MANAGEMENT OF DEBUTTER ,SHEBAITSHIP ,

ITS LEGAL CHARACTER AND INCIDENTS.

INTRODUCTION
Hindus have been known to dedicate property for religious and charitable
purposes since the Vedic ages. Dedication of property has been mainly under two
heads: Ishta and Pushta, which have been considered as means for going to heaven.
The former indicates the Vedic sacrifices and rites and gifts associated with such
sacrifices while the latter stands for all other religious and charitable acts and
purposes unconnected with Vedic sacrifices.
However, religion and charity is often intermixed in India and it has been held by the
Honble Supreme CourtRamchandra Shukla v. Shree Mahadeoji 1970 AIR 458, 1970
SCR (2) 809, that there is no line of demarcation in the Hindu system between
religion and charity. Indeed, charity is regarded as part of religion.
Public trusts in India can be classified into three kinds. The first kind would be the
trusts brought into existence by state grants whereas the second kind would be those
with definite endowments established by private beneficiaries. The third kind would
be trusts that benefit the public, but are maintained entirely by particular families or
groups of families or special communities. In the first two kinds of trusts, the question
of what constitutes a complete dedication does not arise. But in the third kind the
difficult question of whether there is a complete dedication of the funds or not may
arise.
DEBUTTER PROPERTY,DEDICATION AND ITS CREATION
Dedication of property is essential for the creation of an endowment and
debutter property. A dedication consists of the two elements which are known

as Sankalpa or the formula of resolve, or an intention to dedicate properties

and Utsargaor renunciation of property. Dedication can occur when there is the
intention to dedicate (Sankalpa), manifested by performing certain ceremonies, which
include the recitation of time, date and year of dedication, and of the object the
founder has in his mind. The Utsarga completes the gift with renunciation and giving
of the property.
Judicial discourse reveals a great deal about the question of dedicaton in
debutter property. The concept of dedication and its characterisation is explained in
the case of Maharani Hemanth Kumar Debi and Others v Gauri Shankar
Tewari AIR 1941 PC 38. In this case there was a dispute over the usage of a religious
ghat which led to the question whether Maharani Hemanth Kumari (who had claimed
obstruction of the ghat) was the owner of the ghat itself or the hereditary
superintendent of a religious endowment. In this case it was held that dedication
involves divesting property completely of human ownership and vesting the property
in the institution or object.
In Rita Shaw And Ors. vs Dipendra Lal Shaw And Anr. 2006 (4) CHN 414, it
has been held that:
.24. On the question as to whether the property is debutter or not, the following
passage from the authoritative text to which I have referred to in the earlier part of this
judgment may be referred to: As regards the first question, I have stated already that in
order that there may be a real dedication to a deity, it is necessary to show that the
grantor intended to divest and did divest himself completely of every part of the
property which was the subject-matter of the grant, and the dedication was not a mere
colourable device to tie up the property for the benefit of the donors heirs or other
relations.
In this respect, the two decisions of the Honble Supreme Court in the cases
of Badrinath (supra) and Prafulla Chorone Requitte vs Satya Charonne Requite
1979 AIR 1682, 1979 SCC (3) 409 are for the proposition that shebaitship is not

merely an office but is property as well, and hence subject to the rules of devolution of
property
Property absolutely dedicated to religious or charitable purpose is called
debutter property. Debutter means literally belonging to a deity. Where the dedication
is absolute and complete, the possession and management of the property belongs, in
the case of a deosthana or temple, to the manager of the temple, called shebait but the
property vests in the idol; and in case of math that is an abode for students of religion,
to the head of the math called mahant.
Debutter (Temples And Idols)
An endowment for a temple or an idol does not come into existence by
establishment of the deity or by consecration of the idol. The debutter comes into
existence when some property is dedicated to it. It is a fundamental rule of Hindu Law
that whatever idol may be installed in a temple, or whatever deity or GOD a Hindu
may worship, the idol represents the Supreme GOD and none else. This implies that
the dedication of property is not to image that is installed in a temple, but to the
Almighty. In Hindu law when dedication is made to an idol, the property vests in the
idol itself as a juristic person.
The nature of the property, therefore, is debuttar, that is, belonging to the
deities. It would be proper at this stage to notice the distinction between the properties
dedicated to temples and that to Maths. When the dedication is to a temple, the
property is held by the idols, but the possession and its management must, in the
nature of things be entrusted to some person as shebait or manager who is a human
ministrant of the deity to conduct worship, A math like an idol in Hindu Law is a
juridical person capable of acquiring, holding and vindicating legal rights, but the
position of the Mahant, however, is that the property of a Math is held by him as the
spiritual head of the institution. In the conception of Mahanthship, as in shebaitship,

both the elements of office and property are blended together and neither can be
detached from the other, but a Mahanth, in addition to his duties, has a personal
interest of a beneficial character which is much larger than that of a shebait in a
debuttar property.
IDOL AS JURISTIC PERSON
In the case of Sri Vidya Varuthi Tirtha Swamigal v.Baluswami Ayyar the
Judicial Committee quoted with approval the following passage from Hindu Law by J.
C. Ghose:
"Under the Hindu Law, the image of a deity of the Hindu pantheon is, as has,
been aptly called a 'juristic entity', vested with the capacity of receiving gift and
holding property...... 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 or the institution,"
A Hindu Idol is, according to long established authority, founded upon the
religious custom of Hindus and the recognition thereof by courts of law, a juristic
entityIt has a juridical status with the power of suing and being sued.
But two essential ideas are involved in the notion of debutter endowments:
It is an ideal sense that the endowed property vests in the deity as juristic person,
and .The ideal personality of the idol is linked up with the natural personality of
Dharmakarta, shebait or manager.
An interesting question came before the Supreme Court in the case of Jogendra
Nath v I T Commissioner , that could the income of the deity be liable to income tax
assessment. It was answered by the Supreme Court in affirmative. The court said we
have to make a distinction between the spiritual and legal aspect of idol.

The question whether an Idol or Religious Institution or

Gurudwara constitutes a living person or juristic person came up for
consideration by Apex Court in the case of Shiromani Gurudwara
Prabandhak Committee, Amritsar v. Shri Som Nath Das and Ors. (AIR
2000 (3) SC 1421) where Guru Granth Sahab was recorded in the
revenue record and question arose whether Guru Granth Sahab is a
juristic person or not. The Supreme Court ruled inShiromani
Gurdwara Parbandhak Committee, Amritsar vs. Somnath Dass and
Others (AIR 2000 (3) SC 1421) that Sri (the Aad) Guru Granth Sahib
is a juristic person. Therefore, it can hold and use property donated
by the devotees. The Supreme Court held that the High Court
committed a serious mistake of law in holding that Guru Granth
Sahib was not a juristic person and in allowing the claim over the
property in favour of respondents. The dispute concerned land
measuring 22 acres and buildings attached to Gurdwara Sahib
Dharamsala at Village Bilaspur, District Patiala.
It was held in Shiromani Gurudwara Prabandhak Committee,
Amritsar v. Shri Som Nath Das and Ors. (AIR 2000 (3) SC 1421) that
Juristic Person connote recognition of an entity to be in law a
person which otherwise it not. In other words, it is not an individual
natural person but artificially created person which is to be
recognised to be in law such.
The Apex Court in Paragraph 13 of he said judgment has dealt with
Natural person and Legal person.

In Paragraphs 13 and 14 of the judgment of the Apex Court

in Shiromani Gurudwara Prabandhak Committee, Amritsar v. Shri
Som Nath Das and Ors. (AIR 2000 (3) SC 1421) it has been held that
with the development of society, where an individuals interaction
fell short, to upsurge social development, co-operation of a larger
circle

of

individuals

was

necessitated. Thus, institutions

like

corporations and companies were created, to help the society in

achieving the desired result. The very Constitution of State,
municipal corporation, company etc. are all creations of the law and
these Juristic Persons arose out of necessities in the human
development. In other words, they were dressed in a cloak to be
recognised in law to be a legal unit.
Corpus Juris Secundum, Vol. LXV, page 40 says:
Natural person: A natural person is a human being; a man,
woman, or child, as opposed to a corporation, which has a certain
personality impressed on it by law and is called an artificial person.
In the C.J.S. Definition Person it is stated that the word person, in
its

primary

sense,

includes

natural

persons

and

artificial,

conventional, or juristic persons.

Corpus Juris Secundum Vol. VI, page 778 says:
Artificial persons: Such as are created and devised by human
laws for the purposes of society and government, which are called
corporations or bodies politic.
Salmond on Jurisprudence, 12th Edn., 305 says:

A legal person is any subject-matter other than a human

being to which the law attributes personality. This extension, for
good and sufficient reasons, of the conception of personality beyond
the class of human being is one of the most noteworthy feats of the
legal imagination.
Legal persons, being the arbitrary creations of the law, may be of as
many kinds as the law pleases. Those which are actually recognised
by our own system, however, are of comparatively few types.
Corporations are undoubtedly legal persons, and the better view is
that registered trade unions and friendly societies are also legal
persons though not verbally regarded as corporation.If, however we
take account of other systems than our own, we find that the
conception of legal personality is not so limited in its application and
that there are several distinct varieties, of which three may be
selected for special mention.
1. The first class of legal persons consists of corporations, as already
defined, namely, those which are constituted by the personification
of groups or series of individuals. The individuals who thus form the
corpus of the legal person are termed its members .
2. The second class is that in which the corpus, or object selected
for personification, is not a group or series of persons, but an
institution. The law may, if it pleases, regard a church or a hospital,
or a university, or a library, as a person. That is to say, it may
attribute personality, not to any group of persons connected with
the institution, but to the institution itself.

3. The third kind of legal person is that in which the corpus is some
fund or estate devoted to special uses a charitable fund, for
example or a trust estate.
We may, therefore, define a person for the purpose of
jurisprudence as any entity (not necessarily a human being) to
which rights or duties may be attributed.
Thus, it is well settled and confirmed by the authorities on
jurisprudence and Courts of various countries that for a bigger thrust
of socio-political-scientific development evolution of a fictional
personality to be a juristic person became inevitable. This may be
any entity, living inanimate, objects or things. It may be a religious
institution or any such useful unit which may impel the Courts to
recognise it. This recognition is for subserving the needs and faith of
the society. A juristic person, like any other natural person is in law
also conferred with rights and obligations and is dealt with in
accordance with law. In other words, the entity acts like a natural
person but only through a designated person, whose acts are
processed within the ambit of law. When an idol, was recognised as
a juristic person, it was known it could not act by itself. As in the
case of minor a guardian is appointed, so in the case of idol, a
Shebait or manager is appointed to act on its behalf. In that sense,
relation between an idol and Shebait is akin to that of a minor and a
guardian. As a minor cannot express himself, so the idol, out like a
guardian, the Shebait and manager have limitations under which
they have to act. Similarly, where there is any endowment for
charitable purpose it can create institutions like a church hospital,

gurdwara etc. The entrustment of an endowed fund for a purpose

can only be used by the person so entrusted for that purpose in as
much as he receives it for that purpose alone in trust. When the
donor endows for an Idol or for a mosque or for any institution, it
necessitates the creation of a juristic person. The law also
circumscribes the rights of any person receiving such entrustment to
use it only for the purpose of such a juristic person. The endowment
may be given for various purposes, may be for a church, idol,
gurdwara or such other things that the human faculty may conceive
of, out of faith and conscience but it gains the status of juristic
person when it is recognised by the society as such.
The judgments of the Apex Court in The Controller of Estate
Duty, West Bengal, Calcutta v. Usha Kumar and Ors. 1974 SC
663 and in Shriomani Gurudwara Prabandhak Committee, Amritsar
v. Shri Som Nath Dass and Ors. (AIR 2000 (3) SC 1421) make it clear
that Deity is a juristic person and a gift to the juristic person is
perfectly valid in accordance with law, but Deity cannot be treated
as a living person like Shebaits and, therefore, Section 5 of the
Transfer of Property Act will not apply. It has been further held in the
judgments of the Apex Court that affairs of the Deity could be
managed

through

Shebaits/Sarvakars/Managers

appointed

in

accordance with the Deed of Dedication, who are simply managers

to manage the properties vested in the Deity (Almighty). Shebait is
a person, who is appointed according to Deed of Dedication, to give
effect: to the terms and conditions contained therein and to perform
Rag, Bhog and Worship and other connected affairs and to protect

the properties vested in Deity (Almighty) not to alienate the same.

Gift once made to the Deity is irrevocable on any ground.
PUBLIC AND PRIVATE DEBUTTER
It is competent for Hindu to create a public or a private debutter. In the case of Deoki
v Murlidhar , the Supreme Court observed:
The distinction between public and private trust is that whereas in the former
the beneficiaries are specific individual, in the latter case they constitute a body which
is incapable of ascertainment. Apart from the restrictions laid down for ensuring good
order and decency of worship, to regulate the time of public visits and to prevent
overcrowing., the right of wordship in the public temples is a free right".
The distinction between public and private endowment has assumed added
importance as the State statutes regulate the public debutter and the private debutters
are not within their purview. In State of Bihar v Mahant Shri Biseshwar , it was
held by the Supreme Cour that:
. unless the Asthal (Math) itself is a public endowment, properties appurtaining
thereto would not be properties of public endowment. Installation of an idol
permanently on a pedestal and the fact that the temple is constructedon grounds
separate from residential quarters of Mahant are not conclusive proof that temple is a
public temple.
Debutter Property essentially means that kind of property that has been
dedicated to God. The conception of debutter is comprised of two essential ideas. The
first is that property is dedicated to the deity and vests in an ideal sense in the deity
itself as a juristic person. The second is that the personality of the idol becomes linked
up with the natural personality of the shebait , being the manager or being the

dharmakarta and who is entrusted with the custody of the idol and who is responsible
otherwise for the preservation of the property of the idol (Varadachari 2006). There
cannot be a dedication in the name of a deity that is not recognised by the Shastras as
held in Ram Janki Ji and Others v State of Bihar AIR 1992 135.
If the public is allowed freely to enter the temple and has been worshipping
there for a long period of time, it may be a good evidence to indicate that temple is a
public temple, but it is not conclusive. Similarly the feeding of Sadhus and giving
hospitality to wayfarers is not by itself indicative of the public character of the temple.
REAL AND NOMINAL DEBUTTER
The dedication of the property should be real and not a colourable device to tie
up the property for the benefit of the founder and his decendents. If the dedication is
complete and the founder has completely divested himself from the dedicated
properties, the debutter is real, otherwise it is partial. In determining whether a
debutter is real or nominal, the manner in which the properties are held and enjoyed is
the most important. The burden is very heay on the person who alleges that a
document solemnly executed is fictitious.
THE SHEBAITSHIP
The manager of the Devasthan is known as Shebait in the Northern India and
as Dharmkarta in the South. Shebait is that person who serves the deity, consecrated in
the temple as a Devata. Shebaitship represents two partsMaintenance of deity and
management thereof. It is not only an office simply but is also accompanied with
certain rights.
The person in whom the management of the debutter is vested is known by
various names: the terms Shebait is commonly used in Bengal; he is called the

Dharmakarta in Tamilnadu and Andhra Pradesh; and Panchayatdar in Tanjore and

Malabar. In English the term manager is used for him, but as it fails to depict his real
position and powers. It is only in a very broad sense that he is like a manager. As
regards the endowed properties, he is more like trustee, as regard his functions and
duties towards the temple in spiritual sense, he is a holder of an office of dignity.
In the case of Kalanka Devi Sansthan v M R T Nagpur , the Supreme Court
reiterated the well established proposition that the properties in the case of idol or
Sansthan, do not vest in the shebait but in the idol. It is their possession and
management which vest in the shebait. There is a considerable diffeence between the
position and functions of the dharmakarta, whose duties are secular, and poojaries,
archakas, mahants and shebait of North India. The former is a mere manager whose
liabilities are that of a trustee but he hold an office.
In the words of Mayne: The shebait is one who serves and sustains the deity
whose image isntalled in the shrine. The duties and privileges of a shebait are
primarily those of a one who fills a sacred office". It seems that shebaitship is not only
a office but also a proprty. In the case of Vidyavarath v Balusami , the privy council
held that almost in all debutter endowments, shebait has a share in the usufructof the
debutter proprty. Personal presents made to shebait are his personal property.
In spite of the fact that the position of Shebait is not like the English trustee yet
his duties are similar to that of trustee. Shebait owes the duty like the manager of a
religious endowment, as per the traditions towards the diety of maintaining and
preserving the idol and property.
The Supreme Court has held in Prafulla Charan v. Satya Charan, that the
property dedicated to an idol vests in it, is an ideal sense only; ex-necessities, the
possession and management has to be entrusted to some human agent, called Shebait
in the North. The legal character of Shebait cannot be defined with precision and

exactituted. Broadly described he is the human ministrant and custodian of the idol as
its earthly spokesman, its authorised representative entitled to deal with all its
temporal affairs and manage its property.
As regards the administration of the debutter property his position is an
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, and
not in the Shebait. Although the debutter never vests in the Shebait, yet peculiarly
enough, about every case, the Shebait has a right to a part in the usufruct, the mode of
enjoyment and the amount of usufruct depending again on the usage and custom, if
not devised by the founder.
A Shebait as manager of the property has the ownership and possession of the
property and he can file a suit for the protection and profits of the dietys property. He
can incur debts for the worship of temple, for repair of temple or for the protection of
the belongings of the temple or for contesting the suit or saving the property from
being sold for the execution of decree. Debt can be incurred according to the needs.
Office of Shebaitship is not heritable as per the rules of Hindu succession.
Right of Shebaits to repeat worship is an immovable property which can only
be transferred by a registered will. The office of Shebait is hereditary unless otherwise
stipulated or written by the creator of endowment. In the office of Shebait, there is a
mixture of office and estate, of personal interest and obligations. One cannot be
separated from the other under Hindu law. The Shebaitship has been treated as an
immovable property in the Hindu texts and commentaries.
The Calcutta High Court has laid down in its decision in the case, Jagannath
Devraj v. Byomkesh Rai, that he may manage the property of the deity as a
reasonable man as per his own wishes. Shebaitship is the mixture of rights and duties

over the properties of Matha over which the Hindu law of succession applies and
which devolves according to the Hindu Succession Act.
POWERS AND OBLIGATIONS OF SHEBAIT
The powers and duties of Shebait are both spiritual and temporal. In respect of
spiritual duties, he must perform seva and puja of the idol. The custody of the idol
belongs to him. Ordinarily, shebait cannot remove deity. But in case removal of deity
is necessary, the will of the deity should be given effect to; the will can be expressed
through its shebait. Shebait is entitled to the possession and custody of the endowed
properties. But he cannot assert an adverse title against the title, as it is through him
that the idol acts. He is entitled to management of the debutter. If there are more than
one debutter than all must act in unison. If they are not able to act in unison then one
cannot file a suit of injunction against the other, the only remedy is to get the scheme
laid down by the court.
Female Manager:
A female can be the manager of a religious endowment though she cannot perform
spiritual functions . It has been held that a Hindu female is not incompetent by reason
of her sex to succeed to the office of archaka or worshipper in a temple and to
emoluments attached thereto; for, she may appoint a qualified deputy to officiate in
her stead; in case the female appointed as shebait is a minor, or her legal guardian is
competent to accept a gift on behalf of the idol . Where a widow succeeds to
shebaitship she has a widows estate in the same. Where a female heir succeeds to
shebaiti, her interest would be a limited estate unless she lived till after the Hindu
Succession Act of 1956. Any appointment made by her as limited owner ceases on her
death (before the Act 1956) unless there is any specific extra powers conferred on her
as a co-heir.

POSITION OF SHEBAIT, MANAGER OR DHARMAKARTA:

The manager of a temple is by virtue of his office the administrator of the
properties attached to it , as regards which he is in position of the trustee. As regards
the service of the temple and the duties appertaining to it, he is rather in the position
of the holder of an office or dignity .
The position of dharmakarta of a public temple is not that of shebait or pujari
of a shrine or of the head of a math. Those functionaries have a much higher right
with larger powers of disposal administration and they have a personal interest of a
beneficial character. The dharmakarta is literally no more than the manager of a
charity and his rights are never in a higher legal category than that of a mere trustee .
There is considerable difference between the position and functions of tha
dharmakarta of a religious endowment in the south on the one hand and pujari
archakas, mahants, head of the maths and shebaits in the north on the order.
Dharmakarta is a mere manager. His liability will be that of a trustee but he holds an
office. It may be held individually, collectively or by a family or by a number of
families. Dharmakarta services with reference to a temple and its properties are just a
bundle of duties and obligations which he holds as an honorary office. A pious Hindu
may accept the trusteeship without material benefit though for its religious benefits.
Prestige and honours are not perquisites attached as such to the office; they are mere
marks of respect commonly shown on visiting dignitaries .
The shebait is one who serves and sustains the deity whose image is installed
in the shrine. The duties and privilges of a shebait are primarily those of one who fills
a sacred office . Shebaitship in its true conception therefore involves two ideas, the
ministrant of deity and its manager, it is not a bare office, but an office together with
certain rights attached to it. A shebaiti interest or office is heritable. Where one
dedicates his estate and appoints himself as a shebait it was held that the property
ceases to be heritable by his heirs. Shebaits and managers have different legal

incidents. Shebait has personal interest of beneficial character in the endowed

property and rights to the office property. A manager is only an administrator with
bare management and his right to the office is not property. A shebait so long as he
continues to be so cannot claim adverse possession against the idol. Where the shebait
executed a document as power of attorney holder of the deity it would not bind the
deity but bind the shebait in his individual capacity. Changing of sect to another sect
which is also a hindu sect by a shebait or marfatdar is no disqualification to act as
shebait or marfatdar, in the absence of any custom prohibiting change of sect .
The position of a shebait, dharmakarta or manager of a temple or other
religious institutuion towards debutter property is not similar to that in England of a
trustee towards the trust property; it is only that certain duties have to be performed by
him which are analogous to those of trustees. They have not the legal property which
is vested in the deity of the institution. Each of them has only the title of manager of a
religious endowment and is as such entitled, subject to usage , to the custody of the
idol and its properties. The hereditary trustees of a temple have generally only a bare
right to administer the secular estate of the institution, or endowment. They do not
have any proprietary right of interest either in the corpus or usufruct of the estate. The
position of hereditary is equivalent to a dharmakarta.
Right to offerings:
The right of a shebait or of a priest to offerings made to an idol naturally
depends upon the nature of offerings in the absence of a custom or an express
declaration by the founder to the contrary. Where they are of a permanent character,
they ordinarily belong to the temple. Where there are perishable they may be
appropriated by the priest or other persons entitled to it by custom. Right to wrship
does not carry right to receive offerings. A suit for division does not lie. But the right
of worship coupled with right to receive offerings is property and a suit against other
joint owners for division of such offerings lies .

Borrowings and alienations for necessity:

The power of alienation is a power which shebait can exercise only in
exceptional circumstances. He may borrow money by simple loans or on some
security he may if necessary, sell some of the properties. Even if the deed of
endowment expressly prohibits the shebait from alienating property, shebait has the
power to alienate and the alienation will not be invalid . This is also the position of
Mahant in respect of the endowed properties. The burden of proof would be on alinee
as decided in the case of Hanuman Prasad . The peculiarity of shebaits and mahants
alienation like that of Hindu female holder of limited estate is that an alienation
without legal necessity is binding on the alienator during his life time.
The possession and management of the propertyof a religious endowment
belong to a manager, dharamakarta or shebait and this carries with it a right to bring
whatever suits are necessary for the protection of the property. He is bound to do
whatever is necessary for the benefit or preservation of properties of idol. The limit set
to his power of disposition is to maintain and preserve the by proper management the
endowment or religious institution. The nature and extent of the power of alienation
for necessity is laid down in Hanooman Persaud V Mussammat Babooee

the

principle expounded by lord justice Knight Bruce in that case apply not only to a
mother acting a guardian of the property of her minor son and the Hindu widow and to
the karta of the HUF but to the managers of endowments as well. It is, therefore
competent for the manager, shebait or dharamakarta to incur debuts and borrow
money for the proper expenses of keeping up the religious worship, repairing the
temples or other possessions of the idols, instituting or defending hostile litigious
attacks and to prevent the endowed properties from being brought to sale in execution
of decrees binding upon the institution. The power however to incur debts must be
measured by the existing necessity for incurring them. The authority of the manager
of an idols estate is thus analogus to that of the manager for an infant heir whose

power to alienate can only be exercised rightly in a case of need or for the benefit of
the estate. The lender to a math is bound to enquire into the necessity of the math
before he lends money.
A debutter estate may therefore be mortgaged to secure repayment of money
borrowed and applied to prevent its extinction by sequestration. For an absolute
alienation of debutter property, there must it would seem, be an imperative necessity
constraining the manager to make it.
Benefit of the Estate:
No indication is to be found in any of the cases to what is in this connection the
precise nature of the things to be included under the description benefit of the estate .
The preservation however of the estate from extinction the defence against hostile
litigation affecting it, the protection of it or portions from injury or deterioration by
inundation, these and such like things are held to be benefits. But a manager would
not be justified in selling debutter land for the purpose of investing the price of it so as
to bring in more income . In the case of public religious and charitable endowments it
is submitted that benefit to the estate and necessity should mean one and the same
thing; to recognize benefit of the estate as a ground for supporting an alienation of
debutter property, apart from strict necessity, would be to enlarge the powers of
shebaits or Dharmakartas far too much and slowly to undermine the very foundation
of the institution.
Permanent Leases Invalid:
It is beyond the powers of a manager to grant a permanent lease at a fixed rent
in the absence of unavoidable necessity for to fix the rent, though adequate at the
time, in perpetuity in lieu of giving the endowment the benefit of an augmentation of a
variable rent from time to time would be breach of duty on the part of the manager
and is not binding on the deity. In Palaniappa chetty V Sreemath Deivasikamony ,

Lord Atkinson observed : three authorities have been cited which establish that it is a
breach of duty on part of a shebait, unless constrained thereto by unavoidable
necessity, to grant a lease in perpetuity of debutter lands at a fixed rent, however
adequate that rent may be at the time of granting, by reason of the fact that, by his
means the debutter estate is deprived of the chance it would have, if the rent were
variable of deriving benefit from the enhancement in value in the future of that land
leased.
Obligation of Manager:
As the manager is subject to the obligation of a trustee, he should not however
purchase any property belonging to the endowment even though he pays an abundant
price for it . For all moneys expended in carrying out the obligations imposed upon
him as trustee, all expenditure incurred by him in defending his position as the shebait
unsuccessfully assailed , he is entitled to be reimbursed from the trust estate. This
right of indemnity is incident to his position as trustee and the liability in respect of
that indemnity is a charge on the estate .
It is the duty of dharmakarta or manager or shebait to maintain the customary
usages of the institution and if he fails to do so, he is guilty of trust, and still more so,
if he deliberately attempts to effect a vital change of usage and make it binding on the
worshippers by obtaining the decree of a court to establish it .
Liability to account - A shebait, manager or dharmakarta is bound to keep true
and correct accounts of all moneys received and disbursed . Any negligence on the
part of shebait in maintaining accounts cannot lead to adverse inference against deity .
A trustee or a shebait cannot delegate his authority, as fiduciary duties cannot be
the subject of delegation; but it is open to him to appoint a sub agent or manager of
the property; such appointment must only be as a means of carrying out of his own

duties himself and not for the purpose of delegating those duties by means of such
appointment.
Position of Asthal and Head of a mathAs regards the class of institutions known as maths , particularly in South India,
there have been conflicting views as to whether the head of the math is a trustee or a
corporation sole. It is now settled that he is neither the one nor the other; he is simply
the manager of an institution with wider powers those possessed by a dharmakarta,
manager or trustee of a temple. Indeed he acts in two distinct capacities; he is the
spiritual head of the endowment, the shebait of the deity. He is also the manager of the
properties and temporal affairs. The interconnection of the two aspects of the office
council in Ram Prakash Das V Anand Das relating to an asthal and its mahant.
Limitation of Suits:
Special rules of limitation have now been enacted in respect of Suits for the
recovery of immovable and movable properties which have been alienated by the
manager. Notwithstanding that in law a manager of a religious or charitable institution
is not an express trustee, for the purpose of the Limitation Act the property comprised
in a Hindu religious or charitable endowments, is by section 10 of the Indian
Limitation Act 1908 as amended by act 1 of 1929, deemed to be property vested in
trust for a specific purpose and manager is to be deemed the trustee thereof. The result
is that as against him and his legal representatives or his assigns, not being assigns for
valuable consideration a suit to follow the trust property or its proceeds or for an
account of such property or proceeds is not barred by a length of time.
To set aside Alienations:
A suit to set aside a transfer of property for value made by a manger of a
religious or charitable endowments is governed by Articles 134 A and 48 B of the
limitation Act prescribing periods of twelve and three years, according as the property

is immovable or movable, from the time when the transfer becomes known to the
plaintiff. The articles relate to suits by persons interested in the endowment to set
aside alienation made by the manager .
To recover property
A suit by the worshipper as next friend of deity for a declaration that the alienation
made by the Shebait is null and void or to restrain him by a permanent injunction from
alienating the debutter property is maintainable.
In the case of Mahajan Mahto v Gopi Nath Jee the question was whether a
Pujari can file a suit on behalf of the deity challenging an improper alienation made
by the Shebait? Agreeing with the well established proposition that in reality the
possession and management of the debutter property vests in the shebait, and this
carries with it the right to bring whatever suits are necessary for the protection of the
property, and every right of suit is vested in the deity, the court said that when the
Shebait himself is a culprint (and thus will not bring the suit) the Pujari, or for that
matter any devotee, can also file a suit to protect the interest of deity and challenge an
improper alienation made by the shebait. When a Shebait enters into a contract for
sale of debutter property for legal necessity, the contract is specifucally enforceable
A suit by the manager of a religious or charitable endowment to recover
possession of immovable property comprised in the endowment which has been
transferred, or of movable property which has been sold, by a previous manager for a
valuable consideration must be brought within twelve years from the death, removal
or resignation of the transferor or of the seller under articles 134 B and 134 C of the
Indian Limitation Act . Art 134 B would be apply to a suit to recover possession of
immovable property from alienee, even where there is an interval of time between the
death resignation of removal of the manager who effected the alienation in question
and the election or appointment of the subsequent manager .

Decrees against managers and heads:

A decree passed in a suit against a shebait, manager or dharmakarta, as
representing an idol or religious or charitable institutions is binding on his successors,
provided it was passed without any fraud or collusion. The reason is that the
successors in office from a continuing representation of the property of the idol or the
math ,
DEVOLUTION OF SHEBAITSHIP
Ordinarily, after the foundation of the endowment, whether private or public,
the shebaitship vests in the founder and his heirs. The founder can also appoint shebait
by his will, but in two cases the founders right to act or appoint shebait is lost:
namelyI.
II.

If he has disposed of;

If on account of some practice or usage, the mode of devolution is different.
The founder has power to appoint any person to manage the endowment on his

behalf; such a person is under his supervision and control, and he can remove him at
any time. But if the founder hands over all his rights to another and divests himself of
all rights (virtually amounting to vesting of shebaitship in another person), the founder
loses all powers and has no say in the matter.
As a general rule the devolution of the office of shebait is in accodance with the
will or deed of the endowment. If in the deed the founder has not provided for any
scheme of devolution of office, the devolution will be in accordance with any custom
or usage applicable to the endowment. If there is no such usage or custom, then
ordinary rules of succession will apply, i.e. the office and management will devolve
on the heirs of the founder, but the founder cannot lay down a line of succession

inconsistent with the general law. In the case of Ram Kali v Ram Ratan , it was held
by the Supreme Court that even though a female is personally disqualified from
officiating as pujari in the temple, she can get the seva puja performed by another
person.
In the case of Tagore v Tagore it was laid down the rule that all estates of
inheritance created by gift or will, so far as they are inconsistent with the general law
of inheritence are void. It has been seen that founder of the endowment has a right to
dispose of the dharmakartaship or shebaitship in any manner.
According to the decisions of the Supreme Court the office of Shebait is a
property. It is heritable property and therefore subject of devolution. If in the
endowment the right of devolution of Shebaitship has not been properly described,
then in the absence of any customs or usages it devolves among the heirs of the
founder.
A Shebait cannot nominate successor by will unless there be a usage justifying a
nomination by will.
In S. Duthinam alias Kuppam Utha & others v. L.S. Mariappan &
others, the Court upheld that shebaitship can be subject-matter of Will and such will
be a valid, that will not barred by Transfer of Property Act and it does not apply in
Hindu Law.
In Kacha Kant Seva Samity v. Kacha Kant Devi, a plaintiff has claimed that
deity in temple was gifted to their ancestor by the King, so it is their private deity and
they are the shebaits. He shows the ancient documents for showing appointments of
fore-father as Deshmukhya, local persons, testifying that since long plaintiff were
performing the puja and offering other services made to Goddess by the devotees. The
Supreme Court observed that, due to long possession and services of temple, he is
entitled to be declared as de facto Shebaits.

In Shambu Charan Shukla v. Sri Thakur Ladli Radha Chandra Madan

Gopal Ji Maharajcase the Supreme Court held that Shebaitship is in nature of
immovable property heritable by the widow of the last male holder unless there is a
usage or custom of a different nature in case where the founder has not disposed of the
Shebaits right in the endowment created by him.
Again the Calcutta High Court in Bhutnath Mandal v. Kalipad Mandal, held
that where the founders disposition in the deeds of endowment was that after the
death of the son of his brother to whom the Shebaitship was bequeathed, his male
discendants would become Shebaits one after another excluding the female heirs or
their descendants and only after the failure of determination of these previous series of
estates the nearest descendant of the founders brothers or the seniormost among them
if there be more than one of the same class, would become Shebait, the incapacity of
the legatees line to succeed because of the illegality of such disposition contrary to
the Hindu law of inheritance would not entitle any of three nephews of the founder
who were alive at the time of deeds of endowment to any benefit under those deeds.
Earlier in an another case Smt. Hiranbala Devi v. Vishnu Pad
Bhattacharya, the Calcutta High Court had observed that the executor of a will, who
dedicates his property in the name of the deity cannot direct any such order of
succession to the office of Shebait which is in violation of general rules of succession.
Where the founder of a religious endowment through a Will appoints A and
on the post of Shebait after the death of his wife and further adds a clause in it that in
case of death of A and B, his male descendant in order of seniority would become
Shebait, the court held that such a direction would be void.
The aforesaid view has been endorsed by the court in Anath Bandhu Dey v.
Krishnalal Das, where the court observed that if the founder of debutter had laid
down any mode of devolution of the office of Shebait, the office would devolve

according to that mode. In its absence, the office would devolve in accordance with
the Hindu Law of Succession i.e., the office of Shebait would be hereditary one. In
this case the founder had willed that the existing Shebait was to appoint his immediate
successor.
The Shebait appointed his four sons one after another and thereafter created a
line of succession contrary to the mode laid down by the founder. It was held that
except for the appointment of the Shebaits eldest son, the other appointments and the
line of succession prescribed were invalid. The office held reverted to the heirs of the
founder and the sole heir (only son) of the last nominated Shebait could not lay claim
to the office since there was no independent gift of the office in his favour.
There can be cases where the succession fails as laid down in the deed or the
Shebait has no right to appoint his successor or Shebait dies before appointing a
successor as has been stipulated in the deed. In such cases the right to appoint the
Shebait, or the office of Shebait reverts back to the profounder of the Matha or his
heirs whether he may be a male or female. If she is a female, shall get the religious
acts be performed through male coparceners.
Termination Of The Offfice Of Shebaitship
The office of shebait falls vacant on the death of the shebait; the office may also
fall vacant by resignation or by relinquishment. When a shebait resigns or relinquishes
his office, the office will go to the person next in order. It seems that supervening
disability of the shebait will not divest him of the office, unless there is a custom or
usage to this effect. The office also falls vacant on the removal of a shebait, if a
shebait is guilty of misconduct or abuse of his position, he can be removed by the
court. The court possess this power over both private and public endowments. The
court also has the power to frame a scheme for the management of the endowed
properties. However a shebait cannot be removed merely for some mistake on his part

or on account of laxity of management. He may be removed for treating endowed

properties as his own, or for immorality or gross moral turpitude.
CONCLUSION
Though under Hindu law an idol is a juristic person capable of holding property,
and the properties endowed for the temple vest in it, it can have no beneficial interest
in the endowment, and the true beneficiaries are the worshippers, as the real purpose
of a gift of properties to an idol is not to confer any benefit on God, but the acquisition
of spiritual benefit by providing opportunities and facilities for those who desire to
worship.
There by in the management of debutter by shebait by their legal position takes
an important part under the Hindu Religious and Charitable Endownment.