KALI KINKOR GANGULY versus PANNA BANERJEE AND ORS.

Citation: [1975] 1 S.C.R. 728 · Decided: 16-08-1974 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Judgment (excerpt)

728. 
KALI KINK OR GANG UL Y 
v. 
PANNA BANERJEE AND ORS. 
August 16, 1974 
[A. N. RAY, C.J., AND K. K. MATHEW, J.J 
Religious endowment-Transfer of office of Shebaiti-When. pern1issible. 
On the death of B who had the Shebaiti right of the deities in a temple, one of 
his two widows, carried on the sheba puja and on her death, her brother took pos-
session of the temple premises. The other widow filed a suit and obtained a decree in 
her favour declaring her right to be entitled to the temple pren1ises and to the right 
of sheba puja. She sold a half share of the temple and the shebaiti right to G for 
meeting the expenses of the litigation. The appellant, a legatee of G, filed a suit 
claiming a declaration that he was entitled to the shebaiti right, which the respon-
dents, who are the heirs of 'B' denied. The High Court, in appeal held against 
the appellant on the ground that the transfer to G was invalid. 
Dismissing the appeal to this Court, 
B 
c 
HELD : Although shebaiti right is heritable like any other property, it lacks the 
other incident of proprietary rights, namely, capacity of being freely transferred by 
the person in whom it is vested. The rule against alienation of shebaiti right has 
been relaxed in certain decisions of the High Courts, which are clas.sified under 
three heads (a) where the transfer is not for any pecuniary benefit and the transferee 
D 
is the next heir of the transferor or stands in the line of succession of shebaits and 
suffer.; from no disqualification regarding the performance of duties; (b) when the 
transfer is made in the interest of the deity itself and to me(1t..1,somo pressing neces-
sity; and (c) when a valid custom is proved sanctioning the alienation of shebaiti 
right within a limited circle of purchasers, who are actual or potential shebai_ts of 
the deity or othenvise connected with the family. In the present case, the appellant 
rested his claim on the second exception on the ground that the transfer was made 
in the interest of the deity and to meet a pressing necessity. But, the appellant 
cannot invoke the doctrine of transfer of shebait right for the benefit of the deity, 
E · 
because, the transfer to G is illegal, for the reason, that neither the temple nor the 
deities, nor the shebaiti right can be transferred by sale for pecuniary consideration. 
The rule of necessity extended only to an alienation of the temporality of the idol 
and does not and cannot apply to alienation of the spiritual rights and duties. The 
doctrine of alienability of the shebaitship itself on the ground of necessity or benefit 
to the deity, is based upon a misconception of the observations of the Judicial Com-
mitte.e. Such a sale is void in its inception. An assignment of a religious office 
by which the aliener gets pecuniary benefit is against public policy and cannot be 
F 
uphe!J. [733C-D,H-734C, 735C-F] 
Pro,anna Kumari v. Go/ap Chand 2 LA. 145 explained. 
Mahamaya v. Haridas I. L. R. 42 Cal. 455, Khatra Chandra Ghosh v. Haridas 
I.L.R. 17 Cal. 557, Rajah Vurmah v. Ravi Burn1ah 41. A. 76. Sundarmnbalv .. Yogany-
anag1uukkul I.L.R. 38 Mad. 850, Rajeshwar v. Gopaswar I.L.R. 35 Cal. 226, l'1irn1al 
Chandra Banerjee v. Jyoti Prasad 42 C.W.N. 1138 Nagendra ]1/ath v. Rabindra I.L.R. 
53 Cal. 132 and Dr. B.K. Mukherjea, Hindu Law of Religious and Charitable Trust, 
referred to. 
ARGUMENTS 
For the appellant-The alienation in favour of Gisin same tcnns as the aliena-
tion under which B hi1nself had acquired rights. The documents were understood 
throughout by all the parties as a mere transfer of the personal proprietary interest 
of a shebait \vh_i~h is ancillary to ~is d_uties.as a ministre_n~ of the deity and a manager 
of its temporalitles. There is no Justification for not g1vmg effect to the true import 
and substance of the document, and, indeed it \vas conceded before the High Courl 
that no claim was being laid to either the deity or the temple. In such circumstances, 
the only question which arose for determination was whether in the fact and cir-
cun1stances of the instant case the transfer to G was .invalid and could not be given 
effect to. 
· 
G 
H 
' l
.r 
·C 
D 
K. K. GANGULY V. P. BANERJEE 
729 
lt is now \Veil settled that in the concept of shebaiti both the ele1nents of office 
and property are there. It has been held (vide Angurbala v. Devabrata (1951) SCR 
1125 that shebaitship is property within the meaning of Hindu Women's Right 
to Property Act and was als

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