Calcutta High Court (Appellete Side)
Samir Mumar Mitra & Anr vs Sujay Ganguly & Ors on 18 March, 2015
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
18.03.2015 C.O. No.2374 of 2014
sg (Assigned)
Samir Mumar Mitra & Anr.
Versus
Sujay Ganguly & Ors.
Mr. Aniruddha Chatterjee,
Mr. Rahul Karmakar,
Ms. Sucharita Biswas,
Mr. Debapriya gupta
...For the petitioner.
Mr. Shiba Prasad Mukherjee,
Mr. Debanjan Mukherjee,
Ms. Deboleena Mukherjee
...For the O.P. Nos.2 & 3.
Mr. M. K. Singh,
Ms. Soma Roy
...For the O.P. No.4.
The order under challenge passed by the
learned Court below wherein the concerned
Court allowed both applications for addition
of party one filed by the revisionists and
the other by the private respondent in a
proceedings initiated for selling the debuttar property.
The respondent Nos. 1, 2 and 3 all are shebaits under of the duties appointed under one arpannama executed by one Pratap Chandra Ganguly, since deceased on 12th February, 1937. By the said registered arpannama, Sri Pratap Chandra Ganguly, since deceased, dedicated some properties for religious 2 purposes particularly to the deities Sri Sri Annapurna Thakurani, Sri Sri Shiba Linga, Shib Thakur and Sri Sri Saligram Shila Narayan Thakur consecrated much before the said registered arpannama. Besides dedication of the properties said Pratap Chandra Ganguly also directed that the annual performances of the religious ceremonies to the deities and other religious ceremonies which are regularly held in his house situated at 42/1, Chetla Road, Kolkata - 700 027 performed regularly. It was further directed that deities would be worshipped daily, etc. It was made clear that after all such performances if there is surplus amount, the amount to the deposited in the name of the shebaits in the bank with which, properties which generate better income shall be purchased and consequently to be included in the debuttar estate. It was also stipulated in the arpannama that the shebaits could not be entitled to make gift or sale or grant lease or create mourashi mokarari rights without any legal necessity and shebaits are 3 prevented to mortgage or otherwise encumber the said debuttar properties.
In terms of the aforementioned arpannama deities are worshipped regularly and ceremonies and religious performances were also held including invitation
relatives, friends and other persons of the family including poor people who were also fed and all expendiutres were also incurred from the income of the debuttar estate.
Shebaits who were performing daily seba puja and religious ceremonies in terms of the aforementioned arpannama could not cope up the expenditure with the income from the debuttar properties. Shebaits had decided to sell out debuttar properties situated at 109, Alipore Road, Kolkata - 700 027 for meeting legal expenses and other expenditures for carrying out seba puja and performances of religious rites of ceremonies and feeding relatives and family members and also poor people on those special occasions. Accordingly on 24th February, 1983 the respondents/shebaits had proceeded to prefer an application before the learned District Judge at Alipore, 4 praying for permission to sell some of the debuttar properties. Specially the Alipore property mentioned herein above. By an order dated 4th May, 1983 learned District Judge at Alipore allowed the Misc. Case and granted permission for sale to the condition that the draft kobalas be filed in Court for scrutiny and approval prior to sale. Pursuant to the aforementioned order petitioners through respondents 1, 2 & 3 (shebaits) deposited three copies of draft deed of sale before the Court below after about twenty three years. There were defects in the said draft and, therefore, the petitioners were directed to submit fresh draft deed. It was claimed that some corrections were incorporated but subsequent to that no further step was taken by the revisionists/petitioners herein nor the shebaits. Thereafter, in 2014 petitioners after about eight years moved an application for being added as party and also made a prayer for execution of deed. Another intending purchaser Bijay Shroff, coming to know about the matter also moved an application for being added as a party 5 expressing his intention to purchase the property. The private respondent also made a proposal to one of the shebaits Annapurna Devi by his letter dated 25th July, 2011 for purchasing the property. The private respondent Bijay Shroff is agreeable to pay @ Rs.5,00,000/- (Rupees Five Lakh) only per Cottah and further desirous to purchase the same as is where is basis. The revisionists/petitioners are also interested to purchase the properties, however, learned Court below considered both the applications. While considering the those two applications for addition of parties it revealed that the learned Court on earlier occasion approved the draft copy of cobala for sale of the property. In order No.9 learned Court below rectified its earlier order and draft cobala was kept with records, and the shebaits were directed to satisfy the Court on some points.
However, the learned Court below framed two questions while considering the two applications for addition of party:-
(1) Whether the person who did not apply before the Court can get the privilege of the former order, 6 (2) Whether any benefit will derive on him by dint for former order.
The learned Counsel come to a conclusion that there is no tangible evidence exists as to the substantive
compliance of the motto/aim and object of the order of the learned Judge. In effect neither the petitioners nor the shebaits took any step for execution of the deed.
Ultimately the learned Court allowed both applications for addition of party one which is filed petitioners/revisionists and the other by the private respondent Bijay Shroff.
Mr. Chatterjee, learned Counsel appearing for the revisionists/petitioners submits that the application for addition of party filed by Bijay Shroff is not at all maintainable and ought to have been rejected by the learned Court below since the petitioners being the intending purchasers have incurred some expenditure for raising boundary wall, etc. It was submitted by Mr. Chatterjee that the shebaits did not take steps for registration of deed. Mr. Chatterjee 7 submitted his clients are willing to increase the money. It was submitted by him that his client are agreeable to pay Rs.50,00,000/- (fifty lakhs) for six cottahs of land. Mr. Chatterjee also submitted that the order of addition in favour of the Bijay Shroff should be rejected and the shebaits be directed to execute to deed in favour of the petitioners/revisionists.
On behalf of the Bijay Shroff, learned Counsel Mr. Singh submits that
long back Bijay Shroff gave a proposal for purchasing the property to one of the shebaits. Now coming to know about the matter pending before the learned Court below he being an interested party is made application for addition of party and agreeable to pay more money to the tune of rupees one crore. Mr. Singh submitted that the interest of the deity should be protected. He also submitted that the shebaits must get highest price to perform are religious rites and performances. Therefore, the highest price which is available before the Court should be 8 accepted and according to him there is no illegality and irregularity in the order of the learned Court below allowing the application for addition of party. Mr. Singh submitted that Court should finalise this price and whoever will give highest price he should be allowed to purchase the property.
Consider the submissions made by the learned Counsel appearing for the parties. It on record that since 1983 matter is hanging, even in 2006 when the draft deed was approved the revisionists/petitioners did not take any step nor they made any application before the learned Court below praying for addition and/or direction for execution of the deed. They did not show any interest on the property. When the private respondent Bijay Shroff shown his interest to purchase the property they the petitioners became active and petitioners wanted to be added as party to the proceedings. However, both applications were considered and both were allowed. I do not find any illegality and irregularity in the order passed by the 9 learned Court below. However, it appears to this Court the matter is pending over two decades. The deities being perpetual minor, represented by shebaits who are obliged to perform seba puja and other ceremonial functions and also having some obligation under the deed of arpannama needs source of income. Therefore, the property proposed to be sold which is approved by the learned Court below should be sold at the highest price as per current market rate. Accordingly this Court asked both the parties to offer their price they are agreeable to pay. Mr. Chatterjee's client offered fifty lakhs and on repeated asking his clients are not agreeable. However, Mr. Singh's client wanted to pay Rs.1 crore for entire eight cottahs and eight chattaks area. Although the present price is very high in the locality where the property is situated, this Court considering the entire matter of the view that Mr. Singh's client being the highest bidder should be allowed to get the property. This Court by using power of intendance under Article 10 227 of the Constitution direct that the property should be sold at a higher price i.e. Rs.1 crore offered by the private respondents. The trustees who are appearing and also agreeable to sale the property at a price of Rs.1 crore. Accordingly Mr. Singh's client is granted to weeks time to bring a draft of Rs.1 crore drawn in the account held in the name of deities, the account number and account holder name would be supplied by the learned Advocate Mr. Mukherjee appearing for shebaits.
Let this matter appear under the same heading after fifteen days i.e. on 2nd April, 2015.
(Ashoke Kumar Dasadhikari, J.)