Calcutta High Court
Administrator-General Of Bengal And ... vs Balkissen Misser And Ors. on 12 May, 1924
Equivalent citations: (1924)ILR 51CAL953
JUDGMENT Page, J.
1. In this case the defendants, in my opinion, possess no merits, and deserve no sympathy. They possess no merits, because on the date when the suit was instituted none of them were clothed with a vestige of legal title to the premises in suit, which were originally known as 51-3, Cotton Street, afterwards as No. 55, Cotton Street, and now as No. 10, Hanumanji Lane, Calcutta. And they are entitled to no sympathy because, if they had not admitted at the hearing that on the date when these proceeding were commenced they possessed no title to the premises, and the circumstances under which the property in the premises purported to have passed from the first and second defendants to one Ashutosh Pramanick, and subsequently to the fourth defendant, had been subjected to scrutiny in Court, I have more than a shrewd suspicion that it would have become apparent that the defendants at all material times were fully aware that none of them possessed any title or interest whatever in these premises. Moreover, it is clear that the Misser defendants were guilty of uttering deliberate falsehood (i) in asserting in a written statement filed in December 1911 in Suit No. 961 of 1911 that the said premises were not dedicated to the idol Sham Sunderjee; (ii) in alleging in a plaint filed in Suit No. 1217 of 1911 in the same month, "that they were the owners and proprietors of the house and premises No. 10, Hanumanji Gully, in the town of Calcutta, which was a four-storeyed building, and for upwards of a hundred years the plaintiffs and their predecessors in title had been in possession of the said premises in their own right;" and (3) in stating in an affidavit sworn on 20th October 1913 that "the premises belonged to them absolutely and for ever, and that the said premises were not affected by or with any trust, public, religious or otherwise, of any sort or kind, and the said premises were their own absolute property." Further, it is clear from a letter written by the solicitors to the fourth defendant on the 23rd January 1917, that the fourth defendant, who purchased the said premises at an auction sale directed by the Court in a mortgage suit filed by Pramanick against the Misser defendants, had been advised by counsel that the Misser defendants had no title to the premises, and yet, notwithstanding the advice given to him, that he was prepared to complete the purchase. It would be interesting to ascertain the circumstances under which Pramanick brought himself to accept the mortgage. It may be that these matters will be further ventilated hereafter, if it is deemed advisable to take criminal proceedings in respect of these transactions.
2. Sometime between 1842 and 1850 the premises in suit were acquired by the executors of one Asuram Burmon, a Hindu merchant of Burrabazar, Calcutta, and, pursuant to directions contained in his will, the premises were dedicated to the worship and service of Sham Sunderjee. By reason of the manner in which the dedication was effected the property in the said premises passed in its entirety to, and, until this suit was instituted, remained vested in the god Sham Sunderjee. In May 1917 the plaintiff, the Administrator General of Bengal, as administrator de bonis non of the estate of Asuram Burmon, and the Official Assignee as trustee of the funds appertaining to the said estate, were informed (as the fact was) that the Misser defendants in 1911 had succeeded in persuading the authorities to enter their names as the owners and occupiers of the premises in suit in the assessment book of the Records Department of the Corporation of Calcutta. It further transpired that in May 1912 the said defendants had mortgaged the premises to Pramanick for Rs. 8,000: that on the 27th June 1913, inasmuch as no part of the sum left had been repaid by the mortgagors as provided under the said mortgage deed, the mortgagee had filed a suit for sale of the said premises; that on the 22nd December 1914 a decree absolute for sale had been passed; and that the premises ultimately had been sold on the 18th November 1916 to the fourth defendant pursuant to the said decree for the sum of Rs. 25,200. The mortgage debt amounted to Rs. 9,903-2-4. On the 3rd April 1917 a sum of Rs. 5,000 was paid by the auction purchaser to the Misser defendants, and the residue of the purchase price was paid into Court. In these circumstances on the 3rd August 1917 the plaintiffs filed the present suit, inter alia, for a declaration that the premises in question formed part of the estate of Asuram Burmon, and that the plaintiff, the Administrator-General, was entitled as administrator de bonis non of Asuram Burmon's estate to possession thereof; that the indenture of mortgage of 14th May 1912 was void and inoperative; that the sale of the premises to Ashutosh Pramanick was invalid and inoperative, and that the fourth defendant under the auction sale acquired no right or interest therein. The plaintiffs also sought an order that the fourth defendant should be ordered to deliver up possession of the said premises to the Administrator-General, and asked for incidental relief.
3. Now, although for some time prior to the date when the present suit was instituted, the Misser defendants,--and since May 1917 the fourth defendant--had been in actual possession of the said premises, I find that none of them had any title or interest therein, and that, at any rate up till the year 1911 when the Misser defendants procured the mutation of names in the Corporation assessment book, such possession was not adverse to the right and title of the person in whom the legal title to the premises was vested, whether such person was the idol Sham Sunderjee, or the plaintiffs. Until 1911 the Misser defendants occupied the said premises as de facto, not de jure shebaits of the idol, and not otherwise. The fourth defendant, however, admittedly was in possession of the premises on the date when these proceedings were commenced, and the plaintiffs are not entitled to succeed in this suit merely because they have satisfied me that the defendants would not have been justified in retaining possession of the premises after the person legally entitled thereto had demanded delivery of possession. For in a suit framed as this suit is, in ejectment, the plaintiffs must rely upon the strength of their own title, and cannot succeed unless they prove that the legal title to the premises is vested in them, and that they have been in possession of the premises, and have been ousted therefrom within 12 years before the present suit was filed.
4. I took time to consider what my judgment should be in this case because I was anxious fully to investigate the authorities material to the matters in controversy, and I am satisfied that at the date when the present proceedings were launched--I express no opinion as to what would be the result of any suit which might hereafter be instituted,--no defence to a suit, aptly framed, to eject the defendants from possession of the said premises, would have been available or open to the defendants or any of them who might have been in possession, if instituted on behalf of the idol by a shebait or, as I apprehend, in the name of the idol itself (vide Jodhi Rai v. Basdeo Prasad (1911) I.L.R. 33 All. 735, Pramada Nath Bay v. Poorna Chandra Ray (1 908) I.L.R. 35 Calc. 691, 698, Maharaja Jagadindra Nath Boy v. Rani Hemanta Kumari Debi (1904) I.L.R. 32 Calc. 129; L.R. 31 I.A. 203, Damodar Das v. Adhikari Lakhan Das (1910) I.L.R. 37 Calc. 885; L.R. 37 I.A. 147. In Jagadindra's case (1904) I.L.R. 32 Calc. 129; L.R. 31 I.A. 203 the Judicial Committee of the Privy Council expressed the opinion "that on the appointment of a shebait the right to sue for possession of the property with which the idol was endowed belonged to the shebait and not to the idol. Assuming religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belonged to the shebait, and this carries with it the right to bring whatever suits are necessary for the protection of property. Every such right of suit is vested in the shebait, not in the idol" (per Sir Arthur Wilson, page 210). The law must now be taken to be that laid down in Jagadindra's case (1904) I.L.R. 32 Calc. 129; L.R. 31 I.A. 203, although I confess that I feel somewhat perplexed to find that the right to sue for possession is divorced from the proprietary right to the property which is vested in the idol. In such cases where adverse possession of the premises is proved, does time under the Statute of Limitation run only against the shebait, or against the idol as well, notwithstanding that the right to sue for possession is vested solely in the shebait? I think, however, that Jagadindra's case (1904) I.L.R. 32 Calc. 129 must be read in the light of the later decision in Damodar's case (1910) I.L.R. 37 Calc. 885, where it was held that adverse possession affects the right and interest of the idol as well as the right and interest of the shebait, and in my opinion where adverse possession is proved, time will also run against the idol even in circumstances such as those obtaining in the present case where no shebait has been appointed. But is it not permissible in cases where a shebait has not been appointed to file a suit for possession in the name of the idol? I think that it is, although no doubt the Court will appoint some person to act as agent ad litem for the idol. It would, I imagine, sound a strange doctrine in the ears and the heart of a Hindu that a public company which has neither mind nor morals, sense or sensibility, is juristic entity deemed fit to promote or defend proceedings in its own name, while a god, whose tabernacle the image is, although a juristic entity capable of being endowed with the title to property both moveable and immoveable, is regarded in law as unfit to institute or defend suits in its own name. In my opinion, the defendants would have been unable to resist a claim for possession if the present suit had been instituted in the name of the thakur. The same result would have followed if the suit had been brought by the Advocate-General, or by any one or more persons who were,--or indeed might be,--worshippers at the shrine of the god whose image was set up in the said premises, or by any other person interested in the maintenance of the religious observances to be carried on therein. Whether the plaintiffs or either of them, who represented the estate of. Asuram Burmon, and were under an obligation to repair the fabric of the temple, and to supply funds in aid of the acts of worship to be performed and celebrated therein, were persons possessed of a sufficient; interest to maintain the present suit, is a question which involves the consideration of an interesting problem (vide Manohar Ganesh Tambekar v. Lakhmiram Govindram (1887) I.L.R. 12 Bom. 247, and Sections 5 and 14 of the Religious Endowment Act (XX of 1863). But it is one upon which, in the circumstances of this case, I am relieved from embarking, because the plaintiffs have refrained from applying so to amend the claim as to entitle them to raise in these proceedings any of the issues which I have indicated above. No amendment to alter the frame of the suit or to raise a fresh issue or for any other purpose has been sought, and the plaintiffs have deliberately elected to stand or fall upon the result of this issue, viz., whether the legal title to the said premises was vested in them or in either of them on the date when the present suit was filed. The determination of this issue depends upon the terms and conditions of the founder's will in pursuance of which the premises were dedicated as a temple, and the image of Sham Sunderjee set up therein. The material passages of Asuram Burmon's will executed on the 9th February 1842 are as follows:
I further will and direct that my said executors do lay out and expend out of my estate a sum of company's Rs. 5,000 in the election and building of a temple in the City of Calcutta near the banks of the river Hooghly, and in placing an idol therein, such idol to be in the discretion of ray executors. I further will and direct that my said executors do lay out and invest the sum of company's Rs. 2,000 out of my estate in the purchase of a garden with a tank and fruit trees thereon in the name of Luchmeeputty Baboo, Juggul Doss Baboo, Poorsettam Doss Baboo and Hurry Deb Set, all of Burrabazar in Calcutta, merchants, or in the names of the survivor or survivors of them, and I hereby declare that the same or the survivor or survivors of them or other the trustee or trustees to be appointed as hereinafter mentioned, shall stand... and be possessed of and in the said garden and premises on trust that they expend and lay out the rents, profits and produce thereof in the worship of the said last mentioned idol, and in keeping the said last mentioned temple in repair.
5. After appointing the above mentioned persons executors and trustees of the will the testator proceeds:
It shall be lawful to and for the surviving or continuing or other trustee or trustees of the said trust premises for the time being or in case there shall be no continuing trustee then for the retiring trustees or trustee of their or his own proper authority by any writing or writings under their, his or her hands and seals or hand and seal to nominate, substitute and appoint any other person or persons to be a trustee or trustees in the stead or place of him or them so dying or desiring to be discharged or refusing or declining to act or becoming incapable of acting as aforesaid.
6. After the death of Asuram Burmon, the executors, in pursuance of the directions in his will contained, purchased the premises in suit and erected therein an image of Sham Sunderjee. In the will of Pursottom Das, who was the surviving executor and trustee under the will of Asuram Burmon, and which bore date the 21st March 1850, it was provided that:
Whereas I am now sole surviving executor of the last will and testament of Asuram Burmon, and being desirous of providing for the proper administration of the same after my death, I am desirous of placing the said estate in the hands of the Administrator-General for the time being. I do therefore hereby nominate and appoint Maurice Fitzgerald Sands, Esquire, the Administrator-General for the time being, and his successors in the said office to be my executor, so far only, however, as to enable him to represent and administer the estate of the said Asuram Burmon, not to be my general executor or to have the administration of my own estate, and I do hereby in pursuance of the general directions contained in the said will appoint Gocul Babu of Burrabazar to be manager of the Temple erected from the funds of the said estate and to receive and expend sums set aside and provided for the worship of Sham Sunderjee from and under the directions of the Administrator-General for the time being.
7. The testator then proceeded to give directions as to the sums which were to be expended annually in the service and worship of Sham Sunderjee.
8. It was contended by counsel on behalf of the fourth defendant that the appointment of the Administrator-General as executor and trustee to carry out the directions of the will of Asuram Burmon by Pursottam Das, not being under Pursottam's hand and seal, was inoperative as a valid appointment under the will. In my opinion, the appointment was a valid one, and I find that Lord Truro, Lord Chancellor, in Innes v. Sayer (1851) 3 Macn. & G. 606, 620 observed that it ought to be considered as established by judicial decision, that a power well exercised in all other respects will be deemed to be an effective execution of the power, although the form in which the power has been exercised has not conformed to the requisitions imposed by the instrument creating or giving the power.
9. On the 20th May 1850 the Administrator-General of Bengal was appointed administrator de bonis non, with the will and codicil annexed, of the unadministered goods and effects of the estate of Asuram Burmon, and on the 29th March 1906 the Administrator-General of Bengal assigned to the Official Trustee the funds of the estate of Asuram Burmon then in his hands. Now, according to the law as administered in British India property may be dedicated to religious purposes, e.g., to the worship or service of a god in such a manner that upon dedication the proprietary title to such property passes in its own entirety and in perpetuity to the idol; and where there is dedication in this form the title to the property will vest in the idol without the necessity for the creation of a trust, or the intervention of a trustee: vide Manohar's case (1887) I.L.R. 12 Bom 247. The dedication, however, may be in a form in which the property is vested in a trustee who, pursuant to the provisions of the trust, is under an obligation to administer the property wholly for religious purposes; or again, the property may be transferred in beneficial ownership to secular persons subject to a charge thereon for religious purposes. Examples of the various forms of endowment may be found in Sonatun Bysack v. Sreemutty Juggutsoondree Dasi (1859) 8 Moo. I.A. 66, Manohar's case (1887) I.L.R. 12 Bom. 247, Jagadindra Nath Roy's case (1904) I.L.R. 32 Calc. 129 and Jadu Nath Singh v. Thakur Sita Ramji I.L.R. 39 All. 553;L.R. 44 I.A. 187. In my opinion, the intention of the founder, and the effect of the provisions of his will, was that the premises in suit were to be dedicated in the strictest form, and upon acquisition of the same by his executors the proprietary right therein passed absolutely and for ever to the god Sham Sunderjee. Not only are the terms of the will in respect of this matter precise and clear, but it is to be observed that whereas the executors are directed to effect the purchase of the garden and tank and premises in connection therewith in the name of the executors and trustees of the will, no such direction is made in respect of the acquisition of the premises dedicated to Sham Sunderjee. I have formed a clear opinion that neither at the date when the suit was filed, nor at any other time, was the property in the premises in suit vested in the plaintiffs or in either of them. I find support for the conclusion at which I have arrived in the course which has consistently been adopted by the several Administrators-General for the time being during the period of over 60 years which has elapsed since the death of Pursottamdas. In Suit 934 of 1861 Charles Swinton Hall, Administrator-General of Bengal for the time being, who was impleaded as defendant in that suit, filed a written statement, paragraph 8 of which runs as follows:
Upon my succeeding to the office of Administrator-General in March 1855 certain property consisting of houses and Government securities were made over to me as being the estate of the said Asuram Burmon and the estate now in my hands consists of two houses in Cotton Street Calcutta, Government securities for Rs. 9300, and a small cash balance and thereafter the plaintiff has received since May 1856, and still continues to receive, a monthly allowance of Rs. 25 for the performance of the idol directed in the Will.
10. The executors of Asuram Burmon's will, after his death, purchased three premises in Cotton Street, which wore afterwards known as Nos. 53, 54 and 55, Cotton Street, and the two houses referred to by the Administrator-General in 1864 were Nos. 53 and 54, No. 55, Cotton Street, is the name under which the premises in suit was afterwards known, and which, as I have said was dedicated in the strictest form to the idol Sham Sunderjee. On the 18th June 1866 a decree was passed by Mr. Justice Macpherson in that suit, and in that decree It is "declared that the property of Asuram Burmon deceased subject to the religious charitable trusts mentioned in his will and now in the hands of the defendants consists of Government securities for Rs. 8,400 and Rs. 356-5-2 in cash, and of the two houses situate in Cotton Street, Burrabazar, in the town of Calcutta, numbered respectively 51-1 and 51-2, afterwards No. 53 and 54, Cotton Street, and that the premises No. 51-3, (which are the premises in suit), situate in the same street, is a temple which was built out of funds belonging to the estate of the same Asuram, and it is ordered and decreed that the said estate be held by the said defendant as heretofore, subject to the trusts of the will of the said Asuram Burmon, or such of them as are now subsisting and capable of taking effect."
11. The decree then makes provision for certain sums to be paid by the Administrator-General for the service and upkeep of the temple in the premises in suit. In suit 161 of 1891, in which the Administrator-General of Bengal as administrator de bonis non of the estate of Asuram Burmon, was made a party, in paragraph 3 of the plaint it was alleged, inter alia, that the executors of the said will "erected a temple at 51-3, Cotton Street in the town of Calcutta, on the banks of the river Hooghly, and placed therein an idol named Sham Sunderjee, and that the same continued to be in possession of the said temple, gardens and Government securities until their respective deaths". In paragraph 12 of the plaint it is alleged that the temple and securities set out in the Schedule to the plaint "are now in the possession of the defendant, Administrator-General, and that there is no trustee for the purpose of carrying out the trusts of the will". On reference to Schedule A, it is found that the immoveable property is then stated to consist of a three-storeyed tenanted house, 53, Cotton Street, a three-storeyed tenanted house, No. 54, and a house No. 55, Cotton Street, Thakurbaree. The Administrator-General for the time being Mr. Broughton, filed a written statement in that suit, in paragraph 2 of which he alleged that "he is informed and believes the garden at Manicktolla mentioned in paragraph 4 of the plaint was sold in 1850 for a sum of Rs. 2,600, but he has no knowledge of the existence of the temple mentioned in paragraph 3, nor is the same in his possession". In paragraph 3, he proceeded to assert that "in reference to the 12th paragraph of the plaint he is in possession of the properties set out in the Schedule attached hereto including the temple No. 54 mentioned in paragraph. 12." I find as a fact that No. 54, Cotton Street, was in part used as a Thakurbaree, and in part was let out to tenants, but Nos. 54 and 53, Cotton Street, which were subsequently sold by the administrator of the estate of Asuram, are not the premises in suit, which are No. 55. Reference may be made in this connection also to the decree in the said suit, which was passed on 16th July 1894.
12. In 1903 a further suit was brought in respect of the premises in question, No. 233 of 1903, against Mr. Grey, Administrator-General for the time being. The defendant filed a written statement, in paragraph 5 of which he states that "the defendant does not know whether the premises described in paragraph 1 of the plaint in this suit as No. 55-1, Cotton Street, are the same premises as 55, Cotton Street, above mentioned the defendant is not now and never has been and so far as he is aware, none of his predecessors in the office of Administrator-General of Bengal, has ever been in possession of the said premises, 55, Cotton Street, but the same have always been in possession either of some person duly appointed a trustee under the said will of the said testator or of some person acting as a shebait of the said idol, and defendant submits that this suit cannot succeed without either such a trustee or shebait being a party to this suit", and in the decree of the 8th July 1904 I find that it is stated that the defendant, the Administrator-General of Bengal, stated by his counsel that he did not lay any claim to the property in suit. Lastly, on referring to the Deed of Assignment by the Administrator-General to the Official Trustee of the 29th March 1906, to which I have already adverted, I find that the assets which came into the hands of the Administrator-General as administrator de bonis non of the estate of Asuram "consisted of the premises No. 53 and 54, Cotton Street, in the town of Calcutta, and Government securities of the nominal par value of Rs. 5,329-1-11 in cash, which included the sale proceeds of certain property known as Manicktolla Garden".
13. It appears, therefore, that throughout the long period during which the Administrators-General have been in possession of the estate of Asuram, each Administrator-General has consistently stated that 55, Cotton Street did not in his time form and so far as he knew, had never formed part of the estate of Asuram. I am not unmindful that in the Corporation assessment book during the years 1866-76, the recorded owner of the premises is the Administrator-General, but it is to be observed that it was recognised at the outset that 55, Cotton Street, were premises exempted from taxation as being used solely for religious purposes. From 1882 to 1900 no name is recorded in the assessment book as that of the owner of the premises in suit. In 1900 the owner is stated to be the Thakur Sham Sunderjee, and it is only in 1911, in the circumstances to which I have alluded, that I find that there is a mutation of names, and for the first time the Misser defendants' names appear as owners of the said property. I attach little importance to the entries in the assessment book, by reason of the facts which I have stated, and I have no doubt that the reason why the name of the Administrator-General appeared at any time in the assessment book, was that the authorities were anxious to have on the record the name of some person to whom they could have recourse in case it was necessary that a public imposition should be met. Evidence was also adduced before me to show that from time to time persons had addressed the Administrator-General as the owner of the premises in suit, but it is not unnatural that such persons should have done so, because they were either the shebaits de jure or de facto for the time being who were seeking to obtain their remuneration from the Administrator-General under the terms of Asuram's will or they were persons who were looking to him for funds to protect the property from encroachment. Such evidence in my opinion, carries little weight in so far as it is cited before me for the purpose of influencing my mind in the consideration of the question as to whether or not the premises in suit were vested in the plaintiffs or either of them. I hold that the plaintiffs have failed to make out that the premises in suit were vested in them or that they were in possession of the premises at any time. The plaintiffs, therefore, fail to make out their claim. The suit, in my opinion, is not maintainable, and must be dismissed.
14. So far as the costs are concerned, in my opinion, it wan advisable, if not necessary, that the Administrator-General should have brought upon the record all the defendants, and in my opinion, although he has failed on a technical ground owing to the constitution of the suit, he, acting not unreasonably, was induced to launch these proceedings by reason of the unwarrantable conduct of the defendants in purporting to dispose of the premises in suit for which there was no justification whatever. There will be judgment for the defendants without costs. The costs of the Administrator-General will be defrayed out of the estate as between solicitor and client.