Angurbala Mullick v. Debabrata Mullick

stated at the outset that he · would not dispute as a proposition of law that shebaitship is property of ~ some kind the devolution of which is governed, in the absence of any direction to the contrary given by the founder, by the ordinary rule of succession under the Hindu law. He contended however, that the Hindu 26-3 S.C.India/68 t9Sl A!fgurbala Mullick v. Debabrata Mullick Mukhetjea J. 1951 Angurbala Mullick v. D~babrata Mullick MiJcher}ttl I. 1132 SUPREME COURT REPORTS [19511 Women's Rights to Property Act, which is a piece of special legislation enacted for a special purpose, does not use the expression "property" in a wide and unlimited sense; and it would appear clear from the provisions of the different sections of the Act that it could not have had in contemplation, and does not purport to affect, the rules of succession relating to the special and somewhat anomalous type of property which shebaitship admittedly is. The learned counsel referred in this connection to the provisions of sec­ tions 3 and 5 of the Act as well as to the preamble which sets out its object, and considerable stress was laid upon the pronouncement of the Federal Court in Umayal Achi v. Lakshmi Achi('). The other conten­ tion put forward by the learned counsel turns upon the construction of the relevant clause in the indenture referred to above which lay down the mode of devolu­ tion of the shebaitship, and his argument was that reading the clauses as a whole, it would be clear that the intention of the executants of the deed was that the "issue" of Mrityunjoy would succeed to him as shebaits in the first instance and that no other heir of Mrityunjoy basing his claim either upon general law or any special enactment would be entitled to become shebait so long as any issue of Mrityunjoy was alive. A further question relating to the construction of the deed, raised by Mr. Banerjee, was that the words "heirs of the said Mrityun;oy" occurring in the deed arc to be construed not as words of devolution but of direct gift to the heirs under the deed and consequently the expression "heirs" must mean those who could legally claim :is heirs at the time when the grant was made : and any subsequent change in the law could not affect the position. We will first advert to and examine the prov1s1on• of the Hindu Women's Rights to Property Act and see whether the Act includes within its scope a property of such character as shebaitship is. The exact legal position of a shebait may not be capable of precise definition but its implications are (I) [194.5) F.C.R. 1. f. r r i, S.C.R. . SUPREME COURT REPORTS 1133 fairly well established. It is settled by the pronounce­ ment of the Judicial Committee in Vidya Varuti v. Bal usami (1) that the relation of a shebait in regard to debutter property is not that of a trustee to trust pro­ perty under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the diety or the institution itself as a juristic person and the shebait or mahant is a mere manager. 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 pro- . perty. As the Judicial Committee observed in the above case, in almost all such endowments the she­ bait has a share in the usufruct of the debutter pro­ perty 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. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar · Mukherji v. Bhupendra Nath Mukherji(2 ) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary(8) and again in Bhabatari~i v. Ashalata(4 ), The effect of the first two decisions, as the Privy Couru:il pointed out in the last case, was to emphasize (I) 48 I.A. 302. (3) 63 I. A. 448. (2) I.L.R. 60 CaL 4S2. 27-3 S.C.lndia/68 (4) 70 I.A. 57. 1951 Ang_urb11la Mullick v. Debabrata Mullick · Mukher}ea J. 1951 Angurbala Mu//ick­ v. · Dehahrata Mullick Mukhtrj.a J. 1134 SUPREME COURT REPORTS. [1951] the proprietary element in the shehaiti right, and to show that though in some respects anomalous, it was ( an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee Sree Greedharreejjee v. Rumanlolljee Gossamee('), 'when the worship of a Thakoor 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 circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shebaitship in any. particular manner-and this right of disposition is inherent in the founder-or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of r inheritance from the founder. Turning now to the Hindu Women's Rights to Pro­ perty Act, it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down :- "Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of section 3 shall apply where a Hindu dies intestate." Section 3( 1) then provides :- "When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any pro­ perty, and when a Hindu governed by any other school r of Hindu law ...... dies intestate leaving separate pro- ~ perty, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section ( 3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall --. inherit in like manner as a son if there is no son sur­ viving of such predeceased son, and shall inherit in (I) 161.A. 137. S.C.R. SUPREME COURT REPORTS li35 like manner as a son's son if there is surviving a ·son or son's son of such predeceased son; Provided further that the same provts1on shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son." \ Sub-sections (2) and ( 4) of section 3 ate not material ( for our present purpose. Sub-section (3) lays down :- . "Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate .......... " Section 4 lays down. that the •Act is . not to operate retrospectively. The only other section in the Act which has been referred to in the course of arguments is .section 5 which runs as follows :- "For the purposes of this Act a person shall be. deemed to die intestate in respect of all property · ot which he has not made a testamentary disposition which is capable of taking effect." It will be seen that section 3(1) abrogates the general rule of Hindu law according to which a ·widow succeeds to her deceased husband's property only in default of male issue and she is now entitled to the . same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached . to section 3 ( 1) to the widow of a predeceased son and also to the widow of a predeceased son of a predeceased son. Section 3(1) speaks of "any property". The expression 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 pre>­ perty in respect to which alone. the question of succession may legitimately arise. Reliance has been placed f:iy Mr. Banerjee, first of all, upon the object or purpose for which the statute was passed. The object, as set out in the preamble, is to give better rights to women in respect to property; in other words, the object of the legislation is to confer 1951 Angurbala Mullick V.· Debabrata Mullick Mukherjea i. 1951 Angurbala Mul/itlt v. Debabrata MuJ//clt Muk/rerfea J. 1136 SUPREME COURT Rfil'ORTS [1951! larger rights upon women in comparison to what they enjoyed under the ordinary Hindu law. In our opinion, the preamble does not throw any light on the question as to whether the Act does or does not include within its ambit rights and interest of a shebait. Mr. Banerjee' next invokes in support of his conten tion the provisions of sub.section (3) of section 3, which lays down that the interest devolving upon a widow under the provisions of the Act will be the limit­ ed interest known as the "Hindu women's estate''. It is argued that this distinction between the Hindu woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular pre>­ perty, but this distinction is unmeaning when applied to shebaiti right, for the nature of the interest enjoyed by a. male or a female shebait is exactly the same. This argument does not appear to us to be at all con­ vincing. Precise! y the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect oi the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself and they exist irres­ pective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female shebaits may be identical, then: is yet a distinction between them as regards the other limitation or characteristic of a Hindu women's estate. When a Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property· goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the sh~blliti right would not pass to her stridhana heirs but would r ( S.C.R. SUPREME COURT REPORTS 1137 go to heirs of the last shebait(1). Sub-section (3) of section 3, therefore, is of no assistance to Mr. Banerjee's client. Mr. Banerjee then contends that section . 5 of the Hindu Woman's Rights to Property Act affords a clear indication that the Act is intended to be applicable only to property in respect to which a testamentary disposition is possible. This section, it may be noted was added by the amending Act XI of 1938 and the object apparently was to explain what is meant by "dying intestate". It says that for the purposes of the Act -a person shall be deemed to die intestate in respect of all property of which he has not made a festament­ ary disposition which is capable of taking effect. Mr. Banerjee would read the section as qualifying the meaning of the word "property" as used in section 3(1) or rather as engrafting a limitation upon it. What he says is, that the language of the section would be wholly inappropriate if the Act is applicable to pro­ perties in respect to which, as in the case of shebait­ ship, no testamentary disposition is possible. This argument, in our opinion, cannot be accepted as sound. Section 2 of the Act which has been referred to above makes the provisions of section 3 applicable only when a Hindu dies intestate. A person is ordinarily regard­ ed as dying intestate when he has left no will dispos.­ 'ing of his properties. A doubt might arise as to whether this Act would apply when a will was actually executed by a deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identi­ cal. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an opera­ tive will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is "non-testamentable", as: (I} Anurtlgi kuer v. Part1111a111md. t\ .. I. R. 1939 Pat. 1. 1951 A._ngurbala Mullicki v. Debabrata1 Mullick · Mukherjea 1. 1951 Angurbala Mullick v. Debabrata Mul/ic/o Mukherjea I. 1138 SUPREME COURT REPORTS (1951] Mr. Banerjee puts it, no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression "property" as used in section 3( l) has a limited or restricted interpretation and is not applic­ able to shebaitship, which is recognised as property in Hindu law. ' Reference may now be made to the decision of the Federal Court in Umayal Achi v. Llkshmi Achi('), upon which the learned appellate Judges of the High Court practically based their decision. The facts of ) that case stripped of unnecessary details are that one Arunachalam Chettiar who was a resident of Madras and owned considerable properties, moveable and immoveable, both within and outside British India, died leaving behind him two widows and the widow of a predeceased son. The deceased had left a will but the legacies given by the same exhausted only a small portion of his estate so that with regard to the r rest which was of considerable value he died intestate. The deceased was in possession of several trust proper- ties in regard to which there were certain religious and charitable trusts and the direction in the will was that the management of these trusts should devolve upon his heirs. The son's widow instituted a suit in the Court of the Subordinate Judge at Devakottai for administration of the estate and for partition and ,_ separate possession of a half share of the same, basing her claim upon the Hindu Women's Rights to Property Act. The suit was resisted by the two widows as well as by the executqrs appointed under the will of the deceased and it was pleaded, intra alia, that the Hindu Women's Rights to Property Act was ultra vi res the legislature and that in any event it was not applicable as the propositus did not die intestate. The trial court ~ held first that the Act was not ultra vires and was operative on all properties with the exception of (I} [1945J F. C.R. I. ' . ' S.C.R. SUPREME COURT REPORTS 1139 agricultural lands and this finding was affirmed by the High Court on appeal and also on further appeal to the Federal Court by the majority of the Judges of the Court. The second finding of the trial Judge was that the deceased died intestate with regard to a considerable amount of property and con­ sequently the plaintiff was entitled to a · half share thereof. The High Court affirmed this finding with this variation that her claim to moveable situated outside British India was not allowed but the Federal Court reversed the decision of the High Court on this point and restored that of the trial Judge. The other point and that is the point with which we are concerned in the · present case, related to the devolution of the trust es­ tates which were held by the testator. Both the courts ~ below concurred in holding that these trusts should go · to the heirs of the deceased under the ordinary Hindu law and that the provisions of the Hindu Women's Rights to ·Property Act were not attracted to the trusts. This decision was upheld by the majority of the Judges in the Federal Court and the point was actually dealt with by Varadachariar J. in his judg­ ment. The view expressed by the learned Judge is ~ that the Hindu Women's Rights to Property Act was intended to apply only to properties beneficially owned by the propositus and it was not applicable to rights in the nature of trusteeship. It seems to us that, properly construed, this decision does not stand in the way of the appellant. In the first place, we do not know at all what the nature of these trusts was. The 'i- learned Judge observed himself in his judgment . that there was little or no evidence as to the terms of the foundations in respect of any of the trusts "managed" by the deceased. This observation, taken along with the terms of the documents referred to in the judgment, would go to show that the deceased was a mere man~ger of the trusts and in respect of some of them ~ at least he was. the manager jointly with other persons. In the High Court, Sir Lionel Leach C. J. expressly held that in no sense could the trust properties be regarded as the separate property of the testator and 1951 Angurbala Mullick v. Debabrata Mullick Mukherjea J. 1951 Angurbala Mu/liclo v. Debahrata Mullick Mulcherjea J. consequentfy Act XVIII of 1937 could not apply to such a case. V aradachariar J. observed with reference ~ to the documents relied upon by the . learned counsel for the appellant that they only provided for "manage­ ment by his heirs." At any rate, we have no materials to hold that in regard to the trusts that formed the subject-matter of that suit the trustees had any beneficial or personal interest in the trust properties. ~ the indications, on the other hand, are clearly in the opposite direction. In these circumstances, no question arises in the present case of controverting the proposi- tion of law that V aradachariar J. purported to lay down, namely, that the Hindu Women's Rights to Property Act could not govern succession to property in respect to which the propositus had no beneficial enjoyment. It is not possible, however, to enunciate ~ on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is normally involved would not be governed by the provisions of the Act. There are indeed one or two observations ·of the learned Judge in his judgment, not very definitely expressed, from which it is not impossible to draw an inference in favour of the respondent, but we think that they ~ should be construed in the light of the facts and the actual decision in the case. The observation that Hindu law regards trusteeship as property for certain purposes is of a most general character and it has to be noted that not only the word "shebaitship" has not been used by the learned Judge but he does not even confine his remarks even to religious trusts. Morever, .;. trusteeship is not certainly equivalent to shebaitship. On the other hand, the reference made by the learned Judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had no personal interest in the trust property. The object of the Act as stated above, is to give better rights to women in respect of "­ property. If a trusteeship, evc;_n if it is regarded as P.roP<:rty, carries with it no emoluments or any benefi- cial interest for the trustee and consists of nothing else S.C.R. SUPREME COURT REPORTS 1141 but a bundle of obligations and duties, it might pos­ sibly be said that the giving of a share iD- such rights to a Hindu widow would not in any way improve her position. But the position would be obviously differen.t if there is a beneficial interest of a substantial kind inseparably connected with· the duties of a particular office. Then again, the learned Judge possibly used the expression "private property" in a ·somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own.· The reference to section 3(3) of the Hindu Women's Rights to Property Ast is, as we have indicated already, not much helpful for the purpose of construing the Act. After all, we must take the decision as it stands and it is not right to call into aid a particulaI1 reason assign­ ed by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to. lay down. We think that a very proper view of the effect of this decision of the Federal Court has been taken by a Division Bench of the Madras High Court in P. Suryanarayanacharyulu v. P. Seshamma(1). There the question arose in connection with the rights asso­ ciated with the office of archakatavam, which is a here­ ditary religious office and the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the Federal Court in Umayal Achi v. Lakshmi Achi(2) has no application to a case relating to the office ·of archak_atvan. It is pointed out by the Madras High Court that though the observations of the learned Judge in the Federal Court are wide, the decision proceeded only . on the main ground that the Act governs succession to property beneficially owned by the propositus. In our opinion, the same reasons apply to the case of a hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent. of the net income of the endowed properties has been given to the shebait or shebaits for the time being as their remun~ration. Our conclusion, therefore, • is that there is nothing in 1(1) A.I .. 9SOMad. 103. (2) [1945] F.C.R. I. 1951 Angurbala Mullick v. Debabrata Mullick Mukherjea J. 19Sl A._ngurbala Mui/kl< v. Debabrata Mullick Mukherjea I. any of the provisions of the Hindu Women's Rights to Property Act which excludes from the. s~ope a_nd operation of the Act succession to shebaitship which is a recognized form of property in Hindu law. Assuming that the word "property" in Act XVIII of 1937 is to be interpreted to mean property in its common and ordinarily accepted sense and is not to be extended to any special or peculiar type of property, even then we think that the other contention of Mr. Tek Chand is perfectly sound. Succession to shebaitship, even though there is an ingredient of office in it, follows succession to ordinary or secular property. It is the general law of succession that governs succes­ sion to shebaitship as well. While the general law has now been changed hy reason of Act XVIII of 1937, there does not appear to be any cogent reason why the law as it stands at present should not be made applic­ able in the case of devolution of shebaitship. The last contention of Mr. Tek Chand that under the indenture itself the wife of Mrityunjoy and not Kiranbala particularly has been given rights of succes­ sion to shebaitship prior to any issue of Mrityunjoy is manifestly untenable and as the learned counsel was not at all serious in pressing this point, we consider it unnecessary to discuss it any further. It remains for us now to advert to and consider the other contentions raised by Mr. B;merjee wi}ich depend upon the construction of the refevant clauses in the indenture. It may be stated at the outset that we are not at all impressed by the argument of the learned counsel that the words "heirs of the said Mrityunjoy" occurring in the document are to be construed as words not of inheritance but of grant. Such construction would be against the language and the whole tenor of the document. It is to be noted that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the diety and was looking after its worship and service since it was installed. It was in the fitness of things therefore that i S.C.R. SUPREME COURT REPORTS 1143 Mrityunjoy should request his mother to become the }' fi'rst shebait and this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebaii: and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebait­ ship has been directed to be in the line of heirs of the r founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi(1) with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was not reasonable to construe such words as words of gift and not of devolution. On the question of construction Mr. B~nerjee's main argument is that if the relevant provisions of the in­ denture dealing with devolution of shebaitship are read as a whole, it. will be manifest that the executants of the deed intended that the issue of Mrityunjoy were to have preference over other heirs in the matter of succession to shebaitship; and that an heir who is not an issue could not come in . so long as an issue remain­ ed alive. The relevant portion of the document has been set out already and it provides in the first place that after the death of Nitto Sundari, her son the said Mrityunjoy Mullick, shall become the shebait, after him his wife Smt. Kiranbala Dassi, and after her death, the heirs of the said Mrityunjoy Mullick shall be and act as shebaits. Then there is a proviso to the effect that if the said Mrityunjoy shall happen to die witheut any issue or without giving any authority to his wife; him surviving, to adopt, then in such case it shall be competent for Mrityunjoy to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said Mrityunjoy Mullick shall happen to die without any issue, the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs undet (1) [1945] F.C.R. 1. ~19Sl Angurbala Mu/lick v. Debahrata Mullick Mukherjea I. 19SI Angurhala Mullick v. Debabrata Mullick Mukherjea J. 1144 SUPREME COURT REPORTS [1951 l Hindu law. Mr. Banerjee lays stress upon the pro­ viso, particularly the last portion of it and it contains, according to him, a clear direction that it is only on the failure of issue that the heirs of Mrityunjoy can come in as shebaits. In order that the proviso may be reconciled with the clause that precedes it, Mr. Banerjee invites us to hold that the word "heirs" in the previous clause should be taken to mean only the issue of Mrityunjoy. We do not think that the interpretation suggested by the learned consel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main pr<>­ vision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or natural sense. Mr. Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebait­ ship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any' authority to his wife to .adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exer~ised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular conting­ ency . that is mentioned here is fulfilled, Mrityunjoy -S.C.R. SUPREME COURT REPORTS 1145 would be entitled to appoint a shebait, although no such power can be deduced from the general clause. In case the contingency does happen l:iut the wife is not given any power of adoption and no appointment is also made by Mrityunjoy, the consequence woul_d certainly be that the other heirs of Mrityunjoy woul(l succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of Mrity­ ·unjoy. As Mrityunjoy actually left a son, the contin­ gency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and ·it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. Banerjee also must fail. The result, therefore, is that, in our opinion, the appeal succeeds. The judgment and decree of both the courts below are set aside except the declaration of the right of residence of the plaintiff which was given by the trial court and not disturbed in appeal. In addition to that, it will be decalred _that the plaint­ iff is entitled to joint shebaitship with the defendant in respect of the debutter created by the indenture of October 10, 1934. We direct the taxed c0st.S of both the parties in all the courts to be paid out of the debuttar estate. CHANDRASEKHARA A1YAR J.-1 agree with the con­ clusion reached by my thi:ee learned brothers in the judgment just now pronounced, but I would like to add a few words on · two points on which I do not sec eye to eye with them fully. In support of his contention that the word "property" in the Hindu Women's Rights to Property Act cannot be construed so comprehensively as to include a she­ bai~ right, Mr. Bannerjee referred to sub-clause (3) of secnon 3, which speaks of "any interest devolving on a Hindu widow under the provisions of this section 1951 Angurbala Mullick v. Debabrata Mullick· Mukher}ea J. 1951 Angurbala Mullick ... Dehabrata Mullick Chandrasekhara Ai'yar J. 1146 SUPREME COURT REPORTS (1951] shall be the limited interest known as a Hindu woman's estate"; and he urged that the conception of such an estate as distinguished from an absolute interest is inapplicable to such a right of property. This is a point that deserves some attention. In dealing with it, we are not thinking of any property endowed to the Thakur or the deity and its intrinsic legal characteris­ tics as constituting a religious endowment. We have in mind the shebaitship itself as a species of property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a "Hindu women's estate" as con­ trasted with a full or absolute estate taken by a male heir? Does a male heir get higher rights than a Hindu widow? and if so, what are they? So far as a shebait­ ship is concerned, the office does not enure beyond the lifetime of the holder, whether male or female, and is generally inalienable. It is res extra commercium. A male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on alien­ ability arises out of the nature of the property and not out of the nature of the estate taken by the heir. In the very nature of things, there can be no alienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line of reasoning, and it lends support to the view taken in Umayal Achi v. Lakshmi Achi(') by Sir Varadachariar, where, referring to sub-clause (3) of section 3, he observes :- "This provision will be appropriate enough in relation to private property where the woman's estate is different from the interest taken by a male heir. But in respect of trusteeship or other similar office the law makes no difference between the interest taken by a male heir and the interest taken by a female heir." But it does not decisively outweigh the several con­ siderations set forth in the judgment just now delivered .. ' by my learned brother Mukherjea J. for construing the "'c word "property" in a wider serue so as to include the shebaiti right also. If there is no legal objection to a (1) [1945] F.C.R. !. S.C.R. SUPREME COURT REPORTS 1147 woman being a shebait under Hindu law, there is no particular ·reason why she should be excl?de~ from succeeding to the same under an Act which llllposes no restriction or prohibition either in express terms, or by necessary implication. The next point relates to the construction of the deed of indenture executed by Nittamony Dasi and Mrityunjoy. I am of the opinion that the technica~ rules of interpretation of provisos and exceptions, witfi reference to their scope and legal effect, adopted in construing statutes should. not ordinarily be imported in interpreting deeds and documents executed by lay­ men. In ordinary deeds, a proviso may sometimes be in the nature of an explanation of the main clause or provision; and we must look not merely at the form of the language but its substarn;e, the governing idea or purpose of the deed, the context and the surround­ ing circumstances together the real meaning or inten­ tion of the executant. Judged in this- light and adopting a broad construction, it appe~s to ine that what Mrity­ unjoy had in mind when he executed the indenture was, as made clear in the proviso, that his issue (born of his loins) or any person whom his wife may adopt on his authority, .should succeed to the shebaiti in the lint instance; and secondly, in default-of such contin­ gency, the shebaitship should go to any person who may be nominated in this behalf by his will; and thirdly in default of issue (born or adopted) and in default of nomination by will (which is necessarily implied), the right was to devolve . upon his heirs under the Hindu law. In other words, the proviso explains what he means by his heirs in the preceding clause. In this view, the respondent will succeed to the office in pre­ ference to the_ appellant. But the construction placed on the indenture by my learned brothers is also a possible one and I do not desire to express any dissent from the result, they have reached. Appeal. al.lowed. Agent for appellant : Ganpat Rai. Agent for respondent : P. K. Bose. 1951 Angurbala· Mullick y,; . Debabrata Mullick Chandrasekhara· A.;yar I.