PETITIONER: RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES Vs. RESPONDENT: BAJRANG LAL & ORS. DATE OF JUDGMENT05/05/1978 BENCH: DESAI, D.A. BENCH: DESAI, D.A. CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. CITATION: 1978 AIR 1393 1978 SCR (3) 963 1978 SCC (3) 236 CITATOR INFO : R 1979 SC1314 (17) F 1985 SC 905 (14) ACT: Duty of Court to consider preliminary objection as to admissibility of a document in evidence-Explained. Stamp Act, Sections 33, 35, 36-Scope of. Hereditary office of Shebait enjoyed by a person, whether- movable or immovable property-Whether the deed of gift of such a right requires registration.--The office being immovable property in the instant case, the gift deed is in admissible in evidence for want of registration. HEADNOTE: The plaintiff-appellant, who died pending the appeal sought a declaration that he was entitled to a right of worship by turn (called Osra) for 10 days in a circuit of 18 months in the temple of Kalyanji Maharaj at village Diggi District, Tonk. Rajasthan under the Will Ext. dated 22 September, 1961 executed by deceased Mst. Acharaj, wife of Onkar. The Trial Court did not try the preliminary objection, when it was raised at the time of the trial; but made a note : "Objected. Allowed subject to objection". The Court rejected it at the time of arguments taking recourse to Section 36 of the Stamp Act. On the question of registration it held that as the "turn of worship was a movable property' if did not require compulsory registration and decreed the suit. In appeal the first Appellate Court reversed the Judgment, inter alia, holding that the document Ext. 1 was a gift and as it involved gift of immovable property the document was inadmissible in evidence both on the ground that it is not duly stamped and for want of registration. The Plaintiff's second appeal before the High Court failed. Dismissing the appeal by special leave, the Court HELD : 1. When a document is tendered in evidence by the plaintiff while in witness box and the defendant raises an objection that the document is inadmissible in evidence as it was not duly stamped and for want of Registration, it is obligatory upon the Trial Judge to apply his mind to the objection: raised and to decide the objection according to law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is restored to, of marking the. document in evidence 'subject to objection.' This, however, would not mean that the objection that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a laterstage before the suit is finally disposed of it would nonetheless be obligatory upon the Court to decide the objection. If after applying its mind to the rival contentions the trial court admits a document in evidence, s. 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, as to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting s. 36. [966 C-G] 964 In the instant case, the endorsement made by the learned trial judge that "objected, allowed subject to objection", clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation s. 36 would not be attracted. [966 G-H] Javar Chand v. Pukhraj Surana; A.I.R. 1961 S.C. 1655. 2.Undoubtedly, if a person having by law authority to receive evidence and the civil court is one such person before whom any instrument chargeable with duty is produced and it is found that such instrument is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section 35, however, prohibits its admission in evidence till such duty and penalty is paid. The plaintiff has neither paid the duty nor the penalty till today. Therefore, stricto sensu the instrument is not admissible in evidence. [967 A-B] 3.The hereditary office of Shebait which would be enjoyed by the person by turn would be immovable property. The gift of such immovable property must, of course, be by registered instrument. Exhibit 1 being not registered the High Court was justified in excluding it from evidence. The definition of immovable property in S. 2(6) of the Registration Act Lends assurance to treating Shehait's hereditary office as immovable property because the definition includes hereditary allowances. Office of Shebait is hereditary unless provision to the contrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the courts with very few exceptions have recognised hereditary office of Shebait as immovable property, and it has all along been treated as immovable property almost uniformly. [970 A-C] Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125 and Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R. 1005; followed. Krishnabhat Bin Hiragange v. Kanbhat Bin Mahalbhat 6 Bombay High Court Reports 137, Balvantrey, alias Tatiaji Banaji v. Purshotam Sidheshwar and Anr., 9 Bombay High Court Reports 99, Raiji Manor v. Desai Kallianrai Hukmatrai, 6 Bombay High Court Reports 56 Maharana Fattehsangji Jaswant-sangji v. Desai Kallianraiji Hekoomutraiji, I I.A. 34, Raghoo Pandey & Anr. v. Kassy Parey and Ors. I.L.R. 10 Cal. 73, Manohar Mukherjee v. Bhunendra Nath Mukherjee and Ors., A.I.R. 1932 Cal. 791; approved. Eshan Chander Roy & Ors. v. Manmohini Dassi, I.L.R. 4 Cal. 693, Jharulu Das v. Jalandhar Thakur, I.L.R. 39 Cal. 887, Jagden Singh v. Ram Saran Pande and Ors. A.I.R. 1927 Patna 7; explained. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1244 of
1973.
Appeal by Special Leave from the Judgment and Order/Decree
dated the 14th August, 1972 of the Rajasthan High Court in
S.B. Civil Second Appeal No. 520 of 1968.
V.S. Desai, Sharad Manohar, S. S. Khanduja and R. K.
Shukla, for the Appellant.
Badri Das Sharma for Respondents Nos. 1, 3 and 4.
M.B. L. Bhargava, S. N. Bhargava and Sobhagmal Jain for
Respondent No. 2.
9 65
The Judgment of the Court was delivered by
DESAI, J.-The unsuccessful plaintiff, appellant in this
appeal by special leave, who died pending the appeal, seeks
a declaration that he is entitled to a right of worship by
turn (,called Osra) for 10 days in a circuit of 18 months in
the temple of Kalyanji Maharaj at Village Diggi, Distt.
Tonk, Rajasthan, under the will Ext. 1 dated 22nd September
1961 executed by deceased Mst. Acharaj, wife of Onkar. The
suit was resisted by four amongst five defendants, the 5th
defendant having not put in an appearance. Various
contentions were raise,, but the only one surviving for
present consideration is whether document Ext. 1 purporting
to be a will of deceased Mst. Acharaj is a will or a gift,
and if the latter, whether it is admissible in evidence on
the ground that it was not duly stamped and registered as
required by law ?
When the plaintiff referred to the disputed document in his
evidence and proceeded to prove the same, an objection was
raised on behalf of the defendants that the document was
inadmissible in evidence as being not duly stamped and for
want of registration. The trial court did not decide the,
objection when raised but made a note : “Objected. Allowed
subject to objection”, and proceeded to mark the document as
Exhibit. 1. When at the stage of arguments, the defendants
contended that the document Ext. 1 is inadmissible in
evidence, the learned trial judge rejected the contention
taking recourse to section 36 of the Stamp Act. On the
question of registration it was held that the document is
not compulsorily registrable insofar as the subjectmatter of
the suit is concerned, viz., turn of worship which in the
opinion of the learned trial judge movable property. On
appeal by the defendants the judgment of the trial judge was
reversed, inter alia, holding that the document Ext. 1 was
a gift and as it involved gift of immovable property, the
document was inadmissible in evidence both on the ground
that it is not duly stamped and for want of registration.
The plaintiffs second appeal to the High Court did not meet
with success.
The only question canvassed before this Court is that even
if upon its true construction the document Ext. 1 purports
to be a gift of turn of worship as a Shebait-cum-Pujari in a
Hindu temple, does it purport to transfer an interest in
immovable property, and, therefore, the document is
compulsorily registrable. On the question whether the
document was duly stamped it was said with some
justification that it was not open to the Court to exclude
the document from being read in evidence on the ground. that
it was not duty stamped because in any event under s. 33 of
the Stamp Act it is obligatory upon the court to impound the
document and recover duty and penalty as provided in proviso
(a) to s. 35.
Mst. Acharaj, wife of Onkar had inherited the right to
worship by turn for 10 days in a circuit of 18 months in
Kalyanji Maharaj Temple. It is common ground that she was
entitled during her turn to officiate as Pujari and received
all the offering made to the deity. During the
966
period of her turn she would be holding the office of a
Shebait She purported to transfer this office with its
ancillary rights to plaintiff Ram Rattan under the deed
Exhibit 1 purporting to be a will. Upon its true
construction it has been held to be a deed of gift and that
finding was not controverted, nor was it possible to
controvert it, in view of the recital in the deed that: “now
Ram Rattan will acquire legal rights and possession of my
entire property from the date the will is written the
details of the property are in Schedule ‘A’ and after him,
his legal heirs will acquire those rights”It appears
crystal clear that the document purports to pass the title
to the property thereby conveyed in presenti and in the face
of this recital it could never be said that the document
Ext. 1 purports to be a Will.
If by document Ext. 1 the donor conveyed property by gift to
donee and the property included the right to worship by turn
in a temple, is it transfer of immovable property which
could only be done by a registered instrument which must be
duly stamped according to the provisions of the relevant
Stamp Act ?
When the document was tendered in evidence by the plaintiff
while in witness box, objection having been raised by the
defendants that the document was inadmissible in evidence as
it was not duly stamped and for want of registration, it was
obligatory upon the learned trial judge to apply his mind to
the objection raised and decide the objection in accordance
with law. Tendency sometimes is to postpone the decision to
avoid interruption in the process of recording evidence and,
therefore, a very convenient device is resorted to, of
marking the document in evidence subject to objection.
This, however, would not mean that the objection as to
admissibility on the ground that the instrument is not duly
stamped is judicially decided-, it is merely postponed. In
such a situation at a later stage before the suit is finally
disposed of it would none-theless be obligatory upon the
court to decide the objection. If after applying mind to
the rival contentions the trial court admits a document in
evidence, s. 36 of the Stamp Act would come into play and
such admission cannot be called in question at any stage of
the same suit or proceeding on the ground that the
instrument has not been duly stamped. The Court, and of
necessity it would be trial Court before which the objection
is taken about admissibility of document on the ground that
it is not duly stamped, has to judicially determine the
matter as soon as the document is tendered in evidence and
before it is marked as an exhibit in the case and where a
document has been inadvertently admitted without the Court
applying its mind as to the question of admissibility, the
instrument could not be said to have been admitted in
evidence with a view to attracting s. 36 (see Javar Chand v.
Pukhraj Surana).(1) The, endorsement made by the learned
trial judge that “objected, allowed subject to objections
clearly indicates that when the objection was raised it was
not judicially determined and the document was merely
tentatively marked and in such a situation s. 36 would not
be attracted.
Mr. Desai then contended that where an instrument not duly
stamped or insufficiently stamped is tendered in evidence,
the Court has to
(1) AIR 1961 S.C. 1665.
967
impound it as obligated by s. 33 and then proceed as
required by s. 35, viz., to recover the deficit stamp duty
along with penalty. Undoubtedly, if a person having by law
authority to receive evidence and the civil court is one
such person before whom any instrument chargeable with duty
is produced and it is found that such instrument is not duly
stamped, the same has to be impounded. The duty and penalty
has to be recovered according to law. Section, 35, however,
prohibits its admission in evidence till such duty and
penalty is paid. The plaintiff has neither paid the duty
nor penalty till today. Therefore, stricto, sensu the
instrument is not admissible in evidence. Mr. Desai, how-
ever, wanted us to refer the instrument to the authority
competent to adjudicate the requisite stamp duty payable on
the instrument and then recover the duty and penalty which
the party who tenders the instrument in evidence is in any
event bound to pay and, therefore, on this account it was
said that the document should not be excluded from evidence.
The duty and the penalty has to be paid when the document is
tendered in evidence and an objection is raised. The
difficulty in this case arises from the fact that the
learned trial judge declined to decide the objection on
merits and then sought refuge under s. 36. The plaintiff
was, therefore, unable to pay the deficit duty and penalty
which when paid subject to all just exceptions, the document
has, to be admitted in evidence. In this background while
holding that the document Ext. 1 would be inadmissible in
evidence as it is not duly stamped, we would not decline to
take it into consideration because the trial Court is bound
to impound the document and deal with it according to law.
Serious controversy centered, however, round the question
whether right to worship by turn is immovable property gift
of which can only be made by registered instrument. Hindu
law recognises gift of property to an idol. In respect of
possession and management of the property which belongs to
the Devasthanam or temple the responsibility would be in the
manager who is described by Hindu law as Shebait. The
devolution of the office of Shebait depends on the terms of
the deed or will by. which it is created and in the absence
of a provision to the contrary, the settlor himself becomes
a Shebait and the office devolves according to line of
inheritance from the founder and passes to his heirs. This
led to an arrangement amongst various heirs equally entitled
to inherit the office for the due’ execution of the
functions belonging to the office, discharging duty in turn.
This turn of worship is styled as ‘Pala’ in West Bengal and
‘Osra’ in Rajasthan. Shebaiti being held to be property, in
Angurbala Mulick v. Debabrata Mullick, (1) this Court
recognised ‘the right of a family to succeed to the
religious office of Shebaitship. This hereditary office of
Shebait is traceable to old Hindu texts and is a recognised
concept of traditional Hindu law. It appears to be
heritable and partible in the strick sense that it is
enjoyed by heirs of equal degree by turn and transferable by
gift subject to the limitation that it may not pass to a
non-Hindu. On principles of morality and propriety sale of
the office of Shebait is not favoured.
(1) [1951] SCR 1125.
968
The position of Shebait is not merely that of a Pujari. lie
is a human ministrant of the deity. By virtue of the office
a Shebait is an administrator of the property attached to
the temple of which he is Shebait. Both the elements of
office and property, of duties and personal interest are
blended together in the conception of Shebaitship and
neither can be detached from the other (vide Commissioner of
Hindu Religions Endorsements, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt).(1)
The question then is whether the hereditary office of
Shebait is immovable property. Much before the enactment of
the Transfer of Property Act a question arose in the context
of the Limitation Act then in force whether a suit for a
share in the worship and the emoluments incidental to the
same would be suit for recovery of immovable property or an
interest in immovable property. In Krishnabhat bin
Hiragange v. Konabhat bin Mahalbhat et al,(2) after
referring to various texts of Hindu law and the commentaries
of English commentators thereon, a Division Bench of the
Bombay High Court held as under :
“Although therefore, the office of a priest in
a temple, when it is not annexed to the
ownership of any land, or held by virtue of
such ownership, may not, in the ordinary sense
of the term, be immovable property, but is an
incorporeal hereditament of a personal nature,
yet being by the custom of Hindus classed with
immovable property, and so regarded in their
law…….”
The privileges and precedence attached to a hereditary
office were termed in Hindu law as Nibandha and the text of
Yajnavalkay treated Nibandha, loosely translated as corody,
as immovable property. Soon thereafter the question again
arose in Balyantray alias Tatiaji Bapaji v. Purshotam
Sidheshvar and another(3), where, in view of a conflict in
decision between Krishnabhat (supra) and Baiji Manor v.
Desai Kallianrai Hukmatrai(4), the matter was referred to a
Full Bench of 5 Judges. The question arose in the context
of the limitation Act in a suit to recover fees payable to
the incumbent of a hereditary office, viz., that of a
village Joshi (astrologer)., The contention was that such a
hereditary office of village Joshi is immovable property.
After exhaustively referring to the texts of Yajnavalkay and
the commentaries thereon Westropp, C.J. observed that the
word corody’ is not a happy translation of term Nabandha.
It was held that Hindu law has always treated hereditary
office as immovable property. These two decisions were
affirmed by the Judy Committee of the Privy Council in
Maharana Fattehsangji Jaswantsangji v. Desai Kalliaraiji
Hekoomutraiji(5). The principle that emerges
(1) [1954] SCR 1005.
(2) 6 Bombay High Court Reports 137.
(3) 9 Bombay High Court Reports 89.
(4) 6 Bombay High Court Reports 5 5,
(5) 1 I.A. 34.
969
from these decisions is that when the question concerns the
rights of Hindus it must be taken to include whatever the
Hindu law classes as immovable although not so in ordinary
acceptation of the word and to the application of this rule
within the appropriate limits the Judicial Committee sees no
objection. In Raghav Pandey & Anr. v. Kasav Parey &
Ors.(1), the Calcutta High Court held that the right to
officiate as a priest at funeral ceremonies of Hindus is in
the nature of immovable property. A Full Bench of the
Calcutta High Court in Manohar Mukherjee v. Bhupendra Nath
Mukherjee & Others(2), held that the office of Shebait is
hereditary and is regarded in Hindu Law as immovable
property. This Court took note of these decisions with
approval in Angurbala Mullick’s case (supra).
Mr. Desai urged that there is a distinct line of authorities
which indicate that a Pala or turn of worship is movable
property. In Mulla’s Transfer of Property Act, 5th Edition,
p. 17, the author has observed that a pala or turn of
worship is movable property. In Eshan Chandra Roy & Ors. v.
Monobini Desai(3) it was said that it was not possible to
come to the conclusion that the right to worship an idol is
in the nature of an interest in immovable property. It is a
bare statement with no reference to texts of Hindu law or
commentaries thereon. In Jharula Das v. Jalandhar
Thakur(4), it was held that the office of Shebait is
hereditary and that the suit which was brought after a
period of 12 years was barred by limitation. This decision
does not specify the nature of property termed as turn of
worship in Hindu law. The Patna High Court in Jagdeo v. Ram
Saran Pande & Ors. (5), has in terms held that a turn of
worship is not interest in immovable property and,
therefore, a sale thereof does not require registration.
The decision purports to follow the ratio in Eshan Chander
Roy’s case (supra) which gives no reasons for the decision
and also Jharula Das’s case (supra) where this question
appears not to have been in terms raised.
The definition of immovable property in s. 3 of the Transfer
of Property Act is couched in negative form in that it does
not include standing timber, growing crops, or grass. The
statute avoids positively defining what is immovable
property but merely excludes certain types of property from
being treated as immovable property. Section 2(6) of the
Registration Act defines immovable property to include
lands, buildings, hereditary allowances, rights to ways,
lights, ferries, fisheries or any other benefit to arise out
of land, and things attached to the earth, or permanently
fastened to anything which is attached to the earth, but not
standing timber, growing crops or grass. Section 2 (26) of
the General Clauses Act defines immovable property to
include land, benefits to arise out of land and things
attached to the earth or permanently fastened to anything
attached to the earth.
(1) ILR 10 Cal. 73.
(2) AIR 1932 Cal. 791.
(3) ILR 4 Cal. 683.
(4) ILR 39 Cal. 887.1
(5) AIR 1927 Patna 7.
11 3229 CI/78
970
It may be mentioned that the definition of immovable
property in Registration Act lends assurance to treating
Shebait’s hereditary office as immovable property because
the definition includes hereditary allowances Offence of
Shebait is hereditary unless provision to countrary is made
in the deed creating the endowment. In the conception of
Shebait both the elements of office and property, duties and
personal interest axe mixed up and blended together and one
of the elements cannot be detached from the other. Old
texts, one of the principal sources of Hindu law and the
commentaries thereon, and over a century the Courts with
very few exceptions have recognised hereditary office of
Shebait as immovable property, and it has all along been
treated as immovable property almost uniformly. While
examining the nature and character of an office as envisaged
by Hindu law it would be correct to accept and designate it
in the same manner as has been done by the Hindu law text
writers and accepted by courts over a long period. It is,
therefore, safe to conclude that the hereditary office of
Shebait which would be enjoyed by the person by turn would
be immovable property. The gift of such immovable property
must of course be by registered instrument. Exhibit 1 being
not registered, the High Court was justified in excluding it
from evidence. On this conclusion the plaintiff’s suit has
been rightly dismissed.
This appeal accordingly fails and is dismissed with costs.
S.R. Appeal dismissed. 97 1