Calcutta High Court
Alpana De & Ors vs Raikishori Seal & Ors on 23 July, 2015
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present :
The Hon'ble Justice Soumen Sen CSOS No.2 of 2015 ALPANA DE & ORS.
VS.
RAIKISHORI SEAL & ORS.
For the Plaintiffs : Mr. Dhruba Ghosh,
Mr. Soumyajit Ghosh,
Mr. Sarathi Dasgupta,
Mr. Rohit Banerjee,
Mr. Ashoke Basu
For the defendant Nos.1 & 3 : Mr. Aniruddha Mitra,
Mr. Gautam Kr. Gorai
For the defendant No.4 : Mr. Surojit Nath Mitra, Sr. Adv.,
Ms. Somali Mukhopadhyay,
For the defendant No.2 : Mr. Swarnendu Ghosh,
Mr. Abhijit Roy,
Mr. Sobhan Kumar Pathak,
Mr. Shalu Gupta
For the defendant No.5 : Mr. Kaushik Dey
Heard on : 06.02.2015, 20.02.2015, 13.03.2015,
20.03.2015, 17.04.2015, 08.05.2015,
05.06.2015, 12.06.2015, 17.07.2015.
Judgment on : 23rd July, 2015
Soumen Sen, J.:- This Originating Summons Suit has been filed by the daughters of Late Mohonlal Seal for answering the following questions:-
a) Whether the wife and daughters of the Late Mohan Lal Seal entitled to become shebait on the death of the Mohan Lal Seal in respect of the aforesaid debutter estates namely Sri Sri Lakshmi Narayan Jiew, Sri Sri Gopal Jiew and Sri Sri Mahadeb Jiew?
b) Whether the wife and the daughters of Late Mohan Lal Seal shall have the exclusive power to manage and administer the properties as mentioned in Lot "A" of the aforesaid Terms of Settlement in exclusion to the properties mentioned in Lot "B" and Lot "C" of the said terms of settlement filed in Suit No.262 of 1965?
c) Whether the terms of settlement entered in Suit No.262 of 1965 is binding upon the heirs of Late Mohan Lal Seal?
One Monohar Lal Seal executed three Bengali Deeds of Arpannama which are registered documents. By the said deeds, the said Monohar Lal Seal absolutely and irrevocably dedicated the immovable properties mentioned in Shedule 'Ka' of the said family unto his family deities Sri Sri Lakshmi Narayan Jiew and other with a view to make permanent provisions for the daily and occasionally seva, puja and periodical puja archana, festival and other pious practices connected therewith. By the said Deed of Arpannama, the settlor appointed himself as the first shebait.
The Deed of Arpannamas provides that after his death his three sons, namely, Mohan Lal Seal, Monoj Lal Seal and Mohit Lal Seal and if any other son is born during the lifetime of the settlor then all of them each adult son himself and if any son or sons minor then the guardian or guardians of the minor son or sons shall be appointed as Shebait and they shall jointly look after the administration and preservation of the Debuttar properties and of the performance of Seva, Puja and periodical puja archana of the said deities.
Monohar Lal Seal acted as the sole shebait during his lifetime. He died on 26th March, 1963. On his death his three sons became shebaits to carry out seba puja and act in accordance with the terms of the said Arpannama. Mohon Lal had five daughters and no son. Manoj Lal Seal had two sons and one daughter and Mohit Lal Seal had one son and two daughters. Since Mohon Lal Seal had no son and in view of Clause 3 of the said Deed of Arpannama, the settlor had directed that the lineal male descendants would only become the shebaits from generation to generation and it is only if there is no lineal male descendant at all and becomes extinct then only by virtue of Clause 4 of the said Deed of Arpannama the office of shebaitship will devolve on the male descendants of the settler's daughter which would completely prohibit the daughters of the Seal family from becoming shebait of the said deities, Mohan Lal Seal filed an Originating Summons Suit No.227 of 1990 raising the following questions for determination:-
"A. Whether rule of succession to the office of the shebait are rendered invalid by reason that clause 3 provided for the office to be held by the male heirs of the founder to the exclusion of the others in a succession differing from the line of Hindu Inheritance?
B. Was the founder of the Debutter competent to create a line of succession unknown or repugnant to The Hindu Law? C. Are the daughters of the plaintiff entitled to become shebait on the death of the plaintiff?"
Justice Prabir Kr. Majumdar as His Lordship then was by a detailed judgment dated 26th February, 1993 answered the questions raised in the Originating Summons in the manner following:-
"The question No.(a) is answered in the affirmative. The question No.(b) is answered in the negative. I do not propose to answer the question No.(c) at this stage as this would depend on the state of affairs as prevailing after the death of the plaintiff. This originating summons, accordingly, disposed of. There will be no order as to costs."
Prior to the aforesaid proceeding, Mohit Lal Seal, one of the sons of Monohor Lal Seal, filed a suit praying, inter alia, for framing a scheme for proper administration of the debutter properties under the three deeds of Arpannamas. The said suit was decreed on 8th April, 1983 on the basis of the terms of a settlement filed by the parties which, inter alia, contains the following term: -
"4. The defendant No.1 Mohan Lal Seal will manage and administer the properties mentioned in Lot "A" of the said annexure and the defendant No.2 Monoj Lal Seal will manage and administer the properties mentioned in Lot "B" thereof and the plaintiff of the properties mentioned in Lot "C"
thereof."
On 9th November, 2014 Mohan Lal Seal died leaving behid his wife Rai Kishori and five daughters, namely, Suvra Dey, Alpana Dey, Mohua Mallick, the plaintiffs herein, Indira Roy and Reba Dutt the defendants herein. The plaintiff stated that on the death of Mohan Lal Seal on 9th November, 2014 his line of succession has opened and under the circumstances the aforesaid questions are raised in this Originating Summons are required to be answered.
Mr. Surojit Nath Mitra, the learned Senior Counsel appearing on behalf of the defendant No.4 being one of the uncles of the plaintiffs submitted that the answer to all the questions shall be in the affirmative provided the plaintiff could establish their legal right to maintain this application. It is, however, stated in the affidavit filed by the defendant No.4 that since the daughters of Mohon Lal Seal are not concerned with the management and administration of the properties which has spread all over the Kolkata, the said defendant may also be permitted to administer and manage the properties forming Lot "A".
The said defendant by a supplementary affidavit disclosed a Will alleged to have been executed by Mohon Lal Seal on 16th June, 2011. Under the Will, the entire property has been bequeathed in favour of Smt. Rai Kishori. Under such circumstances it is submitted that the plaintiffs have no right to maintain this application.
The real contestant party, however, is the defendant No.2. Mr. Swarnendu Ghosh, the learned Counsel appearing on behalf of the said defendant submits that the terms of settlement is not binding on the legal heirs of Mohan Lal Seal. It is submitted that the said terms of settlement was a temporary arrangement and does not decide conclusively that Lot "A" shall only be managed by the legal heirs of Mohan Lal Seal.
It is submitted that the terms of settlement dated 8th April, 1983 an arrangement of convenience which was executed and acted upon in order to ensure proper administration and management of the properties belonging to the deities and the same could not have been and never was meant to be a formal partition of the properties belonging to the deities. It is submitted that while the answers to the question nos.(a) and (c) of the Originating Summons shall be in the affirmative but the answer to question no. (b) should be negative inasmuch as the terms of settlement entered into amongst the then shebaits of the three debuttar estates pertaining to the immovable properties vested in the three deities of forming parts of the instant Originating Summons has become outdated and redundant and utterly unworkable. It is submitted that the said terms of settlement was never meant to be a formal partition of properties forming parts of the debuttar estates amongst their brother and it was in reality a scheme of management and administration entered into by and between the three shebaits for the purpose of management and administration of the trust estate more efficiently and without any unwarranted interference from one another. Giving such arrangement a flavour of formal partition is not only unwarranted what is contrary to the law as well.
Section 211 of the Indian Succession Act states that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor whereas the grant of probate is only a method by which right under the Will is established. The vesting of property under Section 211 is only for the purposes of representation. The unprobated Will may be used in evidence for a purpose other than establishment of a right as the executor or legatee. Under Section 213 of the Indian Succession Act does not debar the use of an unprobated Will in evidence for a purpose other than the establishment of a right as the executor or legatee under the Will. (Commissioner, Jalandhar Division & Ors. Vs. Mohan Krishan Abrol & Anr. reported at (2004) 7 SCC 505 and Ramesh Chandra Ganguly Vs. Sudhamay Ganguly & Ors. reported at 1988 (1) CHN 234) There is nothing on record to show that the Will has been probated. On the contrary, the wife and daughters of Late Mohon Lal Seal have consented and agreed that they shall be permitted to manage and administer of the properties as mentioned in Lot "A". Under such circumstances, the maintainability of the application in view of the disclosure of the Will is not accepted.
Mr. Ghosh, the learned Counsel appearing on behalf of the defendant No.2 has referred to a Division Bench Judgement of our Court in Sree Sree Iswar Lakshi Durga Har Tatneswar and Ors. Vs. Surendra Nath Sarkar & Ors. reported at 45 CWN 665 paragraph 31 and submitted that it has been laid down in the said decision that the trustees or shebaits when they are more than one, form, as it were, but one body in the eye of law. The deity is represented by all of them acting together and no one shebait can be said to represent the idol in part or to possess any specific interest in any share of the idol's property. It is submitted that by reason of the aforesaid the claim of the plaintiff that the plaintiff is entitled to exclusively manage and administer Lot "A" after the death of their father cannot be allowed.
The only contentious issue appears to be the answer to question No.(b). None of the parties to the Originating Summons have ever raised any objection with regard to the management and administration of the properties in accordance with the terms of settlement dated 8th April, 1983. The said decree is binding not only on the parties but also on their legal heirs. The parties had never asked for recalling of the said decree or framing of another scheme by recalling the earlier scheme. If Mohon Lal Seal would have been alive then he would have the exclusive power to manage and administer the properties as mentioned in Lot "A" of the Terms of Settlement in exclusion to the properties mentioned in Lot "B" and Lot "C" which right cannot be denied to the wife and daughters of Mohon Lal Seal.
Under such circumstances, I answered the question raised in this Originating Summons as follows:-
i) Question No.(A) is answered in the affirmative.
ii) Question No.(B) is answered in the affirmative.
iii) Question No.(C) is answered in the affirmative.
The Originating Summons, accordingly, disposed of. However, there shall be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)