Calcutta High Court
Madhabendu Kundu & Ors vs Indra Kumar Das on 6 August, 2025
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OD-09
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
C.S.No./559/1967
In
G.A.No./2/2024
MADHABENDU KUNDU & ORS. VERSUS INDRA KUMAR DAS
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 06th AUGUST 2025
Appearance:
Mr. Subrata Bhattacharya, Adv.
Ms. Rusha Mukherjee, Adv.
...applicants.
Mr. Santosh Kumar Kanodia,
Adv.
Ms. Bani Ghosh, Adv
. ..for the defendant.
The Court: This application is filed praying for the following reliefs:
a) The petitioners and the other trustees be jointly empowered to act as trustees
of the Debuttar Estate.
b) The petitioners in discharge of their duties as Trustees in terms of prayer(a) be
empowered to take the following amongst other:-
i) to collect rent from various tenants of the properties comprised in the
Debuttar Estate, situated at 21, Kanai Dhar Lane, Kolkata-700012, and
58 B, Patuatola Lane, Kolkata- 700009.
ii) be authorized to incur all necessary expenses for the purpose of
maintenance and upkeep of the Debuttar properties including payment
of statutory taxation and outgoings in relation thereto;
iii) to perform the regular puja of the deity including all periodical festivals
in terms of the deed of endowment forming part of the consent decree.
iv) be permitted to take steps against various illegal occupants of the
properties for the purposes of their eviction by institution of appropriate
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proceedings against such unauthorized occupants in the best interest of
the deity.
c) Leave may be granted to serve copy of instant application upon the surviving
descendants of the deceased defendants in terms of paragraph 18 above,
d) Ad interim orders in terms of prayers above.
e) Such other and/or further order or orders be made and/or direction or
directions be given as this Hon'ble Court may deem fit and proper.
The contention of the applicants may be summed up thus:-
1.One Beharilal Das since deceased by a Bengali Deed of endowment 15th October, 1931 dedicated his two immovable properties being premises no. 21, Kanai Dhar Lane, Kolkata- 700012 and Premises No. 58 B, Patuatola Lane, Kolkata-700009 situated within the aforesaid jurisdiction, to Sri Sri Radha Krishna Jew Thakur. In the said endowment expressly provided that after the death of settler and his wife Mahamaya Dassi their three nephew namely Hari Charan Das, Gobinda Chandra Das and Narendra Nath Kundu would be joint sebaits and would take possession of the properties and out of income thereof incurred daily seva and periodical festivals of the deties. It was provided after death of Mahamaya Dassi other said three sebaits and their respective heirs would also act jointly as sebaits by succession.
2. After the death of wife of the settler said Hari Charan Das and Narendra Nath Kundu became the sebaits, as the said Gobinda Chandra Das never acted as sebait and discharged his functions and by reason thereof shall be deemed to have relinquished his sebait's right, since inception.
3. The said Narendra Nath Kundu died leaving behind his three sons Madhabendu Kundu, Ashok Kumar Kundu and Rabindra Nath Kundu both of them acted as sebaits during their life time. After death of Hari Charan 3 Das his two sons Indra Kumar Das and Sailendra Kr. Das both of whom acted as sebaits during their life time.
4. In the course of management and administration of the Debuttar Estate, there arose differences by and between and/or amongst the sebaits interse resulting in a Suit No. 559 of 1967 being filed by said Madhabendu Kundu and others as a sebaits against Indra Kumar Das, Sailendra Kumar Das legal heirs of Hari Charan Das and other. Similarly in 1964 being Suit No. 1760 was filed by Indra Kumar Das as a sebait against Sailendra Kumar Das and others.
5. Both the said suits were amicably settled and a decree by consent of the parties was passed on 21st December, 1972 wherein the Receiver appointed in the above suits was directed to continue and the terms of settlement filed by the parties duly signed was made a part of the consent decree.
6. The mode and manner of management and administration of the Debuttar Estate by the parties in the said the suits as sebaits has been expressly stipulated in the said terms of settlements forming part of the said consent decree. The relevant portion are as follows:
(a) The defendant Nos. 1 and 2 Indra Kumar Das and Sailendra Kumar Das will act as shebait for a periodic term of pala of one year each and the plaintiffs jointly will act as the sebaits for a period term or pala of one year. During the term for which the plaintiff will act as shebaits, the plaintif no. 1 Madhabendu Kundu will be entitled to represent his brothers the other two plaintiffs herein and act on their behalf.
(b) During the term or pala of sebaitship as aforesaid the respective shebaits shall perform the sheba puja of the said deity, collect rents, effect necessary repairs, pay necessary taxes make disbursement and otherwise administer the debuttor estate in terms of the said deed of 4 endowment dated October 15, 1931 and during the continuance of the term or pala of one shebait or group of shebaits as aforesaid, the other shebaits shall not interfere with the administration of the debuttor estate. In case of the difference of opinion the wish of the majority of the acting shebaits as in clause 6(a) hereof will prevail.
(c) All rent bills relating to the aforesaid debuttor estate during all terms of palas as aforesaid shall be signed jointly by Indra Kumar Das, Sailendra Nath Das and Madhabendra Kundu and rent will be realized by issuing rent bills as signed. The respective sebaits shall facilitate the signing of such bill. The collection of rent for each month shall be deposited in a schedule bank in the names of the sebaits as mentioned in clause 2 (a) hereof such banking account shall be operated by any two of the shebaits as mentioned in clause 2(a) hereof.
(d) In case of death of either Indra Kr. Das or Sailendra Kr. Das their respective heirs along with the survivor of either of them shall be jointly entitled to perform the Seva Puja of the said deity, collect rents and effect necessary repairs pay necessary taxes make necessary disbursements and otherwise administer the debuttar estate as aforesaid for a period term or pala of one year and the plaintiffs shall perform the seva puja of the said deity, collect rents, effect necessary repairs pay necessary taxes and other dues make necessary disbursement and otherwise administer the debuttar estate for a terms or pala of one year. In case of difference of opinion amongst the said sebaits opinion of the senior of each group will prevail.
7. Pursuant to the said terms of settlement confirmed by a decree dated 21st December, 1972 the said Madhabendu Kundu and the said Sailendra 5 Kumar Das and another have enjoyed their respective turn of sebaitship separately and exclusively per year during their life time.
8. The said Madhabendu Kundu was childless and died intested on 09.07.2015 and his wife Radha Kundu died on 26.04.2018 and the said Ashok Kumar Kundu was unmarried died intested on 05.03.2006 and said Rabindra Nath Kundu died intested on 20.08.2023 leaving behind his wife Bharati Kundu and only son Tapas Kundu as his legal heirs and successors as such rights of sebaitship would devolve upon the legal heirs of Late Rabindra Nath Kundu, the applicant herein.
9. That after the death of Indra Kumar Das his legal heirs had taken out an application inter-alia praying recording of death of Indra Kumar Das and discharge of the receiver appointed by the Hon'ble Court and appointment of official receiver in place and stead of said receiver appointed by the Hon'ble Court and said application was disposed of by this Hon'ble Court by an order dated 23rd December, 1976 and appointed official receiver of this Hon'ble Court in place and stead of erstwhile receiver, over the Debuttar Property.
10. Similarly upon the death of Sailendra Kumar Das his legal heirs had taken out an application inter-alia praying for an order by filing G.A. No. 1336 of 2012 in Suit No. 1760 of 1964 in discharge of their duties as Joint Trustees in place and instead of Sailendra Das since deceased although daughter of Sailendra Das not interest in performing the duties as shebaitship and served all relation with the plaintiffs and subsequent thereof, the Hon'ble Justice I.P. Mukerji, was pleased to appoint Mr. Prasun Ghosh, as receiver by its order dated 23rd. July, 2012.
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11. The legal heirs and heiresses of Sailendra Kumar Das and Indra Kumar Das since deceased have taken separate applications being the surviving decendants for incorporating the names and to get leave to act of sebaitships in the said debuttar estates.
12. In an application being G.A. No. 1303 of 2009 by an order dated 15th June, 2009 the Hon'ble Justice Patherya (the then was) was pleased to hold that official receiver was discharged and a direction was passed to transfer all the funds held by the official receiver to the deity.
13. In view of the order dated 15.06.2009, a meeting was conducted by the official receiver to transfer the funds of the estate whereat a resolution was passed authorizing Rabindranath Kundu and Tapan Das (representing the branch of Sailendra Kumar Das) to open a new account with bank of Baroda Surya Sen Street Branch and accordingly a new bank account was opened but despite of the order of the Hon'ble Court and opening bank account, the official receiver has failed and neglected to furnish accounts to the sebaits and to transfer the funds of the deity.
14. In the aforesaid circumstances resulting out of the action and conduct of the Official Receiver in failing to transfer the funds held by him in the name of the debuttor estate to the sebaits, there has been a complete deadlock in the management and administration of the debuttor estate.
15. It has thus become necessary and in the interest of the deity that the petitioners being the legal heirs of Rabindra Nath Kundu be jointly 7 empowered to act as trustees of the debuttor estate in view of the said terms of settlement.
The legal heirs of Sailendra Kumar Das defendant no. 1 deceased submitted Affidavit in opposition to the application filed by the applicant. It is contended by the deponents that the following facts are true and correct.
1. It is a matter of fact that presently the following persons are entitled to jointly act as shebaits and/or trustees to the estate known as "Sri Sri Iswar Radha Krishna Jew Thakur" of No. 21, Kanai Dhar Lane, Kolkata as also of No. 58B, Patuatola Lane, Kolkata-700009.
i) Smt. Bharati Kundu and Sri Tapas Kundu wife and son respectively of late Rabindra Nath Kundu who was original plaintiff no. 2;
ii) Smt. Arati Das, Sandip Das and Smt. Jhumki Chakraborty, wife, son and daughter of Late Swapan Kumar Das who was son of Late Sailendra Kumar Das the original defendant no. 2 in the instant suit;
iii) Most of the heirs of either other plaintiff(s) or other defendant(s) are not surviving and some of them who are surviving are not interested in the affairs and management of the said Estate specially because they want to avoid pecuniary responsibilities arising out of shortage of income and surmounting expenses of the Deities.
iv) It is admitted by the applicants herein as per statements made in Paragraph No. 1 of the said application that the respective heirs of Hari Charan Das, Gobinda Chandra Das and Narendra Nath Kundu would jointly act as trustees.
v) It is a matter of record of the proceedings of this suit that the funds belonging to the Deities was previously held by the Official Receiver who had been appointed a long time ago. It is also a matter of record of the instant proceeding that pursuant to the Order dated 23rd 8 July 2012 passed by this Hon'ble Court, Mr. Prasun Ghosh Advocate was with the consent of the contesting parties, appointed as receiver who was directed to collect funds from the Official Receiver and by the said order dated 23rd July 2012, the official Receiver had been discharged and the incoming Receiver was to perform further in terms of the said order.
The deponents have further contended that they are residing at the premises no. 21, Kanai Dhar Lane, Kolkata, which was originally allocated to and occupied by their ancestors. After the successive deaths of the ancestors one after another, they as his heirs have been residing there. It is also contended that they are not fully aware of the steps taken by the applicants namely Bharati Kundu and Tapas Kundu but they have been facing as and being residents of the self same premises and have come to know that the said heirs of late Rabindra Nath Kundu, started to treat the Debutter Estate as their personal properties and have been letting out portions of the properties comprised in the said two premises by taking hefty amounts of salami and high amounts of monthly rent from persons of their choice by suppressing the correct status from other heirs of the Settlor Late Beharilal Das. It is contended that there are several tenants in the premises No. 21, Kanai Dhar Lane, Kolkata paying rent to the shebaits under whom the annual Pala (term of one year) falls. Presently the term is in the hands of the said Bharati Kundu and Tapas Kundu which is to continue till the 31st December, 2025. From 1st January, 2026 the said annual pala will be managed by the said three heirs namely Smt. Arati Das, Sandip Das and Smt. Jhumki Chakraborty.
It is further contended that the premises no. 58B, Potuatola Lane, Kolkata- 700009 had been long let out to one Sri Bal Krishna Shaw and after his death his wife Smt. Manju Shaw has continued to occupy the entire premises. As has been 9 learnt, the said Smt. Manju Shaw has inducted various persons to use and enjoy several portions of the said premises no. 58 B, Potuatola Lane, Kolkata- 700009, without knowledge or consent of any of the shebaits.
It is further contended that by an order dated 15th June, 2009, this Court was pleased to discharge the Official Receiver, who had earlier been appointed by an order dated 23rd December, 1976 and who was thereby directed to collect the rent from the various monthly tenants in respect of both the said municipal premises namely 21, Kanai Dhar Lane and 58B Patuatola Lane and such collected rent was to be utilized for day to day sewa puja of the deities consecrated by Sri Bihari Lal Das, the Settlor of the said Estate. By the said order dated 15th June, 2009, the Official Receiver was further directed to furnish accounts to the Sebaits within six weeks from the date of receipt of the order and was further directed to transfer all funds held by him to the Deities.
It is further contended that by order dated 23rd July, 2012, Ld. Co-ordinate Bench of this Court was pleased to appoint Shri Prasun Ghosh, as the learned Receiver who was directed to collect funds from the Official Receiver and to open a bank account and to receive rents, issues and profits from the property. The said Receiver was directed to carry out the day to day management in consultation with the parties.
It is contended that so far the deponents are aware neither the official Receiver nor the learned Receiver Sri Prasun Ghosh has transferred any sum of money to the Deities or to the shebaits of either group.
It is the day to day sewa Pooja of the Deities coupled with the salary of the Pujari is being managed to be paid by the deponents partly from the rent received from some of the tenants and partly from their own contributions but the property tax payable to the Kolkata Municipal Corporation and maintenance of the buildings are not possible to be paid or managed out of the meager rent being paid by the 10 tenants.
It is contented that out of their occupied portions for which they had been paying rent to the Debutter Estate they have sacrificed one room and let it out to Rinku Saha at a rent of Rs. 1000/- to get some money and to contribute some part to the monthly expenses incurred by them on account of the Sewa pooja and salary.
The deponents contended that it would be necessary to appoint the respective heirs of all branches of the family as Shebaits for proper management of the Estate and upon such appointment, the appointed Shebaits may be directed to act as Board of Shebaits and take all decisions relating to the affairs of the trust estate which includes the properties of the trust estate.
Till that period the Learned Receiver may be directed to realize all arrears of rent from all the existing tenants and to deposit the same in the bank account which he would have opened and to allow expenses to be made therefrom for the day to day management of the Sewa of the Deities.
The deponents contended that inadequate funds in the hands of Shebaits has of course resulted in lack of proper and required sewa puja of the Deities but there has not been any deadlock in the management or administration of the Debutter Estate inasmuch as the deponents have very diligently and prudently performed their duties towards the Deities.
It is contended that it neither was nor is necessary to appoint only the heirs of Late Rabindra Nath Kundu to be empowered to act as trustees of the Debutter Estate. On the contrary, it is necessary that out of all the heirs of Late Beharilal Das, whoever are surviving and are willing to serve as Shebaits should be jointly appointed as Shebaits to the Debutter Estate and be directed to perform their respective duties as per Law.
The applicants have filed affidavit in reply. It is contended that the present applicants are also residing at premises no. 21, Kanai Dhar Lane, Kolkata-700012 11 and have occupied the portion allocated by their deceased ancestors. The applicant has denied that the heirs of Late Rabindra Nath Kundu has started to treat the Debuttar Estate as their personal properties and letting out portions of the properties comprised in the said two premises by taking hefty amounts of salami and high amounts of monthly rent from persons of their choice by suppressing the correct status from other heirs of the settler Late Beharilal Das. It is contended that they have never inducted any tenants and persons of their choice.
The existing persons presently reside in the said premises namely 21, Kanai Dhar Lane, Kolkata-700012 staying in the respective portions since long time as their allocations have been made by their deceased ancestors and receiver.
The applicant has admitted that due to inadequacy of funds and in effective management there has been a deadlock position. The applicant has prayed that necessary order may be passed for the well being and protection of the deities as well as the properties belonging to the deities.
Heard Learned Advocates for the parties. Perused the petition filed Affidavit submitted and materials on record.
Learned Advocate for the applicant submits that as per the Terms of settlement defendant no. 1 and 2 Indra Kumar Das and Sailendra Kumar Das will act as the Shebaits for a periodic terms of Pala of one year each and the plaintiffs jointly will act as the shebaits for a periodic term or pala of one year. During the term for which the plaintiffs will act as shebaits the plaintiff no-1 Madhabendu Kundu will be entitled to represent his brothers the other two plaintiff's herein and act on their behalf. Learned Advocate further submits that during the term of pala of shebaitship as aforesaid the respective shebaits shall perform the Sheba Puja of the said deity collect rents, effect necessary repairs pay necessary taxes make disbursements and otherwise administer the debutter estate in terms of the said deed of endowment dated October 15, 1931 and during the continuance of the term or pala of one 12 shebait or group of shebaits the other shebait shall not inteterfere with the administration of the debutter estate.
Learned Advocate also submits that the applicants being legal heirs of deceased plaintiff 3, Rabindra Nath Kundu is entitled to act as joint trustees and collect rent from various tenants.
Learned Advocate representing the legal representatives of Sailendra Nath Das namely Arati Das, Jhumki Chakraborty and Sandip Das submits that her clients do not have objection to the applicant being permitted to act as trustees jointly but there is objection with regard to grant of permission exclusively to collect rent. Learned Advocate further submits that at present seba-puja is being performed from the contribution of sebaits, and funds lying in the name of Debuttar Estate cannot be utilized due to lact of information and necessary particulars. Learned Advocate submits that the heirs of Sailendra Kumar Das should also be permitted to collect rent.
Upon perusing the petition and considering the terms of settlement it will appear that the terms of settlement provides that in case of death of either Indra Kumar Das or Sailendra Kumar Das, their respective heirs along with survivor of either of them shall be jointly entitled to perform the Sheba Puja of the said deity collect rents and incur necessary expenses. Although there is no mention about devolution of Sebaitship in case of death of any of the plaintiff but considering the nature of the dedication by the settlor and appointment of his wife and three nephews as joint sebaits and on the death of wife of Mahamaya Dassi wife of settler the continuation of sebaitship by the three nephews and their successor it is clear that the intention of the settlor was continuation of sebaitship by members of his family and nephews. Moreover the decree in accordance with the terms of settlement provides Liberty to apply.
Thus considering the nature of the dedication by settlor and the specific 13 mention about sebaitship right and the provision of liberty to apply this court is of the view that the application filed by the applicants should be considered and the applicants should be permitted to act as joint trustees of the Debuttar Estate.
Let there be an order in terms of prayer a) of the Notice of Motion dated 13th day of December 2024.
However considering the submissions regarding non-collection of rent for a long period lack of income of Debutter Estate and permission to all trustees to collect rent it is necessary to appoint a Special Officer to conduct an Enquiry before passing further orders.
Learned Special Officer shall enquiry with regard to the following aspects.
1. To hold a meeting with all the Shebaits/trustees and ascertain the expenditure incurred by the shebaits in the last 3 years.
2. Expenses incurred by the shebaits personally to conduct the seba puja, and other expenses.
3. To visit the property at the Debuttar Estate Situated at 21, Kanai Dhar Lane, Kolkata-700012 and 58 B, Patuatala Lane Kolkata-700009 and ascertain the total number of tenants in each premises. Their names, and the rent last paid and the amount of monthly rent.
4. To hold discussion with the Learned Receiver appointed in this case and ascertain when rent was last collected.
Ms. Anita Kundu Learned Advocate ph-9432428333 is appointed as Special Officer. Learned Special Officer shall upon notice to the Learned Advocate for the applicant Learned Advocate for heirs of defendant no-2 namely Sandip Das, Arati Das Jhumki Chakraborty, Barun Das conduct the Enquiry. Copy of the application shall furnished to the Learned Special Officer by the applicant as well as the addresses of the trustees. Learned Special Officer is entitled to a remuneration of 500 G.M. to be paid by the applicant. Incidental costs of Enquiry shall be borne by the 14 applicant.
Upon completion of Enquiry Learned Special Officer shall submit a report on or before 27/08/2025.
Fix 27/08/2025 for report of Learned Special Officer.
(BISWAROOP CHOWDHURY, J.) A.Bhar(P.A)