Calcutta High Court (Appellete Side)
Sg Nilkanta Roy Chowdhury vs Mangalmay Roy Choudhary & Ors on 28 April, 2023
SAT 39 of 2015
Items-8- CAN 1 of 2015 (old CAN 1431 of 2015)
28-04-2023
10.
CAN 2 of 2015 (old CAN 1453 of 2015)
Ct. 8
sg Nilkanta Roy Chowdhury
Versus
Mangalmay Roy Choudhary & Ors.
With
SA 389 of 1967
CAN 1 of 2005 (old CAN 3896 of 2005)
Bhairab Singha
Versus
Sudatta Sen
With
SA 390 of 1967
CAN 1 of 2000 (old 8363 of 2000)
CAN 2 of 2012 (old CAN 2357 of 2012)
Chandrika Prosad Singha
Versus
Sudatta Sen Majumder
Mr. Dulal Dey, Adv.
...for the appellant
We have heard the learned Counsel for the parties.
The records of the pending second appeals are produced
before us. We, however, did not find any relevancy of the issues
involved in the said appeals. The learned Counsel for the appellant
has also failed to satisfy that the pendency of the said two appeals
would have a bearing on the issues adjudicated upon by the learned
Trial Court. Curiously, no step was taken by the learned Advocate
for the present appellant in the pending proceeding. Directions were
passed as early as in 2005 for carrying out substitution. The
principal argument is that the learned First Appellate Court has
failed to take into consideration the pendency of the second appeal
as a ground to upset the judgment of the Trial Court.
We have read the judgments of the Trial Court as well as the
First Appellate Court. The plaintiff filed a suit for declaration that
the two deeds of appointment dated 16th May, 1962 and registered
on 22nd May, 1962 and another deed executed on 24th May, 1962
and registered on 25th May, 1962 in favour of the defendants are
forged and null and void. They claimed that the trust deed
unmistakably shows that Bholanath alone did not have power of
appointment.
The learned Trail Judge in considering the said submission
has taken into consideration the oral and documentary evidence in
this regard. The two deeds of trust marked as Exhibit 3 being the
deed dated 12th March, 1938 and registered in 1938 and Exhibit A
being a registered deed of trust executed in the year 1939 have been
marked as Exhibits 3 and B on behalf of the parties, wherefrom it
can be inferred that both the plaintiff and defendants admitted the
existence and validity of both the deeds of trust.
The learned Trial Judge as well as the First Appellate Court
has recorded that the settlors of the deed settled the estate for the
religious purpose for worshiping their deities. According to the
terms and conditions of the trust deeds, after demise of Bidhubasini,
both Bholanath and Monoj would become the shebaites and after
the demise of Bholanath, wife of said Bholanath i.e. Smt.
Praneshwari Debi and Monoj both would become shebaits of the
debuttor property. However, in the event Praneshwari pre-deceased
Bholanath, after demise of Bholanath, said Monoj would become
shebait of 16 anas of the trust property and if Monoj dies without
selecting anyone as the next shebait, the legal heir would be shebait
as per the Trust Act. Only if the legal heir is not religious persons,
the shebait would be chosen from their family who is religious and
modest and devoted to Hinduism. It is, thus, clear that Bholanth
alone did not have power to appoint shebait. It is very much clear
from the deed of trust that the settlors of the trust deed had the
intention of appointing shebaits from within their family. The
defendants contended that Bholanath was the sole owner and
possessor of 'ka' and 'kha' scheduled property and he alone had the
right of appointment of shebaits. The plaintiff before the Trial Court
has raised objection with regard to transferability and alienation of
the trust property. It was contended that the debuttor property was
not transferable but heritable.
The learned Trial Judge in deciding the matter in favour of
the plaintiff has taken note of the decisions of Calcutta High Court
in Kanak Lall Seal & Anr. vs. Trustees To The Trust Estate of
Mutty Lall Seal vs. Ors. passed on 9th April, 2009 in ATA No. 2 of
2008 and in the cases of Vembu Iyer Vs. Srinivasa Iyengar & Ors.,
reported in (1912) 23 MLJ 638: 17 Ind. Cas. 609 and Palaniappa
Chetti & Anr. vs. Deivasikamony Pandara, reported in (1916-17)
Law Reports Indian Appeals( 44) page 147 to held that the trust
property cannot be dealt with at the whims and fancies of the
trustees and such transfer should be fair and transparent upon notice
so as to obtain the best offer. Moreover, under section 36 of the
Indian Trusts Act, 1882 that prior permission is needed from the
court after alienation. The Trial Court has also arrived at a finding
that no case of necessity or benefit to the idol could be brought in
evidence that could justify the transfer in favour of the defendant
no.1 by Bholanath. The deeds of appointment dated 16th May, 1962
and 22nd May, 1962 are silent on the ground.
The defendants contended that by reason of such
appointment no alienation of debuttor property was made in favour
of the newly appointed shebaites.
The Trail Court has rightly pointed out that it would pre-
suppose that Bholanath has the right to transfer such shebaitship
during his lifetime. The shebaiti right is heritable like any other
property and it must follow the wishes of the settlor. The shebaiti
right is transferable in the following circumstances:
a) The transfer of shebaiti right is permissible if such
transfer is not contrary to the intention of the founder as
expressed in the deed of endowment, unless an ancient
or reasonable custom or usage has been followed to the
contrary.
b) When there is perpetual or hereditary line of succession
of shebaitship prescribed by the founder in his deed of
endowment, a particular shebait cannot change the line
of succession by any deed of transfer unless the shebait
transfers the totality of his rights in favour of the
succeeding shebait or shebaits during his lifetime.
c) A transfer of a shebaiti right is also permissible for the
benefit of the idol or the deity or for imperious necessity
under special circumstances. [See. B.K. Mukherjee:
The Hindu Law of Religious and Charitable Trusts,
Tagore Law Lectures 5th Edition page 231]
In the instant case, there is a hereditary line of succession of
shebaitship prescribed by the founder in his deed of endowment, a
particular shebait cannot change the line of succession by any deed
of transfer "unless it is for the benefit of the ideal or the deity or for
imperious necessity under special circumstances" which could not
be established. The Trial Court, accordingly, decreed the suit in
favour of the plaintiff.
The First Appellate Court on fresh consideration of the oral
and documentary evidence, accepted the findings of the Trial Court.
Before the First Appellate Court, it was urged that the
appellants may be permitted to file paper books in SA 389 of 1967
and SA 390 of 1967 and the appeals may be decided after taking
into consideration such fresh evidence. Apart from the fact that the
pre-requisites for Order 41 Rule 27B is not satisfied, the learned
Counsel for the appellant even today was unable to indicate the
relevancy of such evidence for proper adjudication of the issues
involved in the suit or could have a bearing on the issues raised
before the learned trial judge.
Under such circumstances, we do not find any reason to
interfere with the concurrent findings of fact. We are of the view
that the findings are based on sound legal principle and on proper
appreciation of the two several deeds from which the rights of the
parties emanate.
The appeal fails. However, there shall be no order as to
costs.
The record may be returned to the department.
(Uday Kumar, J.) (Soumen Sen, J.)
