Calcutta High Court
Smt. Renuka Roy vs Centre Point Estates Private Ltd on 22 April, 2008
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Aniruddha Bose
C.S. No. 20 of 2006
SMT. RENUKA ROY
Vs.
CENTRE POINT ESTATES PRIVATE LTD.
Advocate for the Plaintiffs: Mr. Hirak Mitra. (Sr. Adv.)
Mr. Soumen Sen
Advocate for the Defendant: Mr. D. K. Banerje (Sr. Adv.)
Heard On: 19.7.07, 21.8.07, 11.9.07, 18.9.07, 13.3.08 & 15.4.08.
Judgment On: 22.04.2008
ANIRUDDHA BOSE, J.:-
1.One Krishna Kamini Mitra (since deceased) had, by a Deed of Settlement dated 14th August 1945 dedicated premises no. 238 B, Acharya Jagadish Chandra Bose Road (formerly known as Lower Circular Road) in favour of Sree Sree Kalimata, a deity established in the said premises. The said premises appear to be comprised of a two-storied building and partly three storied building and certain adjacent vacant land. As per the Deed of Settlement, the deity, installed in a room on the second floor of the premises was to remain and worshipped there. The Shebaits were to reside on a portion of the said premises. As per clause 3 of the said Deed of Settlement, a copy of which has been made Annexure "A" to the affidavit filed in support of the Summons, the Shebaits were to manage the said property and the income to be derived therefrom were to be applied in the manner prescribed in the said clause, which is reproduced below:-
"The Shebait or Shebaits for the time being shall manage the said properties hereby dedicated and transferred as aforesaid and the income derived therefrom will be applied in the manner following namely (a) in payment of the rates and taxes and other outgoing of the properties hereby dedicated and transferred (b) in payment of the costs of repairs of the same and (c) in payment of the charges for collection of income law charges and others necessary charges for up keep management and preservation of the property hereby delicated and transferred as aforesaid and belonging to the said Deity the whole of the balance at such income or other income that may be available shall be applied in payment of the expenses of the deity worship and for the annual festivals and for other expenses of the said deity Sri Sri Kalimata. If there be any surplus left of such income the same may be applied for the development and improvement of the Debuttar properties or to purchase other property in the name of the said deity to be included in this dedication and if the income of the Debuttar Estate increased by such development or improvement or purchase the whole of such enhanced income shall be applied for the worship and annual festival of the said Deity and other expenses and with the increase of the income the standard of such festivities and worship will also increase. Be it known that the said Deity shall be the absolute owner of all development improvement and purchase of other properties made with the help of surplus as aforesaid."(sic).
2. Clause 4 of the Deed of Settlement places an embargo on the Shebaits, prohibiting them from selling, mortgaging or otherwise transferring the said premises. This clause is also set out hereunder:-
"The Shebaits shall have no power to sell or mortgage or otherwise transfer the said premises No. 238B, Lower Circular Road. If, however, the said premises becomes unfit for occupation by reason of fire earth- quack or any similar cause beyond the power and control of the Shebait the Shebaits will be at liberty to sell the same but the sale proceeds shall be applied in purchasing or building a suitable house for the location and worship of the said deity for the residence of the Shebait as mentioned in paragraph-I of these presents and for dwelling a rent a portion thereof so that the income. So derived may be applied in manner hereinbefore mentioned in paragraph 3. Of these present such house and any surplus sale proceeds that may remain shall be managed by the Shebait in the same manner and on the same terms as the premises No. 238B, Lower Circular Road is included to be hereby held or mortgaged the other properties hereby delicated and transferred any be sold by the Shebaits if they think fit and the sale proceeds thereof should be invested in other immovable properties or securities approved under the provisions of the India Trust Act such immovable properties or investment shall be held and managed by the Shebaits in the same way and subject to the same Trust or term as the property sold."(sic)
3. This Originating Summons has been taken out by the present Shebaits of the estate, primarily for opinion of this Court as regards approval of certain arrangement they have entered into with the defendant for the purpose of development of approximately nine kottahs of land located in the rear portion of the subject-premises. The agreement, which appears to have been executed on 16th August 1986, and a copy of which has been made annexure to the affidavit, involve making construction of a building thereon by the defendant. The fifty per cent of the constructed area was required to be given to the developer under this agreement. The remaining half of the building to be constructed along with proportionate common space and car parking space was to remain with the Shebaits. The case of the Shebaits, who are the plaintiffs in the present proceeding is that the said portion is required to be utilised for augmenting the income of the deity.
4. Both the Shebaits appointed in terms of the Deed of Settlement has taken out this Originating Summons, and it has been pleaded in the affidavit that this arrangement became necessary for the following reasons:
"i) Three storied building where Deity is located is very old and requires regular maintenance. Recently roof of the building had to be thoroughly repaired at a cost of Rs.2,50,000/-. The recurring repair and maintenance costs for the said building is Rs.35,000/- per annum on an average.
ii) Municipal taxes for the said building is Rs.10,587/- per quarter amounting to Rs.42,348/- per annum.
iii) Staff for Security and maintenance had to be engaged and monthly salary and wage charges amount to Rs.3,500/- p.m. aggregating to Rs.42,000/- per annum.
iv) For carrying out seva puja and deity, priest has been employed and a helper has been engaged. Their monthly salary amounts to Rs.1000/- and Rs.1000/- aggregating to Rs.24,000/- per annum.
v) For meeting deity's daily seva puja and for ceremonial occasion on an average a sum of Rs.60,000/- is required to be spent per annum.
vi) With spiralling costs and expenses, it is genuinely believed that the cost and expenses on the aforesaid heads will multiply within the near future.
vii) Monthly income of the Deity is in the region of Rs.6,000/- per month aggregating to Rs.72,000/- per annum which is derived out of letting out a portion of the said property. The said income is wholly inadequate for meeting the aforesaid expenses in the interest and for the benefit of the deity. It is necessary that income of the deity should be augmented. The deity have no other property or assets. The only way of earning income was to create further source of income out of the said property."
5. It appears that the Developer, being the defendant herein, intends to sell the flats from the part of the building whose construction is contemplated under the agreement of 16th April 1986 which would come under their allocation, and are insisting now that the plaintiffs should join as confirming parties in the agreements/deeds of conveyance to be executed by them for the purpose of sale. The stand of the plaintiffs, vis-à-vis such demand of the developer is that they are not required to join as parties to such agreement/conveyances. It appears, however, that the defendant are threatening to stop work unless the plaintiffs confirm that they should join in the agreement for sale.
6. It is in this factual context the Originating Summons has been taken out, seeking opinion of this Court on the following questions:
"(a) Should the plaintiffs as Shebaits and Trustees under the said Deed of Settlement dated 14th August 1945 execute the agreement for sale/deed of conveyance in respect of flats? Specimen copy of agreement for sale is annexed hereto and marked with Letter "D".
(b) Would selling or dealing or grant of long lease in respect of owner's allocation area under the Agreement dated 16th April 1986 be for the benefit of the Deity and if so, should the defendant be directed to join in such agreement for sale/deed of conveyance as a confirming party thereto?"
7. As I have indicated earlier, the Originating Summons has been taken out by the two individuals, who are at present Shebaits in terms of the Deed of Settlement. The settlement bears the characteristic of a private religious trust, and the developer has been impleaded as the defendant in this proceeding. Under these circumstances, on the basis of pleadings, I am satisfied that all the persons who may have rights or interest in the subject-property have been served with the Originating Summons.
8. Mr. H. K. Mitra, learned Senior Advocate appearing for the plaintiffs primarily addressed me on the aspect of the rights of the Shebaits to enter into the transaction contemplated in the agreement dated 16th April 1986, which involves transfer of a portion of the premises dedicated to the deity. This is ex- facie contrary to the provision of clause 4 of the Deed of Settlement.
9. Mr. Mitra, however, has submitted that even if a Deed of Settlement contains a clause expressly prohibiting alienation of the property by the trustees, in case of necessity, Court can issue direction permitting such alienation. He has relied on a Bench decision of this Court in the case of Laxmidas Mathuradas Vs. Jitendra Mullick reported in ILR (1952) 2 Calcutta 352 on this point. Other authorities relied upon by him are (a) Shahebzadi Amina Marzia Vs. Syed Mohd. Hussain and Ors. (AIR 1981 AP 340), (b) Bower Vs. Hesterlow (AIR 1939 Mad 920), (c) in Re: Shirinbai (AIR 1919 Bom 119) and two english authorities, being (i) In RE: Tollemache (1903) 1 Ch 457 and (ii) RE DWONSHIRE'S SETTLED ESTATES (1953 (1) ALL ER 103). He has also relied on certain passages from the treatise "Hindu Law of Religious and Charitable Trusts" by The Hon'ble Justice B.K. Mukherjea (Tagore Law Lectures).
Alternative submission of Mr. Mitra is that the nature of restriction imposed on future sale of the property in clause 4 of the Deed of Settlement would be void, offending the Rule against Perpetuity as embodied in Section 10 of the Transfer of Property Act, 1882. A decision of the Hon'ble High Court of Patna in the case of Ramchandraji Vs. Lalji Singh reported in AIR 1959 Pat. 305 was relied on by Mr. Mitra in support of this proposition of law. Mr. Banerjea, learned Senior Advocate appearing for the defendant has broadly supported Mr. Mitra's argument so far as the construction of the relevant clauses of the Deed of Settlement is concerned.
10. Some of the authorities relied upon by Mr. Mitra, being the case reported in AIR 1981 AP 340 and the two english decisions relate to applications by the trustees for sanction of the Court for alienation of the trust property and not prayers made by Shebaits of a Hindu religious trust property of the deity. The status of a Shebait of a Hindu religious trust has been equated with that of the manager of an infant heir and not of an owner. However, authorities appear to be uniform that in the case of necessity of the idol or deity such property can be alienated by the Shebaits. For the purpose of ascertaining the degree of necessity, the principles formulated by the law Courts in cases where trustees apply for alienating property on the ground of necessity would also apply in the event the Shebaits of a Hindu private religious trust apply to the Court, or seeks the opinion of the Court (as in the present case) for sanction on similar issue.
11. The first question I am to examine is as to whether any estate or part thereof dedicated to the deity can be alienated by the Shebaits in spite of a direct prohibition contained in the Deed of Settlement. The general principle is that such a property cannot be alienated but it is also an acceptable principle of law that such alienation or transfer can be effected in the interest of deity in exceptional circumstances. In this regard the following passage from the well- known treaties " Hindu Law of Religious and Charitable Trust" (5th Edition 1958), to which I have referred to earlier, is relevant:-
"Shebait's power of alienation of Debuttar property.- Property dedicated to the services of an idol is, as a rule inalienable but exceptions to this rule have been recognised in the interest of the deity itself. Exceptional circumstances do happen when the Shebait as a manager of the endowment finds it difficult, nay impossible, to carry on the worship of the idol without securing money from other sources, and it may be necessary to raise money for repairing the temple and other possessions of the deity, for defending hostile litigious attacks and for similar other purposes. It is true that the Shebait is a mere manager and not the owner of the Debutter properties; but as has been said over and over again, the idol is the owner only in an ideal sense. There is always a human personality linked up with this ideal personality and the Shebait or manager of the deity must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. It is on this principle that a Shebait has been held entitled to alienate Debutter property in case of need or benefit to the estate."
12. This principle has also been applied by the Hon'ble High Court of Andhra Pradesh in the case of Shahebzadi Amina Marzia (supra) and in Re: Shirinbai (supra) by the Hon'ble High Court of Bombay. In the case of Bower Vs. Hesterlow (supra), the Hon'ble High Court of Madras observed:
"We are unable to share the view that the facts in this case did not warrant a deviation from the trust deed to the extent of permitting security to be given in another form and we can see nothing in the case cited which runs contrary to this view. If relief were not given in this case, it would undoubtedly mean the frustration to a large extent of the objects of the trust."
But the relief in the case was not granted because it was the finding of the Hon'ble Division Bench of the Madras High Court that the trustees in question was a public trust and it was not open to the appellant therein to take out an Originating Summons. The matter was governed under the provisions of Section 92 of the Code Of Civil Procedure. In the case of Ramchandraji Maharaja (supra) a Division Bench of the Hon'ble High Court of Patna tested the legal proposition of inalienability of assets dedicated to the idol in the light of the provisions of Section 10 of the Transfer of Property Act, and held:-
"It will be wrong to assume that by generally restricting the power of alienation he intended to abrogate the well established principle of Hindu Law, namely, that a Shebait can alienate a debuttar property for legal necessity or the benefit of the estate. As pointed out in the case of Ram Bahadur referred to above; the fact is that in a case of this kind it is very easy to use the words "without the power of alienation" in a loose sense, that is to say, to use them in the sense without power of alienation except in the case of recognised legal necessity.
It is for these reasons that such covenant against alienation has been considered by authorities as void. In my opinion, the provisions of S. 10 do nothing beyond laying down the well-recognised equitable principle, and this principle applies even to cases which do not directly come within the purview of the Transfer of Property Act. It must be held, therefore, that restriction on the power of the Shebait to alienate the dedicated property is void and inoperative and was, therefore, legally ineffectual to invalidate the perpetual lease in favour of the defendants. The contention of Mr. Das, therefore, fails."
13. The Bench decision of this Court in the case of Laxmidas Mathuradas (supra) also confirms this position, though on fact it was held in that case that it could not be established that the arrangement sought to be given effect to was a transaction for the benefit of the estate. The decision of the Hon'ble High Court of Bombay as well as the two english authorities lay down the same proposition of law.
14. In the light of the ratio of these authorities, I accept the argument of Mr. Mitra, learned Senior Advocate that in the event of necessity of the estate, the property dedicated to a deity can be alienated by the shebaits even if there is a specific embargo on alienation in the Deed of Settlement.
15. Next comes the question as to whether such a case has been made out in the affidavit taken out in support of the Originating Summons. I have referred to in the earlier part of this judgment the reason as to why the shebaits intend to give effect to the development arrangement.
16. I have been taken through the Deed of Settlement under which the shebaits are required to perform the duties specified in paragraph 3 of the Deed of Settlement. The specific plea of the shebaits is that the deity has no other property or assets and the only way of augmenting the income was to create further source of income out of the said property. At present the income of the deity is in the region of Rs.72,000/- per annum whereas substantial amount is necessary to maintain the building, being the abode of the deity in proper condition and also carry out the sheba puja. These statements contained in the affidavit remains uncontroverted. Under these circumstances, I am satisfied that the plaintiffs have made out a case that augmenting of income of the deity is necessary, and such income can be enhanced by alienating part of the property dedicated to the deity. I also find that the development agreement proposed does not disturb the abode of the deity.
17. As regards the two questions formulated by the plaintiffs for opinion of this Court I find that to answer the first question as framed, it has to be divided into two parts. The first part of this question would be as to whether the trustees/shebaits can sell or alienate the subject-property. Without considering this aspect, the question of examining the rights of the trustees to execute the proposed agreement made Annexure "D" to the affidavit in support of the Summons cannot arise. The second part of the first question would be as to whether the shebaits should execute the proposed agreement. In view of what I have observed in the preceding paragraph, the first part of the question (a) is answered in the affirmative.
18. So far as the second part of the first question as formulated in the preceding paragraph and also the question (b) are concerned, I am of the opinion that there is not enough material before this Court on the basis of which this Court can specifically come to a conclusion as to whether the arrangement proposed should be permitted to be proceeded with or not. On the basis of available material, it is not possible for me to conclude as to whether the arrangement proposed would be the best arrangement in favour of the deity. Trial on evidence is necessary for this purpose, and opinion of this Court cannot be given in a summary proceeding as envisaged in Chapter XIII of the Original Side Rules of this Court. Thus I choose not to give any opinion in respect of these issues. The instant proceeding stands disposed of accordingly.
19. There shall, however, be no order as to costs.
(ANIRUDDHA BOSE, J.)