Delhi High Court
Shri U.N. Bhardwaj vs Shri Y.N. Bhardwaj & Ors on 18 October, 2010
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 29.04.2010
Date of decision: 18.10.2010
+ I.A. Nos. 3761/2005, 3762/2005, 10176/2006,
10923/2007, 13834/2007 & 4380/2010 in
CS (OS) 641/2005
&
I.A. Nos. 3250/2010 & 4379/2010 in CS (OS) 642/2005
SHRI U.N. BHARDWAJ .......Plaintiff
Through: Shri Rahul Gupta and Shri Shekhar Dasi, Advocates.
Vs.
SHRI Y.N. BHARDWAJ & ORS ....... Defendants
Through: Sh. Rishi Manchanda, Advocate, for Defendant No.1.
Sh. B.S. Maan and Sh. Jai Prakash, Advocates, for Defendant No.2.
Sh. Chetan Sharma, Sr. Advocate with Sh. Siddharth Singla and Ms. Divya Roy,
Advocates, for Defendant Nos. 3 to 6.
Sh. A.K.D. Sayare, for Sh. Harish Kumar, Advocate, for Defendant Nos. 7 to 11.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT, J.
%
1. This order will dispose of some of the pending applications pertaining to the proportion
of sharing the proceeds from the Bari falling to members of the branch of the family to which the
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 1
parties belong in respect of the various festivals and events that occur from time to time at the
Mandir Shri Kalka Ji (hereafter "the temple") in New Delhi.
2. The brief facts necessary for the purpose of this order are that the plaintiff and the first
two defendants are brothers being the sons of Late Shri R.N. Bhardwaj and the third, fourth and
fifth defendants - in both the suits- are their sisters; the sixth defendant is their mother, (being the
legal heirs of Late Shri R.N. Bhardwaj). The other defendants are the descendents of Late Shri
R.N. Bhardwaj's brothers, i.e. Prayag Dutt and Hansraj. In both the suits, decree for partition has
been claimed by the common plaintiff, i.e. U.N. Bhardwaj. This claim is supported by his brother
the first defendant Shri Y.N. Bhardwaj. The narrow controversy, which this order proposes to
decide, is with respect to the shares of the female heirs of Late Bhardwaj, i.e. his daughters Ms.
Shashibala, Ms. Manju Mudgal and Ms. Arun Sharma and the share of his widow Smt.
Chandrakanta, in the "bari" (i.e. turn) rights enjoyed by the parties' family, in the temple.
3. In CS (OS) 641/2005, division of five immovable properties described in the schedule
and movable propertiess compromising of gold jewellery and cash, is sought. In CS (OS)
642/2005, on the other hand, partition of properties held jointly by Late Shri R.N. Bhardwaj with
his brothers is claimed. Shri R.N. Bhardwaj died on 11.9.1991. The subject matter of this suit is a
plot of land being Khasra No.1142 at Mehrauli. It is averred that a partition deed was executed as
between the father of Shri Hansraj, i.e. Shri Jagan Nath and Shri Hansraj; Shri Prayag Dutt, son
of Shri Krishan, brother of Shri Jagan Nath were also parties. Although the suit averments and
the corresponding pleadings in the written statement deal with various other factual disputes
concerning the acquisition of the property and as to the existence of partition deed, those
questions are not relevant for the present purposes except to record that during the interregnum
period after the institution of both the suits whenever the occasion arose, this Court has
consistently made a series of orders recording whereby during the occurrence of Baris, the
highest bidder (from amongst the parties) was conferred the right to collect all the offerings and
of that 50% of the bid amount was to be given to defendant nos. 7-13 in Suit No. 642/2005; they
are also parties in Suit No. 641/2005. The Court had been recording that the other parties, i.e. the
brothers (sons of R.N. Bhardwaj) would be entitled to receive 1/7th share of such 50% share each
and that the female heirs of Late R.N. Bhardwaj, i.e. the third to sixth defendants, (the daughters
and widow) were entitled to receive ` One Lakh each, as part of an interim arrangement. This
arrangement was first recorded by the Division Bench's order dated 31.03.2006.
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 2
4. The pleadings were completed in both the cases and on 20.04.2009 issues were framed in
CS (OS) 642/2005. Similarly, issues were also framed in CS (OS) 641/2005. The question as to
whether the Sewa Bari of the temple is capable of being partitioned was also framed as an issue
in CS (OS) 642/2005 as the plaintiff had alleged that the daughters or widow of Late Shri R.N.
Bhardwaj being the female heirs were dis-entitled to any share.
5. The plaintiff moved an I.A. No.3250/2010 claiming appropriate orders for disbursement
of the proceeds of the Bari falling due in March-April, 2010. Notice was issued and on
23.03.2010, the following order was made by the Court in both the suits.
"After hearing counsel for the parties and considering the interim order, which
is prevailing, in such circumstances, by virtue of the directions of the Division
Bench, dated 31.03.2006, this Court is of opinion that the highest bidder would
get the right to collect the offerings and the tehbazari. The 50% of the bid
amount shall be handed over to the defendant Nos.7-13. The plaintiff and
defendant Nos.1&2 are brothers, defendant Nos.3-5 are the sisters of the plaintiff
and defendant No.6 is their mother. The question of disbursement or suitable
apportionment of the balance 50% shall be decided on the next date of hearing.
It is agreed by the learned counsel for the parties that the question as to the
hereditary right to such collection or otherwise shall be decided finally on the
next date of hearing on the existing documents and materials on the record.
The parties are directed to ensure compliance of the above order; in other
words, 50% of the bid amount shall be deposited in the Court by the successful
bidder, within two days of receiving the same."
On the subsequent date of hearing, i.e. 21.04.2010, the plaintiff was granted liberty to
place on record some documents, which according to him were relevant. That order is in the
following terms:
"The case is fixed for hearing on a question which is spelt-out by this
Court in its order dated 23.03.2010. Learned counsel for the plaintiff states that
certain essential documents, i.e. copies of judgments and decrees in four
previous legal proceedings and suit are material and seeks leave to place the
same on record. Learned counsel for the defendants have no objection.
In the circumstances, the written synopsis with annexures containing
copies of judgments dated 04.04.1973, 01.02.1974 and 31.10.1981 in suits and
revision proceedings are hereby taken on record.
Arguments heard on behalf of plaintiff."
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 3
6. The matter was subsequently heard on several dates, i.e. 22.04.2010, 28 & 29.04.2010
and the applications were reserved for orders. On 22.04.2010, the statement of the first defendant
(who wished to depose in the case about the rituals and religious practices pertaining to the
temple) was recorded.
7. It is contended by the plaintiff and the first defendant (hereafter called as "the brothers")
that the customs and rituals followed by the parties from time immemorial are that only male
descendents within the family are entitled to the proceeds of the Bari since they are entitled to
perform the puja and other rituals in the temple. Reliance is placed in this regard on the judgment
rendered by the Sub-Judge First Class, Delhi in Suit No. 61/69 (titled as Mahant Pirthi Nath,
Chela Mahant Pancham Dass v. Tula Ram) as well as the judgment by the Civil Court in Suit
No. 15/1976 (titled as Ganga Jeevan Sharam v. Rakesh Kumar) dated 31.10.1981. The
judgment of the Sub-Judge in Suit No. 61/69 had referred to a previous order of one Bhaskar
Rao, Revenue Assistant dated 10.05.1877. The Court held that the Revenue Court's order was
binding as it was between parties and also referred to the arrangement within the temple as
regards sharing of proceeds during the various Baris. The Court also noted that there was a
settlement deed dated 15.07.1843, which had been referred to in the Revenue Assistant's
judgment. The division or sharing of the offerings and the Baris within the temple - recorded in
the settlement of 1843 and given effect to by the Revenue Assistant's order, as well as by the
Civil Court - were that such proceeds, rights and entitlements were to be divided into four shares.
8. The Civil Court's judgment discloses that the group of Pujaris performing Puja Sewa in
the temple and realizing Tehbazari, offerings etc. were divided into two Thoks, i.e. (1) Thok
Jogiyan (i.e. consisting of ascetics and sanyasis); they were entitled to a 4 Annas (48 Pies) share.
The second group was known as "Thok Brahmin", which was further divided into four thulas,
i.e. (i) Thula Bahadur (entitled to 3 Annas share = 36 Pies), (ii) Thula Rambux (entitled to 3
Annas share = 36 Pies), (iii) Thula Tansukh (entitled to 3 Annas share = 36 Pies), and (iv) Thula
Jasram (entitled to 3 Annas share Pies). The total of all the said shares worked to One Rupee =
16 Annas (i.e. 64 paise = 192 Pies).
9. The brothers say that according to the family history Pt. Gopi Nath married Gauri
daughter of Pt. Umrao and Mrs. Bhullo. Pt. Umrao had Puja Sewa rights within Thula Bahadur.
Pt. Umrao fell seriously ill and due to advancing age he was unable to perform Sewa Puja.
Therefore, he permitted his son-in-law Pt. Gopi Nath (who belonged to the same Gotra
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 4
"Bhardwaj") to perform Puja Sewa on his behalf. Later, Pt. Umrao became blind and he
mortgaged his Puja Sewa rights in Mandir Sri Kalkaji in favour of Pt. Gopi Nath by a written
document. He was unable to discharge the debt during his life time. As a result, he alienated the
Puja Sewa rights to his son-in-law, Pt. Gopi Nath. After his death, (i.e. Gopinath's) those rights
devolved upon and vested in his male descendants down the line. The plaintiff is at pains to
explain that Sewa Puja rights did not devolve either upon the widow of Pt. Umrao or upon his
daughter, i.e. Gauri after the death of Mrs. Bhullo. It is contended that till 1904 Pt. Gopi Nath
continued performing Puja Sewa and was realizing the offerings along with other brothers and
cousins of Pt. Umrao after that, the share of Pt. Gopi Nath was separated and he was
independently performing Puja Sewa and realizing his share in the offerings which was 3 Paise =
12 Pies.
10. The brothers' main contention is that Puja Sewa and tehbazari and offerings etc. are
integral to each other and inseparable to the rituals and practices of the temple. According to
them, the customs from time immemorial enjoin only male Brahmins (Gotra "Bhardwaj") and
members of various Thulas can act as priests in the temple and they, to the exclusion of others,
perform Puja Sewa and receive their share of offerings and tehbazari etc. It is contended that the
right and share of Puja Sewa in Mandir Sri Kalkaji cannot be bequeathed. The plaintiffs argue
that the married daughters and their children have never acted as priests and are also not entitled
to receive any share in the offering etc. The custom (i.e. of Puja Sewa being performed by men
alone since time immemorial), say the brothers, has been accepted as valid and binding and
women have never performed Puja Sewa in the temple. This position was also accepted and
confirmed by judgment dated 31.10.1981 in civil suit being No. 15/76 titled Ganga Jeevan
Sharan v. Rakesh Kumar & Others.
11. The brothers submit that their turn for Puja Sewa comes once in two years (regular
monthly Bari) and once in 12 years (Laund Bari) and once in 10 years in the month of Chaitra
(Shashmahi - Navratra). They rely on the judgment dated 01.02.1974 in Suit No. 61/69 to the
effect that the right to perform Puja Sewa is not transferable and cannot also devolve by intestate
or testamentary succession upon females; one of the contentions being that such married
daughters belong to different Gotras. It is also submitted that it was during the pendency of this
suit that the practice of auctioning the Bari to the highest bidder began, through the Court's
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 5
order. It is argued that the three sisters do not belong to the Bhardwaj gotra, whose members
alone can worship and partake in baris and offerings, and that the sixth defendant, the mother is
only entitled to claim maintenance as her three sons are alive and are performing Puja Sewa and
receive their respective share in the tehbazari, offerings etc.
12. It is argued that the grant or recognition of succession and inheritance to the female
members in the offerings realized from the temple would lead to utter confusion and conflict
with the customs and traditions followed for last several hundreds of years. At the most, it shall
be a matter of factual dispute and only to be proved by trial and evidence produced by the parties
as to whether the female members at any point of time shall enjoy the rights of Sewa Puja and
share in offerings and tehbazari, etc. in view of the usage and custom for last hundreds of years.
The brothers rely on the decisions reported as Krishan Lal Kohli Vs. V.K. Khanna 52 (1993)
DLT 87 and Ashok Kumar Bara Vs. Simi Katyal, 91 (2001) DLT 82, and submit that prima facie
case should not be confused with title, and that where substantial issues arise, the parties should
be permitted opportunity to lead evidence in support of their case. It is further submitted that the
third to sixth defendants do not allege how and when rights of Sewa Puja arose in their favour
and how they performed or were deprived of their alleged rights.
13. The brothers submit that the right to offer puja and participate in baris, through exclusive
puja by the male members entitled to perform worship (such as the rights of a shebbahit or
mahant) is an integral part of the temple's customs and religious practices, which cannot be
disturbed. Reliance was placed on Articles 25 and 26 of the Constitution in support of this
argument; it was contended that such customs, which are integral or essential for the practice of
the faith of the denomination cannot be regulated by law. The plaintiff relies on the judgment
reported as The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, where it was held that:
"The contention formulated in such broad terms cannot, we think, be supported. In the
first place, what constitutes the essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. If the tenets of any religious sect of
the Hindus prescribe that offerings of food should be given to the idol at particular hours
of the day, that periodical ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of sacred texts or oblations to the
sacred fire, all these would be regarded as parts of religion and the mere fact that they
involve expenditure of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities partaking of a
commercial or economic character; all of them are religious practices and should be
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 6
regarded as matters of religion within the meaning of article 26(b). What article 25(2)(a)
contemplates is not regulation by the State of religious practices as such, the freedom of
which is guaranteed by the Constitution except when they run counter to public order,
health and morality, but regulation of activities which are economic, commercial or
political in their character though they are associated with religious practices."
The brothers also rely on the judgment in Seshammal and Ors., etc. v. State of Tamil Nadu,
(1972) 2 SCC 11, which examines the practice of temples having priests or Archakas and their
unique role ordained by custom, particularly on the following observations:
"10.....With the establishment of temples and the institution of Archakas, treatises on
rituals were compiled and they are known as 'Agamas'. The authority of these Agamas is
recognised in several decided cases and by this Court in Sri Venkataramana Devaruv.
The State of Mysore [1958]1SCR895 . Agamas are described in the last case as treatises
of ceremonial Law dealing with such matters as the construction of temples, installation
of idols therein and conduct of the worship of the deity. There are 28 Agamas relating to
the Saiva temples, the important of them being the Kaimi kagama the Karanagama and
the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal
Agamas were the Vikhanasa and the Pancharatra. The Agamas contain elaborate Rules
as to how the temple is to be constructed, where the principal deity is to be consecrated,
and where the other Devatas are to be installed and where the several classes of
worshippers are to stand and worship. Where the temple was constructed as per
directions of the Agamas the idol had to be consecrated in accordance with an elaborate
and complicated ritual accompanied by chanting of mantras and devotional songs
appropriate to the deity. On the consecration of the image in the temple the Hindu
worshippers believe that the Divine Spirit has descended into the image and from then on
the image of deity is fit to be worshipped. Rules with regard to daily and periodical
worship have been laid down, for securing the continuance of the Divine Spirit. The
rituals have a two-fold object. One is to attract the lay worshipper to participate in the
worship carried on by the priest or Archaka. It is believed that when a congregation of
worshippers participates in the worship a particular attitude of aspiration and devotion
is developed and confers great spiritual benefit. The second object is to preserve the
image from pollution, defilement or desecration. It is part of the religious belief of a
Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the
image diminishes or even vanishes. That is a situation which every devotee or worshipper
looks upon with horror. Pollution or defilement may take place in variety of ways.
According to the Agamas, an image becomes defiled if there is any departure or violation
of any of the rules relating to worship. In fact, purificatory ceremonies have to be
performed for restoring the sanctity of the shrine [1958]1SCR895 . Worshippers lay
great store by the rituals and whatever other people, not of the faith, may think about
these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be
dismissed as either irrational or superstitious. ... In all these temples in which the images
are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside
the sanctum sanctorum and that too after observing the daily disciplines which are
imposed upon him by the Agamas. As an Archaka he has to touch the image in the course
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 7
of the worship and it is his sole right and duty to touch it. The touch of anybody else
would defile it. Thus under the ceremonial law pertaining to temples even the question as
to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to
enter it and who can worship and from which place in the temple are all matters of
religion as shown in the above decision of this Cotirt.
11. The Agamas have also Rules with regard to the Archakas. In Saivite temples only a
devotee of Siva, and there too, one belonging to a particular denomination or group or
Sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an
Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however
learned he may be Similarly, a Vaishnavite Archaka has no place as an Archaka in a
Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as
a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an
Archaka in a temples of a different denomination....They only can touch the idols and
perform the ceremonies and rituals. None others, however, high placed in society as
pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter
the Garbha Griha. Not even a person belonging to another Agama is competent to do
puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian
denominational temples. It is, therefore, manifest that the Archaka of such a temple
besides being proficient in the rituals appropriate to the worship of the particular deity,
must also belong, according to the Agamas, to a particular denomination...Any State
action which permits the defilement or pollution of the image by the touch of an Archaka
not authorised by the Agamas would violently interfere with the religious faith and
practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie
invalid under Article 25(1) of the Constitution."
14. It is submitted that the temple is denominational and established or dedicated for Devi
worship. The practices adopted by such denominational temples are eligible for protection, under
Article 26. In support of the contention, the plaintiff relies on the judgment in Sri Adi
Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors., 1997 (4)
SCC 606, in the following terms:
"The question is; whether Sri Kashi Vishwanath Temple is a denomination Temple and
whether the Act interferes with freedom of conscience and the right to profess, practise
and to propagate religion of one's choice and whether the devotees of Lord Vishwanath
are members of religious denomination and shall have the fundamental right to manage
its affairs in the matter of religion guaranteed under Articles 25 and 26 of the
Constitution to administer the properties of the Temple in accordance with law?. In the
Law Lexicon by P. Ramanatha Iyer [1987 Reprint Edition] at page 315, the author says
that "denomination" means a class or collection of individuals called by the same name;
a sect; a class of units; a distinctively named church or sect as clearly of all
denominations. The maxim Denomination est a digniore means "Denomination is from
the more worthy" (Burrill). "Denomination fieri debet a digniorihus", another maxim
means "denomination should be deduced from the more worthy" (Wharton Law Lexican).
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 8
"Denomine proprio non est curandum cum in substanta non erretur quia nominal
mutabilla sunt res autem immobiles meaning " means "as to the proper name, it is not to
be regarded when one errs not in substance; because names are changeable, but things
are immutable". (Bouvier Law Dictionary; Ame. Encyc.) in The Commissioner, Hindu
Religious Endowments, Madras, v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Math
[1954]1SCR1005 , the precise meaning of the word "denomination" had come up for
consideration before the Constitution Bench. It was held, following the meaning given in
Oxford Dictionary, that the word denomination' means a collection of individuals or
class together under the same name a religious group or body having a common faith
and organisation and designated by a distinctive name. On the practices of the Math, the
meaning of the connotation 'denomination' in that behalf, it was held that each such sect
or special sects who founded by their organiser generally by name be called a religious
denomination as it is designated by distinctive name in many cases. It is the name of the
founder and has common faith and common spiritual organisation. Article 26
contemplates not merely a religious denomination but also a section thereof. Therefore, it
was held that Sirur Math was a religious denomination entitled to the protection of
Article 26. In The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors.
[1962]1SCR383 , another Constitution Bench considering the ratio laid in Sirur Math's
case explained Sri Venkataramana Deva [1958]1SCR 895 and had laid down that the
words "religious denomination" under Article 26 of the Constitution must take their
colour from the word religion and if this be so the expression religious denomination
must also specify three conditions, namely, it must be (1) a collection of religious faith, a
system of belief which is conducive to the spiritual well being, i.e., a common faith; (2)
common organisation; (3) a designation by a distinctive name. Therein, the endowment
to the tomb of Hazrat Khwaja Moin-ud-din Chishti of Ajmer, under the Khadims Durgah
Khwaja Saheb Act, 1955 was challenged by the respondents as violative of their
fundamental rights under Articles 25 26 19(1)(f) and (g) of the Constitution. This Court
had held that Hazrat Khwaja Moin-ud-din Chishti tomb was not confined to Muslims
alone but belonged to all communities, i.e., Hindus, Khwaja and Praises who visit the
tomb out of devotion for the memory of departed soul and it is a large circle of pilgrims
who must be held to be the beneficiary of the endowment made to the tomb. Considered
from that perspective, it was held that the right to receive offerings was not affected or
prejudiced by the Act, though they had a right to worship in accordance with their faith.
Article 26 requires to be carefully scrutinised to extend protection and it must be
confined to such religious practices as are an essential and integral part of it and no
other. The management of the properties was in the hands of the officers. Article 26 does
not create rights in any denomination or a section which it never had. It merely
safeguards and guarantees the continuance of a right which such denomination or the
section had. If the denomination never had the right to manage property in favour of a
denominational institution as per reasonable terms on which the endowment was created,
it cannot be had to have it. It had not acquired the said right as a result of Article 26 and
that the practice and the custom prevailing in that behalf which obviously is consistent
with the terms of the endowment should not be ignored. The Act cannot be treated as
illegal and the administration and management should be given to the denomination.
Such a claim is inconsistent with Article 26. In Bramchari Sidheswar Shai and Ors. v.
State of West Bengal and Ors. : AIR 1995 SC 2089 , the relevant facts were that the
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 9
Ramakrishna Mission had established educational institutions to which approval and
affiliation were granted by the Government and the University. The dispute arose as
regards the composition of the Governing Body, viz., whether the Government's nominee
would be associated on a standard pattern? Ramakrishna Mission claimed "minority"
status being a denomination. In that perspective, this Court while rejected the claim of
the Mission as a minority institution under Article 30(1), upheld its denomination
character within the meaning of Article 26(a) of the Constitution. It was held that it being
a denomination was entitled to administer the educational institutions. Therein, the vires
of the statute did not come up for consideration in the context of the followers of Sri
Ramakrishan who are professing the line of teachings and doctrines of Sri Ramakrishna.
The followers were considered to be a denominational section of the citizens. The ratio
therein, therefore, does not apply to the facts of the present case."
15. The female heirs argue that the suit nowhere states anything about the religious or
denominational rights in respect of the Bari or the worship in the temple. It is pointed out that the
suit pertinently alleges only the following: -
"The ancestors of the plaintiff are members of Thula Bahadur and in that capacity have
also been performing and enjoying the Sewa Bari of Mandir Shri Kalka Ji as and when
the said Sewa Bari of Mandir Shri Kalka Ji fell to their share. After the deaths of Shri
Rajinder nath, Shri Prayag Datt and Shri Hans Raj their respective male descendants
have been collectively performing and enjoying the Sewa Bari of Mandir Shri Kalka Ji as
and when the said Sewa Bari of Mandir Shri Kalka Ji fell to their share. The offerings
made by the worshippers to the deity of Mandir Shri Kalka Ji have been shared in the
ratio of one - half collectively by the Plaintiff and his two brothers namely Shri Yogender
Nath Bhardwaj and Shri Vipin Bhardwaj, one-quarter collectively by the male
descendants of late Shri Prayag Datt and one - quarter collectively by the male
descendants of late Shri Hans Raj. It is, therefore, submitted that this Hon‟ble Court may
be pleased to give legal effect to this continuously adopted practice by the parties to the
present suit."
16. It is argued that both the suits claim that Bari rights are partible. It is submitted that the
female heirs were impleaded subsequently, and no amendment was sought. The defendants
further submit that an overall reading of the suit would only suggest that according to the
plaintiff the non-assertion of the female heirs to participate in the Bari returns and rights has been
claimed. However, no custom or usage, much less a custom as is known, recognized and given
effect to in law has been either pleaded or established. The defendants further argue that by
virtue of Section-4 of the Hindu Succession Act, 1956 as amended in 2005 (in which Sub-
Section-2 was repealed) every Hindu female is entitled to same share as a male coparcener in
HUF property. Such being the case, the female heirs, in the event of partition, are entitled to
claim Bari rights in respect of the branch of R.N. Bhardwaj as his sons. The defendants placed
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 10
reliance upon the judgment reported as Badri Nath & Anr. v. Mst. Punna & Ors, 1979 (3) SCC
71 to say that the Bari rights are nothing but species of property rights and, therefore, capable of
partition.
17. The defendants next argue that the materials available on the record, particularly, by way
of Y.R. Bhardwaj's statement made before the Court unambiguously point to there being no need
for any qualification to be entitled to the benefits of Bari. It is argued that the established facts
point to the peculiarity of the parties' family being entitled to worship and Bari rights by virtue
of mortgage alienation to a son-in-law by one of their common ancestors. If indeed the plaintiffs
are right in contending that the right to worship and the concomitant benefits of Bari
participation are heritable only by males and non-alienable, the very source of such rights
negates the argument.
18. Learned counsel submitted that the first defendant's statement (made to the Court on
oath) clearly establishes that Shastric knowledge is unnecessary, to conduct worship in the
temple; nor is there any usage that certain types of mantras are to be chanted. The statement only
points to the entitlement of a certain class of Brahmins to perform the puja; so far as the Bari and
right to auction the tehbazari rights during certain festive occasions are concerned, that inhere, or
vest in the family to which the parties belong. In these circumstances, the plaintiff's argument
about the unalterable customs, which entitle only males within the family to perform puja and
also to the concomitant Bari rights cannot be accepted. It is submitted that assuming the
plaintiff's contentions to be correct as regards right to worship, within the temple, like in the case
of other authorities, there is nothing to prevent the female heirs or others from employing priests
on their behalf to perform that task.
19. Before this Court proceeds to analyze the rival contentions, it would be necessary to
extract the relevant provisions of the Hindu Succession Act, 1956. Section 6 of the Act, as
amended in 2005, reads as follows:
"4. OVERRIDING EFFECT OF ACT.
(1) Save as otherwise expressly provided in this Act, -
(a) 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 shall cease to have effect
with respect to any matter for which provision is made in this Act;
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 11
(b) any other law in force immediately before the commencement of this Act shall cease
to apply to Hindus in so far as it is inconsistent with any of the provisions contained in
this Act."
It would be relevant here to recollect that Section 4 contained sub-section (2), which reads as
follows, till it was deleted by the Hindu Succession (Amendment) Act, 2005 w.e.f. 05.09.2005
Prior to omission it read as under -
"(2) For the removal of doubts it is hereby declared that nothing contained in this Act
shall be deemed to affect the provisions of any law for the time being in force providing
for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings
or for the devolution of tenancy rights in respect of such holdings."
Section 6 (of the Act) reads as follows:
"6. DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY.
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in
a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall, -
(a) by birth become a coparcener in her own right the same manner as the son ;
(b) have the same rights in the coparcenary property as she would have had if she had
been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of
a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of property
which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1)
shall be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in
force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment)
Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession, as the case may be, under this
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 12
Act and not by survivorship, and the coparcenary property shall be deemed to have been
divided as if a partition had taken place and, -
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would
have got had they been alive at the time of partition, shall be allotted to the
surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased
daughter, as such child would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased child of the pre-
deceased so or a pre- deceased daughter, as the case may be.
Explanation - For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court
shall recognise any right to proceed against a son, grandson or great-grandson for the
recovery of any debt due from his father, grandfather or greatgrandfather solely on the
ground of the pious obligation under the Hindu law, of such son, grandson or great-
grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect -
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as
the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such
right or alienation shall be enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been enforceable as if the Hindu
Succession (Amendment) Act, 2005 had not been enacted.
Explanation - For the purposes of clause (a), the expression "son", "grandson" or
"great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the
case may be, who was born or adopted prior to the commencement of the Hindu
Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected
before the 20th day of December,2004
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 13
Explanation - For the purposes of this section "partition" means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 or
partition effected by a decree of a court."
20. Speaking about the effect of the amended Act, it was held, by the Supreme Court, in G.
Sekar v. Geetha, 2009 (6) SCC 99 that:
"...The Act brought about revolutionary changes in the old Hindu Law. It was enacted to
amend and codify the law relating to intestate succession amongst Hindus. By reason of
the Act, all female heirs were conferred equal right in the matter of succession and
inheritance with that of the male heirs....
By reason of Section 14 of the Act, a woman who had limited interest in the property but
was possessed of the same was to become absolute owner. Section 6 of the Act, however,
makes an exception to the aforementioned rule by providing the manner in which the
interest in the coparcenary property shall devolve upon the heirs stating that the rule of
survivorship would operate in respect thereof. The right, title and interest of an heir,
whether male or female, thus, are governed by the provisions of the Act....."
The Supreme Court also ruled that the amended provisions furthered gender equality, and were
in consonance with Articles 14 and 15 of the Constitution of India, in as much as they removed
the pre-existing disparity in treatment, so far as the share(s) to which female heirs of Hindus
dying intestate, were concerned:
"In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to
the statutory rule operating in that field, are required to be treated equally to that of the
male heirs. Gender equality is recognized by the world community in general in the
human rights regime...."
21. It is therefore, clear that after the coming into force of the amending Act, in 2005, female
Hindu heirs are entitled to the same share in ancestral or HUF properties, as male heirs. Two
exceptions are made by the provision:
(1) Nothing in the provision is deemed to invalidate any disposition or alienation including
any partition or testamentary disposition of property which had taken place before the 20th day
of December, 2004.
(2) "Partition" means any partition made by execution of a deed of partition duly registered
under the Registration Act, 1908 or partition effected by a decree of a court.
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 14
Therefore, if partition had taken place before the 20th of December, 2004, through a registered
deed, or through decree of Court, the changes brought about by the 2005 amendments, would be
inapplicable. On the other hand, if there is no partition n the prescribed manner, the female heirs
of a deceased Hindu are entitled to the same rights and advantages as the male heirs.
22. The next question, central to deciding the issue addressed by both parties, is whether Bari
rights, of the kind which are in issue, can be enjoyed by female Hindus. The decision of the
Supreme Court, in Badri Nath & Anr. (supra) is illuminating. The plaintiff, daughter of a Baridar
in that case, claimed a share, premised on application of the un-amended Hindu Succession Act.
The defendants argued that Bari rights customarily were linked with the right to worship, which
was confined to four specific Hindu sub-castes. These contentions were rejected by the trial
court; the Full Bench of the Jammu and Kashmir High Court affirmed the findings. On
defendants' appeal, the Supreme Court held as follows:
"...the Full Bench noted that the properties to which the Hindu Succession Act does not
apply are only these which find enumeration in Section 5 thereof, that the right share the
offering is not one of those properties and that, therefore, such a right could not but be
governed by the provisions of the Act.
9. In repelling the last contention Full Bench relied upon the provisions of the Hindu
Succession Act which overrides all customs of usage being part of the Hindu Law as in
force immediately prior to the commencement of the Act and concluded that the custom of
the right to share in the offerings being restricted to members of the four sub-castes
above mentioned could not be given effect to and that the plaintiff was full entitled to
succeed to that right in spit of the fact that she did not belong to any of those sub-castes.
................. ...................... ..................
"There is thus no doubt that the right to receive a share in the offerings is subject to the
performance of onerous duties. But then it is apparent that none of those duties is in
nature priestly or requiring a personal qualification. On the other hand all of them are of
a 'non-religious or secular character and may be performed not necessarily by the
baridar personally but by his agents or servants so that their performance boils down to
mere incurring of expense. If the baridar chooses to perform those duties personally he is
at liberty to do so. But then the obligation extends merely to the making of necessary
arrangements which may be secured on payment of money to others, the actual physical
or mental effort involve being undertaken by those others. The right is, therefore, a
transferable right as envisaged in the passage above extracted from Bal-mukand and
Ors. v. Tula Ram and Ors. (Supra) which has not been challenged before us as erroneous
and which we regard as laying down the law correctly...."
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 15
".....However, it may be pointed out that shebaitship cannot be described as a mere
office because apart from certain responsibilities, it carries with it a definite right to
property. This is a proposition on which emphasis was laid by this court in Anuragbala‟s
case (supra) itself. Mukherjea, J., observed in this connection:
"But though a shebait is a manager and not a trustee in the technical sense, it would
not be correct to describe the shebtaitship 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 property. As the Judicial Committee observed in the above case, in
almost all such endowments the shebait has a share in the usufruct of the debutter
property 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 Monohar
Mukherji v. Bhupendra Nath Mukherji I.L.R. 60 Cal 452 and this decision of the
Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v.
Lal Behary 63 I.A. 448 and again in Bhabatarini v. Ashalatai 70 I.A. 57 The effect of
the first two decisions, as the Privy Council pointed out in the last case, was to
emphasise the proprietary element in the shebaiti 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 Greedharreejee v. Rumanlollji Gossammee 16 I. A. 137
"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 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 inheritance from the founder""
Angurbala's case was followed by this Court in a recent decision reported as Ram
Rattan v. Bajrang Lal and Ors. [1978] 3 SCR963 wherein Desai, J., who delivered
the judgment of the Court observed:
""In the conception of shebait both the elements of office and property, duties
and personal interest are mixed up and blended together and one of the elements
cannot be detached from the other. Old texts, one of the principal sources of
Hindu law and the commentaries thereon, and over a century the Courts with very
few exceptions have recognised hereditary office of shebait as immovable,
property, and it has all along been treated as immovable property almost
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 16
uniformly. While examining the nature and character of an office as envisaged by
Hindu law it would be correct to accept and designate it in the same manner as
has been done by the Hindu law text writers and accepted by courts over a long
period. It is, therefore, safe to conclude that the hereditary office of shebait which
would be enjoyed by the person by turn would be immovable property.""
"The right to share the offerings being a right coupled with duties other than those
involving personal qualifications and, therefore, being heritable property, it will descend
in accordance with the dictates of the Hindu Succession Act and in supersession of all
customs to the contrary in view of the provisions of Section 4 of that Act, Sub-section (1)
of which state:
(a) Save as otherwise expressly provided in this Act-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 shall cease to have effect with respect to any matter for
which provision is made in this Act:
(b) any other law in force immediately before the commencement of this Act shall cease
to apply to Hindus in so far as it is inconsistent with any of the provision's contained in
this Act.
The requirements of the custom relied upon by the appellants to the effect that the right
could not be exercised by a person who is not a member of any of the four sub-castes
mentioned above becomes wholly ineffective in view of these provisions being contrary to
the order of succession laid down in Chapter II of the Hindu Succession Act under which
the right devolves on the plaintiff-respondent.‟‟
22. The Supreme Court had recognized the right of female heirs to succeed the priestly
office, earlier in Raj Kali Kuer v. Ram Rattan Pandey, AIR 1955 SC 4936, where it was held
that:
"That religious offices can be hereditary and that the right to such an office is in the
nature of property under the Hindu Law is now well established. A Full Bench of the
Calcutta High Court in Manohar v. Bhupendra A.I.R. 1932 Cal 791 has laid this down in
respect of Shebaitship of a temple and this view has been accepted by the Privy Council
in two subsequent cases in Ganesh v. Lal Behary [1936] L.R. 63 I.A. 448 and
Bhabatarini v. Ashalata [1943] L.R. 70 I.A. 57. In a recent judgment of this Court
reported as The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar [1954] S.C.R. 1005 this view has been reiterated and
extended to the office of a Mahant. On the view that Shebaiti is property, this Court has
also recognised the right of a female to succeed to the religious office of Shebaitship in
the case reported as Angurbala v. Debabrata [1951] S.C.R. 1125, where the question as
to the applicability of Hindu Women's Right to Property Act to the office of Shebaitship
came up for consideration. On the same analogy as that of a Shebaiti right, the right of a
hereditary priest or Pujari in a temple must also amount to property where emoluments
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 17
are attached to such an office. Indeed, some of the decisions which have recognised the
Shebaiti right as property appear to be cases where the Shebaiti right combines the
priestly office of a Pujari of the idol with the office of the manager of the temple, who in
South India, is known by the name of Dharmakarta. As early as in Mitta Kunth
Audhicarry v. Neerunjun Audhicarry [1875] 16 B.L.R. 166, it was recognised that
hereditary priestly office in a family is property liable to partition. A number of other
decisions to be noticed in the later part of this judgment recognise this position. The
learned Judges of the High Court in their judgment in the case under appeal, have
attempted to distinguish the present case from that of the case of the Shebaitship and
have come to the conclusion that while in respect of Shebaiti right a woman may succeed
by heir ship, she is not entitled to such succession in respect of the right of a Panda and
Pujari. But in making this distinction they do not negative the idea that the right to the
office of the Pujari itself is property to which a female could succeed, but for her
supposed disqualification. The disqualification is said to arise with reference to the
duties attached to this office, and it is said that in this respect it differs from the office of
a Shebait.
A careful review, therefore, of the reported cases on this matter shows that the usage of a
female succeeding to a priestly office and getting the same performed through a
competent deputy is one that has been fairly well recognised. There is nothing in the
textual Hindu law to the contrary. Nor can it be said that the recognition of such a usage
is opposed to public policy, in the Hindu law sense. As already pointed out the
consideration of public policy can only be given effect in the present state of the law, to
the extent required for enforcing adequate discharge of the duties appurtenant to the
office. Subject to the proper and efficient discharge of the duties of the office, there can
be no reason either on principle or on authority to refuse to accord to a female the right
to succeed to the hereditary office held by her husband and to get the duties of the office
performed by a substitute excepting in cases where usage to the contrary is pleaded and
established......."
(emphasis supplied)
23. The nature of shebaitship, and whether it entailed performance of religious and ritualistic
duties, which female Hindus, in principle were excluded or enjoined from succeeding to, was
examined in Ram Rattan (Dead) By Lrs. V. Bajrang Lal And Ors., (1978) 3 SCC 236. The Court
held that:
"....In the conception of Shebait both the elements of office and property, duties and
personal interest are mixed up and blended together and one of the elements cannot be
detached from the other. Old texts, one of the principal sources of Hindu law and the
commentaries thereon, and over a century the Courts with very few exceptions have
recognised hereditary office of Shebait as immovable property, and it has all along been
treated as immovable property almost uniformly. While examining the nature and
character of an office as envisaged by Hindu law it would be correct to accept and
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 18
designate it in the same manner as has been done by the Hindu law text writers and
accepted by courts over a long period. It is, therefore, safe to conclude that the
hereditary office of Shebait which would be enjoyed by the person by turn would be
immovable property. The gift of such immovable property must of course be by registered
instrument..."
The Calcutta High Court in Anath Bandhu De v. Krishna Lal Das And Ors., AIR 1979 Cal 68
discussed and reiterated the rule laid down in Monohar Mukherjee v. Bhupendra Nath
Mukherjee, 37 CWN 29 : AIR 1932 Cal 791 (Full Bench) discussing about the nature of
shebbaitship, and whether female Hindus can function in that office, held that:
"Even assuming that he had such a right, still he was not entitled to create a line of
succession to the office of the shebait which was opposed and repugnant to Hindu law.
The leading case on the point is the Full Bench case of Monohar Mukherjee v.
Bhupendra Nath Mukherjee 37 CWN 29 : (AIR 1932 Cal 791) (FB). It has been laid
down in that case that the founder of Hindu debutter is competent to lay down rules to
govern the succession to the office of shebait, subject to the restriction that he cannot
create any estate unknown or repugnant to Hindu law. There can be no doubt that the
line of succession to the office of the shebait in tail male as laid down in the will of
Sristidhar is opposed to Hindu law and accordingly, it is void and inoperative.
In this connection, it may be stated that the compromise decree whereby the parties
bound themselves by the terms of the will of Sristidhar regarding the appointment of
Shebaits could not render valid the line of Succession laid down by Sristidhar in his will
as the same was void being opposed to Hindu Law.
It I is no doubt true that shebaitship is property and it is heritable like any other property,
subject to the condition that the founder of the debutter has not laid down any mode of
devolution of the office of shebait. In case such a mode is laid down, the office of shebait
would devolve according to that mode. In the absence of any disposition of shebaitship, it
will devolve in accordance with the Hindu law of succession, and, in that case, the office
of shebait will be a hereditary office"
23. The Supreme Court in Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293
discussed the following propositions of law, and affirmed that even shebbaitship can be inherited
by women:
"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
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 19
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
I.L.R. 60 Cal. 452 and this decision of the Full Bench was approved of by the Judicial
Committee in Ganesh Chunder Dhur v. Lal Behary 63 I.A. 448 and again in Bhabatarini v.
Ashalata 70 I.A. 57. The effect of the first two decisions, as the Privy Council pointed out in
the last case, was to emphasize the proprietary element in the shebaiti 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 Greedharreejee v. Rumanlolljee Gossamee 16 I.A. 137,
""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 inheritance from the founder.""
Turning now to the Hindu Women's Rights to Property 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 property, and when a Hindu governed by any other school of Hindu law....... dies
intestate leaving separate property, 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 surviving of such predeceased son, and shall inherit in 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 provision shall apply mutatis mutandis to the widow of a
predeceased son of a predeceased son."
"........... 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
property in respect to which alone the question of succession may legitimately arise.''
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 20
---------------- ----------------- ---------------
Assuming that the word "property" in Act XXIII of 1937 is to be interpreted to mean property
in 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 of shebaitship, even though there is an ingredient of in it, follows
succession to ordinary or secular property. It is the general law of succession that governs
succession to shebaitship as well. While the general law now been changed by 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 applicable in the case of devolution of shebaitship"
---------------- ----------------- ---------------
......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
provision 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...."
---------------- ----------------- ---------------
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 shebait right, Mr.
Bannerjee referred to sub-clause (3) of section 3, which speaks of "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"; 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 characteristics 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 woman's estate" as contrasted 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 shebaitship is concerned, the office does not ensure 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 alienability 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 [1945] F.C.R. 1 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.""
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 21
But it does not decisively outweigh the several considerations set forth in the judgment just
now delivered by my learned brother Mukherjea J. for construing the word "property" in a
wider sense so as to include the shebaiti right also. It there is no legal objection to a woman
being a shebait under Hindu law, there is no particular reason why she should be excluded
from succeeding to the same under an Act which imposes no restriction or prohibition either
in express terms, or by necessary implication."
(emphasis supplied)
24. The earlier decisions, cited by the Calcutta High Court and Supreme Court, had held that
as a matter of law there was no proposition that "Bari" or "turn" rights were inalienable, or
restricted in succession, and that unless a custom was proved, such functions are not bound up
with duties to worship the deity; those decisions had relied on the rulings of the Allahabad High
Court in Nand Kumar Dutt v. Ganesh Das and Anr., AIR 1936 All 131 and Balmakund And Anr.
v. Tula Ram & Ors., AIR 1928 All 721; as well as of the Calcutta High Court Full Bench in
Manohar Mukherjee v. Bhupendra Nath Mukherjee, 37 CWN 29. In fact, Bari (or "pala" rights,
as known in Bengal) was held to be heritable, like any other property, in Mitta Kunth Audhicarry
v. Neerunjan Audhicarry, 1875 14 BLR 166 thus:
"The right of performing worship of an idol follows the same line of succession as that of
private property"
Similarly, in Mahamaya Debi v. Haridas Haldar, (1915) ILR 42 CAL 455 the Full Bench of
Calcutta High Court held that:
"...Indeed , the very pala or turn to worship shows that the right is partible..........There
is no further question that a pala has not only deemed to be heritable and partible but
also been treated as devisable.....There is no question that a pala is heritable and it is
immaterial whether heir is male or female..."
25. The above discussion would reveal that:
(1) Bari (or pala) rights are partible, as well as alienable (Badri Nath, Raj Kali Kuer; Ram
Rattan, supra, all decisions of the Supreme Court)
(2) Unless a contrary custom is proved, such rights are not linked or bounded with the
obligation to perform puja or worship;
(3) Female Hindus can inherit priestly office, as well as bari rights (Raj Kali Kuer and Badri
Nath, supra)
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 22
(4) Even if such bari rights entail worship obligations, they can be performed by others,
employed by such female heirs, for such purpose (Raj Kali Kuer);
(5) Bari rights are like any other benefit which is partible, and do not fall within the category
of rights for which partition is forbidden, by Section 5 of the Hindu Succession Act.
26. Another noteworthy aspect is that Badrinath (supra) was concerned with the Bari rights
of a female Hindu, in respect of the Mata Vaishno Devi shrine, near Jammu, which is also a
renowned seat of Shakti or Devi worship, like the temple in this case. All the Courts had
decisively overruled the contention that obligation to worship were tied up with the Bari rights;
they also held that female Hindus could enjoy those rights, which were a species of property. The
ratio of that decision, and the earlier judgments discussed previously, apply squarely, to negative
the plaintiffs' contentions.
27. The brothers contend that the customary right of worship, exclusively limited to male
heirs of the family, is intrinsically bound with the rituals practiced by the denomination to which
the temple belongs, as a Shakti Peetha. It is contended that Shakti worship, or deification, and
offering worship to the female power is central to the faith and belief of adherents of the
denomination, and that the Court cannot interfere with the customs and rituals, which are core
matters pertaining to the practice of religion, by adherents of the denomination; the rights
protected by Articles 25 and 26 of the Constitution of India, are invoked in aid of this
submission.
28. Now, there can be no two opinions that denominational rights in respect of religious
practices are as much entitled to protection from state or other interference, as are religious
practices and customs, which are central to the tenets and core beliefs of their adherents. Before
going to the issue of what is a Hindu denomination, or order, it would be appropriate to
recapitulate what is "Hindu" religion. This was addressed rather poignantly in the Supreme Court
ruling, reported as Sastri Yagnapurushadji & Ors. v. Muldas Bhudardas Vaishya, AIR 1966 SC
1119:
"the usual tests which can be applied in relation to any recognised religion or religious
creed in the world turn out to be inadequate in dealing with the problem of Hindu
religion. Normally, any recognised religion or religious creed subscribes to a body of set
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 23
philosophic concepts and theological beliefs. Does this test apply to the Hindu religion?
... Unlike other countries, India can claim that philosophy in ancient India was not an
auxiliary to any other science or art, but always held a prominent position of
independence.....
......The history of Indian thought emphatically brings out the fact that the development
of Hindu religion has always been inspired by an endless quest of the mind for truth
based on the consciousness that truth has many facets. Truth is one, but wise men
describe if differently. The Indian mind has, consistently through the ages, been exercised
over the problem of the nature of godhead the problem that faces the spirit at the end of
life, and the interrelation between the individual an the universal soul. "If we can
abstract from the variety of opinion", says Dr. Radhakrishnan, "and observe the general
spirit of Indian thought, we shall find that it has a disposition to interpret life and nature
in the way of monistic idealism, though this tendency is so plastic, living and manifold
that it takes many forms and expresses itself in even mutually hostile teachings".(Ibid,
p.32.)
The monistic idealism which can be said to be the general distinguishing feature of Hindu
Philosophy has been expressed in four different forms : (1) Non-dualism or Advitism; (2)
Pure monism; (3) Modified monism; and (4) Implicit monism. It is remarkable that these
different forms of monistic idealism purport to derive support from the same vedic and
Upanishadic texts. Shankar, Ramanuja, Vallabha and Madhva all based their
philosophic concepts on what they regarded to be the synthesis between the Upanishads,
the Brahmasutras and the Bhagavad Gita. Though philosophic concepts and principles
evolved by different Hindu thinkers and philosophers varied in many ways and even
appeared to conflict with each other in some particulars, they all had reverence for the
past and accepted the Vedas as the sole foundation of the Hindu philosophy. Naturally
enough, it was realised by Hindu religion from the very beginning of its career that truth
was many-sided and different views contained different aspects of truth which no one
could fully express.
This knowledge inevitably bred a spirit of tolerance and willingness to understand and
appreciate the opponents point of view. That is how "the several views set forth in India
in regard to the vital philosophic concepts are considered to be the branches of the self-
same tree. The short cuts and blind alleys are somehow reconciled with the main road of
advance to the truth." (Ibid p. 48.) When we consider this broad sweep of the Hindu
philosophic concepts, it would be realised that under Hindu philosophy, there is no scope
for ex-communicating any notion or principle as heretical and rejecting it as such.
........... ............ ...........
Beneath the diversity of philosophic thoughts, concepts and ideas expressed by Hindu
philosophers who started different philosophic schools, lie certain broad concepts which
can be treated as basic. The first amongst these basic concepts is the acceptance of the
Veda as the highest authority in religious and philosophic matters. This concept
necessarily implies that all the systems claimed to have drawn their principles from a
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 24
common reservoir of thought enshrined in the Veda. The Hindu teachers were thus
obliged to use the heritage they received from the past in order to make their views
readily understood. The other basic concept which is common to the six systems of Hindu
philosophy is that "all of them accept the view of the great world rhythm. Vast periods of
creation, maintenance and dissolution follow each other in endless succession. This
theory is not inconsistent with belief in progress; for it is not a question of the movement
of the world reaching its goal times without number, and being again forced back to its
starting point........ It means that the race of man enters upon and retravals its ascending
path of realisation. This interminable succession of world ages has no beginning".
("Indian Philosophy" by Dr. Radhakrishnan, Vol. II., p. 26) It may also be said that all
the systems of Hindu philosophy believe in rebirth and pre-existence. "Our life is a step
on a road, the direction and goal of which are lost in the infinite. On this road, death is
never an end of an obstacle but at most the beginning of new steps". (ibld.) Thus, it is
clear that unlike other religions and religious creeds, Hindu religion is not tied to any
definite set of philosophic concepts as such.
Do the Hindus worship at their temples the same set or number of gods ? That is another
question which can be asked in this connection; and the answer to this question again
has to be in the negative. Indeed, there are certain sections of the Hindu community
which do not believe in the worship of idols; and as regards those sections of the Hindu
community which believe in the worship of idols their idols differ from community to
community and it cannot be said that one definite idol or a definite number of idols are
worshipped by all the Hindu in general. In the Hindu Pantheon the first goods that were
worshipped in Vedic times were mainly Indra, Varuna, Vayu and Agni. Later, Brahma,
Vishnu and Mahesh came to be worshipped. In course of time, Rama and Krishna
secured a place of pride in the Hindu Pantheon, and gradually as different philosophic
concepts held sway in different sects and in different sections of the Hindu community, a
large number of gods were added, with the result that today, the Hindu Pantheon
presents the spectacle of a very large number of gods who ar worshipped by different
sections of the Hindus.
The development of Hindu religion and philosophy shows that from time to time saints
and religious reformers attempted to remove from the Hindu thought and practices
elements of corruption and superstition and that led to the formation of different sects.
Buddha stated Buddhism; Mahavir founded Jainism; Basava became the founder of
Lingayat religion, Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak
inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult;
and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion
flowered into its most attractive, progressive and dynamic form. If we study the teachings
of these saints and religious reformers, we would notice an amount of divergence in their
respective views; but underneath that divergence, there is a kind of subtle indescribable
unity which keeps them within the sweep of the broad and progressive Hindu religion.
There are some remarkable features of the teachings of these saints and religious
reformers. All of them revolted against the dominance of rituals and the power of the
priestly class with which it came to be associated; and all of them proclaimed their
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 25
teachings not in Sanskrit which was the monopoly of the priestly class, but in the
languages spoken by the ordinary mass of people in their respective regions.
Whilst we are dealing with this broad and comprehensive aspect of Hindu religion it may
be permissible to enquire what, according to this religion, is the ultimate goal of
humanity ? It is the release and freedom from the unceasing cycle of births and rebirths;
Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy,
represents the state of absolute absorption and assimilation of the individual soul with
the infinite. What are the means to attain this end ? On this vital issue, there is great
divergence of views; some emphasise the importance of Gyan or knowledge, while others
extol the virtues of Bhakti or devotion; and yet others insist upon the paramount
importance of the performance of duties with a heart full of devotion and mind inspired
by true knowledge. In this sphere again, there is diversity of opinion, though all are
agreed about the ultimate goal. Therefore, it would be inappropriate to apply the
traditional tests in determining the extent of the jurisdiction of Hindu religion. It can be
safely described as a way of life based on certain basic concepts to which we have
already referred....."
29. The plaintiff argues, somewhat elliptically, that Devi cult or worship is itself a
denomination, and that the practice - of male heirs of the family being entitled to worship, and
their entitlement to the "Bari" rights - is a "core" denominational right. Now, while one can
understand that Devi worship is part of Hindu religious practice, there ought to be something
more to say that a large and amorphous - at time diverse body of devotees, committed to Devi
worship can be called as a religious denomination. Devi worship can be in several forms - Kali
or Durga, Chamunda, or Vaishno Devi, or Kamakshi and so on. Devi or Shakti worship is
widespread amongst most Hindus at certain times of the year, particularly at the time of the
"Navaratris" in March-April, and the second, in October. While worship of Shakti or Devi, may
be common, as it celebrates "female" power that alone is an insufficient premise to conclude
existence of a denomination. What are the essential pre-requisites for a grouping to be called a
religious denomination, was spelt out in Nellor Marthandam Vellalar & Ors. v. Commissioner,
Hindu Religious And Charitable Endowments & Ors, 2003 (10) SCC 712, where the Supreme
Court revisited the law in this respect:
"It is settled position in law, having regard to the various decisions of this Court that the
words "religious denomination" take their colour from the word „religion‟. The
expression "religious denomination" must satisfy three requirements - (1) it must be
collection of individuals who have a system of belief or doctrine which they regard as
conducive to their spiritual well being, i.e., a common faith; (2) a common organisation;
and (3) designation of a distinctive name. It necessarily follows that the common faith of
the community should be based on religion and in that they should have common
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 26
religious tenets and the basic cord which connects them, should be religion and not
merely considerations of caste or community or societal status. On the basis of the
evidence placed on record, the first appellate Court as well as the High Court found that
Vellala Community is not shown to be a distinct religious denomination, group or sect so
as to be covered by Art. 26 of the Constitution. Further, it was necessary for the plaintiffs
to establish their claim in respect of the temple that the said denomination group has
established and is maintaining and administering the suit temple to take the protection of
Art. 26 of the Constitution and S. 107 of the Act. High Court found, after meticulous and
careful consideration of material that there was no evidence to prove that the members of
the Vellala Community have been shown to have any common religious tenets peculiar to
themselves other than those who are common to the entire Hindu community...."
30. The plaintiff has been unable to show how the essential elements that go towards pointing
to existence of a denomination are present in this case. The temple no doubt is dedicated to Devi
worship; other than that, there is no evidence presented to establish that it is part of a
denominational order, which possesses a common organization, with a set of common practices,
and follows rituals, which are shared by other temples and institutions. The common
denominations, which spring naturally to the mind, in the context of the Hindu religion, are the
Ramakrishna Mission, the Hare Krishna movement, Radha Saomi Satsangis, Arya Samaj,
Ananda Margis, the Raghavendra Math, etc. The temple in this case clearly is a non-
denominational one, though dedicated to Devi worship. Its customs and rituals are not rigid, as
the evidence of the first defendant establishes. Though family members - and not all of them,
have to follow or observe certain practices, there appears to be no compulsion that all have to do
so; there is no rigid rule about the rituals; even Shastric knowledge is not essential. Prayers and
worship can be easily performed, by reading the text found in the walls of the temple. As far as
the Bari right is concerned, there is no rule that one who secures that right has to invariably
perform religious rituals or worship, as a condition, or as an essential part of the enjoyment of
the right.
31. So far as the Plaintiff's contention about custom debarring female heirs from
participating in Bari benefits, and worship is concerned, concededly, the materials disclose that
one Pt. Umrao had originally enjoyed the right of worship. He fell seriously ill and due to
advancing age he was unable to perform Sewa Puja. He, therefore, permitted his son-in-law Pt.
Gopi Nath to perform Puja Sewa on his behalf. Later, Pt. Umrao became blind; he mortgaged his
Puja Sewa rights in Mandir Sri Kalkaji in favour of Pt. Gopi Nath by a written document. He was
unable to discharge the debt during his life time. As a result, he alienated the Puja Sewa rights in
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 27
to the said Pandit Gopi Nath. After the latter's death, those rights were asserted by his male
descendants. These facts are significant and revealing, as Pandit Umrao both alienated his right
of worship (negativing the plaintiff's argument about its inalieanability) and granted it to his
daughter's branch. These events took place barely 100 years ago. They wholly contradict the
plaintiff's claim that the right to worship and enjoy Bari benefits (which today implies the right
to tehbazari proceeds) exclusively vested in male heirs.
32. It would be necessary to remember that according to Article 13 of the Constitution of
India, laws in force in India, immediately before the commencement of the Constitution,
inconsistent with or in derogation of fundamental rights, to the extent of inconsistency, are void.
Article 13 (2) enjoins the State not to "make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void." Most crucially, Article 13 (3) defines law as follows:
"(3) In this article, unless the context otherwise requires,-
(a)"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
(b)"laws in force" includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas."
If one keeps the above commandment in mind, and contextualizes it in relation to Sections 4 and
6 of the Hindu Succession Act, read with Article 15 of the Constitution of India, the Court is
under an obligation to avoid the odium of a gender discriminatory interpretation, to any law,
which denies property rights to women. In this case, despite assertions, the plaintiff has been
unable to establish that:
(1) The Bari rights are intrinsically connected with worship in the temple;
(2) That such worship, even if they are assumed to be a condition, cannot be performed
on behalf of the female heirs, by someone else;
(3) That such Bari rights cannot be enjoyed by female heirs;
(4) That Bari rights are impartible, inalienable and do not constitute property.
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 28
On the other hand, all the authorities - at least three Supreme Court judgments have ruled that
the right to worship can be alienated, and that such Bari rights can be enjoyed by female Hindus.
33. This Court does not wish to recollect the various treaties and International covenants to
which India is a signatory, assuring equal treatment of women, and guaranteeing elimination of
all forms of discrimination. If one keeps the underlying principles of those international
covenants and the guarantee of equality held out by our Constitution, in mind, it would be
anachronistic and regressive to affirm the plaintiff's contention that the discriminatory practice
of excluding female heirs from the benefits of property rights to which Baris are attached -
which appears to have existed all this while- should be continued. Such is not the mandate of
law; such is not the custom or practice of any denomination, as claimed.
34. Having regard to this factual matrix, and the above findings, this Court concludes that the
female heirs (i.e. daughters and widow of late R.N. Bhardwaj) are entitled to equal one seventh
share each, in the proceeds in enjoyment of the Bari rights, which accrued to the other heirs. The
amounts deposited in this Court shall, to the extent of their entitlement, after adjusting the
amounts received under this Court's orders, be disbursed to them. All the above applications are
disposed of in these terms.
CS(OS) Nos.641/2005 and 642/2005
List on 17th January, 2011.
S. RAVINDRA BHAT
(JUDGE)
OCTOBER 18, 2010
I.A. Nos. 3761/05, 3762/05, 10176/06, 10923/07, 13834/07 & 4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS (OS) 642/2005 Page 29
