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.
An early decision was rendered by the Privy Council in Posunno Kumari Debya v Golab Chand Baboo.[1] A suit was instituted by the shebaits of an idol against their immediate predecessor to set aside two execution decrees directing the sale of the property. Analysing whether the actions of a shebait binds subsequent shebaits, the Privy Council, speaking through Justice ME Smith held:
“It would seem to follow that the person so entrusted must, of necessity, be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. If this were not so, the estate of the idol might be destroyed or wasted, and its worship discontinued for want of necessary funds to preserve and maintain them.”
The Privy Council summarised in the above extract the true function and purpose underlying the concept of a shebait. Since, the dedicated property vests in an idol in an ideal sense, the shebait is entrusted with its management. An idol cannot personally take actions required for the benefit and preservation of its property.
The idol must necessarily act through a human agent and it is for this reason that the manager of the idol is conferred by law with the status of a shebait. The law recognises the legal personality of the idol to facilitate the protection of the rights and the duties owed to the idol. The natural personality of the shebait is the human agency through which the needs and concerns of the idol are fulfilled.
The law expounded in 1875 by the Privy Council has found resonance in a decision of the Court in 1979. In Profulla Chorone Requitte v Satya Chorone Requitte[2] , a question arose whether it was the founder‘s intention to confer the status of a shebait upon the person designated as trustees in his will. Justice RS Sarkaria, speaking for a two judge Bench of Supreme Court held:
“20. … 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.”
The recognition of a person or a group of persons as shebaits is a substantive conferment of the right to manage the affairs of the deity. A necessary adjunct of the status of a shebait, is the right to brings actions on the behalf of an idol and bind it and its properties to the outcomes. The purpose for which legal personality is conferred upon an idol as the material embodiment of the pious purpose is protected and realised through the actions of the human agent that is the shebait.
The shebait is entrusted with the power and the duty to carry out the purpose of the donor in respect of the idol and its properties. 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. It is for the protection of this property that the law recognises either the donor or a person named in the deed of endowment as the shebait.
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. This will be adverted to in the course of the judgement.
The position of a shebait in Hindu Law is distinct from the position of a trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar[3] the question was whether the terms ‘conveyed in trust’ and ‘trustee’ as they appear in Article 134 of the Limitation Act 1908 apply to properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected the contention that persons managing endowed properties are in the position of trustees under English Law. 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 mal-administration…
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.”
The decision in Vidya Varuthi affirms the distinction between the position of a shebait in Hindu Law and a trustee in English Law. Unlike in the case of a trust, dedicated property does not legally vest in the shebait. The purpose for which property is dedicated to an idol is executed and protected by the shebait. Though the dedicated property does not vest in the shebait, they are responsible for managing the properties and are answerable in law for any mismanagement of the endowed properties.
The shebait holds the property of an idol for the benefit of the idol. There is thus a distinction between the proprietary right of a trustee in English law and a shebait in Hindu Law. Chief Justice B K Mukherjea, in his seminal work ‘Hindu Law of Religious Charitable Trusts’ states:
“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.”[4]
The above distinction was affirmed by this Court in Profulla Chorone. In dealing with the concept of a shebait, Justice RS Sarkaria held:
“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.”
These observations affirm that the position of a shebait is distinct from that of a trustee in English law. The dedicated property legally vests in the idol in an ideal sense and not in the shebait. A shebait does not bring an action for the recovery of the property in a personal capacity but on behalf of the idol for the protection of the idol‘s dedicated property. Ordinarily, a deed of dedication will not contain a provision for the duties of the shebait.
However, an express stipulation or even its absence does not mean that the property of the idol vests in the shebait. Though the property does not legally vest in the shebait, the shebait may have some interest in the usufruct generated from it. Appurtenant to the duties of a shebait, this interest is reflected in the nature of the office of a shebait.
In Manohar Mukherji v Bhupendranath Mukherji[5] , the question before a Full Bench of the Calcutta High Court was whether shebaitship in Hindu law is property or an office to which the founder of an endowment is 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…
The religious office itself, of course, cannot be the object of sale, and jewels and other materials used in religious worship, to the custody of which the alleged vendor is entitled and to the careful custody of which he is bound, are by all systems of law and by Hindu law more emphatically than by another, absolutely extra commercium.”
In addition to the duties that must be discharged in relation to the debutter property, a shebait may have an interest in the usufruct of the debutter property. In this view, shebaitship is not an office simpliciter, but is also property for the purposes of devolution.[6] This view has been affirmed by this Court in Angurbala Mullick v Debabrata Mullick[7].
The controversy in that case was 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 speaking for a four judge Bench of this Court accepted this contention and held:
“12…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.”
The Court held that a shebait has a beneficial interest in the usufruct of the debutter property. This beneficial interest is in the form of a proprietary right. Though the role of the shebait is premised on the performance of certain duties for the idol and the benefits are appurtenant, neither can be separated from the other. Thus, office and property are both blended in shebaitship, the personal interest of a shebait being appurtenant to their duties.[8]
Pujaris
A final point may be made with respect to shebaits. 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.
In Gauri Shankar v Ambika Dutt[9], the plaintiff was the descendant of a person appointed as a pujari on property dedicated for the worship of an idol. A suit was instituted for claiming partition of the right to worship in the temple and a division of the offerings. A Division Bench of the Patna High Court held that the relevant question is whether the debutter appointed the pujari as a shebait. Justice Ramaswami held:
“7…It is important to state that a pujari or archak is not a shebait. A pujari is appointed by the Shebait as the purohit to conduct the worship. But that does not transfer the rights and obligations of the Shebait to the purohit. He is not entitled, to be continued as a matter of right in his office as pujari. He is merely a servant appointed by the Shebait for the performance of ceremonies.
Where the appointment of a purohit has been at the will of the founder the mere fact that the appointees have performed the worship for several generations, will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priest…”
A shebait is vested with the authority to manage the properties of the deity and ensure the fulfilment of the purpose for which the property was dedicated. As a necessary adjunct of this managerial role, a shebait may hire pujaris for the performance of worship. This does not confer upon the appointed pujaris the status of a shebait. As appointees of the shebait, they are liable to be removed from office and cannot claim a right to continue in office.
The distinction between a shebait and a pujari was recognised by the Court in Sree Sree Kalimata Thakurani of Kalighat v Jibandhan Mukherjee.[10] A suit was instituted under Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani and her associated deities. A Constitution Bench of this Court, speaking through Justice JR Mudholkar held:
‘…It is wrong to call shebaits mere pujaris or archakas. A shebait as has been pointed out by Mukherjea J. (as he then was), in his Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts, is a human ministrant of the deity while a pujari is appointed by the founder or the shebait to conduct worship. Pujari thus is a servant of the shebait. Shebaitship is not mere office, it is property as well.’
A pujari is appointed by the founder or by a shebait to conduct worship. This appointment does not confer upon the pujari the status of a shebait. They are liable to be removed for any act of mismanagement or indiscipline which is inconsistent with the performance of their duties.
Further, where the appointment of a pujari has been at the will of the testator, the fact that appointees have performed the worship for several generations does not confer an independent right upon the appointee or members of their family and will not entitle them as of right to be continued in office as priests. Nor does the mere performance of the work of a pujari in and of itself render a person a shebait.
[1] (1875) 14 L Beng LR 450
[2] (1979) 3 SCC 409
[3] AIR 1922 PC 123
[4] B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at page 204
[5] ILR (1933) 60 Cal 452
[6] Approved by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur (1935-36) 63 IA 448, and
Bhabatarini Debi v Ashalata Debi (1942-43) 70 IA 57
[7] 1951 SCR 1125
[8] Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla Chorone Requitte v Satya Chorone Requitte,
(1979) 3 SCC 409
[9] AIR 1954 Pat 196
[10] 9 AIR 1962 SC 1329