (h)  To look after visitors to the shrine who fall                ill and  to make  proper arrangements for the                restoration or their health.      There is  thus no  doubt that  the right  to receive  a share in  the offerings  is subject  to the  performance  of onerous duties.  But then  it is apparent that none of those duties  is  in  nature  priestly  or  requiring  a  personal qualification. On  the other  hand all of them are of a non- religious or  secular character  and may  be  performed  not necessarily by  the baridar  personally but by his agents or servants so  that  their  performance  boils  down  to  mere incurring of  expense. If  the baridar  chooses  to  perform those duties  personally he is at liberty to do so. But then

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

the obligation  extends merely  to the  making of  necessary arrangements which may be secured on payment 218 of money  to others,  the actual  physical or  mental effort involved being  undertaken by  those others.  The right  is, therefore, a  transferable right as envisaged in the passage above extracted  from Balmukand  and other  v. Tula  Ram and others (supra)  which has  not been  challenged before us as erroneous and  which  we  regard  as  laying  down  the  law correctly. The  contentions  raised  by  Mr.  Sinha  to  the contrary is thus repelled.      7. Another  challenge made by Mr. Sinha to the impugned judgment is  that the  right to share offerings coupled with the duties  to which  it was subject must in its totality be regarded as  an office (like that of a shebait) only and not as  property   and  that   therefore  no   question  of  its heritability could  arise. In  this connection reference was made to  the following  observations made  by Mukherjea, J., who delivered  the judgment of the majority of this Court in Angurbala Mullick v. Debabrata Mullick.           "In a  Hindu religious endowment on the other hand      the entire  ownership  of  the  dedicated  property  is      transferred to the deity or the institution itself as a      juristic person  and the  shebait or  mahant is  a mere      manager."      There is  nothing to  indicate  that  baridars  in  the present case  are the  managers of  the shrine  in the sense that a  shebait is  in relation to the temple in his charge. On the  other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and  it would  not be correct therefore to look at the right  of the  baridars in  the light  of the rights and duties of  a shebait.  However, it  may be  pointed out that shebaitship cannot  be described  as a  mere office  because apart from  certain responsibilities,  it carries  with it a definite right  to property.  This is a proposition on which emphasis was  laid by this Court in Angurbala’s case (supra) itself. Mukherjea, J., observed in this connection:           "But though  a shebait  is a  manager  and  not  a      trustee in the technical sense, it would not be correct      to describe  the shebtaitship  as a  mere  office.  The      shebait has  not only duties to discharge in connection      with the endowment, but he has a beneficial interest in      the  debutter   property.  As  the  Judicial  Committee      observed  in   the  above  case,  in  almost  all  such      endowments the  shebait has  a share in the usufruct of      the debutter  property which  depends upon the terms of      the grant or upon custom or usage. Even 219      where no  emoluments are  attached to the office of the      shebait, he  enjoys some  sort of  right or interest in      the endowed  property which  partially at least has the      character  of   a  proprietary   right.  Thus,  in  the      conception of  shebaiti both the elements of office and      property, of duties and personal interest, are mixed up      and blended together; and one of the elements cannot be      detached from  the other.  It is  the presence  of this      personal or beneficial interest in the endowed property      which  invests   shebaitship  with   the  character  of      proprietary  rights   and  attaches  to  it  the  legal      incidents of  property. This  was elaborately discussed      by a  Full Bench  of the Calcutta High Court in Monohar      Mukherji v.  Bhupendra Nath  Mukherji and this decision      of the  Full Bench  was approved  of  by  the  Judicial      Committee in  Ganesh Chunder  Dhur v.  Lal Behary,  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

    again in  Bhabatarini v.  Ashalata. The  effect of  the      first two  decisions, as  the Privy Council pointed out      in the  last case,  was to  emphasise  the  proprietary      element in  the shebaiti right, and to show that though      in some  respects anomalous,  it was  an anomaly  to be      accepted as having been admitted into Hindu Law from an      early date.  "According to  Hindu law,"  observed  Lord      Hobhouse in Gossamee Sree Greedharreejee v. Rumanlollji      Gossammee "when  the worship  of  a  Thakoor  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      usase, course of dealing, or some circumstances to show      a different  dealing, or  some circumstances  to show a      different mode  of devolution."  Unless, therefore, the      founder  has   disposed  of   the  shebaitship  in  any      particular manner-and  this  right  of  disposition  is      inherent in  the founder or except when usage or custom      of a  different nature  is proved to exist, shebaitship      like any  other species  of heritable  property follows      the line of inheritance from the founder."      Angurbala’s case was followed by this Court in a recent decision reported  as Ram  Rattan v.  Bajrang Lal  &  Others wherein Desai,  J., who  delivered the judgment of the Court observed: 220           "In the conception of shebait both the elements of      office and  property, duties  and personal interest are      mixed up  and blended  together and one of the elements      cannot be  detached from  the other.  Old texts, one of      the principal sources of Hindu law and the commentaries      thereon, and  over a  century the  Courts with very few      exceptions have recognised hereditary office of shebait      as immovable,  property, and  it  has  all  along  been      treated as  immovable property  almost uniformly. While      examining the  nature and  character of  an  office  as      envisaged by  Hindu law  it would  be correct to accept      and designate it in the same manner as has been done by      the Hindu  law text writers and accepted by courts over      a long  period. It is, therefore, safe to conclude that      the hereditary office of shebait which would be enjoyed      by the person by turn would be immovable property."      These observations  as also  those made  in Angurbala’s case and  extracted above  demolish the  contention  of  Mr. Sinha that  shebaitship is  nothing more  or  less  than  an office and is not heritable property.      8. The  right to  share the  offerings  being  a  right coupled with  duties other  than  those  involving  personal qualifications and,  therefore, being heritable property, it will descend  in accordance  with the  dictates of the Hindu Succession Act  and in  supersession of  all customs  to the contrary in view of the provisions of section 4 of that Act, Sub-section (1) of which state:           (a)  Save as  otherwise expressly provided in this                Act-any text, rule or interpretation of Hindu                law or  any custom  or usage  as part of that                law   in   force   immediately   before   the                commencement of  this Act shall cease to have                effect with  respect to  any matter for which                provision is made in this Act:           (b)  any other law in force immediately before the                commencement of this Act shall cease to apply                to Hindus  in so  far as  it is  inconsistent                with any of the provision’s contained in this                Act."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

The requirements of the custom relied upon by the appellants to the  effect that  the right  could not  be exercised by a person who  is not  a member  of any  of the four sub-castes mentioned above  becomes wholly ineffective in view of these provisions, being contrary to the 221 order of  succession laid  down in  Chapter II  of the Hindu Succession  Act  under  which  the  right  devolves  on  the plaintiff-respondent.      7. The  only contention raised by Mr. Sinha is that the plaintiff had  not stated  in any part of the pleadings that she  was   prepared  to   carry  out  the  services  to  the performance of  which the  right to  share the  offerings is subject and that therefore she was not entitled to a decree. This contention  must be repelled for the simple reason that it was  not raised  before the  High Court.  Besides,  there being no  repudiation on  her part  of  the  obligations  to render  the  services  abovementioned,  her  claim  must  be regarded for  the enforcement  of that  right  coupled  with those services  and the  decree construed  accordingly  even though it may be silent on the point.      9. In the result the appeal fails and is dismissed, but the parties are left to bear their own costs throughout. P.B.R.                                     Appeal dismissed. 222