Calcutta High Court
Mrigendro Mullick vs Purnendro Mullick & Ors on 16 July, 2009
Author: Patherya
Bench: Patherya
CSOS No. 3 of 2009
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINATING SUMMONS
MRIGENDRO MULLICK
Versus
PURNENDRO MULLICK & ORS.
BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 16th July, 2009.
Appearance :
Mr. Hirak Kr. Mitra, Sr. Adv.
Mr. Partha Nath Banerjee, Adv.
.......... For petitioner.
The Court :- This originating summons suit has been filed to answer the questions raised which for convenience sake are set out hereinbelow ;-
a) An order for modification of the orders dated January 15, 1988 and September 26, 1989 to the extent that no further leave is required from this Hon'ble Court to grant lease of any property or any part thereof by the Shebaits of the Debutter Estate of the Thakur Shree Shree Jagannathjee created by the Will of February 21, 1887 as per Supreme Court decision.
b) It is required for Shebaits of the Debutter Estate created by the Will dated February 21, 1887 to obtain leave of this Hon'ble Court to grant lease of any property or any part thereof by reasons of the orders dated 15th January, 1988 and 26th September, 1989 or otherwise ?
c) Whether the Shebaits of the Debutter Estate have the right to deal with the properties in the best interest of the idol in whom the properties remained vested ?
2d) Whether the provisions of the India Trust Act, 1882 or the Charitable and Religious Trust Act, 1920 is applicable in view of the decision of the Hon'ble Supreme Court of India dated 17th December, 1976 ?
The applicants herein have raised the said issues as on 15.1.1988 and 26.9.1989 orders were passed on application filed under the Indian Trust Act, 1882. The said orders directed the trustees to take leave of the Court in case documents of Conveyance was to be executed. As such leave is not required in view of the decision of the Supreme Court of India in Civil Appeals No. 1682 - 1683 of 1971 (CIT West Bengal III, Calcutta Versus Sri Jagannath Jew (Through Shebaits)). Hence the instant application has been filed for answering the issues raised.
Counsel for the defendants has no objection to the issues being answered. Having considered the facts of the case and submissions of the parties and the Judgment dated 17.12.1976 it is evident that by the Will of 1887 the Debutter was dedicated by the maker of the Will to his 'maker' and 'thakur' and the humen agency to administer the said estate were the Shebaits. As the Will of the settlor was for Religious and Charitable purposes there can be no doubt that the estate was created for Charitable and Religious Purposes and will be governed by the Provisions of the Charitable and Religious Trust Act, 1920 and not by the Indian Trust Act, 1882.
This, therefore, answers the issue raised in question (d). As the said Trust was created under the Charitable and Religious Trust Act, 1920, the applications filed under the Indian Trust Act, 1882 were filed due to oversight and, therefore, the orders passed on 15.1.1988 and 26.9.1989 need to be modified. Accordingly, the orders dated 15.1.1988 and 26.9.1989 are modified so far as it directs obtaining leave from the Court prior to execution of lease or conveyance. By deletion of such leave directed, to make it clear no leave is required under the Indian Trust Act, 1882 by the Shebaits prior to execution of lease or conveyance.
In view of the aforesaid question (a) is answered accordingly. Having held that the said trust is one under the Charitable and Religious Trust Act, 1920, no leave need be obtained prior to grant of lease and question (b) is answered accordingly.
In view of the answers above the Shebaits will have the right to deal with the properties in the best interest of the idol in whom the estate is vested.
As all the issues raised have been answered this originating summons suit is disposed of.
Let the decree be drawn up expeditiously.
3(PATHERYA, J.) GH.