{"id":255463,"date":"1978-05-05T00:00:00","date_gmt":"1978-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-rattan-dead-by-legal-vs-bajrang-lal-ors-on-5-may-1978"},"modified":"2016-09-24T05:36:55","modified_gmt":"2016-09-24T00:06:55","slug":"ram-rattan-dead-by-legal-vs-bajrang-lal-ors-on-5-may-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-rattan-dead-by-legal-vs-bajrang-lal-ors-on-5-may-1978","title":{"rendered":"Ram Rattan (Dead) By Legal … vs Bajrang Lal & Ors on 5 May, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Rattan (Dead) By Legal … vs Bajrang Lal & Ors on 5 May, 1978<\/div>\n
Equivalent citations: 1978 AIR 1393, 1978 SCR (3) 963<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nRAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES\n\n\tVs.\n\nRESPONDENT:\nBAJRANG LAL & ORS.\n\nDATE OF JUDGMENT05\/05\/1978\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nCHANDRACHUD, Y.V. ((CJ)\nPATHAK, R.S.\n\nCITATION:\n 1978 AIR 1393\t\t  1978 SCR  (3) 963\n 1978 SCC  (3) 236\n CITATOR INFO :\n R\t    1979 SC1314\t (17)\n F\t    1985 SC 905\t (14)\n\n\nACT:\nDuty  of  Court\t to consider  preliminary  objection  as  to\nadmissibility of a document in evidence-Explained.\nStamp Act<\/a>, Sections 33<\/a>, 35<\/a>, 36-Scope<\/a> of.\nHereditary  office of Shebait enjoyed by a person,  whether-\nmovable\t or immovable property-Whether the deed of  gift  of\nsuch  a\t right\trequires  registration.--The  office   being\nimmovable property in the instant case, the gift deed is  in\nadmissible in evidence for want of registration.\n\n\n\nHEADNOTE:\nThe plaintiff-appellant, who died pending the appeal  sought\na declaration that he was entitled to a right of worship  by\nturn (called Osra) for 10 days in a circuit of 18 months  in\nthe  temple of Kalyanji Maharaj at village  Diggi  District,\nTonk.\tRajasthan  under the Will Ext. dated  22  September,\n1961 executed by deceased Mst.\tAcharaj, wife of Onkar.\t The\nTrial  Court did not try the preliminary objection, when  it\nwas  raised  at\t the time of the trial; but made  a  note  :\n\"Objected.   Allowed  subject  to  objection\".\t The   Court\nrejected  it  at the time of arguments\ttaking\trecourse  to\nSection\t  36<\/a>  of  the  Stamp  Act.   On\t the   question\t  of\nregistration  it  held that as the \"turn of  worship  was  a\nmovable property' if did not require compulsory registration\nand  decreed the suit.\tIn appeal the first Appellate  Court\nreversed the Judgment, inter alia, holding that the document\nExt.   1  was a gift and as it involved\t gift  of  immovable\nproperty  the document was inadmissible in evidence both  on\nthe  ground  that  it is not duly stamped and  for  want  of\nregistration.  The Plaintiff's second appeal before the High\nCourt failed.\nDismissing the appeal by special leave, the Court\nHELD  :\t 1. When a document is tendered in evidence  by\t the\nplaintiff  while in witness box and the defendant raises  an\nobjection  that the document is inadmissible in evidence  as\nit was not duly stamped and for want of Registration, it  is\nobligatory  upon  the Trial Judge to apply his mind  to\t the\nobjection:  raised and to decide the objection according  to\nlaw.   Tendency\t sometimes is to postpone  the\tdecision  to\navoid interruption in the process of recording evidence and,\ntherefore,  a  very  convenient device is  restored  to,  of\nmarking\t the. document in evidence 'subject  to\t objection.'\nThis, however, would not      mean  that the objection\tthat\nthe instrument is not duly stamped is judicially  decided;\nit is merely postponed. In such a situation at a laterstage\nbefore\t  the\tsuit  is  finally  disposed  of\t  it   would\nnonetheless be obligatory upon the  Court to decide  the\nobjection.   If\t after\tapplying  its  mind  to\t the   rival\ncontentions    the   trial  court  admits  a   document\t  in\nevidence, s. 36<\/a> of the Stamp Act would come into play  and\nsuch admission cannot be called in question at any stage  of\nthe  same  suit\t or  proceeding\t on  the  ground  that\t the\ninstrument  has\t not been duly stamped.\t The Court,  and  of\nnecessity it would be trial court before which the objection\nis taken about admissibility of document on the ground\tthat\nit  is\tnot  duly stamped, as to  judicially  determine\t the\nmatter\tas soon as the document is tendered in evidence\t and\nbefore\tit is marked as an exhibit in the case and  where  a\ndocument  has been inadvertently admitted without the  court\napplying  its mind as to the question of admissibility,\t the\ninstrument  could  not\tbe said to  have  been\tadmitted  in\nevidence with a view to attracting s. 36<\/a>. [966 C-G]\n964\nIn  the\t instant case, the endorsement made by\tthe  learned\ntrial  judge that \"objected, allowed subject to\t objection\",\nclearly indicates that when the objection was raised it\t was\nnot  judicially\t determined  and  the  document\t was  merely\ntentatively  marked and in such a situation s. 36<\/a> would\t not\nbe attracted. [966 G-H]\nJavar Chand v. Pukhraj Surana<\/a>; A.I.R. 1961 S.C. 1655.\n2.Undoubtedly,\tif  a person having by law  authority  to\nreceive\t evidence  and the civil court is  one\tsuch  person\nbefore whom any instrument chargeable with duty is  produced\nand  it is found that such instrument is not  duly  stamped,\nthe  same has to be impounded.\tThe duty and penalty has  to\nbe  recovered  according  to  law.   Section  35<\/a>,   however,\nprohibits  its\tadmission  in evidence till  such  duty\t and\npenalty\t is paid.  The plaintiff has neither paid the  duty\nnor  the penalty till today.  Therefore, stricto  sensu\t the\ninstrument is not admissible in evidence. [967 A-B]\n3.The hereditary office of Shebait which would be enjoyed\nby the person by turn would be immovable property.  The gift\nof such immovable property must, of course, be by registered\ninstrument.   Exhibit 1 being not registered the High  Court\nwas justified in excluding it from evidence.  The definition\nof  immovable  property in S. 2(6) of the  Registration\t Act\nLends  assurance to treating Shehait's hereditary office  as\nimmovable   property   because\t the   definition   includes\nhereditary  allowances.\t  Office of  Shebait  is  hereditary\nunless\tprovision  to  the  contrary is\t made  in  the\tdeed\ncreating  the endowment.  In the conception of Shebait\tboth\nthe  elements  of office and property  duties  and  personal\ninterest  are mixed up and blended together and one  of\t the\nelements cannot be detached from the other.  Old texts,\t one\nof  the principal sources of Hindu law and the\tcommentaries\nthereon,  and  over  a\tcentury the  courts  with  very\t few\nexceptions  have recognised hereditary office of Shebait  as\nimmovable  property,  and it has all along been\t treated  as\nimmovable property almost uniformly. [970 A-C]\nAngurbala Mullick v. Debabrata Mullick<\/a>, [1951] SCR 1125\t and\nCommissioner  of Hindu Religious Endowments, Madras  v.\t Sri\nLakshmindra  Thirtha  Swamiar  of Sri  Shirur  Mutt<\/a>,  [1954]\nS.C.R. 1005; followed.\nKrishnabhat Bin Hiragange v. Kanbhat Bin Mahalbhat 6  Bombay\nHigh Court Reports 137, Balvantrey, alias Tatiaji Banaji  v.\nPurshotam  Sidheshwar and Anr., 9 Bombay High Court  Reports\n99, Raiji Manor v. Desai Kallianrai Hukmatrai, 6 Bombay High\nCourt  Reports\t56 Maharana Fattehsangji  Jaswant-sangji  v.\nDesai Kallianraiji Hekoomutraiji, I I.A. 34, Raghoo Pandey &\nAnr.  v.  Kassy Parey and Ors.\tI.L.R<\/a>. 10 Cal.\t73,  Manohar\nMukherjee v. Bhunendra Nath Mukherjee and Ors<\/a>., A.I.R.\t1932\nCal. 791; approved.\nEshan Chander Roy & Ors. v.  Manmohini Dassi, I.L.R. 4\tCal.\n693,  Jharulu Das v. Jalandhar Thakur, I.L.R<\/a>. 39  Cal.\t887,\nJagden Singh v. Ram Saran Pande and Ors.  A.I.R. 1927  Patna\n7; explained.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1244  of
\n1973.\n<\/p>\n
Appeal\tby Special Leave from the Judgment and\tOrder\/Decree
\ndated  the 14th August, 1972 of the Rajasthan High Court  in
\nS.B. Civil Second Appeal No. 520 of 1968.\n<\/p>\n
V.S.  Desai,  Sharad Manohar, S. S. Khanduja  and  R.  K.
\nShukla, for the Appellant.\n<\/p>\n
Badri Das Sharma for Respondents Nos. 1, 3 and 4.
\nM.B.  L. Bhargava, S. N. Bhargava and Sobhagmal Jain  for
\nRespondent No. 2.\n<\/p>\n
9 65
\nThe Judgment of the Court was delivered by
\nDESAI,\tJ.-The\tunsuccessful plaintiff,\t appellant  in\tthis
\nappeal by special leave, who died pending the appeal,  seeks
\na  declaration that he is entitled to a right of worship  by
\nturn (,called Osra) for 10 days in a circuit of 18 months in
\nthe  temple  of Kalyanji Maharaj at  Village  Diggi,  Distt.
\nTonk, Rajasthan, under the will Ext.  1 dated 22nd September
\n1961 executed by deceased Mst.\tAcharaj, wife of Onkar.\t The
\nsuit  was resisted by four amongst five defendants, the\t 5th
\ndefendant   having  not\t put  in  an  appearance.    Various
\ncontentions  were  raise,, but the only\t one  surviving\t for
\npresent consideration is whether document Ext.\t1 purporting
\nto be a will of deceased Mst.  Acharaj is a will or a  gift,
\nand  if the latter, whether it is admissible in evidence  on
\nthe  ground that it was not duly stamped and  registered  as
\nrequired by law ?\n<\/p>\n
When the plaintiff referred to the disputed document in\t his
\nevidence  and proceeded to prove the same, an objection\t was
\nraised\ton  behalf of the defendants that the  document\t was
\ninadmissible  in evidence as being not duly stamped and\t for
\nwant  of registration.\tThe trial court did not decide\tthe,
\nobjection when raised but made a note : “Objected.   Allowed
\nsubject to objection”, and proceeded to mark the document as
\nExhibit.  1. When at the stage of arguments, the  defendants
\ncontended  that\t the  document Ext.  1\tis  inadmissible  in
\nevidence,  the learned trial judge rejected  the  contention
\ntaking\trecourse  to section 36<\/a> of the Stamp  Act.   On\t the
\nquestion  of registration it was held that the\tdocument  is
\nnot compulsorily registrable insofar as the subjectmatter of
\nthe  suit is concerned, viz., turn of worship which  in\t the
\nopinion\t of  the learned trial judge movable  property.\t  On
\nappeal by the defendants the judgment of the trial judge was
\nreversed, inter alia, holding that the document Ext.  1\t was
\na  gift and as it involved gift of immovable  property,\t the
\ndocument  was  inadmissible in evidence both on\t the  ground
\nthat  it is not duly stamped and for want  of  registration.
\nThe plaintiffs second appeal to the High Court did not\tmeet
\nwith success.\n<\/p>\n
The  only question canvassed before this Court is that\teven
\nif upon its true construction the document Ext.\t 1  purports
\nto be a gift of turn of worship as a Shebait-cum-Pujari in a
\nHindu  temple,\tdoes it purport to transfer an\tinterest  in
\nimmovable   property,  and,  therefore,\t the   document\t  is
\ncompulsorily  registrable.  On\tthe  question  whether\t the
\ndocument   was\t duly  stamped\tit  was\t  said\t with\tsome
\njustification  that it was not open to the Court to  exclude
\nthe document from being read in evidence on the ground. that
\nit was not duty stamped because in any event under s. 33<\/a>  of
\nthe Stamp Act it is obligatory upon the court to impound the
\ndocument and recover duty and penalty as provided in proviso\n<\/p>\n
(a) to s. 35<\/a>.\n<\/p>\n
Mst.   Acharaj,\t wife of Onkar had inherited the  right\t to
\nworship\t by  turn for 10 days in a circuit of 18  months  in
\nKalyanji  Maharaj Temple.  It is common ground that she\t was
\nentitled during her turn to officiate as Pujari and received
\nall the offering made to the deity.  During the
\n966<\/span>
\nperiod\tof  her turn she would be holding the  office  of  a
\nShebait\t She  purported\t to transfer this  office  with\t its
\nancillary  rights  to plaintiff Ram Rattan  under  the\tdeed
\nExhibit\t  1  purporting\t to  be\t a  will.   Upon  its\ttrue
\nconstruction it has been held to be a deed of gift and\tthat
\nfinding\t was  not  controverted,  nor  was  it\tpossible  to
\ncontrovert it, in view of the recital in the deed that: “now
\nRam  Rattan will acquire legal rights and possession  of  my
\nentire\tproperty  from\tthe date the  will  is\twritten\t the
\ndetails of the property are in Schedule ‘A’ and after him,
\nhis legal heirs will acquire those rights”It\t  appears
\ncrystal\t clear that the document purports to pass the  title
\nto the property thereby conveyed in presenti and in the face
\nof  this  recital it could never be said that  the  document
\nExt. 1 purports to be a Will.\n<\/p>\n
If by document Ext. 1 the donor conveyed property by gift to
\ndonee and the property included the right to worship by turn
\nin  a  temple, is it transfer of  immovable  property  which
\ncould only be done by a registered instrument which must  be
\nduly  stamped  according to the provisions of  the  relevant
\nStamp Act<\/a> ?\n<\/p>\n
When the document was tendered in evidence by the  plaintiff
\nwhile  in witness box, objection having been raised  by\t the
\ndefendants that the document was inadmissible in evidence as
\nit was not duly stamped and for want of registration, it was
\nobligatory upon the learned trial judge to apply his mind to
\nthe objection raised and decide the objection in  accordance
\nwith law.  Tendency sometimes is to postpone the decision to
\navoid interruption in the process of recording evidence and,
\ntherefore,  a  very  convenient device is  resorted  to,  of
\nmarking\t the  document\tin evidence  subject  to  objection.
\nThis,  however,\t would\tnot mean that the  objection  as  to
\nadmissibility on the ground that the instrument is not\tduly
\nstamped is judicially decided-, it is merely postponed.\t  In
\nsuch a situation at a later stage before the suit is finally
\ndisposed  of  it would none-theless be obligatory  upon\t the
\ncourt  to decide the objection.\t If after applying  mind  to
\nthe  rival contentions the trial court admits a document  in
\nevidence,  s. 36<\/a> of the Stamp Act would come into  play\t and
\nsuch admission cannot be called in question at any stage  of
\nthe  same  suit\t or  proceeding\t on  the  ground  that\t the
\ninstrument  has\t not been duly stamped.\t The Court,  and  of
\nnecessity it would be trial Court before which the objection
\nis taken about admissibility of document on the ground\tthat
\nit  is\tnot duly stamped, has to  judicially  determine\t the
\nmatter\tas soon as the document is tendered in evidence\t and
\nbefore\tit is marked as an exhibit in the case and where  a
\ndocument  has been inadvertently admitted without the  Court
\napplying  its mind as to the question of admissibility,\t the
\ninstrument  could  not\tbe said to  have  been\tadmitted  in
\nevidence with a view to attracting s. 36<\/a> (see Javar Chand v.
\nPukhraj\t Surana<\/a>).(1)  The, endorsement made by\tthe  learned
\ntrial  judge that “objected, allowed subject  to  objections
\nclearly indicates that when the objection was raised it\t was
\nnot  judicially\t determined  and  the  document\t was  merely
\ntentatively  marked and in such a situation s. 36<\/a> would\t not
\nbe attracted.\n<\/p>\n
Mr.  Desai then contended that where an instrument not\tduly
\nstamped\t or insufficiently stamped is tendered in  evidence,
\nthe Court has to
\n(1)  AIR 1961 S.C. 1665.\n<\/p>\n
967<\/span><\/p>\n
impound\t it  as\t obligated  by s. 33<\/a>  and  then\t proceed  as
\nrequired  by s. 35<\/a>, viz., to recover the deficit stamp\tduty
\nalong with penalty.  Undoubtedly, if a person having by\t law
\nauthority  to  receive evidence and the civil court  is\t one
\nsuch person before whom any instrument chargeable with\tduty
\nis produced and it is found that such instrument is not duly
\nstamped, the same has to be impounded.\tThe duty and penalty
\nhas to be recovered according to law.  Section, 35, however,
\nprohibits  its\tadmission  in evidence till  such  duty\t and
\npenalty\t is paid.  The plaintiff has neither paid  the\tduty
\nnor  penalty  till  today.  Therefore,\tstricto,  sensu\t the
\ninstrument  is not admissible in evidence.  Mr. Desai,\thow-
\never,  wanted  us to refer the instrument to  the  authority
\ncompetent to adjudicate the requisite stamp duty payable  on
\nthe  instrument and then recover the duty and penalty  which
\nthe  party who tenders the instrument in evidence is in\t any
\nevent  bound to pay and, therefore, on this account  it\t was
\nsaid that the document should not be excluded from evidence.
\nThe duty and the penalty has to be paid when the document is
\ntendered  in  evidence\tand an\tobjection  is  raised.\t The
\ndifficulty  in\tthis  case arises from\tthe  fact  that\t the
\nlearned\t trial\tjudge declined to decide  the  objection  on
\nmerits\tand then sought refuge under s. 36<\/a>.   The  plaintiff
\nwas,  therefore, unable to pay the deficit duty and  penalty
\nwhich when paid subject to all just exceptions, the document
\nhas,  to be admitted in evidence.  In this background  while
\nholding\t that the document Ext.\t 1 would be inadmissible  in
\nevidence as it is not duly stamped, we would not decline  to
\ntake it into consideration because the trial Court is  bound
\nto impound the document and deal with it according to law.
\nSerious\t controversy centered, however, round  the  question
\nwhether right to worship by turn is immovable property\tgift
\nof  which can only be made by registered instrument.   Hindu
\nlaw  recognises gift of property to an idol.  In respect  of
\npossession  and management of the property which belongs  to
\nthe Devasthanam or temple the responsibility would be in the
\nmanager\t who  is  described by Hindu law  as  Shebait.\t The
\ndevolution of the office of Shebait depends on the terms  of
\nthe deed or will by. which it is created and in the  absence
\nof a provision to the contrary, the settlor himself  becomes
\na  Shebait  and\t the office devolves according\tto  line  of
\ninheritance from the founder and passes to his heirs.\tThis
\nled to an arrangement amongst various heirs equally entitled
\nto  inherit  the  office  for  the  due’  execution  of\t the
\nfunctions belonging to the office, discharging duty in turn.
\nThis turn of worship is styled as ‘Pala’ in West Bengal\t and
\n‘Osra’ in Rajasthan.  Shebaiti being held to be property, in
\nAngurbala  Mulick  v.  Debabrata  Mullick<\/a>,  (1)\t this  Court
\nrecognised  ‘the  right\t of  a\tfamily\tto  succeed  to\t the
\nreligious office of Shebaitship.  This hereditary office of
\nShebait is traceable to old Hindu texts and is a  recognised
\nconcept\t of  traditional  Hindu\t law.\tIt  appears  to\t  be
\nheritable  and\tpartible  in the strick\t sense\tthat  it  is
\nenjoyed by heirs of equal degree by turn and transferable by
\ngift  subject  to the limitation that it may not pass  to  a
\nnon-Hindu.  On principles of morality and propriety sale  of
\nthe office of Shebait is not favoured.\n<\/p>\n
(1)  [1951] SCR 1125.\n<\/p>\n
968<\/span><\/p>\n
The position of Shebait is not merely that of a Pujari.\t lie
\nis a human ministrant of the deity.  By virtue of the office
\na  Shebait is an administrator of the property\tattached  to
\nthe  temple  of which he is Shebait.  Both the\telements  of
\noffice\tand  property, of duties and personal  interest\t are
\nblended\t together  in  the  conception\tof  Shebaitship\t and
\nneither can be detached from the other (vide Commissioner of
\nHindu  Religions  Endorsements, Madras\tv.  Sri\t Lakshmindra
\nThirtha Swamiar of Sri Shirur Mutt<\/a>).(1)
\nThe  question  then  is whether\t the  hereditary  office  of
\nShebait is immovable property.\tMuch before the enactment of
\nthe Transfer of Property Act<\/a> a question arose in the context
\nof  the\t Limitation Act<\/a> then in force whether a suit  for  a
\nshare  in the worship and the emoluments incidental  to\t the
\nsame would be suit for recovery of immovable property or  an
\ninterest   in  immovable  property.   In   Krishnabhat\t bin
\nHiragange   v.\tKonabhat  bin  Mahalbhat  et  al,(2)   after
\nreferring to various texts of Hindu law and the commentaries
\nof  English  commentators thereon, a Division Bench  of\t the
\nBombay High Court held as under :\n<\/p>\n
\t      “Although therefore, the office of a priest in
\n\t      a\t temple,  when\tit is  not  annexed  to\t the
\n\t      ownership\t of any land, or held by  virtue  of
\n\t      such ownership, may not, in the ordinary sense
\n\t      of the term, be immovable property, but is  an
\n\t      incorporeal hereditament of a personal nature,
\n\t      yet being by the custom of Hindus classed with
\n\t      immovable\t property, and so regarded in  their
\n\t      law…….”\n<\/p><\/blockquote>\n
The  privileges\t and  precedence attached  to  a  hereditary
\noffice were termed in Hindu law as Nibandha and the text  of
\nYajnavalkay treated Nibandha, loosely translated as  corody,
\nas  immovable property.\t Soon thereafter the question  again
\narose  in  Balyantray  alias  Tatiaji  Bapaji  v.  Purshotam
\nSidheshvar  and another(3), where, in view of a conflict  in
\ndecision  between  Krishnabhat (supra) and  Baiji  Manor  v.
\nDesai Kallianrai Hukmatrai(4), the matter was referred to  a
\nFull  Bench of 5 Judges.  The question arose in the  context
\nof  the limitation Act in a suit to recover fees payable  to
\nthe  incumbent\tof  a hereditary office,  viz.,\t that  of  a
\nvillage Joshi (astrologer)., The contention was that such  a
\nhereditary  office of village Joshi is\timmovable  property.
\nAfter exhaustively referring to the texts of Yajnavalkay and
\nthe  commentaries thereon Westropp, C.J. observed  that\t the
\nword  corody’ is not a happy translation of  term  Nabandha.
\nIt  was\t held that Hindu law has always\t treated  hereditary
\noffice\tas  immovable property.\t These\ttwo  decisions\twere
\naffirmed  by  the  Judy Committee of the  Privy\t Council  in
\nMaharana  Fattehsangji\tJaswantsangji v.  Desai\t Kalliaraiji
\nHekoomutraiji(5).  The principle that emerges
\n(1)  [1954] SCR 1005.\n<\/p>\n
(2)  6 Bombay High Court Reports 137.\n<\/p>\n
(3)  9 Bombay High Court Reports 89.\n<\/p>\n
(4)  6 Bombay High Court Reports 5 5,
\n(5)  1 I.A. 34.\n<\/p>\n
969<\/span><\/p>\n
from these decisions is that when the question concerns\t the
\nrights\tof Hindus it must be taken to include  whatever\t the
\nHindu  law classes as immovable although not so in  ordinary
\nacceptation of the word and to the application of this\trule
\nwithin the appropriate limits the Judicial Committee sees no
\nobjection.   In\t Raghav\t Pandey\t & Anr.\t v.  Kasav  Parey  &
\nOrs<\/a>.(1),  the  Calcutta High Court held that  the  right  to
\nofficiate as a priest at funeral ceremonies of Hindus is  in
\nthe  nature  of\t immovable property.  A Full  Bench  of\t the
\nCalcutta  High Court in Manohar Mukherjee v. Bhupendra\tNath
\nMukherjee  & Others(2), held that the office of\t Shebait  is
\nhereditary  and\t is  regarded  in  Hindu  Law  as  immovable
\nproperty.   This  Court took note of  these  decisions\twith
\napproval in Angurbala Mullick’s case (supra).
\nMr. Desai urged that there is a distinct line of authorities
\nwhich  indicate\t that a Pala or turn of worship\t is  movable
\nproperty. In Mulla’s Transfer of Property Act<\/a>, 5th  Edition,
\np.  17,\t the  author has observed that a  pala\tor  turn  of
\nworship is movable property.  In Eshan Chandra Roy & Ors. v.
\nMonobini  Desai(3) it was said that it was not\tpossible  to
\ncome to the conclusion that the right to worship an idol  is
\nin the nature of an interest in immovable property.  It is a
\nbare  statement with no reference to texts of Hindu  law  or
\ncommentaries   thereon.\t   In  Jharula\tDas   v.   Jalandhar
\nThakur<\/a>(4),  it\twas  held  that the  office  of\t Shebait  is
\nhereditary  and\t that  the suit which was  brought  after  a
\nperiod of 12 years was barred by limitation.  This  decision
\ndoes  not specify the nature of property termed as  turn  of
\nworship in Hindu law.  The Patna High Court in Jagdeo v. Ram
\nSaran  Pande  & Ors. (5), has in terms held that a  turn  of
\nworship\t  is  not  interest  in\t immovable   property\tand,
\ntherefore,  a  sale thereof does not  require  registration.
\nThe  decision purports to follow the ratio in Eshan  Chander
\nRoy’s  case (supra) which gives no reasons for the  decision
\nand  also  Jharula Das’s case (supra)  where  this  question
\nappears not to have been in terms raised.\n<\/p>\n
The definition of immovable property in s. 3<\/a> of the Transfer
\nof Property Act is couched in negative form in that it\tdoes
\nnot  include standing timber, growing crops, or grass.\t The
\nstatute\t  avoids  positively  defining\twhat  is   immovable
\nproperty but merely excludes certain types of property\tfrom
\nbeing  treated as immovable property.  Section 2(6)<\/a>  of\t the
\nRegistration  Act  defines  immovable  property\t to  include
\nlands,\tbuildings,  hereditary allowances, rights  to  ways,
\nlights, ferries, fisheries or any other benefit to arise out
\nof  land, and things attached to the earth,  or\t permanently
\nfastened to anything which is attached to the earth, but not
\nstanding timber, growing crops or grass.  Section 2<\/a> (26)  of
\nthe  General  Clauses  Act<\/a>  defines  immovable\tproperty  to
\ninclude\t land,\tbenefits  to arise out of  land\t and  things
\nattached  to the earth or permanently fastened\tto  anything
\nattached to the earth.\n<\/p>\n
(1)  ILR 10 Cal. 73.\n<\/p>\n
(2)  AIR 1932 Cal. 791.\n<\/p>\n
(3)  ILR 4 Cal. 683.\n<\/p>\n
(4)  ILR 39 Cal. 887.1
\n(5)  AIR 1927 Patna 7.\n<\/p>\n
11 3229 CI\/78
\n970<\/span>
\nIt  may\t be  mentioned\tthat  the  definition  of  immovable
\nproperty  in  Registration Act<\/a> lends assurance\tto  treating
\nShebait’s hereditary office as immovable property    because
\nthe  definition\t includes hereditary allowances\t Offence  of
\nShebait is hereditary unless provision to countrary is\tmade
\nin  the deed creating the endowment.  In the  conception  of
\nShebait both the elements of office and property, duties and
\npersonal interest axe mixed up and blended together and\t one
\nof  the\t elements cannot be detached from  the\tother.\t Old
\ntexts,\tone  of the principal sources of Hindu law  and\t the
\ncommentaries  thereon,\tand over a century the\tCourts\twith
\nvery  few  exceptions have recognised hereditary  office  of
\nShebait\t as  immovable property, and it has all\t along\tbeen
\ntreated\t as  immovable\tproperty  almost  uniformly.   While
\nexamining the nature and character of an office as envisaged
\nby Hindu law it would be correct to accept and designate  it
\nin  the same manner as has been done by the Hindu  law\ttext
\nwriters\t and accepted by courts over a long period.  It\t is,
\ntherefore,  safe to conclude that the hereditary  office  of
\nShebait\t which would be enjoyed by the person by turn  would
\nbe immovable property.\tThe gift of such immovable  property
\nmust of course be by registered instrument.  Exhibit 1 being
\nnot registered, the High Court was justified in excluding it
\nfrom evidence.\tOn this conclusion the plaintiff’s suit\t has
\nbeen rightly dismissed.\n<\/p>\n
This appeal accordingly fails and is dismissed with costs.\n<\/p>\n
S.R.\t\t\t     Appeal dismissed.\n97 1\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Rattan (Dead) By Legal … vs Bajrang Lal & Ors on 5 May, 1978 Equivalent citations: 1978 AIR 1393, 1978 SCR (3) 963 Author: D Desai Bench: Desai, D.A. PETITIONER: RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES Vs. RESPONDENT: BAJRANG LAL & ORS. DATE OF JUDGMENT05\/05\/1978 BENCH: DESAI, D.A. BENCH: DESAI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-255463","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Rattan (Dead) By Legal ... vs Bajrang Lal & Ors on 5 May, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-rattan-dead-by-legal-vs-bajrang-lal-ors-on-5-may-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Rattan (Dead) By Legal ... vs Bajrang Lal & Ors on 5 May, 1978 - 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