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PETITIONER: RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES

       Vs.

RESPONDENT: BAJRANG LAL & ORS.

DATE OF JUDGMENT05/05/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S.

CITATION:  1978 AIR 1393            1978 SCR  (3) 963  1978 SCC  (3) 236  CITATOR INFO :  R          1979 SC1314  (17)  F          1985 SC 905  (14)

ACT: Duty  of  Court  to consider  preliminary  objection  as  to admissibility of a document in evidence-Explained. Stamp Act, Sections 33, 35, 36-Scope of. Hereditary  office of Shebait enjoyed by a person,  whether- movable  or immovable property-Whether the deed of  gift  of such  a  right  requires  registration.--The  office   being immovable property in the instant case, the gift deed is  in admissible in evidence for want of registration.

HEADNOTE: The plaintiff-appellant, who died pending the appeal  sought a declaration that he was entitled to a right of worship  by turn (called Osra) for 10 days in a circuit of 18 months  in the  temple of Kalyanji Maharaj at village  Diggi  District, Tonk.   Rajasthan  under the Will Ext. dated  22  September, 1961 executed by deceased Mst.  Acharaj, wife of Onkar.  The Trial  Court did not try the preliminary objection, when  it was  raised  at  the time of the trial; but made  a  note  : "Objected.   Allowed  subject  to  objection".   The   Court rejected  it  at the time of arguments  taking  recourse  to Section   36  of  the  Stamp  Act.   On  the   question   of registration  it  held that as the "turn of  worship  was  a movable property’ if did not require compulsory registration and  decreed the suit.  In appeal the first Appellate  Court reversed the Judgment, inter alia, holding that the document Ext.   1  was a gift and as it involved  gift  of  immovable property  the document was inadmissible in evidence both  on the  ground  that  it is not duly stamped and  for  want  of registration.  The Plaintiff’s second appeal before the High Court failed. Dismissing the appeal by special leave, the Court HELD  :  1. When a document is tendered in evidence  by  the plaintiff  while in witness box and the defendant raises  an objection  that the document is inadmissible in evidence  as it was not duly stamped and for want of Registration, it  is obligatory  upon  the Trial Judge to apply his mind  to  the objection:  raised and to decide the objection according  to

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law.   Tendency  sometimes is to postpone  the  decision  to avoid interruption in the process of recording evidence and, therefore,  a  very  convenient device is  restored  to,  of marking  the. document in evidence ’subject  to  objection.’ This, however, would not      mean  that the objection  that the instrument is not duly stamped is judicially  decided; it is merely postponed. In such a situation at a laterstage before    the   suit  is  finally  disposed  of   it   would nonetheless be obligatory upon the  Court to decide  the objection.   If  after  applying  its  mind  to  the   rival contentions    the   trial  court  admits  a   document   in evidence, s. 36 of the Stamp Act would come into play  and such admission cannot be called in question at any stage  of the  same  suit  or  proceeding  on  the  ground  that   the instrument  has  not been duly stamped.  The Court,  and  of necessity it would be trial court before which the objection is taken about admissibility of document on the ground  that it  is  not  duly stamped, as to  judicially  determine  the matter  as soon as the document is tendered in evidence  and before  it is marked as an exhibit in the case and  where  a document  has been inadvertently admitted without the  court applying  its mind as to the question of admissibility,  the instrument  could  not  be said to  have  been  admitted  in evidence with a view to attracting s. 36. [966 C-G] 964 In  the  instant case, the endorsement made by  the  learned trial  judge that "objected, allowed subject to  objection", clearly indicates that when the objection was raised it  was not  judicially  determined  and  the  document  was  merely tentatively  marked and in such a situation s. 36 would  not be attracted. [966 G-H] Javar Chand v. Pukhraj Surana; A.I.R. 1961 S.C. 1655. 2.Undoubtedly,  if  a person having by law  authority  to receive  evidence  and the civil court is  one  such  person before whom any instrument chargeable with duty is  produced and  it is found that such instrument is not  duly  stamped, the  same has to be impounded.  The duty and penalty has  to be  recovered  according  to  law.   Section  35,   however, prohibits  its  admission  in evidence till  such  duty  and penalty  is paid.  The plaintiff has neither paid the  duty nor  the penalty till today.  Therefore, stricto  sensu  the instrument is not admissible in evidence. [967 A-B] 3.The hereditary office of Shebait which would be enjoyed by the person by turn would be immovable property.  The gift of such immovable property must, of course, be by registered instrument.   Exhibit 1 being not registered the High  Court was justified in excluding it from evidence.  The definition of  immovable  property in S. 2(6) of the  Registration  Act Lends  assurance to treating Shehait’s hereditary office  as immovable   property   because   the   definition   includes hereditary  allowances.   Office of  Shebait  is  hereditary unless  provision  to  the  contrary is  made  in  the  deed creating  the endowment.  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. [970 A-C] Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125  and Commissioner  of Hindu Religious Endowments, Madras  v.  Sri Lakshmindra  Thirtha  Swamiar  of Sri  Shirur  Mutt,  [1954] S.C.R. 1005; followed.

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Krishnabhat Bin Hiragange v. Kanbhat Bin Mahalbhat 6  Bombay High Court Reports 137, Balvantrey, alias Tatiaji Banaji  v. Purshotam  Sidheshwar and Anr., 9 Bombay High Court  Reports 99, Raiji Manor v. Desai Kallianrai Hukmatrai, 6 Bombay High Court  Reports  56 Maharana Fattehsangji  Jaswant-sangji  v. Desai Kallianraiji Hekoomutraiji, I I.A. 34, Raghoo Pandey & Anr.  v.  Kassy Parey and Ors.  I.L.R. 10 Cal.  73,  Manohar Mukherjee v. Bhunendra Nath Mukherjee and Ors., A.I.R.  1932 Cal. 791; approved. Eshan Chander Roy & Ors. v.  Manmohini Dassi, I.L.R. 4  Cal. 693,  Jharulu Das v. Jalandhar Thakur, I.L.R. 39  Cal.  887, Jagden Singh v. Ram Saran Pande and Ors.  A.I.R. 1927  Patna 7; explained.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1244  of 1973. Appeal  by Special Leave from the Judgment and  Order/Decree dated  the 14th August, 1972 of the Rajasthan High Court  in S.B. Civil Second Appeal No. 520 of 1968. V.S.  Desai,  Sharad Manohar, S. S. Khanduja  and  R.  K. Shukla, for the Appellant. Badri Das Sharma for Respondents Nos. 1, 3 and 4. M.B.  L. Bhargava, S. N. Bhargava and Sobhagmal Jain  for Respondent No. 2. 9 65 The Judgment of the Court was delivered by DESAI,  J.-The  unsuccessful plaintiff,  appellant  in  this appeal by special leave, who died pending the appeal,  seeks a  declaration that he is entitled to a right of worship  by turn (,called Osra) for 10 days in a circuit of 18 months in the  temple  of Kalyanji Maharaj at  Village  Diggi,  Distt. Tonk, Rajasthan, under the will Ext.  1 dated 22nd September 1961 executed by deceased Mst.  Acharaj, wife of Onkar.  The suit  was resisted by four amongst five defendants, the  5th defendant   having  not  put  in  an  appearance.    Various contentions  were  raise,, but the only  one  surviving  for present consideration is whether document Ext.  1 purporting to be a will of deceased Mst.  Acharaj is a will or a  gift, and  if the latter, whether it is admissible in evidence  on the  ground that it was not duly stamped and  registered  as required by law ? When the plaintiff referred to the disputed document in  his evidence  and proceeded to prove the same, an objection  was raised  on  behalf of the defendants that the  document  was inadmissible  in evidence as being not duly stamped and  for want  of registration.  The trial court did not decide  the, objection when raised but made a note : "Objected.   Allowed subject to objection", and proceeded to mark the document as Exhibit.  1. When at the stage of arguments, the  defendants contended  that  the  document Ext.  1  is  inadmissible  in evidence,  the learned trial judge rejected  the  contention taking  recourse  to section 36 of the Stamp  Act.   On  the question  of registration it was held that the  document  is not compulsorily registrable insofar as the subjectmatter of the  suit is concerned, viz., turn of worship which  in  the opinion  of  the learned trial judge movable  property.   On appeal by the defendants the judgment of the trial judge was reversed, inter alia, holding that the document Ext.  1  was a  gift and as it involved gift of immovable  property,  the document  was  inadmissible in evidence both on  the  ground that  it is not duly stamped and for want  of  registration. The plaintiffs second appeal to the High Court did not  meet

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with success. The  only question canvassed before this Court is that  even if upon its true construction the document Ext.  1  purports to be a gift of turn of worship as a Shebait-cum-Pujari in a Hindu  temple,  does it purport to transfer an  interest  in immovable   property,  and,  therefore,  the   document   is compulsorily  registrable.  On  the  question  whether   the document   was   duly  stamped  it  was   said   with   some justification  that it was not open to the Court to  exclude the document from being read in evidence on the ground. that it was not duty stamped because in any event under s. 33  of the Stamp Act it is obligatory upon the court to impound the document and recover duty and penalty as provided in proviso (a) to s. 35. Mst.   Acharaj,  wife of Onkar had inherited the  right  to worship  by  turn for 10 days in a circuit of 18  months  in Kalyanji  Maharaj Temple.  It is common ground that she  was entitled during her turn to officiate as Pujari and received all the offering made to the deity.  During the 966 period  of  her turn she would be holding the  office  of  a Shebait  She  purported  to transfer this  office  with  its ancillary  rights  to plaintiff Ram Rattan  under  the  deed Exhibit   1  purporting  to  be  a  will.   Upon  its   true construction it has been held to be a deed of gift and  that finding  was  not  controverted,  nor  was  it  possible  to controvert it, in view of the recital in the deed that: "now Ram  Rattan will acquire legal rights and possession  of  my entire  property  from  the date the  will  is  written  the details of the property are in Schedule ’A’ and after him, his legal heirs will acquire those rights"It      appears crystal  clear that the document purports to pass the  title to the property thereby conveyed in presenti and in the face of  this  recital it could never be said that  the  document Ext. 1 purports to be a Will. If by document Ext. 1 the donor conveyed property by gift to donee and the property included the right to worship by turn in  a  temple, is it transfer of  immovable  property  which could only be done by a registered instrument which must  be duly  stamped  according to the provisions of  the  relevant Stamp Act ? When the document was tendered in evidence by the  plaintiff while  in witness box, objection having been raised  by  the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in  accordance with law.  Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore,  a  very  convenient device is  resorted  to,  of marking  the  document  in evidence  subject  to  objection. This,  however,  would  not mean that the  objection  as  to admissibility on the ground that the instrument is not  duly stamped is judicially decided-, it is merely postponed.   In such a situation at a later stage before the suit is finally disposed  of  it would none-theless be obligatory  upon  the court  to decide the objection.  If after applying  mind  to the  rival contentions the trial court admits a document  in evidence,  s. 36 of the Stamp Act would come into  play  and such admission cannot be called in question at any stage  of the  same  suit  or  proceeding  on  the  ground  that   the instrument  has  not been duly stamped.  The Court,  and  of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground  that it  is  not duly stamped, has to  judicially  determine  the

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matter  as soon as the document is tendered in evidence  and before  it is marked as an exhibit in the case and where  a document  has been inadvertently admitted without the  Court applying  its mind as to the question of admissibility,  the instrument  could  not  be said to  have  been  admitted  in evidence with a view to attracting s. 36 (see Javar Chand v. Pukhraj  Surana).(1)  The, endorsement made by  the  learned trial  judge that "objected, allowed subject  to  objections clearly indicates that when the objection was raised it  was not  judicially  determined  and  the  document  was  merely tentatively  marked and in such a situation s. 36 would  not be attracted. Mr.  Desai then contended that where an instrument not  duly stamped  or insufficiently stamped is tendered in  evidence, the Court has to (1)  AIR 1961 S.C. 1665. 967 impound  it  as  obligated  by s. 33  and  then  proceed  as required  by s. 35, viz., to recover the deficit stamp  duty along with penalty.  Undoubtedly, if a person having by  law authority  to  receive evidence and the civil court  is  one such person before whom any instrument chargeable with  duty is produced and it is found that such instrument is not duly stamped, the same has to be impounded.  The duty and penalty has to be recovered according to law.  Section, 35, however, prohibits  its  admission  in evidence till  such  duty  and penalty  is paid.  The plaintiff has neither paid  the  duty nor  penalty  till  today.  Therefore,  stricto,  sensu  the instrument  is not admissible in evidence.  Mr. Desai,  how- ever,  wanted  us to refer the instrument to  the  authority competent to adjudicate the requisite stamp duty payable  on the  instrument and then recover the duty and penalty  which the  party who tenders the instrument in evidence is in  any event  bound to pay and, therefore, on this account  it  was said that the document should not be excluded from evidence. The duty and the penalty has to be paid when the document is tendered  in  evidence  and an  objection  is  raised.   The difficulty  in  this  case arises from  the  fact  that  the learned  trial  judge declined to decide  the  objection  on merits  and then sought refuge under s. 36.   The  plaintiff was,  therefore, unable to pay the deficit duty and  penalty which when paid subject to all just exceptions, the document has,  to be admitted in evidence.  In this background  while holding  that the document Ext.  1 would be inadmissible  in evidence as it is not duly stamped, we would not decline  to take it into consideration because the trial Court is  bound to impound the document and deal with it according to law. Serious  controversy centered, however, round  the  question whether right to worship by turn is immovable property  gift of  which can only be made by registered instrument.   Hindu law  recognises gift of property to an idol.  In respect  of possession  and management of the property which belongs  to the Devasthanam or temple the responsibility would be in the manager  who  is  described by Hindu law  as  Shebait.   The devolution of the office of Shebait depends on the terms  of the deed or will by. which it is created and in the  absence of a provision to the contrary, the settlor himself  becomes a  Shebait  and  the office devolves according  to  line  of inheritance from the founder and passes to his heirs.   This led to an arrangement amongst various heirs equally entitled to  inherit  the  office  for  the  due’  execution  of  the functions belonging to the office, discharging duty in turn. This turn of worship is styled as ’Pala’ in West Bengal  and ’Osra’ in Rajasthan.  Shebaiti being held to be property, in Angurbala  Mulick  v.  Debabrata  Mullick,  (1)  this  Court

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recognised  ’the  right  of  a  family  to  succeed  to  the religious office of Shebaitship.  This hereditary office of Shebait is traceable to old Hindu texts and is a  recognised concept  of  traditional  Hindu  law.   It  appears  to   be heritable  and  partible  in the strick  sense  that  it  is enjoyed by heirs of equal degree by turn and transferable by gift  subject  to the limitation that it may not pass  to  a non-Hindu.  On principles of morality and propriety sale  of the office of Shebait is not favoured. (1)  [1951] SCR 1125. 968 The position of Shebait is not merely that of a Pujari.  lie is a human ministrant of the deity.  By virtue of the office a  Shebait is an administrator of the property  attached  to the  temple  of which he is Shebait.  Both the  elements  of office  and  property, of duties and personal  interest  are blended  together  in  the  conception  of  Shebaitship  and neither can be detached from the other (vide Commissioner of Hindu  Religions  Endorsements, Madras  v.  Sri  Lakshmindra Thirtha Swamiar of Sri Shirur Mutt).(1) The  question  then  is whether  the  hereditary  office  of Shebait is immovable property.  Much before the enactment of the Transfer of Property Act a question arose in the context of  the  Limitation Act then in force whether a suit  for  a share  in the worship and the emoluments incidental  to  the same would be suit for recovery of immovable property or  an interest   in  immovable  property.   In   Krishnabhat   bin Hiragange   v.  Konabhat  bin  Mahalbhat  et  al,(2)   after referring to various texts of Hindu law and the commentaries of  English  commentators thereon, a Division Bench  of  the Bombay High Court held as under :               "Although therefore, the office of a priest in               a  temple,  when  it is  not  annexed  to  the               ownership  of any land, or held by  virtue  of               such ownership, may not, in the ordinary sense               of the term, be immovable property, but is  an               incorporeal hereditament of a personal nature,               yet being by the custom of Hindus classed with               immovable  property, and so regarded in  their               law......." The  privileges  and  precedence attached  to  a  hereditary office were termed in Hindu law as Nibandha and the text  of Yajnavalkay treated Nibandha, loosely translated as  corody, as  immovable property.  Soon thereafter the question  again arose  in  Balyantray  alias  Tatiaji  Bapaji  v.  Purshotam Sidheshvar  and another(3), where, in view of a conflict  in decision  between  Krishnabhat (supra) and  Baiji  Manor  v. Desai Kallianrai Hukmatrai(4), the matter was referred to  a Full  Bench of 5 Judges.  The question arose in the  context of  the limitation Act in a suit to recover fees payable  to the  incumbent  of  a hereditary office,  viz.,  that  of  a village Joshi (astrologer)., The contention was that such  a hereditary  office of village Joshi is  immovable  property. After exhaustively referring to the texts of Yajnavalkay and the  commentaries thereon Westropp, C.J. observed  that  the word  corody’ is not a happy translation of  term  Nabandha. It  was  held that Hindu law has always  treated  hereditary office  as  immovable property.  These  two  decisions  were affirmed  by  the  Judy Committee of the  Privy  Council  in Maharana  Fattehsangji  Jaswantsangji v.  Desai  Kalliaraiji Hekoomutraiji(5).  The principle that emerges (1)  [1954] SCR 1005. (2)  6 Bombay High Court Reports 137. (3)  9 Bombay High Court Reports 89. (4)  6 Bombay High Court Reports 5 5,

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(5)  1 I.A. 34. 969 from these decisions is that when the question concerns  the rights  of Hindus it must be taken to include  whatever  the Hindu  law classes as immovable although not so in  ordinary acceptation of the word and to the application of this  rule within the appropriate limits the Judicial Committee sees no objection.   In  Raghav  Pandey  & Anr.  v.  Kasav  Parey  & Ors.(1),  the  Calcutta High Court held that  the  right  to officiate as a priest at funeral ceremonies of Hindus is  in the  nature  of  immovable property.  A Full  Bench  of  the Calcutta  High Court in Manohar Mukherjee v. Bhupendra  Nath Mukherjee  & Others(2), held that the office of  Shebait  is hereditary  and  is  regarded  in  Hindu  Law  as  immovable property.   This  Court took note of  these  decisions  with approval in Angurbala Mullick’s case (supra). Mr. Desai urged that there is a distinct line of authorities which  indicate  that a Pala or turn of worship  is  movable property. In Mulla’s Transfer of Property Act, 5th  Edition, p.  17,  the  author has observed that a  pala  or  turn  of worship is movable property.  In Eshan Chandra Roy & Ors. v. Monobini  Desai(3) it was said that it was not  possible  to come to the conclusion that the right to worship an idol  is in the nature of an interest in immovable property.  It is a bare  statement with no reference to texts of Hindu  law  or commentaries   thereon.    In  Jharula  Das   v.   Jalandhar Thakur(4),  it  was  held  that the  office  of  Shebait  is hereditary  and  that  the suit which was  brought  after  a period of 12 years was barred by limitation.  This  decision does  not specify the nature of property termed as  turn  of worship in Hindu law.  The Patna High Court in Jagdeo v. Ram Saran  Pande  & Ors. (5), has in terms held that a  turn  of worship   is  not  interest  in  immovable   property   and, therefore,  a  sale thereof does not  require  registration. The  decision purports to follow the ratio in Eshan  Chander Roy’s  case (supra) which gives no reasons for the  decision and  also  Jharula Das’s case (supra)  where  this  question appears not to have been in terms raised. The definition of immovable property in s. 3 of the Transfer of Property Act is couched in negative form in that it  does not  include standing timber, growing crops, or grass.   The statute   avoids  positively  defining  what  is   immovable property but merely excludes certain types of property  from being  treated as immovable property.  Section 2(6)  of  the Registration  Act  defines  immovable  property  to  include lands,  buildings,  hereditary allowances, rights  to  ways, lights, ferries, fisheries or any other benefit to arise out of  land, and things attached to the earth,  or  permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass.  Section 2 (26)  of the  General  Clauses  Act  defines  immovable  property  to include  land,  benefits  to arise out of  land  and  things attached  to the earth or permanently fastened  to  anything attached to the earth. (1)  ILR 10 Cal. 73. (2)  AIR 1932 Cal. 791. (3)  ILR 4 Cal. 683. (4)  ILR 39 Cal. 887.1 (5)  AIR 1927 Patna 7. 11 3229 CI/78 970 It  may  be  mentioned  that  the  definition  of  immovable property  in  Registration Act lends assurance  to  treating Shebait’s hereditary office as immovable property    because the  definition  includes hereditary allowances  Offence  of

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Shebait is hereditary unless provision to countrary is  made in  the deed creating the endowment.  In the  conception  of Shebait both the elements of office and property, duties and personal interest axe 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.  The gift of such immovable  property must of course be by registered instrument.  Exhibit 1 being not registered, the High Court was justified in excluding it from evidence.  On this conclusion the plaintiff’s suit  has been rightly dismissed. This appeal accordingly fails and is dismissed with costs. S.R.                         Appeal dismissed. 97 1