Calcutta High Court
Ranjit Mullick vs Aparesh Mullick & Anr on 14 August, 2018
Equivalent citations: AIRONLINE 2018 CAL 1038
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
ATA 5 OF 2018
RANJIT MULLICK
Versus
APARESH MULLICK & ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 14th August, 2018.
Appearance:
Mr. Sakya Sen, Advocate
Mr. A. Mitra, Advocate
Mr. Anirban Ghosh, Advocate.
Mr. Gaurav Purkayastha, Advocate
Mr. D. Sengupta, Advocate.
This is an application by one of the sebaits and trustees of
Sri Sri Issore Lukhi Thakooranee for a leave to sell one of the
deities' property in premises no. 197 Bipin Behari Ganguly Street,
Bowbazar, Kolkata.
Mr. Sen, learned Counsel representing the petitioner has
submitted that this application has become necessary in view of
the restrictive clause in the Deed of Trust against alienation.
The said clause reads as :
"Neither I nor any sebait or trustee shall be competent
to encumber, mortgage, sale, alienate or dispose of the
2
said two properties or any of them or any part thereof
for any purpose or purposes whatsoever".
Mr. Sen has submitted that after the death of the settler,
Nilmoy Mullick became the sebait and after his death, his three
sons became the sebaits / trustees of the trust / debutter estate.
By a registered deed of appointment dated 31st October 1997, the
petitioner and the respondent no.1 were appointed as trustees of
the said debuter Estate. By a subsequent deed of appointment dated 11th day February 2014, the respondent no.2 was appointed trustee / sebait of the said debutter. The said trust property is a two storied building constructed sometime in the year 1815 and since inception was fully tenanted. The income accruing from the trust property was at all material times used for meeting the expenses of the said debutter estate. There are presently 16 tenants in occupation of different portions of the said property most of whom are in occupation for more than 40 to 50 years. The total monthly rental income is Rs. 5,335/- only. The abode of the deity is at Premises No. 4, Hari Sarkar Lane, Kolkata - 700007. The said building is a two-storied structure and is more than 200 years old. The said premises is also the dwelling house of the family of the settlor and it is in this property that the deity is consecrated. No income accrues from the said property. There are substantial statutory outgoings. Presently a sum of Rs. 51,000/- is due to the Municipal Corporation. The petitioner disclosed the letter of intimation from the KMC. It is further 3 stated in the petition that the monthly rental income of the debutter is not enough to meet the expenses of daily seba puja. A sum of Rs. 7,500/- is required every month to meet the daily seba puja of the deity. The petitioner in Annexure-F has disclosed such details. The trustees have stated that they are undergoing acute financial crisis and finding it difficult to maintain the said two properties. The estate has no income other than the paltry rental income of Rs. 5,335/- accruing from the Bowbazar property, which is by itself insufficient and inadequate to meet the expenses of daily seva puja of the deity. In order to tide over such financial difficulties, the trustees convened a meeting on 20.4.2018 and have unanimously resolved to take steps to augment the income of the estate and if required by sale of the present property subject to the permission obtained in this regard.
Although there is a restrictive clause against alienation, but relying upon the high authorities and the commentary in this regard by late Hon'ble Mr. Justice B. K. Mukherjea in his Lordship's celebrated book "The Hindu Law of Religious and Charitable Trusts" in which His Lordship has opined that notwithstanding such clause, if a legal necessity is made out, the Court can pass an appropriate order for sale of the debuttar property. The relevant observations are:-
"There is always a human personality linked up with this ideal personality and the Shebait or manager of the deity 4 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. An interesting question was raised in Ramchandraji v. Lalji Singh whether a condition in a deed of endowment that the Shebait shall not alienate or encumber the properties was valid. It was observed that it would not be in the interest of the institution to deprive the Shebait of the power of alienation in case of necessity or benefit, and the condition was accordingly held to be bad on the principle underlying section 10 of the Transfer of Property Act.
The rights of a Shebait in this respect are analogous to those of a manager of an infant heir, as laid down in Hunooman Pershad Panday's case. In Hunooman Pershad's case the Privy Council laid down the principle of Hindu law which will determine the validity of a transaction entered into by the de facto manager of an infant's estate by which the property of the infant was charged with payment of money. 'The power of the manager for an infant heir to charge an estate not his own," so runs the judgment of Knight Bruce, K.J., 'is under the Hindu Law a limited and a qualified power. It can only be exercised rightly in the case of need or for the benefit of the estate."
In the said commentary a reference was made to a Division Bench Judgement of the Patna High Court reported in AIR 1959 PATNA 305 (Ramchandraji Maharaj & Ors. Vs. Lalji Singh and Anr.) in which Their Lordships in Paragraphs 11 and 14 have discussed the 5 law at length by referring to the Privy Council's decision on this point and have opined that if a legal necessity is made out, notwithstanding a clause operating against alienation, the Court may permit alienation and/or encumbrance of such property in order to ensure effective implementation of the object of the trust.
The Court being satisfied with the explanations offered for putting the property to sale and being satisfied that a legal necessity has been made out by the petitioner, directs the petitioner to advertise for sale of the property at No. 197, Bipin Behari Ganguly Street, Kolkata, after making a valuation thereof by a chartered empanelled valuer once in the English daily 'The Statesman' once in the Bengali daily 'Bartaman' and once in the Hindi daily 'Dainik Viswamitra' within three weeks from date. In the said advertisements, it shall be clearly specified that no offer shall be accepted unless it is accompanied by 20% earnest money and the returnable date of this application shall be clearly mentioned in the said publication. The existing bidders may also give their fresh offers to the trustees. The offers shall be submitted in a sealed envelope and shall be placed before this Court on the adjourned date for final order.
The matter is made returnable on 24th September 2018.
(SOUMEN SEN, J.) GH / S. Kumar