JUDGMENT Sunil Ambwani, J.
1. The question, which calls for consideration in this second appeal whether a female Hindu can inherit 'shebaitship' of a Hindu temple? and whether she can execute a deed for management of such right in favour of her married daughter?
2. The plaintiff- appellant filed a suit for declaration that defendant Smt. Kampuri, widow of Shri Nandi did not have any right to inherit 'shebaitship' of Shri Thakur Brashbhanji Maharaj, an idol in a temple in village Barsana, including about 22 khotharis on the boundaries of its compound. The plaintiff alleged that these khotharies are the properties of Thakurji (the Deity), which belongs to the family of their common ancestor Shri Murlidhar. These khotharies are also used for kitchen and Bhandara of the temple, and some land in the North is used as Nohra. Shri Thakurji (the Deity) also possess agricultural land, which was recorded in consolidation operation in the name of Thakur Brashbhanji Maharaj. Apart from this declaration, the plaintiff also claimed that defendant No. 1 Smt. Kampuri did not have right to execute the documents dated 18.10.69 and 6.11.69 in favour of her daughter Smt. Mahadevi-defendant No. 2.
3. There is no dispute between the parties that the temple belongs to Thakurji and that they are heirs of common ancestor Shri Murlidhar. They are performing Sewa Puja and managing the properties of the deity, Thakurji. The Trial Court recorded a finding of fact that there was no reliable evidence to prove that Nandi was alive when his father Mendu died, and decreed the suit. The Appellate Court, however, allowed the Appeal after recording findings that Shri Medu one of the successor in the family of Murlidhar has two sons namely Shri Ghure the plaintiff and Shri Nandi. Shri Nandi died during life time of his father Medu and was survived by Ghure. Ghure inherited all the interest of his late father and was mutated in village records as she had no legal right of surviverhip of Shri Medu.
4. Shri Medu died some time in the year 1943 and 1944 when the Hindu Women's Rights to Property Act, 1937 (the Act) was in operation. Under Section 3(1) Smt. Kampuri inherited the rights of the widow of a predeceased son. The Appellate Court relied upon the judgment of Hon. Supreme Court in Smt. Angurbala Mullick v. Debabrata Mullic, AIR (38) 1951 SC 293 in which it was held that the expression any property' in Section 3(1) of the Act prima facie includes, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of property in law. of course, the property must be heritable property in respect to which alone the question of succession may legitimately arise. There is nothing in the provisions of the Act which excludes from its scope & operation the succession to shebaitship, which is a recognized form of property in Hindu Law.
5. The Appellate Court further held that there was no cogent and reliable evidence to show that there was any custom to the contrary. No witness was examined from the family of Murlidhar. The statement of Shri Ghure was interested one. The statement of Shri Gopal Das was very general, the statement of Shri Bal Kishan was all concoction. Smt. Somvati PW2 did not assert her rights on the assumption that the property belongs to Thakurji, and in the circumstances, it was held that rights of shebaitship were heritable and Smt. Kampuri had inherited these rights, which were so recognised by Section 3 (1) of the Hindu Women's Right to Properties Act, 1937. The first deed executed by Smt. Kampuri was in favour of here daughter to manage the shebait property, which were in her possession. By the other deed dated 18.10.69 she gifted her rights to her daughter.
6. Shri R.N. Bhalla, learned counsel for the appellants submits that right of shebaitship was not inherited and in any case it could not be inherited by a women as she could marry and leave the family. According to him the custom in the family prohibited Smt. Kampuri to inherit the shebaitship rights. He further submits that she could not have transferred these rights in favour of her married daughter.
7. Shri S.L. Mishra appearing for the respondents not only placed reliance upon Smt. Angurbala Mullick v. Debabrata Mullic (Supra) but also on Section 14 of the Hindu Succession Act, 1956, which provides that all properties possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as Cull owner thereof and not as a limited owner. He submits that Section 4 of the Act will have overriding effect on any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act. Such right is only subject to any law, which prevents the fragmentation of agricultural holding -or for selling or for devolution of pendency right in respect of such holding. In the explanation of Section 14 (1) the expression property includes both movables and immovables property acquired by female Hindu by inheritance, or on a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before or after her marriage, or by her own skill or exertion, or by purchase, or in any other manner whatsoever, and also any such property held by her before the commencement of this Act.