Author Archives: sajikoduvath

Saji Koduvath, Advocate, Kottayam.

Introduction

Shebait (शेबैत ) is the person entrusted to administer a temple. The responsibilities undertaken by Shebaits, in different parts of India, are similar. But, those persons are identified by different names.

• Shebait (Shebaite) is the name used in Bengal & North India.
• It is Dharmakarthas in Tamil and Telungu area.
• And, Uralens/Ooralans in Kerala.[1] 

Because of the fiduciary position, their liability equates that of trustees.[2] With regard to status of Shebaits, Indian Law differ from that of trustees in English Law, on details.[3]

Under true English concepts, a trustee is the legal owner of the trust property; and the beneficial ownership thereof vests in the beneficiary (the cestuique trust).  Though Shebaits have certain limited proprietary rights, as shown below, they are essentially managers or persons in charge of administration of the temple and its property; and, the property do not vest in them as the legal-owners as in English Law.

Status of Shebaits and Mahanths – Concept and History of Origin, Unique

Mahant is the head and superior of the spiritual fraternity attached to a Mutt. The concept of Shebaiti and Mahanthship is deep-rooted in past Indian history, and has its own unique history of origin and development. When compared to ‘trustees’ in Law of Trusts, the status and position of Shebaits and Mahanths may appear anomalous.[4]

• Because,
  1. Viewing through the Anglo-Saxon jurisprudence, Shebaits and Mahanths are not trustees; mainly because the property dedicated to a temple vest in the idol (as a juristic person), and that to a Mutt in Mutt itself.
  2. Despite the fact that property will not vest in the Shebaits/ Mahanths, they have certain proprietary rights (though in one sense they are mere managers or administrators).
  3. In the conception of Shebaiti and Mahanthship, both the elements of office and property are mixed up; and duties and personal interest are blended together.[5]
  4. Shebait is the human ministrant and the authorised representative of the idol[6].

In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[7] it was observed by our Apex Court that the legal character of a Shebait cannot be defined with precision and exactitude in the English standards, though the concept of Shebaiti and Mahanthship is precise, and bounded by definite contours..

The legal status of a Mahant and Shebait is similar in certain characteristics and different in certain others.

Appointment of Shebait

The debutter property is dedicated by its prior owner for carrying into effect the pious purpose he envisioned.  It is accomplished through the actions of a human agent; that is the shebait. Ordinarily, a deed of dedication will not recite the duties of the shebait in detail. Public trust property being invariably vest in the Idol,  an express stipulation in the deed of foundation that the property of the idol will vest in the shebait will stand otiose; and it will not change the character.[8]

Shebait and Mahants are not Trustees in Strict Legal Sense; only Managers

The person in charge of administration of a temple and its properties, as per the above ratio, may be termed as a ‘manager’[9]  alone. But, in State Wakf Board Vs. Subramanyam[10] Madras High Court had observed as under:

• “The word ‘Manager’ in relation to a religious or charitable endowment is not a term of art. The said word denotes the person who is in charge of the administration of the endowment or manages the property or supervises the performance of the charity and the word is one of very wide and general import.”

The property of a temple belongs to, or vests in, the Idol.[11] Shebaites are only managers in charge of administration of the temple and its property; and they cannot be recognised, in the strict legal sense, as trustees under strict English principles for the main reason that the property does not vest in them.[12]In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[13] it was observed by our Apex Court that a Shebait is the human ministrant and custodian of the idol so also its earthly spokesman and its authorised representative entitled to deal with all its temporal affairs and to manage its property.

In Vidya Varuthi Thirtha Vs. Balusami Ayyar(1922)[14] the Privy Council held that a ‘trust’ in the sense in which the expression is used in English Law, was unknown in the Hindu system, pure and simple. Justice Ameer Ali held:

• “It is also to be remembered that a ‘trust’ in the sense in which the expression is used in English Law, is unknown in the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind….Religious institutions, known under different names, and regarded as possessing the same ‘juristic’ capacity, and gifts are made to them eo nomine …When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol of the institution. In no case was the property conveyed to or vested in him, nor is he a ‘trustee’ in the English sense of the term, although in view of the obligations and duties vesting on him, he is answerable as a trustee in the general sense, for maladministration… it would follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a “trustee” to whom property has been “conveyed in trust’ and who by virtue thereof has the capacity vested in him which is possessed by a “trustee’ in English law.”
• …Neither under the Hindu law nor in the Mahomedan system is any property ‘conveyed’ to a shebait or a mutavalli in the case of a dedication. Nor is any property vested in him, whatever property he holds for the idol or the institution he holds as manager with certain beneficial interest regulated by custom and usage.”

Dr. BK Mukherjea, J. On The Hindu Law of Religious and Charitable Trust explains as under:

• “In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of the cestui que trust. In a Hindu religions endowment, 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.”[15]

It is also a distinctive characteristic of Hindu Law. Privy Council, in Vidya  Varuthi  Thirtha  Swamigal  Vs.  Baluswami  Ayyar(1922)[16] it was held:

• “It is to be remembered that a ‘trust’ in the sense in which the expression is used in English Law is unknown in the Hindu system, pure and simple. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, the agent is only the manager and custodian of the idol or the institution. In no case is the property conveyed to or vested in him; nor is he a ‘trustee’ in the English sense of the term although in view of the obligations and duties resting on him, is answerable as a trustee in the general sense for maladministration.”

Madras High Court, in Sree Siddhi Budhi  Vinayakagar  Sree  Sundar-eswarar  Vs. SV Marimuthu[17] it was held that the trusteeship of a Hindu temple was an honorary office, with a mere right of management of the institution and its property.

Position of Shebait or Mahanth is Analogous to that of a Trustee

Though Shebaites are only managers in charge of administration of the temple and its property and they cannot be recognised, in the strict legal sense, as trustees under strict English principles, for the property does not vest in them, as regards the administration of the debutter, the position of a shebait is analogous to that of a trustee.

In Profulla Chorone Requitte Vs. Satya Choron Requitte (1979)[18] it was observed by the Supreme Court that as under:

• “20. … As regards the administration of the debutter, his position is analogous to that of a trustee; yet, he is not precisely in the position of a trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and not in the shebait. Although the debutter never vests in the shebait, yet, peculiarly enough, almost in every case, the shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder.”

This passage is quoted with approval in M.  Siddiq Vs. Mahant Suresh Das (2019)[19] and Marthanda Varma Vs. State of Kerala (2020).[20]

Vesting Property with Idol, in an Ideal Sense; Management with Shebait

The possession and management of the dedicated property of a temple, which is vested with the idol, being in actual possession and management of the human-being, Shebait, he is entitled to deal with all the temporal affairs of the idol. Therefore, the vesting of property with the Idol, as legal owner thereof, is qualified to be:

• (a) in an ideal sense (Jogadinadra  Nath  Vs.  Hemanta  Kumari Debi),
• (b) secondary/general character (Bhupathi  Nath Vs. Ramlal Maitra) or
• (c) in a figurative sense (Yogendranath  Vs. IT Commr).

Dr. BK Mukherjea on The Hindu Law of Religious and Charitable Trusts, reads as under:

• “(1) According to these sages the deity or idol is the owner of the dedicated property but in a secondary sense. The ownership in its primary sense connotes the capacity to enjoy and deal with the property at one’s pleasure. A deity cannot hold or enjoy property like a man; hence the deity is not the owner in its primary sense;
• (2) ownership is, however, attributed to the deity in a secondary or ideal sense; this is a fiction but not a mere figure of speech, it is a legal fact; otherwise the deity could not be described as owner even in the secondary sense;
• (3) the fictitious ownership which is imputed to the deity is determined by the expressed intentions of the founder; the debutter property cannot be applied or used for any purpose other than that indicated by the founder. The deity as owner, therefore, represents nothing else but the intentions of the founder…..
• Neither God nor any supernatural being could be a person in law. So far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person and the correct view is that in that capacity alone the dedicated property vests in it.”

The Supreme Court, in Deoki  Nandan  Vs. Murlidhar (1957), after considering various decisions and Sanskrit texts, observed as under:

• “Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha), and the true purpose of a gift of properties to the Idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.”

It is expressed in another way by the Apex Court in Yogendranath  Vs. IT Commissioner as under:

• “The juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated. … It is also not correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of dedicated property. … Thus according to texts, the Gods have no beneficial enjoyment of properties, and they can be described as their owners in a figurative sense (though the assets are called ‘properties of the Gods’ or ‘Devaswam’)”.

Our Apex Court followed the proposition that the property vests in idol in an ideal sense only, in the following decisions.

• Bishwanath Vs. Thakur Radha Ballabhji (1967)
• Yogendra Nath Naskar Vs. Commissioner of Income Tax (1969)
• Profulla  Chorone  Requitte Vs. Satya  Choron  Requitte (1979)
• Ram Jankijee Deities Vs. State of Bihar (1999)
• M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) (2019).

It is held by the Supreme Court in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) as under:

• “322. Courts recognise a Hindu idol as the material embodiment of a testator’s pious purpose. Juristic personality can also be conferred on a Swayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role.”

Read Blog: Hindu Temples & Law of Trusts

Management Entrusted to Shebaites,  Ex Necessitas

In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979) it was observed by our Apex Court that the property dedicated to an idolvests in it in an ideal sense only;the possession and management has to be (ex necessitas) entrusted to some human agent. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

It is trite law that dedicated property of a temple will be vested with the idol as the legal owner thereof, though such vesting is qualified to be in an ‘ideal or secondary sense’ (Bhupathi Nath v. Ramlal Maitra: ILR 37 Cal. 128) and the possession and management thereof will be with some human being identified as Shebait or Manager, though in the strict legal sense, they cannot be accepted as trustees.

In Wali Mohammed v. Rahmat Bee, (1999- 3 SCC 145), to the question whether the Mutawalli of a Wakf would be a trustee, our Apex Court observed as under:

• “35. It will be seen that the main part of Sec. 10 (Limitation Act) states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.
• 36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Sec. 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult.
• 37. The legislature therefore intervened and amended Sec. 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: “The (Civil Justice) Committee’s recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Sec. 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assignee for valuable consideration, endowments of this nature are not protected. The Committee’s recommendation is that Sec. 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.” (Quoted in: Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482).

In Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482, the Apex Court held that the Mutawalli is not a trustee in its true sense. The Supreme Court formulated a crucial question and answered it as under:

• “127. Thus, the Mutawalli is treated as a trustee. But would the amendment made to Sec. 10 of the Limitation Act, 1963 make a Mutawalli a trustee generally?
• Our answer is an emphatic No. This is for the reason that the change in Sec. 10 of the Limitation Act was effected to overcome the judgment of the Privy Council, when it held that a Mutawalli would not be a trustee and when in view of the requirement in Sec. 10 that the suit must be one against a person in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words “For the purpose of this section  and proceeds to declare that “any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”
• Therefore, apart from it being an Explanation, it also on its very terms, limits the deeming fiction to the purpose sought to be attained in Sec. 10 of the Limitation Act.”

Shebaitship: Office and Property Blended-Regulated by Custom & usage

It has been held in Vidya Varuthi Thirtha v. Balusami Ayyar, (1928)[21], Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)[22], M. Siddiq  Vs. Mahant Suresh Das(2019)[23] Marthanda Varma Vs. State of Kerala (2020)[24] etc. that the office and property are both blended in the conception of shebaitship.

In Manohar Mukherji Vs. Bhupendranath Mukherji (1932)[25] it was enquired by the Calcutta High Court whether shebaitship in Hindu law was property or an office to which the founder of an endowment was competent to appoint or nominate persons in any order of succession. Surveying the precedent, Justice Mukerji held:

• “…I can find no authority for the proposition that the limited ownership which a shebait, in ordinary cases, exercises over debuttor property is not property in the eye of Hindu law… having regard to the rights which ordinarily attach to the office of a shebait, the office and the property of the endowment go together and that when it is a question between two persons one claiming and the other disputing a right to be the shebait, the question is a question of property.”[26]

In Profulla Chorone Requitte Vs. Satya Choron  Requitte (1979)[27]it was observed as under:

• “21. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office; but even so, it will not be quite correct to describe shebaitship as a mere office. ‘Office and property are both blended in the conception of shebaitship’.”[28]

It is noticed by Patna High Court in Baijaynanda Giri Vs. State of Bihar[29] that the combination of office and proprietary right in a mahant or a shebait was an anomaly. It was observed as under:

• “These authorities emphasise that the position or a mahant or shebait is a combination of office and proprietary right and though the position is anomalous, it is an anomaly which has been recognised and accepted in Hindu law from a very early date.”[30]

Right to appropriate a part of the usufruct of the entrusted property, depending upon usage and custom, is peculiar to the office of shebaitship. Thus it is an honorary office with special rights of management of institution and its property.[31]

In Kunjamani Dassi Vs. Nikunja Bihari Das (1915)[32] it was observed that both the elements of office and property, of duties and personal interest, are mixed up and blended together in the conception of shebaitship; and that one of the elements cannot be detached from the other. In Sm. Angur Bala Mullick Vs. Debabrata Mullick (1951)[33] the Supreme Court followed these observations.[34]

In Angurbala Mullick Vs. Debabrata Mullick[35]the Supreme Court (Mujherjea, J.)  referring to the extract from the Privy Council decision in Vidya Varuthi Thirtha Vs. Balusami Ayyar[36] observed further that though the shebait is a manager and not a trustee, shebaitship is not a ‘mere office’; as under:

• “11. The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami [48 I.A. 302] that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestuique trust. 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. But though a shebait is a manager and not a trustee in the technical sense, it would not he correct to describe the shebaitship 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 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 Manohar Mukherji v. Bhupendra Nath Mukherji [I.L.R. 60 Cal. 452] and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary [63 I.A. 448] and again in Bhabatarini v. Ashalata [70 I.A. 57]. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize 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. Rumanlolljee Gossamee [16 I.A. 137] “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 usage, course of 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.”[37]

Shebait has Rights of a Limited Owner – Regulated by Custom & usage

Shebaites have, to some extent, the rights of a limited owner. In Profulla  Chorone  Requitte  Vs.  Satya  Choron  Requitte (1979)[38] it is held as under:

• “20. Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of shebaitship. Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as shebait in Northern India. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. …
• 21. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office; but even so, it will not be quite correct to describe shebaitship as a mere office. “Office and property are both blended in the conception of shebaitship”. Apart from the obligations and duties resting on him in connection with the endowment, the shebait has a personal interest in the endowed property. He has, to some extent, the rights of a limited owner.”

Our Apex Court relied on the afore-stated observations, in Marthanda Varma Vs. State of Kerala.[39]In Marthanda Varma the Apex Court also quoted with approval the following passage of Dr. B K Mukherjea J. in ‘Hindu Law of Religious and Charitable Trusts’:

• “5.5. Shebaitship is not a mere office, it is property as well.- But though a Shebait is a manager and not a trustee in the technical sense, it would not be correct to describe shebaitship as a mere office. The Shebait has not only duties to discharge in connection with the endowment, he has also a personal interest in it. As the Judicial Committee pointed out in the above case, in almost all Debutter endowments, the Shebait has a share in the usufruct of the Debutter property, which depends either on the terms of the grant or upon custom or usage. Even when no emoluments are attached to the office of a Shebait, he enjoys some sort of right or interest in the endowed property which has partially at least the characteristics of a proprietary right. You shall see later on [Chapter 6 (Administration of Debutter: Rights, Duties and Powers of a Shebait)] that although the Shebait’s power to alienate the Debutter property is very much limited and can be exercised only when there is a justifying legal necessity or benefit to the deity, yet he can create derivative tenures in respect of the endowed property, which even if not supported by legal necessity cannot be impeached so long as he is alive and remains in office. The Shebait therefore has to some extent the rights of a limited owner. It has now been decided by a Full Bench of the Calcutta High Court (supra) after an elaborate review of all authorities that shebaitship is property, with regard to the disposition of which the rule in Tagore vs. Tagore, 9 BLR. 377 is applicable, and this decision has been approved of by the Privy Council in Ganesh Chandra vs. Lal Behari (supra) and again in Bhabatarini vs. Ashalata(supra). In Janki Raman vs. Koshalyanandan, A.I.R. 1961 Pat. 293 the founder of an endowment had provided that the office of shebaitship should be held by three brothers and that it should devolve on their heirs. One of the brothers having relinquished his right in favour of the other two brothers, it was held that the devolution of the office was governed by the general law of succession relating to property, and that a relinquishment by the holder of an office was not binding upon his heirs and could not enure beyond his lifetime.”

The Calcutta High Court(Asutosh Mookerjee, J.) held the following as to the limited ownership vested with the shebaits, in Manohar Mukherjee Vs. Bhupendra Nath Mukherjee (1933)[40]:

• “15. The deity is the recipient of the gift only in an ideal sense; the dedicated property belongs to the deity in a similar sense; in reality the property dedicated is in the nature of an ownerless thing. In ancient times, except in cases of property dedicated to a brotherhood of sanyasis, all endowments ordinarily were administered by the founder himself and after him his heirs. The idea of appointing a shebait is of more modern growth. When a Hindu creates an endowment its management is primarily in him and his heirs, and unless he appoints a shebait, he himself fills that office and in him rests that limited ownership,-notwithstanding that, on the one hand, he is the donor and, on the other, the recipient on behalf of the deity, the juridical person-which has to be exercised until the property offered to the deity has been suitably disposed of. ……… This idea of limited ownership is the essence of the position of the manager or custodian of a dedicated property, by whatever name he may be called. That this idea is the only basis on which decisions of the highest authority as regards the rights and powers of shebaits may be justified will be seen hereafter when some of these decisions will be referred to.
•  26. Shebaitship in its true legal conception involves two ideas: The ministrant of the deity and its manager; it is not a bare office but an office together with certain rights attached to it. A shebait’s position towards the debutter property is not similar to that in England of a trustee towards the trust property; it is only that certain duties have to be performed by him which are analogous to those of trustees…….”

Manohar Mukherjee Vs. Bhupendra Nath Mukherjee is also quoted with approval in Marthanda Varma Vs. State of Kerala.[41]

Shebaits/Dharmakartas have Vide Discretion

In Silambani Chidambara Vinayar Devasthanam Vs.  Chidambaram Chettiar (1943)[42] it is observed by the Madras High Court as under:

• “The property of a temple belongs to the Idol and does not vest in the Dharmakarta although he has a wide discretionin the spending of the funds of the institution. The Dharmakarta of a temple therefore is not a trustee of its property and therefore Section 10 (Limitation Act) as it stood before the amendment of 1929 does not apply to him.”[43]

Right of Suit in the Shebait; and Not in the Idol

The Privy Council, in Jagadinadra  Nath  Vs.  Hemanta  Kumari  Debi,[44] held that the right of suit for protection of property was vested in the Shebait; and not in the Idol. The Privy Council held:

• “There is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. … . It still remains that the possession and management of the dedicated property belong to the Shebait. Add this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait, not in the idol.”[45]

Succession of Office of Shebait-Regulated by Custom& Usage

According to Hindu Law, when the trust is founded, the trusteeship vests in the founder and his heirs, and if the founder had prescribed a line of succession to the office of the trust but the succession to the office had entirely failed, the right of management reverts to the founder and his heirs.[46]

Our Apex Court held in Sital Das Vs. Sant Ram[47] that the law is well settled that succession to Mahantship of a Mutt or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment.

It is well settled rule of Hindu Law that when there is no provision in the deed of endowment about the succession of office of Shebait, or the succession provided therein comes to an end, the management and control of the property follows the ordinary rule of inheritance, in other words it follows the line of inheritance from the founder and passes to his heirs.[48]

Shebaitship also Property for Devolution

In viw of the special rights and interest of shebaits over the debutter property and usufruct, a shebaitship is also a property for the purposes of devolution as affirmed[49] by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur[50], and Bhabatarini Debi v Ashalata Debi[51] and our Apex Court in Angurbala Mullick Vs. Debabrata Mullick.[52] Justice BK Mukherjea considered whether the appellant, as the widow of the shebait, was entitled to act as the shebait of the idol instead of the minor son of the shebait borne from his first marriage who was the respondent. It was contended that the office of shebaitship would devolve in accordance with the Hindu Women’s Right to Property Act 1937. Justice BK Mukherjea held as under:

• “But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship 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 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.”

Whether Similar to Management of Estate of an Infant Heir[53]

The management and administration of property by Shebait or manager is described to be similar to that of a manager of the estate of an infant heir.[54] The property can be said to belong to an idol, and the possession and management of it be entrusted to Shebait or manager.[55]

But, Dr. B K Mukherjea J., ‘On Hindu Law of Religious and Charitable Trusts’ has taken the view that the analogy as to infant heir does not ‘in terms at least apply’ to an idol.[56]

Shebait – Legal Status: Analogous to that of the Manager for an Infant Heir

Hindu Idol is a juristic person. Property dedicated to an Idol vests in it. The possession and management thereof have to be with some human being.Such a person is known as Shebait. He is qualified as ‘authorised representative’ of the Idol,and as ‘manager’ on analogy similar to that of the estate of an infant heir. He is not a ‘full trustee’ as understood in English Law.

In Prosunno Kumari Debya Vs. Golab Chand Baboo,[57] the Privy Council, as early as in 1875, it was observed as under:

• “The authority of the sebait of an Idol’s estate would appear to be in this respect analogous to that of the manager for an infant heir.”

In Pramatha  Nath  Mullick  Vs.  Pradyumna Kumar Mullick, the Privy Council (1925)[58] laid down as under:

• “One of the questions emerging at this point is as to nature of such an idol, and the services due thereto. A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a ‘juristic entity’. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; for this doctrine, thus simply stated, is firmly established.”[59]

Management Entrusted with Shebait

Our Apex Court, in Profulla  Chorone  Requitte  Vs.  Satya  Choron  Requitte (1979)[60] it is observed as under:

• “The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property.”

De Facto Shebait

In M. Siddiq (D) Thr. Lrs.  VS Mahant Suresh Das[61] it has been observed by our Apex Court that ‘in the vast majority of cases, a shebait is appointed in accordance with the terms of a deed of dedication by which property is endowed to an idol and that in the absence of an expressly appointed or identified shebait, the law has ensured the protection of the properties of the idol by the recognition of a de facto shebait. Where a person is in complete and continuous management of the deity’s affairs coupled with long, exclusive and uninterrupted possession of the appurtenant property, such a person may be recognised as a shebait despite the absence of a legal title to the rights of a shebait’.[62]

Shebaitship is Heritable Property

It is well-settled by the authorities that Shebaitship is a property which is heritable. In Shambhu  Charan  Shukla  Vs. Shri  Thakur Ladli  Radha Chandra Madan  Gopalji  Maharaj [63] Sabyasachi  Mukharji, J. it is held as under:

• “The devolution of the office of Shebait depends on the terms of the deed or the Will or on the endowment or the act by which the deity was installed and property consecrated or given to the deity, where there is no provision in the endowment or in the deed or Will made by the founder as to the succession or where the mode of succession in the deed or the Will or endowment comes to an end, the title to the property or to the management and control of the property as the case may be, follows the ordinary rules of inheritance according to Hindu law.”

Nominating Successor by a Will

When one Shebait has the right to nominate his successor, nomination of successor by will is valid in law.[64]

Transfer to One in the Line of Succession of Shebait

It is observed by our Apex Court in Kali Kinkor  Ganguly Vs. Panna Banerjee[65] that the reason, why transfer in favour of the next Shebait or one in the line of succession[66] or a co-Shebaits is permissible, is that if anyone of the Shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining Shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of Shebaiti by will is not permitted because nothing which the Shebait has can pass by his will which operates only at his death. A Shebait cannot delegate his duties to another person, but he is not bound to accept his office. If he renounces his duties the renunciation in the form of a transfer in favour of the next heir can be valid in law.

In Bameswar Bamdev Shiva Vs Anath Nath Mukherjee[67] it was pointed out that if only a Shebait transfered his entire rights in favour of the next heir in succession then only such transaction became valid. It should amount to relinquishment resulting in acceleration of the interest of the next heir in succession. But if the transferor retained a portion of his rights as Shebait and transfered the remaining portion, even if such transaction be to the next heir in succession such a transfer could not be upheld.

Shebait’s Right of Nominating His Successor

Dr. B.K. Mukherjea in his Tagore Law Lectures, on The Hindu Law of Religious and Charitable Trusts, observed as to Shebait’s right of nominating his successor as under:

• “The founder of an endowment can always confer upon a Shebait appointed by him the right of nominating his successor. Without such authority expressly given to him, no Shebait can appoint a successor to succeed to him in his office. The power of nomination can be exercised by the Shebait either during his lifetime or by a will, but he cannot transfer the right of exercising this power to another person.”[68]

Alienation of Shebaitship by Will and Inter-Vivos

In Prosunna  Kumari  Vs.  Golap Chand (1874-75)[69] the Judicial Committee laid down that a Shebait must, out of necessity, be empowered to do whatever might be required for the services of the idol and for benefit and preservation of the property. But, in Kali Kinkor  Ganguly Vs. Panna Banerjee (1974)[70]the Supreme Court took a reverse turn observing that Dr. BK Mukherjea  had pointed out[71] that the Privy Council in Prosunna  Kumari’s case dealt with the rule of necessity and extended only to an alienation of the temporality of the idol and it did not and could not apply to alienation to the spiritual rights and duties.

It was observed by the Calcutta High Court in Nagendra Nath Vs. Rabindra Nath (1926)[72] that in the absence of custom or usage to the contrary or any terms to that effect in the deed of endowment, a religious trust or the right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder.[73]

In Rajeswar Vs. Gopeswar[74] it was stated that such alienations are not regarded with much favour and that shebaitship cannot be transferred by will. As to the question whether shebaitship can be transferred inter vivos, Maclean CJ held that it cannot be transferred except under special circumstances.[75]

Dr. Mukherjea in his Tagore Law Lectures ‘On The Hindu Law of Religious and Charitable Trusts’ observes that the doctrine of alienation of Shebaitship on the ground of necessity or benefit to the deity is of doubtful authority and based upon a misconception of certain pronouncements of the Judicial Committee.

Assignment of Religious Office –  Against Public Policy

In Raja Vurmah Vs. Ravi Vurmah,[76] Rajah paid certain sum to the Urallers (managers) of the religious foundation who transferred all their rights to the Rajah. The Judicial Committee held that the assignment was void in law and could not create any rights in favour of the Rajah. In this case the doctrine of delegatus non potest delegate was pointed out and held that an assignment of religious office for the pecuniary benefit of the holder of the office was held to be against public policy and contrary to the intentions of the founder. Such transfer[77] amounted to delegation of delegated authority and could not have been sanctioned even on the footing of a custom[78] because it would be against public policy.

‘Dr. B K Mukherjea On Hindu Law of Religious and Charitable Trusts’ has pointed out:

• “Although Shebaiti right is heritable like any other property, it lacks the other incident of proprietary right, viz., capacity of being freely transferred by the person in whom it is vested. The reason is that the personal proprietary interest which the Shebait has got is ancillary to and inseparable from his duties as a ministrant of the deity, and a manager of its temporalities.
• As the personal interest cannot be detached from the duties the transfer of Shebaitship would mean a delegation of the duties of the transferor which would not only be contrary to the express intentions of the founder but would contravene the policy of law. A transfer of Shebaitship or for the matter of that of any religious office has nowhere been countenanced by Hindu lawyers.”[79]

Exceptions to the Rule – No Alienation of Shebaitship

The Supreme Court in Profulla  Chorone  Requitte  Vs. Satya  Chorone  Requitte (1979)[80] it was observed:

• “Although Shebaitship is heritable property[81] yet, it cannot be freely transferred by the Shebait. But there are exceptions to this general rule. Some of such exceptions recognised in several decisions, are:
  • alienation in favour of next Shebait, or
  • one in favour of the heir of the transferor, or
  • in his line of succession, or
  • infavour of a co-Shebait,
• particularly when it is not against the presumed intention of the founder.”[82]

The Privy Council decision in Raja VurmahVs. Ravi Vurmah[83] laid down following exceptions to the rule as to transfer of Shebaitship:

• (1) Where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of Shebaits and suffers from no disqualification;
• (2) When the transfer is made in the interest of the deity itself and to meet some pressing necessity; and
• (3) When a valid custom is proved sanctioning alienation of Shebaiti right within a limited circle of purchasers.

The Bombay High Court has pointed out in Raghu Nath Vs. Purnanand[84] that if any one of the Shebaits intends to get rid of his duties, the proper things for him to do would be to surrender his office in favour of the remining Shebaits. In the case of such a transfer in favour of co-shebait, no policy of Hindu Law is likely to be affected, much less the presumed intentions of the founder.

The Appointment of Archakas by Shebaits is Essentially a Secular  Function

Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing the Archaka.[85]

Pujaris  and Right of Shebaits

Adverting to Gauri Shankar Vs. Ambika Dutt[86] and Sree Sree Kalimata Thakurani of Kalighat Vs. Jibandhan Mukherjee,[87]it is pointed out in M. Siddiq Vs. Mahant Suresh Das[88] that a pujari who conducts worship at a temple is not merely, by offering worship to the idol, elevated to the status of a shebait. A pujari is a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits.

The Legal Status of Mahant

The legal status of Mahant is still confusing and not settled.[89] In the conception of Mahantship, both the elements of office and property, duties and personal interest are blended together and neither can be detached from the other. Accepting this conception it is laid down by our courts that a Mahant’s duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity also. The purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents.[90]

Property Vestin Mahant; But, Not True Trustee

A math is an institutional sanctum presided over by a superior, Mahant, who combines in himself the dual office, or two capacities, of being the religious or spiritual head of the particular cult of religious fraternity and of the manager of the secular properties of the institution of the math.[91] He is spiritual head of the Mutt and administrator of its properties. Both are closely intermingled.[92]The whole assets are vested in him as the owner thereof in trust[93] for the institution itself.  But, he is neither a corporation nor a life tenant in respect of Mutt property.[94]

In Srimath Deivasikamani Nataraja Vs. Valliammai Achi (1918)[95] it was held by the Madras High Court that the contra observations in Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha Swami were ‘no longer of binding force’. A Mahant is also not a trustee in the sense in which the term is understood in English law. In view of the obligations and duties, Mahant is answerable as a trustee in the general sense for proper administration.[96]

In Commissioner, Hindu Religious Endowments Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)[97] the Supreme Court analysed the conception of Mahantship and declared that both the elements of office and property, duties and personal interest are blended together in his status and neither can be detached from the other. The Apex Court heldfurther as under:

• “He is certainly not a trustee in the strict sense. He may be as the Privy Council says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be correct to describe Mahantship as a mere office. It will not be correct to say that a Mathadhipati holds the Math property as a life-tenant[98] or that his position is similar to that of a Hindu widow in respect to her husband’s estate or of an English Bishop holding a benefice.”

Our Apex Court, in Sudhindra Thirtha Swamiar Vs. Commissioner for Hindu Religious and Charitable Endowments, Mysore(1963)[99] added as under:

• “Mahant is not a mere manager or custodian nor is he a trustee in the strict sense holding the office of Mahant by custom and usage of the institution. He has besides large powers of management and disposal, certain proprietary rights over the property of the Math.”

In Shri Krishna Singh Vs. Mathura Ahir (1980)[100] our Apex Court held that the property belongs to a Mutt is in fact attached to the office of Mahant, and passed by inheritance to no one who does not fill the office. The Head of a Mutt, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the ‘burden of maintaining the institution’. He is bound to spend a large part of income derived from the offerings of his followers on charitable or religious objects. The words ‘the burden of maintaining the institution’ must be understood to include the maintenance of Mutt, the support of its Head and his disciples and the performance of religious and other charities in connection with it, in accordance with usage.

After considering the previous decisions on this subject the Allahabad High Court observed in Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[101] that it is sufficiently clear that a Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the Math.

Mahant has Large Powers; But, Answerable as a Trustee

In Vidya Varuthi Thirtha v. Balusami Ayyar, (1928)[102] the Judicial Committee observed as under:

• “These men (spiritual teachers under whom were founded Hindu colleges and monasteries under the names of Mutt) had and have ample discretion in the application of the funds of the institutions, but always subject to certain obligations and duties equally governed by custom and usage…called by whatever name, he is only the manager and custodian of the idol or the institution.”[103]

A Mahant has large powers[104] with respect to the administration[105]of the Mutt. He is the head of the institution. He represents the entire Mutt.[106] He has ample discretion in the application of the funds of the institution. Nevertheless, he is subject to certain fiduciary obligations and duties.He has to manage the property of the Mutt for the objects for which it exists.[107] A Mahanth is, in view of the obligations and duties resting on him, answerable, as a trustee in the general sense, for the proper administration of the institution. Apart from the directives in the deed of foundation he is also governed by custom and usage.[108]

Mulla, ‘Hindu Law’[109]lays down as under:

• “The property of a Math is held by Mahant as spiritual head of the institution, but the property may by the usage and custom of the institution vest in trustees other than the spiritual head. In any case, the property is held solely in trust for the purposes of the institution; surplus income must be added to the endowment and not applied for the personal enjoyment of the head of the Math. A Mahant is not a trustee in the English legal sense of the term. His functions and duties are regulated by custom. His very wide discretion as to application of the income is subject to the obligation to manage the property so as to serve effectively the objects for which the Math exists. In the conception of Mahantship as in Shebaitship, both the elements of an office and property are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowment attached to an institution is manifested in his large powers and disposal and his right to create derivative tenures in respect of endowed properties and these and other rights of a similar character of proprietary right which, though anomalous to some extent, is still a genuine legal right. A Mahant, as a superior of a Math has in addition to his duties, a personal interest of a beneficial character which is much larger than that of a Shebait in a debutter property.”[110]

Sale by Mahanth Otherwise Than for Legal Necessity

A Mahant is only the custodian of property and not the owner thereof. He has no right to pass, title or interest in favour of the vendee by execution of a sale-deed unless it is shown that there was legal necessity of the same. The purchaser of such property has the duty to discharge the burden of proof that the sale-deed executed by Mahant in his favour was for legal necessity of such institution and, hence, the sale-deed will be a void document if the duty is not discharged.  Therefore, cancellation of such a document is not necessary as it is clearly without title and authority.[111]

Removal of Mahants

See Chapter: Breach of trust and Removal of Trustees

Mahant: Beneficial or Personal Interest in the Properties

In Sm. Angur Bala Vs. Debabrata[112] our Apex Court held that the right of a Mahant was not that of a bare trustee but that the right of the Mahant carried with it the element of beneficial or personal interest in the properties.[113]

Mahant: Office and Property Blended Together

The property belonging to a math is attached to the office of the Mahant and passes by inheritance. The succession to mahantship of a math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment.[114] In Angurbala Vs. Debabrata (1951),[115] Mukherjea, J. pointed out that the exact legal position of a Shebait might not be capable of precise definition, but its implications were fairly well established. But, it was settled that the relation of a Shebait in regard to debutter property was not that of a trustee to trust property under the English law.[116] As in the case of a Shebait, Mahantship also involves both elements of office and property blended together.[117] It is noticed in Baijaynanda Giri Vs. State of Bihar[118] that this combination was an anomaly. It was observed as under:

• “These authorities emphasise that the position or a mahant or shebait is a combination of office and proprietary right and though the position is anomalous, it is an anomaly which has been recognised and accepted in Hindu law from a very early date.”[119]

The head of a Mutt (Mahant) is not a trustee in the sense in which that term is generally understood. But, Mahant has an estate for life in its endowments.  His position can be equated with that of Shebait to a large extent. It is explained by our Apex Court in Krishna Singh Vs.  Mathura Ahir (1980)[120] thus:

• “The property belonging to a Math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The word ‘the burden of maintaining the institution’ must be understood to include the maintenance of the math, the support of its head and his disciples and the performance of the religious and other charities in connection with it, in accordance with usage. From these principles, it will be sufficiently clear that a Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math.”[121]

Our Apex Court in Sarangadeva  Periya  Matam  Vs.  Ramaswami  Goundar (1966)[122] held that the Mutt was the owner of the endowed property; and that, like an Idol, the Mutt is a juristic person  having the power of acquiring, owning and possessing property and having the capacity of suing and being sued. It was also held by the Apex Court that a Matadipathi was the manager and custodian of the institution; and that his office  carried the right to manage and possess the endowed property on behalf of Mutt and the right to sue for protection of the property. 

A Constitution Bench of the Supreme Court in Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,[123] speaking through Chief Justice BK Mukherjea, relying on an earlier decision of the Spreme Court, Angurbala Mullick Vs. Debabrata Mullick (1951),[124] elaborately considered the legal status and position of Mathadhipati.[125]  The following can be brought up from this decision:

• It is not correct that Mathadhipati holds the Math property as a life tenant or that his position is similar to that of a Hindu widow in respect to her husband’s estate.
• The status of a Mathadhipati is not similar to an English Bishop holding a benefice also.
• Mathadhipati is not a trustee in the strict sense.
• He may be, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such (as observed by the Privy Council in Vidya Varuthi Vs. Balusami[126]). 
• Though Mathadhipati may be a manager, he is not a mere manager.
• It would not be right to describe Mahantship as a mere office.
• A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom.
• Personal interest of a Mathadhipati is much larger than that of a Shebait in the debutter property.
• Though the proprietary element in the Shebaiti right, that is Shebaitship itself is property, is in some respects an anomaly, it has to be accepted as admitted into Hindu law from an early date.[127]
• Shebaiti right could, with equal propriety, be applied to the office of a Mahant.
• Thus, in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest, are blended together and neither can be detached from the other.
• The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties;
• These and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right.
• It is true that the Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut off, the ordinary rules of succession do not apply.

Mahant: Not Accountable

In Sammantha Pandara Vs. Sellappa Chetti (1878-81)[128] the Madras High Court discussed origin of ‘Matts’ and observed as under:

• “It is in a certain sense trust property; it is devoted to the maintenance of the establishment, but the superior has large dominion over it, and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution. Acting for the whole institution he may contract debts for purposes connected with his mattam, and debts so contracted might be recovered from the mattam property and would devolve as a liability on his successor to the extent of the assets received by him.”

De Facto Mahant is Entitled to Maintain a Suit

A person in actual possession of a Mutt is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Mutt.[129]

Decree passed against Mahant binding on the Mutt and Succeding Mahant

In the absence of proof of collusion or fraud, a decree passed against the Mahant of a Math is binding on the succeeding Mahant and the institution as well.[130]

Validity of Transfer ofMutt for Pecuniary Consideration

While considering validity of transfer of a Mutt for pecuniary consideration (that is, gift/transfer subject to condition that the defendants should maintain first plaintiff), it was held in D Krishna Murthy Vs. C Ramana[131] that the transfer was illegal.

Mahant: Succession

When a mutt is endowed, it vests, for administration, in the Mahant. Succession of Mahant will be according to the custom, or usages that evolve in the particular mutt, except where a rule of succession is laid down by the founder himself who created the endowment.[132]The general rule is that mahantship descends from Guru to Chela, i.e., the existing mahant alone appoints his successor, and the mahants having a common origin acknowledge one of the members as a Head.[133]If the grantor has laid down any particular rule of succession to the office of a Mahant, that is to be given effect to. The onus lies on the person who asserts the custom as to succession.[134]

In Ram Parkash Das Vs. Anand Das (1916)[135] the Judicial Committee observed that the custom in the matter of succession of a Mahant is nothing but usage[136] of each institution with respect to the manner of appointing a Mahant or nominating a successor and the performance of other functions and duties relating to the Math. The Privy Council in Rama Muthuramalingam Vs. Periyanayakam[137] pointed out that the Court should try to ascertain the special laws and usages, if any, of the particular institution whose affairs had become the subject of litigation.

With respect to the succession of a Mahant it was further statedin Ram Parkash Das Vs. Anand Dasas under:

• “Upon the death or abdication he (Mahant) is succeeded by one of the bairagi chelas. These bairagi chelas are, as stated, celibates; or if they have ever been married they must prior to their initiation as bairagi chelas, have renounced their wives and families and have conformed to the practice of the muth. This practice is ascetic; it involves a separation from all worldly wealth and ties, and a self dedication to the services and rites of the asthal …..this property is held by the mahant as its owner, and the succession to him in such property follows with the succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the muth or institution itself, and it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning mahant, this trust does exist, and that it must be respected.”[138]

In Murti Shivji Maharaj Birajman Asthal Mohalla Vs. Mathura Das Chela Naval Das Bairagi (2018)[139] Allahabad High Court observed that the a Guru of a Matt gathers around him three classes of persons namely: Chelas, Sisyas and disciples. The disciples will be the general public who are attached to the tenet to which the Matt may belong. The sishyas are part of the establishment and are admitted as sisyas by the guru. A Chela is the nominee of the guru for succession to the gaddi.[140]In very many institutions it is the practice.[141]Therefore, normally, there can be only one Chela in a Math.[142]       

Mahant is not a life-tenant

A Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the Math. In Vidyapurana Vs. Vidyanidhi[143] the Madras High Court stated that the head of the Math was a corporation sole having an estate for life in the endowments and that head of the Math is like a Bishop. The decision was doubted and there was a reference to the Full Bench of the Madras High Court in Kailasam Pillai Vs. Nataraja.[144] The Full Bench held that it could not be predicated of the head of the Math that he held the properties as a life tenant or a trustee but that the question was to be determined in each case upon usage and custom.

The Privy Council in Ram Prakash Vs. Ananda Das[145], observed as under:

• “The Mahant is the head of the institution. He sits upon the gaddi, he initiates candidates into the mysteries of the cult, he superintends the worship of the idol and the accustomed spiritual rights; he manages the properties of the institution, he administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself.”

In Vidyavaruthi Vs. Baluswamy[146] the Privy Council clarified that the real position of the Mahant is neither a corporation sole nor a life tenant. He is also not a trustee in the English sense. It had been observed that ‘called by whatever name, he is the manager or custodian of the institution and the property which he holds is not vested in him: it is vested in the institution and is held by him as manager on behalf of the same.’ In view of the obligations and duties resting on him Mahant is answerable as a trustee in the general sense for proper administration.

The Supreme Court in Commr., HR and CE Vs. LT Swamiar (Shirur Mutt Case)[147] observed as under:

• “He is certainly not a trustee in the strict sense. He may be as the Privy Council says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be correct to describe Mahantship as a mere office. It will not be correct to say that a Mathadhipati holds the Math property as a life-tenant or that his position is similar to that of a Hindu widow in respect to her husband’s estate or of an English Bishop holding a benefice.”
• “Mahant is not a mere manager or custodian nor is he a trustee in the strict sense holding the office of Mahant by custom and usage of the institution. He has besides large powers of management and disposal, certain proprietary rights over the property of the Math.”

In Shri Krishna Singh Vs. Mathura Ahir[148] the Supreme Court observed as under.

• “The property belonging to a Math is in fact attached to the office of the Mahant, and passed by inheritance to no one who does not fill the office. The head of a Math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The words ‘the burden of maintaining the institution’ must be understood to include the maintenance of the Math, the support of its head and his disciples and the performance of religious and other charities in connection with it in accordance with usage.”

Shebaitship and Mahantship Heritable Property?

Shebaits and Mahants have proprietary interest in the properties of the trust. Such a right to receive beneficial interest creates proprietary interest in them.[149]But, in most other cases, the trustees are ‘bare trustees’ to administer the trust property and to perform their duties without any proprietary interest.[150]

In Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha Swami(1904)[151]it was laid down that the management of religious foundations known as debuther, devastanams or temples is vested in one or more persons, variously known in this Presidency as Dharmakartas, Panchayets, Uralans, &c., but referred to as trustees, managers or superintendents; and that their office was either hereditary or for life and, as a general rule, they have beneficial interest in the endowments or their income.

In Sm. Angur Bala Mullick Vs. Debabrata Mullick (1951)[152] the Supreme Court laid down as under:

• “Even 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 his personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary right and attaches to it the legal incidents of property. “[153]

In ProfullaChorone  Requitte  Vs.  Satya  Choron  Requitte (1979),[154] it is held that Shebaitship is property and that it devolves like any other species of heritable property. It is further held in this decision:

• “It follows that, where the founder does not dispose of the Shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist.”[155]

Female Shebait

The mode of administration of an endowment or a trust is destined by the founder. Therefore, primarily, answer to the question whether a female is entitled to be a shebait is depended upon the intention of the founder.

VK Varadachari in ‘Law of Hindu Religious and Charitable Endowments’ states as under:

• “Shebaitship is property within the meaning of Hindu Women’s Right to Property Act (Act xviii of 1937), and succession to it will follow the line for the ordinary or secular property. It is the general law of succession that governs Shebaitship (Angur Bala v. Deba Bratha, AIR 1951 SC 293:1951 SCR 1125 ). Hence a female is entitled to succeed to the office of a shebait (Angur Bala v. Deba Bratha, AIR 1951 SC 293:1951 SCR 112), ‘both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. “The duties are primary and the rights and emoluments are appurtenant to the duties. Hence when a female succeeds to a priestly office, where she cannot discharge her duties personally, it is competent for her to get the duties performed by a deputy. It is not opposed to any rule of Hindu Law or Public Policy (Raja Kali Kuer v. Ram Rattan Pandey) AIR 1955 SC 493 :1955 (2) SCR 186 ). “[156]

Mukherjea on Hindu Law of Religious and Charitable trust, Tagore Law Lectures lays down this subject as under:

• “Devolution of Shebaitship, disability of successor by reason of caste, sex, age or other disqualification: — in Southern India, Sudras are managers of several public temples and it seems that there is no restriction regarding the appointment of a female. The question whether a person is incompetent to succeed to shebaitship by reason of sex, age or any other disqualification has come up for consideration before our Courts on more occasions than one. So long as shebaitship was regarded as an office pure and simple, divergent opinions seem to have been expressed by the Courts on these points. Now that shebaitship has been definitely held to be property, much of there discussions would have no more than academic value at present; and barring exceptional cases arising out of special customs or usages, we may take it that the,right of management of an idol follows the same line of succession as any other private property.

Woman’s right to succeed to shebaitship. As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship. The Supreme Court of India has held that shebaitship is ‘property’ within the meaning of the Hindu Women’s Right to Property act. Consequently, in a case to which the Act applies, the widow and the son of the last shebait would succeed jointly to the shebaiti rights held by the latter. It has been held further that even if the expression ‘property’ in the Hindu Women’s Right to Property Act is to be interpreted as meaning property in its common or accepted sense and is not to be extended to any special type of property which ‘shebaitship’ admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent that it has been modified by the Hindu women’s Right to Property Act would also be attracted to devolution of shebaiti right (Angurbala v. Debabrata, AIR 1951 SC 293 ).”[157]

In Seth Soorajmull Jalan Trust Vs. Tolaram Jalan,[158] the Calcutta High Court observed that ‘he embargo to female succession is done away with’. The High Court relied on the following decisions:

• Monohar Mukherji v. Bhupendranath Mukherji, 1932 AIR(Cal) 791,
• Ganpat Dhaku Telivs Tulsiram Ukha Dhangar,  ILR 36 Bom 88,
• Khub Lal Singh v. Ajodhya Misser, 22 CLJ 345,
• Ramanathan Chetty Vs. Muragappa Chetty ILR 29 Mad 288,
• Angur Bala v. Deba Bratha, AIR 1951 SC 293,
• Thakurani Shree Shree Durga Mata Vs. Sibani Dutta, 2014 2 Cal LJ 112.

Samadhies

Many saints who have lived in this world showed spiritual path to the people and endowments for worship were created over the mortal remains of such saints, it is known as Samadhi. Samadhies are places of public worship. Statutory recognition has been given to the saints in some States like Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments at 1987.[159]

Legal Necessity and Sale of Temple Property

See Chapter: alienation of trust property

Alienation of Trust Property

See Chapter: Alienation of Public Trust Property

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Read Blogs:Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

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[1]      Page 201- Dr. BK Mukherjea, Tagore Law Lecturers; Vidyapurna  Tirtha Swami Vs.  Vidyanidhi  Tirtha Swami (1904): 27 ILR Mad 435.

[2]      See AIR 1952 Mad 613.

[3]      See: Chhatra  Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196.

[4]Baijaynanda Giri Vs. State of BiharAIR 1954 Pat 266; Quoted in: Mahanth Motilal Goswami Vs. State of Bihar: AIR 1993 Pat 171(SB Sinha,J).

[5]Sm. Angur Bala Mullick Vs. Debabrata Mullick:AIR 1951 SC 293.

[6]Profulla Chorone Requitte  Vs.  Satya Choron Requitte: AIR 1979 SC 1682.

[7]      AIR 1979 SC 1682; See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[8]M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[9]Arulmigu  Kolavizhi Amman Temple Vs. R Shamughamthat: 2008-3-Mad LJ 732

[10] AIR 1977 Mad 79

[11]    Profulla  Chorone  Requitte Vs. Satya  Chorone  Requitte: AIR 1979 SC 1682:  Also See: Jagadinadra  Nath Vs.  Hemanta  Kumari Debi: (1904) 31 Ind App 203 (PC); Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228; M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[12]    Sri Ganapathi Dev Temple Trust VS Balakrishna Bhat: 2019 0 Supreme(SC) 1025; Bishwanath  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044; Ram Jankijee Deities Vs. State of Bihar: AIR 1999 SC 2131; Dipti Narayan Srimani Vs. Controller Of Estate Duty:  AIR 1988 SC  1511; Badri Nath VS Punna: AIR 1979 SC 1314: Mahant Ram Krishna Das Vs S. P. Sahi, The Special Officer: AIR 1959  SC 942; Angurbala Mullick v. Debabrata Mullick: AIR1951 SC 293; Arulmigu  Kolavizhi  Amman Temple Vs. R Shamugham: 2008-3 Mad LJ 732; Kalankadevi Sansthan VS Maharashtra Revenue Tribunal: AIR1970  SC 439;  State Wakf Board Vs. Subramanyam : AIR 1977 Mad 79

[13]    AIR 1979 SC 1682; See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[14]    AIR 1922 PC 123.Relied on in M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[15]    At page 204. Quoted in: M.  Siddiq (D) Thr.  Lrs.  VS Mahant Suresh Das:2020-1 SCC 1.

[16]    AIR 1922 PC 123

[17]    AIR 1963 Mad 369.

[18]    AIR 1979 SC 1682

[19] 2020-1 SCC 1

[20] 2020-7 JT 200: 2020-4 Ker LT 490.

[21]   AIR 1922 PC 123; (1928) LR 48 IndAp 302: 1928-41 Mad LJ 346:

[22]   AIR 1954 SC 282

[23]   2020-1 SCC 1.

[24]   JT 2020 7 200 

[25]   ILR 60 Cal 452: AIR 1932 Cal 791.

[26]   Quoted in: M.  Siddiq Vs. Mahant Suresh Das:2020-1 SCC 1.

[27]   AIR 1979 SC 1682

[28]   Quoted in: Marthanda Varma Vs. State of Kerala: 2020-7 JT 200: 2020-4 Ker LT 490

[29]   AIR 1954 Pat 266

[30]   Quoted in: Mahanth Motilal Goswami VS State of Bihar, AIR 1993 Pat 171(SB Sinha,J.)

[31]    Sree Siddhi Budhi  Vinayakagar  Sundareswarar Vs. S V Marimuthu: AIR 1963 Mad 369.

[32] 1915-20 CWN 314

Referred to in:  Bhabatarini Debi Vs Ashalata Debi: AIR 1943  PC 89

[33] AIR 1951 SC 293

[34]    See also: Badri Nath Vs. Punna: AIR 1979 SC 1314; Sree Sree Kalimata Thakurani Vs. Jibandhan Mukherjee: AIR 1962 SC 1329

[35]AIR1951 SC 293

[36]AIR 1922 PC 123

[37] Quoted in: In Seth Soorajmull Jalan Trust Vs. Tolaram Jalan, 2015 AIR (CC) 3225, 2015-4 Cal LT  1;  Pran Krishna Das Vs. Controller of Estate Duty: AIR 1968  Cal 496; M.  Siddiq (D) Thr.  Lrs.  VS Mahant Suresh Das:2020-1 SCC 1.

[38]    AIR 1979 SC 1682

[39] 2020-7 JT 200: 2020-4 Ker LT 490,

[40]ILR 1933-60-Cal 452

[41] 2020-7 JT 200: 2020-4 Ker LT 490,

[42]    AIR 1943 Mad 691.

[43]    Quoted in: Balram  Chunnilal Vs. Durgalal  Shivnarain: AIR1968 MP 81

[44]    (1904) 31 Ind App 203 (PC)

[45]    Quoted in: Bishwanath  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044.

[46]Vadivelu Mudaliar Vs. CN  Kuppuswami Mudaliar: ILR1971-3 Mad142.

[47]AIR 1954 SC 606; Mahanth Motilal Goswami VS State Of Bihar: AIR 1993 Pat 171

[48]    Bhagauti Prasad Khetan  Vs. Laxminathji  Maharaj: AIR 1985 All 228.

[49] See: M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[50] (1935-36) 63 IA 448

[51] (1942-43) 70 IA 57

[52]AIR1951 SC 293

[53]    See Chapter: RIGHTS AND DUTIES OF TRUSTEES

[54]    See: PramathaNathMullick Vs. Pradumna Kumar Mullick, (AIR 1925 PC 139); Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; YogendraNathNaskar Vs. Commr. of Income Tax Calcutta: AIR 1969 SC 1089.

[55]    YogendraNathNaskar Vs. Commr. of Income Tax Calcutta: AIR 1969 SC 1089; ProsunnoKumariDebya Vs. Golab Chand Baboo, (1874-75) 2 Ind App 145 (PC)

[56]    Fifth Edition: Pages: 257, 265 & 271; See also: ChamelibaiVallabhadasVs. Ramchandrajee, AIR 1965 MP 167.

See Chapter: Suit against Deity: Appointment of Next Friend.

[57]    (1875)  LR 2 Ind. App. 145

[58]    AIR 1925 PC 139

[59]    Quoted in: Ram Jankijee Deities Vs. State of Bihar: AIR 1999 SC 2131.          

[60]    AIR 1979 SC 1682

[61]2020-1 SCC 1.

[62]M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[63]    (1985) 2 SCC 524.

[64]    S Rathinam Alias KuppamuthuVs. L S Mariappan AIR 2007 SC 2134; Shyam Sunder Vs. Moni Mohan AIR 1976 SC 977; See also: Nandlal Vs. Kesharlal AIR 1975 Raj. 226; Relied on Rajeshwar Vs. Gopeshwar, (1908) 35 Cal. 226. But a different view was taken by the same High Court in SovabatiDassiVs. KashiNath AIR 1972 Cal. 95. Also see: MancharamVs. Pranshankar (1882) 6 Bom. 298.

[65]    AIR 1974 SC 1932

[66]Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490; Mancharam v. Pranshankar, 6 Bom. 298; Rajeswar v. Gopeswar, 35 Cal. 226

[67]Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490

[68]    Quoted in S Rathinam Alias Kuppamuthu Vs. L S Mariappan: AIR 2007 SC 2134

[69] (1874-75) 2 Ind App 145 (PC); Relied on in:  Kheter  Chunder  Ghosh  Vs. Hari Das (1890) ILR 17 Cal 557

[70] AIR 1974 SC 1932

[71] Nagendra  Nath: AIR 1926 Cal 490 and Rajeswar Vs. Gopeswar: 35 Cal. 226: 7 CLJ 315

[72] AIR 1926 Cal. 490; Quoted in:  Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490

[73] Mahamaya Debi vs. Haridas: AIR 1915 Cal. 161; Monohar Mukherji vs. Bhupendra Nath: AIR 1932 Cal. 791; Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490

[74]35 Cal. 226 : 7 CLJ 315

[75] Referrred to in: Bameswar Bamdev Shiva Vs. Anath Nath Mukherjee: AIR 1951 Cal 490.

[76]    (1877) ILR 1 Mad 235: (1876-77) 4- Ind App 76 (PC).

[77]    In Kali Kinko  rGanguly Vs. Panna Banerjee (AIR 1974 SC 1932) it is observed that this doctrine has been applied on transactions by way of lease or mortgage also.

[78]    See also: Kali Kinkor  Ganguly  Vs. Panna Banerjee: AIR 1974 SC 1932; Sunderambal Vs. Yogavanagurukkal: AIR 1915 Mad 561.

[79]    Quoted in: Kali Kinkor  Ganguly Vs. Panna Banerjee: AIR 1974 SC 1932

[80]    AIR 1979 SC 1682 at 1687

[81]    Also: Angurbala  Vs. Debabrata: AIR 1951 SC 293; Kali Kinkor  Ganguly Vs. Panna Banerjee: AIR 1974 SC 1932. Partition of shebaiti right is possible: Mahamaya Vs. Haridas, AIR 1915 Cal 161 ; Kheter  Chunder  Ghosh Vs. Hari Das (1890) ILR 17 Cal 557

[82]    Quoted in Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228; See: Nirad Mohini v. Shiba Das (1909) ILR 36 Cal 975; Mancharan Vs. Pranshankar: (1883) ILR 6 Bom 298.

[83]    (1877) ILR 1 Mad 235: (1876-77) 4- Ind App 76(PC). Referred to in: D Krishna Murthy Vs. C Ramana: 1993-2 ALT 414; Kali KinkorGanguly Vs. Panna Banerjee: AIR 1974 SC 1932; K. Manathunainatha  Desikar Vs. Sundaralingam AIR 1971  Mad  1. Same principle is laid down in: Tagore Vs. Tagore (1872) L.R. IndAp 47. Also see: S Rathinam Alias KuppamuthuVs. L S Mariappan: AIR 2007 SC 2134.

[84](1923) ILR 47 Bom 529

[85]    Seshammal Vs. State of TN: AIR 1972  SC 1586; AS Narayana   Deekshitulu v. State of AP: AIR 1996  SC 1765; KS Varghese Vs St.  Peter’s & Paul’s Syrian Church: 2017-15 SCC 333.

[86] AIR 1954 Pat 196

[87] AIR 1962 SC 1329

[88]2020-1 SCC 1.

[89]    Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[90]    Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[91]    Krishna Singh v. Mathura Ahir: AIR 1980 SC 707

[92]    Ram Prakash Vs. Ananda Das (1916)AIR 1916 PC 256: ILR (1916) 43 Cal 707; Murti Shivji Maharaj Birajman Vs. Mathura Das: 2018-8 ADJ 843; 2018 130 All LR 591;

[93]    Baijaynanda Giri Vs. State of Bihar:AIR 1954 Pat 266; Ram Parkash Das Vs. Anand Das: AIR 1916 PC 256.

[94]    Vidya Varuthi Vs. Baluswami Ayyar: AIR 1922 PC 123; Baijaynanda Giri Vs. State of Bihar: AIR 1954  Pat 266; Lakshmi Narayan Vs. State: AIR 1978 Pat. 303; Murti Shivji Maharaj Birajman Vs. Mathura Das: 2018-8 ADJ 843; 2018 130 All LR 591; Jatindra Nath Singha Vs. Assam Board of Revenue: 1983-1 GauLR 87.

[95]    52 IndCas 914

[96]    Pramod Nautiyal Vs. State of Uttarakhand: 2016 1 UD 419; Sudhindra Thirtha Swamiar Vs.The Commr. r HR and CE, Mysore:  AIR 1963 SC 966; Murti Shivji Maharaj Birajman Vs. Mathura Das: 2018-8 ADJ 843; 2018 130 All LR 591; CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624;

[97]    AIR 1954 SC 282

[98]    Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018); 2018 8 ADJ 843; 2018 130 All LR 591; Commr. HR Endnts Vs Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt: AIR 1954 SC 282

[99]    AIR 1963 SC 966

[100]  AIR 1980 SC 707

[101]2018-8 ADJ 843; 2018-130 All LR 591

[102]AIR 1922 PC 123; (1928) LR 48 IndAp 302: 1928-41 Mad LJ 346:

[103] Quoted in: Sri La Sri Somasundara Gnana Vs. Sri Krishnandaswami: ILR 1968-2 Mad 231: 1966-2 Mad LJ 551; Ramamohan Das  Vs. Basudeb Dass: AIR  1950 Ori 28

[104] Sudhindra Thirtha Swamiar Vs. Commr For HR And CE: AIR 1963 SC 966; Commr. HR Endnts Vs Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt: AIR 1954 SC 282; Lakshamana Yatendrulu Vs. State of A. P: AIR 1996  SC 1414.

[105] Basudeo Roy Vs. Jugal Kishwar Das: AIR 1918 PC 37; Ram Prakash Das v. Anand Das [1916] 43 Cal. 707: 33 I.C. 583: 43 I. A. 73 (P.C.).

[106]Satya Charan Sarkar v. Mohanta Rudrananda Giri, AIR 1953 Cal 716; P.  Natesa Achar VS Parasamaya Kolerinatha Madam: 1999 2 MLJ 585;  Swami Harbansa Chari Ji v. State: AIR 1981 MP 82

[107]Kesho Das v. Amar Dasji: AIR 1935 Pat 111.

[108]  Sri Vidya Varuthi Thirth Swamigal Vs. Baluswami Ayyar: AIR 1922 PC 123; Baijaynanda Giri VS State Of Bihar:  AIR 1954 Pat 266

[109]13th Edn.para. 414

[110] Quoted in: Mahadeo Nath Vs. Meena Devi: AIR 1976  All 64

[111]Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi: 2018 8 ADJ 843; 2018 130 AllLR 591

[112] AIR 1951 SC 293

[113]Baijaynanda  Giri Vs. State of Bihar: AIR 1954  Pat 266.

[114]Krishna Singh Vs. Mathura Ahir AIR 1980 SC 707.

[115]AIR1951 SC 293

[116] See: Mahant Ram Krishna Das VS S. P. Sahi, The Special Officer in charge of Hindu Religious Trust: AIR 1959 SC 942.

[117]Commr. HR Endnts Vs Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt: AIR 1954 SC 282

[118]AIR 1954 Pat 266

[119] Quoted in: Mahanth Motilal Goswami VS State of Bihar, AIR 1993 Pat 171(SB Sinha,J.)

[120]  AIR 1980 SC 707

[121]  Quoted in: Yelandau  Arasikere  Deshikendra  Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[122]  AIR 1966 SC 1603

[123]AIR 1954 SC 282

[124]AIR1951 SC 293

[125] See: M SiddiqVs. Mahant Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[126]48 IA 302

[127]Monahar Vs. Bhupendra: 60 Cal 452; Ganesh Vs. Lal Behary: 63 IA 448; Bhabatarini Vs. Ashalata: 70 IA 57; Angurbala vs. Debabrata 1951 SC  .

[128]  ILR 2 Mad 175

[129]  Parshvanath Jain Temple Vs. L.Rs of Prem  Dass: 2009-3-RCR (CIVIL) 133. Mahadeo  Prosad Vs. Karia: L.R.62 I.A.47: 39 CWN 433(PC) ;  Ram Chandra Vs. Nawrangi, L.R.60 I.A.124: 37 C.W.N.541. See also: Vikramadas Vs. Daulat Ram, 1956 S.C.R.826; JawaharLalVs. Sri Thakur Radha  Gopaljee  Maharaj: AIR1945 All 169.

[130]Kuber Singh v. Phunnan Rai, AIR 1935 All 255

Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018 8 ADJ 843; 2018 130 AllLR.

[131]  1993-2  ALT  414

[132]  Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707; Genda Puri v. Chatar Puri: (1886) 13 Ind App 100 (PC); Sital Das v. Sant Ram: AIR 1954 SC 606; Mahalinga Thambiran Vs. La Sri Kasivasi Arulnandi Thambiran: AIR 1974 SC 199

[133]Krishna Singh Vs. Mathura Ahir AIR 1980 SC 707.

[134]Mahant Bhagwan Bhagat Vs. G.N. Bhagat: (1972) 1 SCC 486; Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[134] 2018 8 ADJ 843; 2018 130 All LR 591

[135] AIR 1916 PC 256

[136]Mahant Bhagwan Bhagat Vs. G.N. Bhagat: (1972) 1 SCC 486

[137]1 IA 209; Referred to in: Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[137] 2018 8 ADJ 843; 2018 130 All LR 591.

[138]Quoted in: Baijaynanda Giri Vs. State of Bihar: AIR 1954 Pat 266

[139]  2018 8 ADJ 843; 2018 130 All LR 591

[140]Srinivasa Das v. Surajanarayan Dass, AIR 1967 SC 256

[141] Bihar State Board of Religious Trust VS Mahanth Ramgun Dasjee Chela: 2013  AIR Pat 106; The Bihar State Board of Religious Trust, (Patna) Vs. Mahanth Sri Biseshwar Das, AIR 1971 SC 2057

[142]Prithi Nath v. Birkha Nath, AIR 1956 SC 192

[143]  ILR 27 Mad 435

[144]  ILR 33 Mad 205

[145]  ILR (1916) 43 Cal 707.

[146]  AIR 1922 PC 123.

[147]AIR 1954 SC 282

[148](1981) 3 SCC 689

[149]  Bai  Zabu  Khima vs. Amardas  Balakdas A. I. R. 1967 Guj. 214; Ram Nath Das Vs. Ram Nagina  Choubey; AIR 1962 Pat. 481; Sm. Angurbai  Mullick  Vs.Debabrate  Mullick: AIR 1951 SC 293; Banku B. Das Vs. Kashi N. Das: AIR 1963 Cal. 88; Tulsidas  Kalichand Vs. Commr. of Income Tax: AIR 1961 SC 1023.

[150]  Bai  Zabu  Khima Vs. Amardas  Balakdas: AIR 1967 Guj. 214; Ram Nath Das Vs. Ram Nagina  Choubey; AIR 1962 Pat. 481; Sm. Angurbai  Mullick  Vs.  Debabrate  Mullick: AIR 1951 SC 293; Banku B. Das Vs. Kashi N. Das: AIR 1963 Cal. 88; Tulsidas  Kalichand Vs. Commr. of Income Tax: AIR 1961 SC 1023.

[151]  27 ILR Mad 435

[152] AIR 1951 SC 293

[153] Quoted in: Pran Krishna Das Vs. Controller of Estate Duty: AIR 1968  Cal 496.

[154]  AIR 1979 SC 1682

[155]  Quoted in Bhagauti Prasad Khetan  Vs.Laxminathji  Maharaj: AIR 1985 All 228.

[156]Sankar Nath Mullick Vs Lakshmi Sona Oatta: 2004 2 CalLJ 393; 2004 2 CalLT 535; 2005 1 CalLT 1; 2005 109 CalWN 600

[157]Sankar Nath Mullick Vs Lakshmi Sona Oatta: 2004 2 CalLJ 393; 2004 2 CalLT 535; 2005 1 CalLT 1; 2005 109 CalWN 600.

[158] 2015 AIR (CC) 3225, 2015-4 Cal LT  1

[159]  Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591

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Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

• Civil Procedure – CPC
• Civil Rights and Jurisdiction of Civil Courts
• Pleadings Should be Specific; Why?
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Power of attorney
• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• Stamp Act
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Title and Possession
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Civil Procedure – General
• ‘Mutation’ by Revenue Authorities will not Confer ‘Title’
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Notary-Attested Documents: Presumption, Rebuttable
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Kerala Land Reforms Act – Plantation-Tenancy and Land-Tenancy
• Evidence Act – General
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Relevancy, Admissibility and Proof of Documents
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Documents
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict
• Contract Act
• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Easement
• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General Features
• Bye Laws Fundamental
• Effect of Registration of Societies and Incorporation of Clubs
• Societies and Branches
• Vesting of Property in Societies and Clubs
• Juristic Personality of Societies and Clubs
• Incidents of Trust in Clubs and Societies
• Legal Personality of Trustees and Office Bearers
• Suits By or Against Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs
• How to Sue Societies, Clubs and Companies
• Amendment of Bye laws of Societies and Clubs
• Dissolution of Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Management – Powers of General Body and Governing Body
• Expulsion of Members & Removal of Office-Bearers
• Election & Challenge in Societies and Clubs
• Court Interference in Election Process
• Individual Membership Rights in Societies & Clubs
• State-Interference in Affairs of Societies & Clubs
• Law on Meetings: An Overview

Book No. 4: Common Law of TRUSTS in India

• General Principles
• What is Trust in Indian Law?
• Public & Private Trusts in India.
• Public Trusts and Indian Trusts Act – An Overview
• Incidents of Trust in Clubs and Societies
• Public Trusts and (State) Endowments/Trusts Acts
• Trust is ‘An Obligation’; Not a Legal Entity
• Dedication and Vesting
• Dedication of Property in Public Trusts
• Vesting of Property in Trusts
• Indian Law Does Not Accept Salmond, as to Dual Ownership
• Trustees and Management
• Trustees and Administration of Public Trusts
• Alienation of Public Trust Property
• Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
• Breach of Trust and Removal of Trustees
• Suits by or against Trusts
• Suits By or Against Trusts and Trustees
• Remedies Under Sec. 92 CPC
• Law on Religious Trusts & Trustees
• Philosophy of Idol Worship
• Is an Idol a Perpetual Minor?
• Hindu Temples & Law of Trusts
• Law of Mutts and Other Hindu Endowments
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Shebaits & Mahants and Law of Trustees
• Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
• Parsi Women Excommunication, Unconstitutional.
• General
• State & Court – Protectors of All Charities
• Business by Charitable Trusts & Institutions