sale of debutter property

Sale of Debutter Property and Role of Shebait

During sale of debutter property, the role of the shebait or the manager is of extreme importance and the permission of the court is also mandatory.

Sale of Debutter Property

Deubutter property or 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. If you have a Debutter property or Debottar property and you want to sell the same, then you must consult the best property lawyer in West Bengal who can guide you in this process. Selling debottar property or the sale of debutter property in West Bengal requires permission from the court which can only be achieved by an experienced property lawyer in West Bengal and Kolkata.

Role of the Shebait in Sale of Debutter Property

The shebait is the manager of the property and there can be multiple shebaits for a debutter property. While debutter property was created to ensure that the property does not get sold to outsiders and the family protects the same for the benefit of a deity, such properties can also be sold under certain conditions with the permission of the court. The shebait is entrusted with the property to protect the same and use the proceeds or income generated out of the same for the benefit of the deity. However, there is a thin line between when the property cannot be sold and under what conditions the court may allow the sale of debutter property.

What is Debutter Property or Debottar Property?

There are two kinds of religious trusts both of which are ancient and highly popular in Hindu society. One of them is known as Debutter or endowment in favour of an idol, while the other can be described as mutt or marham, which means a religious establishment endowed for the benefit of certain classes of ascetics or religious men belonging to particular sects or congregations. An idol is not an infant, but it is similar to a minor and is considered a juristic person.

Per Indian Law, any property dedicated to Hindu religious or charitable purposes is called Debutter Property. Debutter means 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 the case of math that is an abode for students of religion, to the head of the math called Mahant.

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. Sale of debutter property is not possible without permission of the court since the same can be conducted illegally. 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 Patna 135.

Role of Shebait or Manager

The person who manages the debutter property is known as the Shebait in Bengal, Dharmakarta in Tamilnadu and Andhra Pradesh, and Panchayatdar in Tanjore and Malabar. The Shebait is not a manager although in English he is referred to as the manager. The Shebait is more like a trustee since he is the holder of an office of dignity and God. The Shebait or manager should consult a property lawyer in West Bengal or Kolkata to guide in the sale of debutter property.

Dedication and Creation of Debutter Property

Dedication of property is essential for the creation of an endowment and debutter property. A dedication consists of 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. In Rita Shaw And Ors. vs Dipendra Lal Shaw And Anr. 2006 (4) CHN 414, it has been held by the Calcutta High Court 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 donor’s heirs or other relations…” However, once the dedication is created, the further sale of debutter property is possible only with the intervention of the court. Sale of debutter property can be a complicated process unless an expert lawyer is consulted to guide you through the entire steps.

Transfer of Shebaiti Right with Selling Debutter Property

In Hari Shanker vs Shri Lala Ram Alias Shiam Sunder on 7 October, 2004, the Allahabad High Court held that the following are the judicially recognized exceptions to the general rule for transfer of debutter property. Transfer of shebaitship right by gift or will has been held to be permissible in the following three cases:-

(a) The transfer of Shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the deed of endowment, unless an ancient or reasonable custom or usage has been followed to be contrary.

(b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his deed of endowment, a particular shebait cannot change the line by succession by any deed or transfer unless the shebait transfers the totality of his rights in favour of succeeding shebait or shebaits during his life time.

(c) A sale of debutter property by shebait is also permissible for the benefit of idol or the deity or for imperious necessity under special Circumstances.

Generally, the circumstances under which the sale of debutter property is allowed: –

“(1) Where the transfer is not for any pecuniary benefit and the transferee is the next heir of transferer or stands in the line of succession of shebait and suffers no disqualification regarding the performance of the duties.

(2) When the sale of debutter property is made in the interests of deity itself and to meet some pressing necessity.

(3) When a valid institute is proved sanctioning alienation of Shebaiti right with a limited circle of purchasers who are potential shebaits of the deity or otherwise connected with the family.

Extinction Of Line Of Shebait

When the inheritance line of shebait laid down by the founder is extinct, or when the shebait to whom a power of nomination has been given does not exercise power, the managership reverts to the founder who endowed the property or his heirs. ‘ In case of the line of shebait is extinct, there is always an ultimate reversion to the founder or his heirs….”

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 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.”

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.

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.

Jurisprudence by Paton, 3rd Ed., page 349 and 350 says:

It has already been asserted that legal personality is an artificial creation of the law. Legal persons are all entities capable of being right-and-bearing units all entities recognised by the law as capable of being parties to legal relationship.

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 per 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 following 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. A gift once made to the Deity is irrevocable on any ground. Hence, sale of debutter property in West Bengal can only be applicable under certain grounds as decided by the court. This is why you need to consult a property lawyer in West Bengal who can guide you through this process.

Sale of Debutter Property With Permission of District Judge 

The Apex Court in Shriomani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Dass and Ors. has held that the Deity is a minor and if the property is dedicated for the religious purposes, welfare of the Deity could be looked into by the Shebait/Sarvakar/Manager appointed per the Deed of Dedication or by the Management as Guardian as Deity never attains and always remains minor. Any transfer made against the interest of the Deity will be void as other minors may attain majority, but the Deity cannot. Thus, temple where the Idol of the Deity was installed and other properties endowed for the Idol are unalienable, if it is restricted in the Deed of Dedication.

In Mukundji Mahraj v. Persotam Lalji Mahraj AIR 1957 All 77 it has been held that the first and foremost duty of a Mahant or a Shebait of an idol is to preserve and maintain the Idol, that is to say, as an object of worship since a Temple, the abode of the Idol is to be preserved and maintained at any cost. Property other than the Temple endowed for the Idol may have to be alienated if it is legally necessary for preservation of the Idol and its Temple and there is no restriction. No Shebait or Mahant/Manager can, therefore, have the right to alienate the Temple itself. As the Temple has a special sanctity distinct from other endowed property, to alienate the temple itself is to cut the root of the very existence of the idol in the habitation intended by the founder. Hindu sentiment views the alienation of a Temple as a sacrilege.

In Sree Sree Ishwar Narayan Jiu v. Soler [1937] I.L.R.2 Cal.133 a shebait of the deity applied to the court for permission to transfer a part of the debutter as he needed funds for repairing the rest. His Lordship (Ameer Ali, J.) held that a shebait, not a trustee in law, has to act for the deity according to the circumstances and his dealings with the property, vested in the deity, are valid transactions, if they complied with certain conditions, generally referred to as necessity; that there is no power in the court to grant an application filed by a shebait seeking sanction to transactions on the ground of necessity; and that there is no statute that deals with debutter and there can be no question of a shebait being appointed guardian of the properties of the deity.

In Shyamal Ranjan Mukerjee Son Of … vs Nirmal Ranjan Mukerjee 2007 WRIT – C No. – 56447 of 2003 [2007] INUPHC 14725, it has been held that:

  1. Property dedicated to and vested in Deity is unalienable if there is a restriction in the Deed of Dedication and any alienation made in contravention of such restriction is not binding on the Deity.
  2. The Temple which is the abode of the Deity is unalienable on any condition and the other properties vested in the Deity may be alienable in the event of legal necessity if there is no restriction in the Deed of Dedication with the prior permission of the concerned District Judge.
  3. Offering to the Deity or Endowment is an offering to the Almighty or for religious purposes and a person attached to the management of a religious Institution is entitled to get from the offering only per the Deed of Dedication or as per law.

For more details or help with selling debottar property or for sale of debutter property in West Bengal or Kolkata, you can consult Advocate Chenoy Ceil by filling out the form here.

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