Holding

Shebaitship is a form of property that devolves by ordinary Hindu succession; the founder left no succession scheme, the will nominating the appellant was effective, the subsequent adoption was invalid, and the appellant is entitled to shebaitship.

Summary

The case concerned the succession to the shebaitship of the Shri Jugal Kishoreji Maharaj Mandir founded by Hari Dass. After the founder's death, his four chelas were nominated but none exercised the power to appoint a successor. The last serving chela, Bansi Dass, executed a will nominating Rambir Das and his brother as shebaits, later attempting to cancel it by an adoption deed in favour of minor defendants. The High Court held the cancellation valid, deeming the plaintiffs ineligible due to marriage and the minors invalid, and declared the property escheated to the state. The Supreme Court held that shebaitship is property that devolves under ordinary Hindu succession; the founder had not prescribed a line of succession, the will of Bansi Dass was effective from its execution, and the adoption/cancellation was invalid. Consequently, the plaintiffs were entitled to shebaitship, the property remained vested in the deity, and the High Court's decision was set aside. The appeal was allowed, restoring the trial court's decree.

Issues considered

The validity of the appellant's claim to shebaitship of the temple.
Whether marriage disqualifies a Bairagi from holding shebaitship.
The effect of a chela's adoption deed in cancelling a prior nomination by will.
The legality of nominating minors as shebaits.
Whether the temple property escheats to the State or remains vested in the deity.

Legislation cited

Subjects

shebaitshipreligious trustHindu lawsuccessionchelaadoptionnominationescheatdeitytemple managementmarriage disqualificationminor nominee

Judgment

A RAMBIR DAS AND ANR.
v.
KALYAN DAS AND ANR.

FEBRUARY 19, 1997

B [K. RAMASWAMY AND S. SAGHIR AHMAD, JJ.]

Hindu Law:

Religious and Charitable Tmsts :
c Shebaitship-Succession to--Temple property-Original founder died
leaving behi11d four chelas but without laying down a11y line of succes-
sion-Last serving chela exernted a will nominati11g the plaintiff's (sons of
another Che la) as She baits of Temple-Later he ca11celled the will and
D adopted defe11da11ts as his Che/as-After his death plaintiffs filed suit for
declaration that they succeeded as Shebaits of the Temple-Suit decreed a11d
decree co11fim1ed in appeaf--High Court held that cancellation of will was
valid as /fither of plaintiffs ceased to be a Bairagi after marriage; and that
nomination in favour of defendants was invalid as they were minors, and
therefore, the property became escheat--Held, the estate does not become an
E es cheat but it continues to remain vested in the deity and the Shebaits
remains in charge of the management of the property-The right of manage-
ment should go either in the order of succession given by the original founder,
or in its absence, in the line of intestate succession--Plaintiffs are entitled to
~

act as Shebaits as the founder did not lay down the line of succession-The
F Che/as did not exercise their power to appoint a Shebait-Since the last
serving Che/a died issueless the property would go to the heirs of his brother,
the other Che/a-The last serving chela did not reserve any right to cancel/
the nomination of the plaintiffs-Jn the case of nomination of a Shebai~
nomination takes effect from the date of its execution and the nominee
G becomes entitled to go into office as a Shebait after the demise of the last
chela-A chela cannot be adopted but can be nominate~hela nominated
must be one who is independent and capable to renounce worldly affairs or
capable to adopt himself as Bairagi-A minor cannot be nominated as
Che/a-There is no plea nor proof that a married person is not emitted to be
H the Shebait.
210
\

RAMBIRDASv. KALYANDAS 211

Baba Kartar Singh Bedi v. Dayal Das & Ors., AIR (1939) PC 201, A
referred to.

"Hindu law of Religious and Charitable Trust" Tagore Law Lec-
tures-1936, Justice, B.K. Mukherjee, May1le's Hindu Law & Usage, 14th
edn., p. 965 "Entrance into religious order", referred to.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 947 of
1980 Etc.

From the Judgment and Order dated 19.3.80 of the Allahabad High
Court in S.A. No. 1940 of 1977.
c
A.B. Rohtagi, D.R. Nigam, Vipin Nair, Rajiv Dutta and K.K. Mohan
for the Appellants and Respondent in C.A. No. 4173/83.

Mrs. Rachna Gupta, P.K Bajaj and Mrs. Rani Chhabra for the
Respondents.
D
The following Order of the Court was delivered :

CA. No. 947 of 1980

This appeal by special leave arises from the judgment dated 19th
March, 1980 passed by the learned Single Judge of the High Court of E
Allahabad in SA No. 1940 of 1977.
,-
The admitted position is that one Hari Das owned considerable
properties situated in the town Khair of Aligarh District which is part of
Schedule 'B' attached to the Plaint. He constructed a temple, by name Shri
Jugal Kishoreji Maharaj Mandir. Therein, the principal deity is Lord F
Krishna & Radha. He endowed all his properties to the Mandir. During
his life time, he was in-charge of the temple as defacto trustee and he did
seva (service) and pooja to the deity. After the abolition of the estate
under the U.P. Zamindari Abolition & Land Reforms Act, 1950,
Bhumidari rights in the properties were conferred on the deity Lord G
Krishna and Radha. Hari Dass left behind him four chelas by name, Narian
Das, Bansi Dass, Manohar Dass and Ram Dass alias Ram Chander Ap-
pellant No. 1 Rambir Das and his Brother Har Govind Das are sons of
Ram Dass. Bansi Dass, the last serving chela, had executed a Wil~ Ex. B-19
on 9.2.1955 whereunder he nominated the plaintiff and his brother as H
212 SUPREME COURT REPORTS [1997) 2 S.C.R.

A Shebaits of the Mandir. During his life time by Deed of Adoption dated
January 6, 1966, Ex. A-45 cancelled the Will and adopted defendant Nos.
1and2 as his chelas. Bansi Dass died on February 3, 1969. Thereafter, the
disputes arose between the appellants and the respondents as to who would
be entitled to succeed to the Shebaitship of the Mandir. It is not necessary
B to dilate upon the proceedings that went on in the Criminal Court and in
the. suit. Suffice it to state that the appellant had sought a relief of
declaration of succession as a Shebait to the Mandir, possession thereof
and consequential perpetual injunction against the respondents from inter-
fering with his Shebaitship and possession and enjoyment of the property
C as a Shebait of the temple. The trial Court granted the decree. On appeal,
it was confirmed. In the second appeal, the learned single Judge held that
the cancellation of the Will in the Adoption Deed is valid for the reason
that Rambir Dass had married and thereby he ceased to be a bairagi. His
brother Har Govind Dass having become insane, was disqualified to be a
Shebait. The defendants-respondents being minors, nomination in that
D behalf is invalid in law. As a consequence, the property became escheat;
he directed the Advocate-General to take action for possession of the
properties. Thus, this appeal by special leave and cross appeal.

The primary question for consideration is : whether the appellant's
E claim to be a Shebait of the Mandir is valid and sustainable in law? In
Tagore Law Lectures - 1936 published in "Hindu Law of Religious and
Charitable Trust", Justice B.K. Mukherjee, the former Chief Justice of this
Court stated at page 216 as under :

F "As shebaitship is property, it devolves like any other property
according to the ordinary Hindu law of inheritance. If it remains
in the founder, it follows the line of founder's heirs; if it is disposed
of absolutely in favour of a grantee, it devolves upon the heirs of
the latter in the ordinary way and if for any reason the line
appointed by the donor fails altogether, shebaitship reverts to the
G family of the founder (g). In the matter of appointment of a shebait,
the discretion of the founder is unfettered. No Hindu would indeed
think of appointing a person as manager of a temple, who is a
follower of a different religion, but there is nothing in law which
prevents him from appointing as shebait, a person of different or
H inferior caste."
RAMBIRDASv. KALYANDAS 213

It is further stated at page 217 thus : A
"As succession to shebaitship is governed by the ordinary law of
inheritance,
I
it scarcely admits of any doubt that a woman can
succeed to shebaitship, the Supreme Court of India has held very ·
recently that shebaitship is 'property' within the meaning of the
Hindu Women's Right to Property Act; consequently in a case to B
which the Act applies the widow and son of the last shebait would
succeed jointly to the shebait 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 C
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 Shebait D
rights".

At page 227, it is stated thus :

"As there is always an ultimate reversion to the founder or his
heirs, in case the line of Shebaits is extinct, strictly speaking no E
question of escheat arises so far as the devolution of shebaitship
is concerned. But cases may be imagined where the founder also
has left no heirs, and in such cases the founder's properties may
escheat to the State together with the endowed property. In cir-
cumstance like these, the rights of the State would possibly be the
same as those of the founder himself, and it would be for it to F
appoint a shebait for the Debutter property. It cannot be said that
the State receiving a dedicated property but escheat can put an
end to the trust and treat it as secular property".

In Mayne's Hindu Law & Usage (14th Edn.) at page 965, para 639 G
on "Entrance into religious order", it is stated as under :

"One who enters into a religious order severs his connection with
.the members of his natural family he is accordingly excluded from
inheritance. Neither he nor his natural relatives can succeed to
each other's properties. The persons who are excluded on this H
214 SUPREME COURT REPORTS (1997] 2 S.C.R.

A ground come under three heads, viz., the Vanaprastha, or hermit;
the Sanyasi or Yati, or ascetic; and the Brahmachari, or perpetual
religious student. In order to bring a person under these heads, it
is necessary to show an absolute abandonment by him of all secular
property, and a complete and final withdrawal from earthly affairs.
The mere fact that a person calls himself a Hyragi, or religious
B mendicant, or. indeed that he is such does not of itself disentitle
him to succeed to property. Nor does any S_undra come under this
disqualification, unless by usage. This civil death does not prevent
the person who enters into an ·order from acquiring and holding
private property which devolve, not of course upon his natural
c relations but according to special rules of inheritance. But it would
be otherwise if there is not civil death in the eye of the law, but
only he holding by a man of certain religious opinions or profes-
sions."

D In Baba Kartar Singh Bedi v. Dayal Das & Ors., AIR (1939) PC 201
at 207 this Court had held thus :

"It was also argued by the respondent's counsel that the word
'chela' in the will meant an adopted son. This contention too, in
their Lordships' view, is totally without Foundation. A chela, as is
E well known in India, means a disciple. He is different from an
adopted son, both in the process of his initiation and in the purpose
of his existence. A chela is generally nominated by the ruling
mahant during his lifetime to conduct the affairs of a religious
institution, or if he fails to do so, the chela is nominated by his
F principal followers after his death, who are connected with the
institution. There could be no analogy between him and an adopted
son, as known. to Hindu Law. In the case of the latter, it is
imperative that one of him genitive parents must give, and one of
his adoptive parents must receive, him in adoption. Without such
a gift and taking no adoption can be valid. There are, in addition,
G rituals such as the sacrificial fire, called "Homa" to complete
ceremonially the transaction of adoption and lastly it may be
mentioned that the principal function of a adopted son is to
perform periodically shraddas, or obsequial rites to his parents and
other ancestors for the salvation of their souls, according to Hindu
H sentiment, None of these incidents are to be found in the case of
RAMBIR DAS v. KALYAN DAS 215

a chela, whose affiliation, if it may be so described, is mainly for A
the purpose of continuing the traditional obligations of the institu-
tion and holding and managing its property for purposes incidental
thereto. His main function is not to perform obsequial rites for the
benefit of his ancestors, for, in most cases, a sanyasin or a mahant,
when he enters that order, abrogates (householder), whose future B
felicity in a post mortem existence is the object of solicitude on
the part of his male descendants."

In Panna Nand v. Nihal Chand, (65 IA 252 at page 257) Sir Shadi
Lal speaking on behalf of the Judicial Committee held thus :

"In the town of Gujranwala there is a building variously described
c
as Baghichi Thankaran or Gurdwara Baghichi, and the main issue
which their Lordship have to determine in this appeal is whether
that buildings, together with the shops and other property attached
to it, is the subject-matter of a trust for a public purpose of a
charitable or religious nature. The issue was raised by the defen- D
dants who, claiming to be the representatives of the Hindu public,
made an application to the district Judge under s.3 of the
Charitable and Religious Trusts Act (No. XIV of 1920), alleging
that the Baghichi Thakaran was a public endowment for religious
and charitable purposes, and called upon Mahant Narain Das who E
was described by them as the trustee of the endowment, to furnish
details of the nature and purposes of the trust, and of the value of
the property belonging to the trust, and also to render an account
of the income and expenditure of the trust property. Their allega-
tions were contested by Narain Das and the controversy between
the parties led to the present action, brought by Narain Das for F
the purpose of obtaining an authoritative pronouncement upon the
nature of the trust and of the property attached to it".

In Krishna Singh v. Mathura Ahir & Ors., AIR (1980) SC 707 at 725
this Court had pointed out in paras 77 and 89, as regards the rights of a G
Sanyasi, thus :

"The learned Civil Judge in his judgment observes : The fact of
Harsewanand being a sanyasi remains undoubted. His finding that
he was not a Hindu sanyasi was based upon the view that under
Hindu law mere 'renunciation' of the world is not sufficient. Hence, H
216 SUPREME COURT REPORTS [1997] 2 S.C.R.

A he holds that a Sudra who renounced the world and became sanyasi
cannot be said to be a Hindu sanyasi, as according to the Hindu
Sastras no Sudra can become a sanyasi. The underlying fallacy lies
in his over-looking that the question had to be determined not
according to the orthodox view, but according to the usage or
. custom of the particular sect or fraternity. It is needless to stress
B . that ,a religious denomination or institution enjoys complete
autonomy in the matter of laying down the rites and ceremonies
which are essential. We must accordingly hold that the plaintiff was
the validly initiated chela of Swami Atmavivekanand and upon him
demise was duly installed as the mahant of Grawaghat Math ac-
c cording to the tenets of his 'Sant Mat' Sampradaya.

In the instant case, the appellant himself, of course, without
prejudice to his right to challenge the right of the original plaintiff,
Harsewanand, to bring the suit, substituted the respondent No. 1
Harshankaranand, as his heir and legal representative, while dis-
D puting his claim that he had been appointed as the mahand, as he
felt that the appeal could not proceed without substitution of liis
name. In his reply, the respondent No. 1 Harshankaranand alleges
that after the demise of mahant Harsewanand he was duly installed
as the mahant of Garwaghat Math by the 'Sant Mat' fraternity. He
E further asserts that he was in possession and enjoymentof the math
and its properties. The fact that he is in management and control
of the math properties is not in dispute. The issue as to whether
he was so installed or not or whether he has any right to the office
of a mahant, cannot evidently be decided in the appeal, but
nevertheless, he has a right to be substituted in place of the
F
deceased Mahant Harsewanand as he is a legal representative
within the meaning of S. 2(11), as he indubitably is intermeddling
with the estate. He has therefore, the right to come in and
prosecute the appeal on behalf of the math."

G In Sri Mahalinga Thambiran Swamigal v. His Holisness Sri La Sri
Kasivasi Arnlnandi Thambiran Swarnigal, [1974] 2 SCR 74 at 88-81, this
Court had held as under :

"The definition of "will" in s. 2(h) of the Indian Succession Act,
H 1925 would show that it is the legal declaration of the intention of
RAMBIRDASv. KALYANDAS 217

-~
a testator with respect to his property which he desires to be A
carried into effect after his death. By exercising the power of
nomination, the head of a Mutt is not disposing of any property
belonging to him which is to take effect after his death. He is simply
exercising a power to which he is entitled to under the usage of
the institution. A nomination makes the nominee stand in a B
peculiar relationship with the head of the Mutt and the Hindu
community and that relationship invests him with the capacity to
~ succeed to the headship of the Mutt. A nomination takes effect
(

inpresenti. It js the declaration of the intention of the head of the
Mutt for the time being as to who his successor would be; there-
fore, although it is said that the usage in the Mutt is that the power C
of nomination is exercisable by will, it is really a misnomer, be-
cause, a will in the genuine sense of the term can have no effect
in presenti. There can be no dispute that a nomination can be
made by deed or word of mouth. In such a case, the nomination
invests the nominee with a present status. That status gives him . D
the tapacity to succeed to the headship of the Mutt on the death
of the incumbent for the time being. If that is that effect of the
nomination when made by deed or word of mouth, we find it
difficult to say that when a nomination is made by will, it does not
take effect in presenti, and that it can be cancelled by executing E
another will revoking the former will. Such, at any rate, does not
seem to be the concept of nomination in the law relating to Hindu
Religious Endowments. A nomination need not partake of the
character of a will in the matter of its revocability, merely because
. the power of nomination is exercised by a will. In other words, the F
Nature or character of a nomination does not depend upon the
type of document under which the power is exercised. If a nomina-
tion is ·otherwise irrevocable except for good cause, it does not
become revocable without good cause, merely because the power
is exercised by a will. If the power of nomination is exercised by a
will, it is pro-tanto a non-testamentary instrument. A document G
can be partly testamentary and partly non-testamentary. In Ram
Nath v. Ram Nagina, AIR (1962) Patna 481, the head of the Mutt
of the time being exercised his power of nomination more or less
in termS of ~xhibit B-1 here, namely, by making the nomination
of a sueces"sor ~d providing that he will be the owner of the H
y
218 SUPREME COURT REPORTS (1997] 2 S.C.R.
I
A properties an4 charities of the Mutt and also of the other proper-
ties standing in the name of the head of.the Mutt. The Court held
that so far as the nomination and devolution of the properties of
.the Mutt were concerned, the will operated as a non-testamentary
instrument. The Court said that the condition which must be
satisfied before a document can be called a will is that there must
B be.. some disposition of property and that the document must
contain a declaration of the intention of he testator not with respect
to any thing but with respect to his property. According to the
Court, if there is a declaration of intention with respect to his
' successor, it cannot constitute a will even if the document were
c to state that the nominee will become the owner of the properties
ofthe Mutt after the death of the executant of the will as thatj$
only a statement of the legal consequence of the nomination."

At page 88, this Court, looking from another angle, held as under :

D
"Looking at the matter from another angle, we come to the same
conclusion. We have already said that the power of nomination
must be exercised not corruptly or for ulterior reason but bona I
fide and in the interest of the Mutt and the Hindu community. It
then stands to reason to hold that power to revoke the nomination
E must also be exercised bona fide and in the interest of the institu-
tion and the community. In other words, the power to revoke can
be exercised nor arbitrarily, but only for good cause. We do not
pause to consider what nuses would be good and sufficient for
revoking a nomination as the defendant had no case before us that
F he revoked that nomination for a good cause.

We hold that a nomination when made can be cancelled or
revoked only for a good cause and, as admittedly, there was not
good cause shown in this case for cancellation of the nomination
by Exhibit B-9, the cancellation was bad in law. Therefore, it must
G be held that the appellant was holding the status of the Elavarasu
of the kasi Mutt during the life time of the defendant. Normally,

.. a court will declare only the right of the parties as they existed on
the date of the institution of the suit. But, in this case, on account
of the subsequent event, namely, the death of the defendant, we
H have to mould the relief to suit the altered circumstance. If the
RAMBIR DAS v. KALYAN DAS 219

defendant had been alive, it would have been sufficient if we had A
declared, as the learned single Judge has done, that the appellant
was the Elavarasu of the Kasi Mutt. Now the defenclant is dead,
we make a declaration that the appellant was holding the position
of the Elavarasu during the lifetime of the defendant, that the
revocation of the nomination of the appellant as the Elavarasu by B
Exhibit B-9 was bad, and that the appellant was entitled to succeed
to the headship of the Mutt on the death of the defendant."

Ms. Rachna Gupta, learned counsel appearing for therespondents,
relied on the passage from Tagore Law Lectures - 1936 delivered by B.K.
Mukherjee as published in Hindu Law of Religious & Charitable Trusts at C

- page 205, para 5.6A and 5.6B which read as under :

5.6A. Shebaitship remains in the founder and his heirs unless
disposed of. - When a deity is installed, the shebaitship remains in
the founder and his heirs. "According to Hindu law," thus observed
Lord Hobhouse in Gossamee Sree Greedhareejee v. Ruman Lal/jee, . D
L.R. 16 I.A. 137 and this observation has been reiterated in
numerous cases since then - "when the worship of a Thakur 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 E
circumstances to stow a different mode of devolution." Unless,
therefore, the founder has disposed of the shebaitship in any
particular way and except when an 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.
F
5.6B It devolves like any other species of heritable property. ·
Where the founder of a temple had died without having appointed
a shebait, it ·was held that his widow on whom the right to appoint
had devolved was entitled to appoint a Shebait for the temple, and
such appointment was not open to attach as an alienation of the G
office of a trustee. And the rule that shebaitship devolves like any
other species of property has been applied to the office of Archaka
as well, where emoluments were attached to it."

From the evidence it is clear that the pfaintiffs are entitled to act as
shebaits of the temple because in the endowment deed at EX. 2 fate Sri H
.y
220 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Hari Dass did not lay down the line of succession to the office of Shebait.
Further his 4 chelas nominated in this deed did not exercise their power
to appoint some shebait and as such it was not open for late Bansi Dass
to appoint 2 chelas belonging to another family of his own desire. Since -
Bansi Dass died issueless the property would go again to the heirs of Ram
B Dass because Ram Dass and Bansi Dass were real brothers.

The trial Court decreed the suit holding that the plaintiffs are
shebaits or sarbarkars of the temple Sri Thakur Jugal Kishorji Maharaj
Birajman Mandir (Marhi) in town Khair and its debutter property as shown
in schedule 'B' of the plaint and for possession over the said property and ·
C also for a permanent injunction restraining the defendants from interfering
in the plaintiffs possession over the said property. The defendants are given -
one month;s time to deliver vacant possession of the disputed property to
the plaintiffs failing which the plaintiffs would be entitled to get possession
through court.
D
On appeal, the appellate Court recorded the finding thus :

"Hari Dass, the original founder of the trust had not specified any
direction in there waqf deed of 1.4.20 with regard to future Shebait-
E ship or Sarbarakar~:1ip after the death of the four chelas nominated
by him. The four chelas were also not given any authority to
nominate future shebaits or sarbarkars after their death and as
such the office of Shebaitship of Sarbakarship devolved on the
plaintiffs as sons of Ram Dass and Bansi Dass though they were
F also the disciples of Bansi Dass. Defendant Nos. 1 and 2 were
minors and as such they could neither act as chelas of Bansi Dass
nor could entitle themselves to act as Shebaits or sarbarkars in law
on any account and the directions given in the adoption deed dated
6.6.66 were illegal and void ab initio Defendants 4 and 4 had got r
G fraudulent and fictitious entries made in Revenue papers in their
favour in collusion with lekhpal a8 sub-tenant over certain area of
the temple land though they had not interest or title at all and as
such Hoti Lal and Kishore Lal, the respective fathers and guar-
diaris of the defenclants 1 and 2 had not right to claim the property
H against the interests of the deity".
RAMBIRDASv. KALYANDAS 221

It would, thus, be seen that there is no controversy as to whether A
Rambir Dass became entitled to succeed the temple as shebait as could be

- seen from the evidence; in. the light of the above legal position, Hari Dass
had not laid down any line of succession to his chelas to administer the
debutter estate of the temple. He left behind him four chelas and admit-
tedly one of the chelas, Ram Dass, had married. The appellant and his B
brother, are the progenies of Ram Dass. Bansi Dass, the last chela had
executed a Will under which he nominated Rambir Dass and his brother
as Shebait. Admittedly, he did not reserve any right to cancel their nomina-
tion in the Will. He cancelled the Will while executing an Adoption Deed.
in favour of the defendants. The question is : whether he had the com- C

- petence to cancel the Will having duly nominated the appellant and his
brother as Shebaits? Since the brother of the appellant became insane, it
is not necessary to go into the question whether. he. would succeed after
Rambir Dass. The Will in the normal connotation, takes effect after the
demise of the testator. But in the case of nomination of a shebait, the
nomination takes effect from the date of its execution though it is styled as D
a Will. Once it takes effect, the nominee becomes entitled to go into the
office as a shebait after the demise of the last chela of Hari Dass. Under
these circumstances, the shebaitship being a property, vests in Rambir Dass
and he could administer the property and manage the temple for the
purpose of spiritual and other purposes with which Hari Dass, the original E
founder had endowed the property to Lord Krishna and Radha.

The next question is : whether Bansi Dass had power to adopt
defendants 1 and 2 and deprive the appellant of his right of shebaitship? F
Having seen that Bansi Dass did· not reserve any right to cancel the
nomination and that too for valid reasons, the Will became operative as
soon as it was executed. Thereby, he had no more any power to cancel it
and thereby the right of adoption would not be approved of by this Court
as valid in law, as he is a Bairagi and he could not adopt anyone except
nominating a chela who follows the principles and p~ecepts the founder G
had laid for being observed. Unfortunately, there is no plea in this behalf
nor is power in that behalf. The only ground on which the cancellation
came to be made was that Rambir Dass ·had married and thereby he
became disentitled to be a Bairagi to administer the debutter e~tate as a
shebait. There is no pleading that a married bairagi cannot hold the H
222 SUPREME COURT REPORTS [1997] 2 S.C.R.

A property nor that he becomes a shebait to administer the debutter estate
endowed to the Mandir. It is to be seen that the property stands vested in
the deity, Lord Krishna and Radha and that anyone who administers the
property, does so as a shebait and administers as a trustee for and on
behalf of the deity. It is true that the High Court has disallowed the Will
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B and held that neither party is entitled to shebaitship. The view taken by the
High Court is clearly illegal. It is not the case. that the appellant was not
nominated under the Will executed by Bansi Dass, in the first instance and
thereby he was vested with the right to manage, as a Shebait of the debutter
estate belonging to the deity, Lord Krishna and Radha. " There is not plea
C nor proof that a married person is not entitled to be the shebait. Therefore,
the view of the High Court that he became disentitled on account of the
marriage is clearly illegal. A chela cannot be adopted but can be
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nominated. As a consequen<;e, the adoption of defendants l and 2 by Bansi
Dass as chelas is also not legal for the reason that they were minor as on·
the date when he claims to have adopted them elas. Chela nominated must
D be one who is independent and capable to renounce the worldly affairs or
capable to adopt himself as Bairagi. He cannot adopt anyone as his
successor by application of the general principles of law.

Under these circumstances, though for different reason, the adoption
deed executed by Bansi Dass is clearly illegal. In consequence, the estate
E
does not become an escheat but it continues to remain vested in the deity
and the shebait remains incharge of management of the erty. The right of
management should go either in the order of succession given by the
original founder or, in its absence, in the line of intestate succession. It is
seen that Ram Dass one of the chalas was married and he left behind his
F son Rambir Dass, the appellant; another chela, Bansi Dass having died
without nominating any chela, necessarily, the succession would go to the
heirs of one of the chelas. In the absence of line of succession indicated
--
by the founder, admittedly, Rambir Dass became entitled to succeed by
inheritance the debutter estate as shebait to manage the temple on behalf
G of the deity Lord Krishna and Radha and he remains to be the trustee and
is entitled to get possession of the properties and manage the same for the
purpose for which and in the manner in which, it was endowed by Hari
Dass. If there is any dereliction of the duty in that behalf by the appellant,
appropriate action would be taken by Endowment Department of Uttar
H Pradesh Government in accordance with law. But so long as he maintains
RAMBIRDASv. KALYANDAS 223

and administers the property for the benefit and for the purpose for which A

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they were endowed, he is entitled to manage as a Shebait for and on behalf
of the deity, Lord Krishna and Radha.

The appeal is accordingly allowed. The judgment and decree of the
High Court stands set aside and that of the trial Court stands restored.
But, in the circumstances, without costs. B
CA No. 4173 of 1983

In view of the above order, the appeal is dismissed. No costs.

R.P. Appeal No. 947/80 allowed and C
Appeal No. 4173/83 dismissed .

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