Calcutta High Court
Sudhir Kumar Nandan & Anr vs Nanigopal Nandan on 14 September, 2023
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD - 24+25
ODER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA NO. GA/15/2023
IA NO. GA/16/2023
In CS/1763/1959
SUDHIR KUMAR NANDAN & ANR.
Vs
NANIGOPAL NANDAN
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date: 14th September, 2023
Appearance:
Ms. Jhuma Chakraborty, Adv.
Mr. Rahul Kr. Saha, Adv.
...for applicant.
Mr. Surya Prosad Chattopadhyay, Adv.
Mr. Arjun Samanta, Adv.
Mr. Saptarshi Kr. Mal, Adv.
In GA No. 15/2023:
Mr. Asit Sahail Tarafdar, Adv.
...for proforma def. nos. 1-5, 10 & 12.
In GA No. 16/2023:
Mr. Asit Sahail Tarafdar, Adv.
...for def. nos. 1-7.
Ms. Parna Roy Chowdhury, Adv.
...for def. nos. 5 & 6.
The Court: G.A. 15 of 2023 is filed with prayers of removing the names of the
Respondents from the shebaitship as well as administration and management of the
deity Sree Sree Sridhar Jew, in terms of settlement Clause (o) and modifying, varying, altering the Scheme being Settlement, part of the terms of the Settlement filed before this Court in Suit No. 1763 of 1959.
G.A. 16 of 2023 is filed with prayers for order removing the names of the Respondents from the shebaitship and management of the deity Sree Sree Sridhar Jew considering the misconducts of the Respondents, as detailed in Para 6 of the applications; after removal of the Respondents from shebaitship directing them to surrender possession of the areas/rooms occupied by them in the debutter property; shebaits who all have performed pala for the periods 2021 - 2022 and 2022 - 2023 to produce before this Court list of movables used by them and/or in their possession belonging to the deity along with prohibitory orders and others.
Sum and substance of case which may be regarded as genesis of both the petitions may be looked into first:
One Durgamoni Dasee, widow of late Narendra Nath Daswas common ancestor of the parties. The said Durgamoni Dasee was possessed of and otherwise well and sufficiently entitled to the properties located at premises no. 68/A, 68/B Shyampukur Street and 69 Shyampukur Street, Kolkata - 700004. The said Durgamoni Dasee executed a will and testament dated 29.05.1923 creating debutter estate in respect of the properties located at 68/A & 68/B Shyampukur Street and 69 Shyapukur Street, Kolkata - 700004 and made permanent arrangement and provisions for the daily and periodical seva puja of thakur Sree Sree Sridhar Jew to dwell and reside in the aforementioned property being premises no. 69 Shyampukur Street, Kolkata - 700004 and appointed Nanigopal Nandan, Pramila Bala Dasee and Surendra Nath Nandan as trustees of the debutter estate. The will contained various directions regarding management of the debutter estate.
Sometimes in the year 1959 a suit was filed in this Court being Suit No. 1763 of 1959 wherein the parties were the deity, and the trustees so appointed. The suit was decreed on 18.09.1968. The decree contained certain terms of settlements touching management and administration of the debutter properties.
The parties in the present proceedings are all heirs and successors of the original trustees. It is alleged that the Respondent no. 8 - 10 did not perform any seva puja for last thirty years. Respondent no. 1 - 10 are guilty of misconduct in management. More so, the Respondent no. 1 - 10 executed power of attorney on 11.02.2023 in favour of one Narendra Kumar Rathi. These erring Respondents claimed to be absolute owners of the properties as aforesaid. In terms of the power of attorney all the Respondents no. 1 - 10 nominated constituted and appointed the said Narendra Kumar Rathi to do, exercise and execute all the deeds, things related to the properties located at 68/A, 68/B & 69 Shyampukur Street, Kolkata
- 700004. According to the Petitioner, all the Respondents acted contrary to the terms of settlement contained in the decree passed in the suit and are guilty of misconduct. In conspectus of this factual scenario the present applications are filed.
Against G.A. 15 of 2023, Affidavit-in-Oppositions were filed by Respondent no. 6 Sukanya Dutta and Narendra Kumar Rathi.
Respondent no. 6 denied all the allegations raised in the G.A. 15 of 2023. The positive case of this answering Respondent is that management and administration of the debutter estate was carried on in accordance with the terms of settlement. Three wings were formed i.e. Nani Gopal Nandan, Pramila Bala Dasee and Sudhir Kumar Nandan and seva puja was being carried out by the heirs of the aforesaid three wings in terms of the settlement. Upon death of the said Nani Gopal Nandan, Pramila Bala Dasee and Sudhir Kumar Nandan, their legal heirs performed seva puja every 3rd year in pala/rotation Respondent no. 1 - 7 are legal heirs of the wing of Pramila Bala Dasee; proforma Respondent no. 1 - 12 are legal heirs of the wing of Nani Gopal Nandan; Respondent no. 5 - 6 belonged to the wing of Pramila Bala Dasee. The answering Respondent performed seva puja with utmost sincerity and actively participated in the seva puja. During the years 2020 - 2021 during discharge of duties of seva puja, the Respondent no. 5 - 6 were willfully obstructed and forcefully alienated from performing duties by the Applicants. They attempted mitigation of disputes but with no result. Because of death of the father of Respondent No. 6 and husband of the Respondent No. 5 and because of consequential hardships, financial difficulties and distresses, they could not focus on any other affairs. The answering Respondents further alleged that the Petitioners were guilty of letting out the premises without informing the other shebaits.
Narendra Kumar Rathi averred in the Affidavit-in-Opposition that he is the constituted attorney of Respondent no. 1, 3, 4 and proforma Respondent no. 1, 3, 4, 5, 10 and 12. The said Affidavit-in-Opposition almost reiterated the same statements as contained in the Affidavit-in-Opposition filed by the Respondent no. 5 - 6.
Affidavit-in-Opposition filed against G.A. 16 of 2023 by the same answering Respondent no. 6 and the constituted attorney for Respondent no. 1, 3, 4, 5, 10, 12 and Narendra Kumar Rathi was in the same line, taking almost the same defence reiterating the same facts.
Affidavit-in-replies were filed by the petitioner against both the Affidavit-in- replies.
The issue of removal of shebaits is not new. The original suit being Suit No. 1763 of 1959 was filed with such prayers of removal of the Defendants or any of them from the shebaitship and management of the deity Sree Sree Sridhar Jew in default to frame appropriate scheme for management and administration of the debutter estate. This Court framed appropriate scheme which contains detailed terms and conditions ofmanagement and administration of the debutter estate. The scheme didnot provide for removal of any shebait. The scheme is also silent on assignment or delegation of the rights of any shebait. Nothing is there in the scheme to indicate that any shebait can perform any seva puja or exercise his/her rights and duties through any constituted attorney. The scheme also does not provide for any penal or other coercive action against any erring shebait. Similarly, there is no provision in the scheme as to what step may be taken when a shebait fails to perform his pala, allotted to him. This later issue should be addressed to ensure continued and uninterrupted the seva puja. The whole scheme was framed to enure benefit and proper administration and management of seva puja without being harsh. Any modification of term in view of changed circumstance should be in consonance with the scheme. At the same time the scheme cannot be read offending or contrary to the settled principles of law on management and administration of debutter estate.
The concept of shebaitship evolved in Hindu jurisprudence with centuries. Shebaitship has its typical nature and characters. He is not a typical trustee in a trust property. Trustee holds such property for benefit of the cestui que trust. Although the property remains vested in the deity and the shebait is a manager for performance of temporalities yet he is something more than a mere manager. Both the elements of office and property, of duties and personal interests are mixed up and blended together in the conception of shebaitship. One element cannot be detached from the other. In Angurbala Mullick Vs. Debabrata Mullick [(1951) SCC 420] Four Judges' Bench considered the concept of 'shebaitship'. Speaking for the Bench, Justice B.K. Mukherjee explained that in the concept of shebaitee both the elements of office and property of deities and personal interests are mixed up and blended together; and one of the elements cannot be detached from the other. It is presence of the personal or beneficial interest in the endowed property which invests shebaitship with character of proprietary rights and attaches to which the legal incidents of property.
Shebait, like a trustee in English law cannot delegate to his duties to another, no matter whether such other is a stranger or co-trustee. This view is expressed by the great author Dr. B.K. Mukherjee in his seminal book 'The Hindu Law of Religious and Charitable Trusts'. According to the Author, the root is founded on maxim delegatus non potest delegare. It is further explained that although shebait right is heritable like any other property, it lacks the other incident of proprietary right, viz. the character of being freely transferable by a person in whom it is vested. The reason is that the personal proprietary interest which the shebait has got, is ancillary to and inseparable from his duties as a ministrant of the deity and a manager of its temporalities. As the personal interest cannot be detached from the duties, the transfer of shebaitship would mean delegation of the duties of the transferor - which would not only contrary to the expression, intentions of the founder but would also contravene the very policy of law. This observation was referred to and considered in Kali Kinkor Ganguly Vs. Panna Banerjee And Ors. [(1974) 2 SCC 563]. However, the suit against alienation relaxed in certain circumstances as discussed in the said seminal work by Dr. B.K. Banerjee and considered in Kali Kinkor Ganguly's Case in Profulla Chorone Requitte & Ors. Vs. Satya Chorone Requitte [(1979) 3 SCC 409]. It was observed by the Supreme Court of India that although shebaitship is heritable property yet it cannot be freely transferred by a shebait except in certain contingencies.
This scheme framed in the suit did not contemplate or approved of transfer of shebaitship or introduction of a stranger in the office of shebaitship. As discussed above, neither the concept of shebaitship permits delegation of office of shebaitship nor is that contemplated inthe scheme. It is not indispute that Mr. Narendra Kumar Rathi is a constituted attorney, as appears from its own affidavit. Copy of power of attorney, which is annexed to G.A. 16 of 2023 shows that the same was executed by the executants in the capacity of shebaits. By that same power of attorney, the authority is given to the said Mr. Rathi to administer and manage the properties at 68/A Shyampukur Street, 68/B Shyampukur Street and 69 Shyampukur Street. However, nothing is mentioned that Mr. Rathi is constituted his attorney to perform deb seva. As discussed above, rights and duties of shebait are inseparable. He cannot further delegate his power to someone else to administer the debutter estate for reasons discussed above. Therefore, it is proper that the constituted attorney should be barred from interfering into or exercising any power or authority in respect of the debutter property or participate in management and administration of the debutter properties considered herein, namely, the properties located at 68/A, 68/B and 69 Shyampukur Street, Kolkata - 700004. To that effect and to that extent no stranger or the third party including the present constituted attorney shall either participate in management and administration of the debutter estate or perform seva puja.
In view of the evolved situation, as it stands today, the terms of settlement should be modified to address the present situation. Accordingly, after the term(s) of the Settlement decree, the following terms shall be inserted:
"(t)(i)There shall be a Committee consisting of three senior most shebaits, physically fit and mentally alert and not disabled otherwise to discharge such function.
The Committee shall be responsible for taking decisions on day to day management and administration of the debutter property, summoning meeting of the shebaits, to supervise the conduct of the shebaits, to consider due performance, discharge administration and management of the debutter property by any or all or some of the shebaits, disputes and differences in relation to any pala.
(ii) In case any of such Committee members' interest remains in conflict with his duties, the next senior most shebait, duly qualified to be a member shall substitute him or her.
(iii) In case a shebait fails to perform his/her/their pala without reasonable cause, the Committee shall, subject to decision of the majority shebaits present in a meeting convened for such purpose, declare that shebaitship becomes relinquished; such shebaitship shall devolve upon such other shebaits as the Committee may deem fit and proper as may be decided in such meeting.
(iv) In case one or more shebaits acts in such a manner which is opposed to the interest of the debutter estate or is detrimental to or purports to frustrates the object of creation of debutter estate or any such act or acts which infringes, interrupts, interferes with exercise of rights or duties of any other shebait, then the Committee may subject to the decision of the majority of the shebaits present, in a meeting held for this purpose, declare the rights, title and interest of such shebait as relinquished and shall devolve upon such other shebaits as may be decided therein.
(v) Decisions mentioned in Para. (iii) and (iv) above shall be subjected to confirmation of this Court.
(vi)Incase of exigency of situation, the Committee may adjust or reallocate any part of pala to any other willing shebait to ensure uninterrupted seva puja.
This decision shall be taken by the Committee in case of emergent situation. Otherwise any decision for reallocation, adjustment of pala shall be taken by the Committee subject to the decision of majority of shebaits present, in a meeting called for this purpose. (u) No shebait shall alienate, transfer, delegate his rights and duties to any person or introduce in any manner any stranger to administers and manage the debutter property on his/her behalf.
Any such act may be deemed to be acts of relinquishment/abandonment of the rights, duties and office of the shebait as may be decided by the Committee, in the manner as aforesaid.
(v) In case of one/other members of the Committee are party to the dispute, he or they shall not be a member of the Committee considering such difference and dispute and the same shall be considered by a Committee constituted of the next senior most shebaits, who is or are physically fit and mentally alert and is not disabled to settle such disputes."
This terms may be read with the terms of settlement contained in the decree dated 18.09.1968.
GA 15 and 16 are stands disposed of.
(SUGATO MAJUMDAR, J.)