Calcutta High Court (Appellete Side)
Swapan Majumdar vs Sri Sri Rameshwar Shiv Thakur on 24 July, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 2151 of 2019
With
C.O. No. 2152 of 2019
Swapan Majumdar
Vs.
Sri Sri Rameshwar Shiv Thakur, since deceased,
represented by Smt. Shyama Rani Ghosh and others
For the petitioner : Mr. Haradhan Banerjee,
Mr. Sounak Bhattacharya
For the opposite parties : Mr. Saptangsu Basu,
Mr. Animesh Das,
Mr. Debayan Roy
Hearing concluded on : 16.07.2019
Judgment on : 24.07.2019
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Sabyasachi Bhattacharyya, J.:‐
1.Since the two revisional applications arise between the same parties, from connected matters and similar orders, the two are taken up for hearing together.
2. The genesis of the instant revisions are two suits filed by Sri Ajit Kumar Ghosh (since deceased), the predecessor‐in‐interest of the opposite party nos. 1(a) and 1(b).
3. The plaint case is that the suit property is a debuttar property in the name of the deity Sri Sri Rameshwar Shiv Thakur. One Sankari Dasi enshrined a deity of 'Shiv Thakur' within a temple and the property was dedicated to the said deity. Sankari bequeathed her property to her nephew Ananda Deuti on February 16, 1886 who used to perform the worship and other ceremonies and festivals in respect of the said deity. The expenses were borne from the income of the debuttar estate. It is stated that, although the property is a private debuttar, local people used to worship on festival and other occasions.
4. Ananda Deuti executed a registered Will on December 8, 1909 (although the same was never probated). Thereafter he died leaving behind three sons, Surendra Nath, Sashibhusan and Parbati Charan Deuty, who became joint 3 shebaits of the debuttar estate. Surendra was pre‐deceased by his wife and himself died issueless. Sashibhusan died intestate leaving behind wife Ushangini Deuty and two daughters, Anupama and Nirupama. Ushangini died thereafter in 1959, leaving behind her two daughters, as mentioned above.
5. Anupama died issueless in 1962. Nirupama died, leaving behind her son Ajit Kumar Ghosh, who started acting as a shebait of the deity.
6. As per the plaint case, in terms of the original Will, Lakshmimoni Dasi, wife of the youngest son of Ananda, looked after the debuttar estate during her lifetime and was allotted five cottahs of land for residential purpose.
7. According to the plaint case, Lakshmimoni Dasi did not have any right to transfer the debuttar estate but executed a Will in favour of her daughter Susama. Susama died thereafter, leaving behind her daughter Sabita, who sold the suit property to the defendants/opposite party no. 2 in each of the suits/revisions.
8. Accordingly, challenging the said deeds of sale and seeking a declaration that the property is a debuttar, Ajit Kumar Ghosh filed the present two suits as shebait of the deity. In the said suits, on the death of the original plaintiff Ajit Kumar Ghosh, the present opposite party nos. 1(a) and 1(b) took out applications under Order XXII Rule 3, read with Section 151, of the Code of Civil Procedure (hereinafter referred to as "the Code") for being substituted as heirs of the said 4 deceased. The applications were opposed by the defendant no.2/petitioner. In Title Suit No. 13 of 2008 (subsequently renumbered as Title Suit No. 11063 of 2014), the application was allowed. A challenge was preferred by the petitioner against the same before this court, when a co‐ordinate bench, in C.O. No. 3008 of 2012, set aside the impugned order, substituting the petitioner as a legal heir of the deceased plaintiff/shebait. Learned Single Judge directed the trial court to proceed with the matter suo moto by giving opportunity to the parties to take steps under Order XXII Rule 5 of the Code, which, if taken out, would be decided in accordance with law.
9. The application under Order XXII Rule 3 of the Code was not pressed in the other suit, bearing Title Suit No. 57 of 2007 (renumbered as Title Suit No. 246 of 2016). In both the suits, the opposite party nos. 1(a) and 1(b) filed applications under Order XXII Rule 5 of the Code.
10. The trial court, in both the matters, rejected the applications under Order XXII Rule 5, recording that there was no legal representative on the demise of the plaintiff and the suits stood abated.
11. A challenge being preferred against such order by way of appeals, the appellate court reversed the order of the trial court passed in each of the suits and allowed 5 the applications under Order XXII Rule 5 of the Code. The orders of the appellate court are the subject‐matters of challenge in the two revisional applications.
12. Learned senior counsel appearing for the defendant no. 2/petitioner submits that the applications under Order XXII Rule 5 of the Code were filed on the premise that the opposite party nos. 1(a) and 1(b) had became shebaits in place of the deceased plaintiff. However, the said stand was not tenable in law for the following reasons:
(i) The Will executed by Ananda Kumar Deuti was not probated and thus could not be relied on;
(ii) A plain reading of the Will shows that the same was not an arpannama and there was no scope of relying on the same as an arpannama, since the same was for all practical purposes a Will;
(iii) Ananda Deuti, being himself a shebait, did not have the locus standi to bequeath the property by a Will, contrary to the intention of the settlor;
(iv) Even if the property was taken to be a debuttar property (although it was not), only male descendants of the shebaits were entitled to become shebaits as per the dedication, which the opposite party nos. 1(a) and 1(b) were not.6
13. It is argued that the opposite party nos. 1(a) and 1(b) could not come in as heirs of the deceased plaintiff merely by way of their kinship with the deceased. The fact that the said opposite parties were heirs of the original plaintiff could not entitle them to the suit property, since, even as per the plaint case, the property was a debuttar.
14. It is argued that if there is no provision for the devolution of shebaitship, the settled law is that the court has to appoint a next friend for conducting the litigation on behalf of the deity, since a deity is deemed in law to be a perpetual minor. For such appointment, the court had to look into the credentials and qualifications of the persons concerned to act as shebaits in the interest of the deity, which criteria were not satisfied and/or considered by the appellate court.
15. Learned senior counsel for the contesting opposite party nos. 1(a) and 1(b) argues that the 'Will' of Ananda Deuti had to be treated as an arpannama in the context of its provisions, since it provided for the welfare of the deity and was concerned with the appointment of shebaits.
16. It is next argued that, since none other came forward to continue the suits, the court was justified in permitting the opposite party nos. 1(a) and 1(b) to continue the suits on behalf of the deity. Even if such appointment is construed as that of next friends, the appellate court was correct in adopting such a mode instead of 7 letting the suits abate, as done by the trial court, contrary to the interest of the deity.
17. It is further submitted that even if the trust was deemed to be extinguished for lack of male heirs, the same reversed back to the estate of the deceased, thereby entitling the opposite party nos. 1(a) and 1(b) to be impleaded as descendants of the settlor.
18. By placing the written statement of the defendant no.2/petitioner, learned senior counsel for the opposite party nos. 1(a) and 1(b) submits that the petitioner himself stated the property to be secular, but now relies on the shebaitship of Ananda and the character of the property being debuttar, asking for a next friend to be appointed. This contradictory stand of the petitioner ought to be deprecated.
19. Learned senior counsel submits that although Lakshmimoni Dasi got five cottahs of property by Will separately, she bequeathed the property to her daughter Susama, which ultimately her daughter Sabita sold to the defendant no.2/petitioner. Such sale was patently illegal and unlawful, since neither Lakshmimoni nor her heirs were entitled to transfer the suit property to third‐ parties in any manner. Moreover, Lakshmimoni was merely a life‐interest holder in respect of the debuttar property and did not have the locus standi to transfer or 8 bequeath the same. As such, the opposite party nos. 1(a) and 1(b) justified the order of the appellate court impleading the said opposite parties in the suits.
20. A perusal of the purported Will of Ananda Deuti dated December 8, 1909 reveals that the same could not be relied on as an arpannama, not only because the entire tenor of the said document shows that it was intended to be a Will, to take effect posthumously, but also since Ananda did not have the locus standi to bequeath the property, being himself merely a shebait representing the deity.
21. As such, the observation of the appellate court, that the said Will could be treated as an arpannama, was erroneous on the face of it.
22. However, considering the scope of the suits, one cannot but observe that those were filed to protect the interest of the deity by seeking a declaration that the property was a debuttar property and challenging sale deeds contrary to the interest of the deity.
23. Whatever might have been the pleadings of the opposite party nos. 1(a) and 1(b), the present case boils down to the fact that the said opposite parties ultimately want to represent the interest of the deity, be it as shebaits or as heirs of the original settlor. It is obvious that the interest of the defendant no.2/ petitioner in the suits is contrary to the deity and the debuttar estate, since the title of the 9 petitioner flows, if at all, from a sale deed executed contrary to the interest of the deity.
24. The premise of the petitioner in the written statements was that the property was secular and there was no bar in the sale. Thus, it is evident that the interest of deity could not be represented in any manner by the defendant no.2/petitioner.
25. Out of the heirs/successors of the original settlor, through different generations, only the present opposite party nos. 1(a) and 1(b) are the surviving successors, who have come up to carry the flag of the debuttar estate. As such, no fancy enquiry into whether the opposite party nos. 1(a) and 1(b) satisfy criteria of proper 'next friends', was necessary and would be a mere waste of time, simply because there is no competition in that regard from any other person. In the absence of such competition claim, the appellate court was right in observing that only the said opposite party nos. 1(a) and 1(b), being the wife and daughter of the original plaintiff Ajit Kumar Ghosh, have come forward to safeguard the interest of the deity. To protect and safeguard the interest of the deity, the appellate court impleaded the opposite party nos. 1(a) and 1(b) as plaintiffs to continue the suits.
26. As such, the impugned order was totally justified and ought not to be interfered with.
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27. Accordingly, C.O. Nos. 2151 of 2019 and 2152 of 2019 are dismissed, thereby affirming the order passed by the appellate court, impleading the opposite party nos. 1(a) and 1(b) as plaintiffs in the respective suits.
28. There will be no order as to costs.
29. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )