A preliminary fact that has to be looked at is that the person making the will, cannot bequest

the entire property that belonged to the HUF of his grandfather or to his own HUF of which
his brothers were also a part of. He can, by will, only bequest his share of the property of his
grandfathers HUF and his own HUF, and that property that he acquired individually during
his lifetime. If, he wills the whole of the property of his HUF to his wife, his brothers can
challenge this.
Secondly, the person in his will, which was probated, said that his wife would get all of his
property and that she would adopt sons that would be his sons, so that his name could be
carried on. Here the wife did not adopt sons and instead created a debuttor property under a
shebait.
The leading case on Hindu gifts and wills is Juttendramohun Tagore v. Ganendromohun
Tagore1 which had laid down that if property is given absolutely to a person, but the gift-deed
or will contains a direction that it shall not be alienated or partitioned, or that it shall be
applied or enjoyed in a particular manner, such a direction is inoperative, and the donee takes
the property, as if no such direction was contained in the document.
Also, in the case of Bhaldas v. Bai Gulab2 the court had held that if, by the terms of a deed or
will, an absolute estate of inheritance is created in favour of a person, any subsequent clause
purporting to restrict that interest would be invalid, and the donee would take an absolute
estate, as if such clause was not contained in the document.
Furthermore, in the present case, as the person had no other heirs except his wife, as she did
not adopt sons, it can be said that the wife had an absolute right over the property and she
could do anything with it.
Thus, it is clear that if the wife chose not to adopt sons as per the will, it would not affect her
right over the property. On the point of her creating a debuttor, the Supreme Court in the case
of Kamala Devi v. Bachu Lal Gupta3, observed that a Hindu widow in possession of the
1 Juttendramohun Tagore v. Ganendromohun Tagore, (1872) 9 Beng. L.R. 377
2 Bhaldas v. Bai Gulab, (1922) 49 I.A. 1
3 Kamala Devi v. Bachu Lal Gupta, AIR 1957 SC 434

estate of her deceased husband can make an alienation for religious acts which are not
essential or obligatory but are still pious observances which conduce to the bliss of the
deceased husbands soul. In the case of essential or obligatory acts, if the income of the
property or property itself not sufficient to cover the expenses, she is entitled to sell whole of
it, but for the acts which are pious and which conduce to the bliss of deceased husbands soul,
she can alienate reasonable portions of the property.
Now, on who she appoints as a shebait is completely upon her and she can even laydown how
the office of the shebait will be devolved, subject to the restriction that he cannot create any
estate unknown or repugnant to Hindu Law 4, and in case she has not laid down any such
guidelines, upon the death of the shebait, the said office will revert to the founder, or the heirs
of the founder, who made the endowment5. The Supreme Court also, in the case of
Sambandamurthi Mudaliar v. The State of Madras6 recognised the right of the founder to
provide a special scheme of succession for the office of Dharmakartha or shebaitship. Their
Lordships say:
Ordinarily a shebaitship or the office of Dharmakartha is vested in the heirs of the
founder unless the founder has laid down a special scheme of succession or except when
usage or custom in the contrary is proved to exist.
The debuttor will also survive the wifes death as the property is now vested in the idol and
has nothing to do with the founder. The post of shebait too, is only that of a trustee or a
manager.

Now, if the deceaseds brothers join the wife in creating the debuttor, its legality will still not
be affected. The only effect of this will be that if no scheme of appointment of the shebait is
provided for, after the death of the present shebait the heirs of the brothers will be vested with
the office of the shebait.
4 Manohar Mukherji v. Bhupendranath Mukherji, (1933) I.L.R. 60 Cal. 452
5 Jai Bansi Kunwar v. Chatter Dhari Singh, 5 B.L.R. 181
6 Sambandamurthi Mudaliar v. The State of Madras, C.A. No. 1671 of 1966