Calcutta High Court
Malay Kumar Chatterjee vs The Official Trustee Of West Bengal & Anr on 7 September, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER
AOT No. 1 of 2012
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
MALAY KUMAR CHATTERJEE
Versus
THE OFFICIAL TRUSTEE OF WEST BENGAL & ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 7th September 2015.
Appearance:
Mr. Rajarshi Dutta, Advocate Mr. Sayantan Bose, Advocate Mr. Partha Pratim Naskar, Advocate ...for the petitioner.
Mr. Indranil Nandi, Advocate ...for official trustee.
This is an application by one of the Shebaits for modification of the scheme and in the alternative for development of the property by inviting offers from the general public. The applicant has been able to make out a case of legal necessity for alienation.
Mr. Indranil Nandi, learned counsel appearing on behalf of the official trustee, submits that there cannot be any dispute that the property is in dilapidated condition and the funds are inadequate to restore the property. However, the learned counsel opposed the prayer in view of the restrictions in the Deed of Arpannama.
Mr. Rajarshi Dutt, learned counsel appearing on behalf of the petitioner, has referred to a decision of the Bombay High court in 2 P. D. De Souza vs. K. R. Daphtary reported at AIR 1924 Bombay 252 and submits that notwithstanding such a restrictive clause in the deed, the court may, on an emergency, do something not authorized by the deed and it has the general power to interfere with or disregard the deed if it appears to the court that for the purpose of fulfilling the object of the deed it would be necessary to allow alienation.
Considering that in the scheme the place of abode of the deity has been preserved, I permit the official trustee to invite offers for development of the property. In the notice inviting offers, it shall be specifically mentioned that the deity shall be consecrated in the newly constructed area with the same area, if not more, the deity is presently enjoying. The official trustee must ensure that before any development project is undertaken adequate provision is made for the deity. That under legal necessity the court can direct alienation notwithstanding a restrictive clause in the deed can be found approval from Justice B. K. Mukherjea's Book on Hindu Law of Religious & Charitable Trust, Tagore Law Lectures, 5th Edition, Chapter 5, Pages 277-278, relevant portions whereof are set out below:
"...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 3 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 Pandey's case...
6.39 The transaction in Hunooman Pershad's case was one by way of mortgage or charge for money received as loan, but the same principle applies to other forms of alienation like sale or permanent lease. No sale or mortgage of the Debutter property by the Shebait would be binding on the deity unless it is supported by legal necessity or benefit to the idol. A Shebait certainly can create proper derivative tenures and estates which are conformable to ordinary usage, but he cannot create, without unavoidable necessity, a lease on a fixed rental for all the time to come, however adequate that rent may be at the time of granting the lease. The reason is that by these means "the Debutter estate would be deprived of the chance it would have, if the rent were variable, of deriving benefit from the enhancement in value in the future of the lands leased".
This proposition of law was laid down by the Privy Council as early as in 1869 in the well-known case of Maharanee Shibessouree v Mothoora Nath, and it has been reiterated by them in a large number of cases since then. See, Seena Peena Reena v Chokklingam, Abhiram Goswami v Syama Charan, Palanipappa v Devasikamony."
This application, accordingly, stands disposed of.
( SOUMEN SEN, J. ) S. Kumar A.R.(CR)