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. This article looks at sale of Debutter or Debottar property and the procedure to apply to court to showcase legal necessity for the sale. Shebaits managing the property can sell, develop, or lease land belonging to the deity as long as the deity is taken care of and the usage of property is backed by legal necessity.
However, religion and charity is often intermixed in India and it has been held by the Hon’ble Supreme Court Ramchandra 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.
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/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.
In accordance with Indian Law, any property absolutely dedicated to Hindu 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 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.
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 really a manager although in English he is referred to as the manager. The Shebait is more like trustee since he is the holder of an office of dignity and God.
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”. A shebait is a mere manager, not the owner of the debutter property, the idol is the owner, but only in an ideal sense. There is always a human personality linked up with this ideal personality, and the shebait or manager of the deity must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property. There is no provision that obliges a shebait to take prior permission of any court for alienating a property owned by the deity, it is only that if the alienation is challenged at a future date, the alienee, in spite of the order, will have to prove as a fact that there was legal necessity for the transfer or that he made enquiries and was reasonably satisfied that such necessity existed. A shebait is not a trustee in the proper sense of the word and the Indian Trusts Act, 1882 has no application to the case of a Hindu religious endowment. The court, therefore, has no jurisdiction to grant an application by a shebait to sanction his transaction on the ground of necessity. (B.K. Mukherjea’s The Hindu Law of Religious and Charitable Trusts, 5th ed. by A.C. Sen, paras.4.1A, 6.15, 6.16, 6.38, 6.67 and 6.38).
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 Utsarga or 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 donor’s heirs or other relations.
In this respect, the two decisions of the Hon’ble 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.
In Hari Shanker Son Of Shri Amir Chand … vs Shri Lala Ram Alias Shiam Sunder … on 7 October, 2004, it has been 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 shebauits during his life time.
(c) A transfer by Shebaiti right is also permissible for the benefit of idol or the deity or for imperious necessity under special Circumstances.
Shri B.K. Mukherjee in para 5.37 of Chapter 5 on page 232, 4th edition of the above book has mentioned the circumstances under which the office of shebait can be transferred: –
“(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 transfer 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.
In para 5.30 of Mr. B.K’s Mukherjee book of Chapter 5 it has been stated that a founder of an endowment can always confer upon a shebait appointed by him the right of nominating his successor. When such authority is not specially given to him, no shebait can appoint a successor to succeed to him in his office.
When the lien of shebait laid down by the founder is extinct, 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….”
Further, Sarvakar is fully competent to transfer the property and any term or condition in the deed restraining Sarvakar/Manager of which temple or property vested in deity is void under Section 10 of the Transfer of Property Act and a Manager is fully competent to alienate a Debutter property for legal necessity or for the benefit of the Deity (Almighty).
“Transfer of property” is defined under Section 5 of the Transfer of Property Act as:-
In the following Sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more than living persons, or to himself, (or to himself) and one or more other living persons; and “to transfer property” is to perform such act.
(In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals).
According to Section 5 of the Transfer of Property Act, transfer of property means an act by which a living person conveys property, in present or in future, to one or more than living persons, or to himself, (or to himself) and one or more other living persons; and “to transfer property” is to perform such act. Living person has been defined which includes a company or association or body of individuals whether incorporated or not.
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 in Shiromani 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 individual’s 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 1
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. Salmond said: ‘So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties.
…Legal personality may be granted to entities other than individual human beings, e.g. a group of human beings, a fund, an idol. Twenty men may form a corporation which may sue and be sued in the corporate name. An idol may be regarded as s legal persona in itself, or a particular fund may be incorporated. It is clear that, neither the idol nor the fund can carry out the activities incidental to litigation or other activities incidental to the carrying on of legal relationship, e.g., the signing of a contract: and, of necessity, the law recognises certain human agents as representatives of the idol or of the fund. The acts of such agents, however (within limits set by the law and when they are acting as such), are imputed to the legal persona of the idol and are not the juristic acts of the human agents themselves. This is no mere academic distinction, for it is the legal persona of the idol that is bound to the legal persona of the idol that is bound to the legal relationships created, not that of the agent. Legal personality than refers to the particular device by which the law creates or recognizes units to which it ascribes certain powers and capacities.” Analytical and Historical Jurisprudence, 3rd Edn. At page 357 describes “person”;
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.
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 in accordance with 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 Deity cannot.
Temple where Idol of the Deity was installed and other property endowed for the purposes of Idol are unalienable, if it is restricted in 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 inasmuch as a Temple, the abode of the Idol is to be preserved and maintained at any cost. Property other than the Temple endowed for the purposes of the Idol may have to be alienated if it is absolutely legally necessary for the purpose of preservation of the Idol and its Temple and there is no restriction. No Shebait or Mahant/Manager can, therefore, have the right of alienating the Temple itself. As the Temple has a special sancity distinct from other endowed property, to alienate the temple itself is to cut 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  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  INUPHC 14725, it has been held that:
“In the Hindu Minority and Guardianship Act, Section 8(2) is also there which says that if the property is vested in Hindu Minor, it could be transferred with the prior permission of the District Judge. So far as the deity is concerned, it is always considered a minor a juristic person’ who is represented through Shebait/Sarvakar/Manager and in case of a minor in the Hindu Law protection has been given to minor to the effect that the property cannot be sold without permission of the District Judge. The question under consideration is whether such protection could also be available to deity who is also minor or whether there could be such restriction on the Shebait who manages the affairs of the deity a ‘minor’.
The law has already created a restriction on transfer of charitable and Trust properties and made certain provisions so far as the charitable societies are concerned. So far as societies established for charitable purposes which are governed by the Societies Registration Act are concerned, Section 5A of the Societies Registration Act makes it clear that no transfer is permissible without prior approval of the District Judge. Section 5A of the Society Registration Act is quoted below:
Section 5A, Restriction on transfer of property- (1) Notwithstanding anything contained in any law, contract or other instrument to the contrary, it shall not be lawful for the governing body of a society registered under this Act or any of its members to transfer without the previous approval of the Court, any immovable property belonging to such society.
In Shyamal Ranjan Mukerjee Son Of … vs Nirmal Ranjan Mukerjee WRIT – C No. – 56447 of 2003  INUPHC 14725, it has been held that:
However, in Smt. Shakuntala Devi Dalmia & Anr. v. Howrah Municipal Corporation & Ors. W.P. No. 9660 (W) of 2006, it has been held that for transfer of debutter property there is no need to obtain permission or leave of the District Judge when the transfer is essential and there is legal necessity for the same. It was further held that the warrant for entering into any transaction on behalf of the deity for sale of debutter property can only be raised or questioned by one claiming interest in the property, such as any successor to the office of the shebaits or any other person claiming interest in the property. No one else has the right to question the sale of debbutter property if it was for the benefit of the Deity. However, this view is contradictory to that of the court presented in Shyamal Ranjan Mukerjee Son Of … vs Nirmal Ranjan Mukerjee WRIT – C No. – 56447 of 2003  INUPHC 14725, wherein it has been held that properties vested in Deity may be alienable in the event of legal necessity with the prior permission of the concerned District Judge.
In Kutchi Lal Rameshwar Ashram Trust … vs Collector,Haridwar on 22 September, 2017, the Hon’ble Supreme Court held that the Government cannot escheat over any debutter property without following the right procedure, especially since the Collector being an administrative officer cannot take the powers of a Court to decide ownership to property under Section 29 of the Hindu Succession Act 1958.
“An estate taken by escheat is subject to the trusts, charges and legal obligations (if any) previously affecting the estate, e.g., mortgages and other encumbrances. This section rules that in case of failure of all the heirs recognised under the Act, on the death of the owner intestate, his or her property devolves on the Government. The Government takes the property subject to all legal obligations and liabilities to which an heir would have been subject if the property had devolved upon the heir by succession. The word ‘failure’ used in the section is very clear and indicative of the fact that there must be a absence of heirs of the intestate.” In Rambir Das v Kalyan Das9 a Bench of two learned Judges of this Court dealt with a case of Shebaitship. Citing the authority of Justice B K Mukherjea’s celebrated Tagore Law Lectures with approval, this Court took note of the position of law elucidated in the lectures :
“As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in the founder, it follows the line of founder’s heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder.” On the question of escheat, Justice B K Mukherjea observes thus :
“As there is always an ultimate reversion to the founder or his heirs, in case the line of Shebaits is extinct, strictly speaking no question of escheat arises so far as the devolution of shebaitship is concerned. But cases may be imagined where the founder also has left no heirs, and in such cases the founder’s properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a Shebait for the debutter property. It cannot be said that the State receiving a dedicated property by escheat can put an end to the trust and treat it as secular property.” In other words, even in a situation where a founder or his line of heirs is extinct, and the properties escheat to the state, the state which receives a dedicated property is 9 (1997) 4 SCC 102 subject to the trust and cannot treat it in the manner of a secular property. In fact, we may note, Section 29 expressly stipulates that the state “shall take the property subject to all the obligations and liabilities to which an heir would have been subject.” 19 In deciding this case, this Court must also bear in mind the settled principle that unless the founder of a math or religious institution has laid down the principle governing succession to the endowment, succession is regulated by the custom or usage of the institution. This principle was enunciated over six decades ago by this Court in Mahant Sital Das v Sant Ram10, rendered by Justice B K Mukherjea, speaking for a Bench of four judges :
“10. In the appeal before us the contentions raised by the parties primarily centre round the point as to whether after the death of Kishore Das, the plaintiff or Defendant 3 acquired the rights of Mahant in regard to the Thakardwara in dispute. The law is well settled that succession to Mahantship of a Math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. As the Judicial Committee laid down [ Vide Genda Puri v. Chhatar Puri, 13 IA 100, 105] in one of the many cases on this point; “in determining who is entitled to succeed as Mohunt, the only law to be observed is to be found in the custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it…. Mere infirmity of the title of the defendant, who is in possession, will not help the plaintiff.”
The Hon’ble Supreme Court held that: “Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure 1908.”
In Malay Kumar Chatterjee vs The Official Trustee Of West Bengal, on 7 September, 2015, the Hon’ble Calcutta High Court held that debutter properties can be alienated, developed or given on lease as long as it is for the benefit of the deity.
“Considering that in the scheme the place of abode of the deity has been preserved, I permit the official trustee to invite offers for development of the property.”
The Hon’ble Calcutta High Court further held:
“That under legal necessity the court can direct alienation notwithstanding a restrictive clause in the deed can be found approval from Justice B. K. Mukherjea’s Book on Hindu Law of Religious & Charitable Trust, Tagore Law Lectures, 5th Edition, Chapter 5, Pages 277-278, relevant portions whereof are set out below:
“…An interesting question was raised in Ramchandraji v Lalji Singh whether a condition in a deed of endowment that the Shebait shall not alienate or encumber the properties was valid. It was observed that it would not be in the interest of the institution to deprive the Shebait of the power of alienation in case of necessity or benefit, and the condition was accordingly held to be bad on the principle underlying section 10 of the Transfer of Property Act.
The rights of a Shebait in this respect are analogous to those of a manager of an infant heir, as laid down in Hunooman Pershad Pandey’s case…
6.39 The transaction in Hunooman Pershad’s case was one by way of mortgage or charge for money received as loan, but the same principle applies to other forms of alienation like sale or permanent lease. No sale or mortgage of the Debutter property by the Shebait would be binding on the deity unless it is supported by legal necessity or benefit to the idol. A Shebait certainly can create proper derivative tenures and estates which are conformable to ordinary usage, but he cannot create, without unavoidable necessity, a lease on a fixed rental for all the time to come, however adequate that rent may be at the time of granting the lease. The reason is that by these means “the Debutter estate would be deprived of the chance it would have, if the rent were variable, of deriving benefit from the enhancement in value in the future of the lands leased”. This proposition of law was laid down by the Privy Council as early as in 1869 in the well-known case of Maharanee Shibessouree v Mothoora Nath, and it has been reiterated by them in a large number of cases since then. See, Seena Peena Reena v Chokklingam, Abhiram Goswami v Syama Charan, Palanipappa v Devasikamony.”
Thus, it is evident that debutter property can be sold in case of legal necessity if the shebaits are unable to manage the property, provided that the deity is well protected and shebas continue. If you have any experiences or suggestions, do comment.