1. This appeal by defendants 1 and 2 is directed against the judgment of the Additional Subordinate Judge of Puri dated 17-10-49 decreeing the plaintiff's suit preliminarily for partition. The plaintiff commenced the suit basing his claim on a deed of family settlement (Ext. 2) dated 15-7-26, in accordance with which he claimed five annas ten pies share in the joint family property and the defendants 1 and 2 were entitled to five annas one pie share each. It would be convenient at this place to set out the family genealogy which is as under :
| | | | | |
Basudeb Kasinath Biswanath Gangadhar Chakradhar Panchanan
(Died in 1915) (Died in 1939) (Died issue- (Died issueless in 1915) (Deft.1)
| | less in 1915)
According to the plaintiff, Basudeb the eldest son of Kapila Dalai was taken in adoption by him before he had any natural born son. Basudeb, after the death of his adoptive father, separated from his brothers Kasinath, Biswanath, Gangadhar, Chakradhar and Panchanan on 2-8-1904 by a registered partition deed (Ext. 1), taking four annas share in the joint family properties. At the time of the partition, Gangadhar, Chakradhar and Panchanan were minors and were represented by their mother-guardian Jambu Dibya. In the said deed of partition, the shares of the other brothers were also indicated. Thereafter, the family consisting of Kasinath, Bishwanath, Gangadhar, Chakradhar and Panchanan continued joint,
Kashinath, Gangadhar and Chakradhar died one after another in the year 1915. Bishwanath after the death of Kashinath became the Karta of the joint family. Disputes having arisen in the year 1926, there was a family arrangement entered into between Kashinath's son Laxmidhar (plaintiff), and Bishwanath and his son Ramachandra (D-2), and Panchanan (D-1); according to which the plaintiff was to get five annas ten pies and defendants 1 and 2 get each five annas one pie share in the balance of the joint family properties. Even after the aforesaid family settlement, the brothers lived joint as before and they were recorded in the current settlement record of rights as such with a specification of their shares.
Biswanath died in the year 1939 and Panchanan (D-1) in due course, became the Karta of the family consisting of the families of the plaintiff and defendants 1 and 2 and they continued as such till the year 1945, Acute differences, however, arose in 1945 between the plaintiff and the defendants and the plaintiff demanded partition several times in accordance with the family arrangement made on 15-7-26 (Ext. 2). The last when the plaintiff demanded partition and was refused by the defendants was on 2-11-47. Thus, the plaintiff was constrained to file the present suit.
2. Defendants 3 to 13 were added as parties to this litigation as they happened to be the co-sharers in respect of certain items of the disputed properties.
3. The properties described in full in Schedule B/1 attached to the plaint, it is alleged bythe plaintiff, were nominal debottar properties, and as such were liable to be partitioned. He further claimed that the properties in Schedule C/4 may be kept joint for the sake of convenience. Thus, according to the plaintiff he was entitled to five annas ten pies share in the properties described in Schedules A, A/1, B B/1, D, and C to C/3. He, however, reserved his right to bring a separate suit for damages and mesne profits for his share of the crops taken away by the defendants. The plaintiff, accordingly, prayed for a preliminary decree in respect of his share of five annas ten pies in the entire joint family properties as detailed in the plaint.
4. Defendants 3 to 13 did not appear in the proceeding and were set down ex parte.
5. The defence of defendants 1 to 2 inter alia, was that the suit is bad for defect of parties since Batadhar Siswal and Banchhanidhi Parida the alienees of the plaintiff of certain joint family properties mentioned in Schedule B of the written statement were not arrayed as party defendants. The plaintiff also did not include some immovable properties belonging to the joint family as shown in Schedule A of the written statement and accordingly a suit for partition is not maintainable in its present form. The movable properties that were described in Schedule D of the plaint were fictitious ones. The plaintiff also did not include several other co-sharers who were joint with the plaintiff and defendant-2 in respect of the properties described in Schedule C of the written statement.
It was further averred that the suit for partition is not maintainable inasmuch as there was a partition in Chaitra 1347 corresponding to 1940, Whereby all the movables and the residential house of the parties were divided and they were in separate and exclusive possession as shown in the diagram attached to the written statement. The properties mentioned in Schedule B/1 are absolute debottar properties and as such are not liable to partition, and further, the deity has not been made a party and hence the suit is bad for defect of parties. In the properties described in schedules B and B/1 of the plaint, the plaintiff has also omitted 0.02 out of 0.15 decimals of homestead land in plot No. 548 in Khata No. 36 on which the deity has been installed in the house standing on that land.
The defendants denied that defendant-1 was ever the Karta of the Joint family after the death of Biswanath, nor did the plaintiff and defendants 1 and 2 live joint till 1945. They, however, flatly denied any demand for partition by the plaintiff. With regard to the properties given in Schedule's A A/1 and B, it was contended that a complete list has not been given. The plaintiff sold away some of the properties to third parties, which had not been included in the list. The defendants also objected that the properties mentioned in Schedule C/4 should be kept joint. Their further case was that the plaintiff after attaining majority took advantage of the confidence of Biswanath in him and under the evil advice of Biswanath, his separated uncle, the agreement dated 15-7-26 (Ext. 2), was executed, Whereby the plaintiff managed to get five annas ten pies share. Hence the plaintiff is not entitled to any excess share in the joint family property. Accordingly, they prayed that the plaintiff's suit ought to be dismissed.
6. On 29-1-48, the defendants filed an application for amendment of their written statement which was allowed and an additional writtenstatement was filed on 15-12-48. By this additional written statement they have given a list) of movable properties that were allotted to each share, in the partition of 1940. They further alleged that the plaintiff had wrongly included in Schedule A some of the debottar properties, the list of which was appended to the additional written statement.
7. On the above pleadings as many as 14 issues were framed,
8. After the hearing was concluded and orders were reserved, to obviate all difficulties the plaintiff' filed a petition for amendment of the plaint on 23-8-49 seeking permission to add certain persons as defendants and to include certain other properties to the plaint schedule. On 29-8-49 after hearing both the parties, the learned Subordinate Judge allowed the properties covered by Ext. 4 to 4/G to be included and also added Banchhanidhi and Batadhar as party-defendants.
9. The learned Additional Subordinate Judge thus on a consideration of the pleadings of the respective parties and the evidence on record came to the finding that the deed of family settlement (Ext. 2) is a genuine, valid and enforceable document, and accordingly, the plaintiff is entitled to a share of five annas ten pies in the joint family property. With regard to the partition in the year 1949, the trial judge came to the finding that there was no partition by metes and bounds, and hence the movables and the residential house are liable to be partitioned. He further held that the movable properties described in Schedule D are thus liable for partition except an item of Rs. 8,000/- which was not proved to have remained with defendant 1. He also held that the properties covered by Ex. 4 series should be partitioned. Thus, he directed a preliminary decree for partition of the plaint schedule properties alongwith Ext. 4 series, except 29.65 acres, and the debottar properties mentioned in Schedule B/l of the plaint and declared the plaintiff's title to five annas ten pies interest in the joint family properties.
10. Defendants 1 and 2 filed the present appeal against the aforesaid judgment of the learned Additional Subordinate judge and the plaintiff filed a cross-appeal against the finding that the debottar properties mentioned in Schedule B/1 of the plaint are not liable for partition; the contention being that the properties mentioned in the above schedule are nominal debottar properties and as such are not liable to be partitioned like any other joint family property.
11. Mr. B.N. Das, learned counsel appearing on behalf of the appellants did not disputethe share of the plaintiff, that is, his five annasand ten pies interest in the joint family property. He, however, modestly contended that themovables described in Schedule D were partitioned inthe year 1949, along with the residential house;and accordingly, the impugned decree is incorrect. His next submission was that evenif it is found that the moveables werenot partitioned, the learned Subordinate Judgeshould have directed a division in accordance with the inventory and not as in Schedule Dwhich contained certain imaginary moveables.His second contention was that the room inwhich the deity is installed should have beenexcluded from partition. Besides these Mr. Dasdid not challenge any other finding in this appeal.
12. With regard to the question of partition of the moveables and the residential house by metes and bounds in the year 1940, the pertinent issue is issue No. 8 which runs as follows:
'Are the moveables and the residential house liable to partition?'
(After discussing the evidence both for plaintiff and for defence the judgment proceeds).
Thus, in view of the above evidence, I am clearly of opinion that there was no partition either of the moveables or of the residential house in the year 1940. Accordingly the learned Subordinate Judge was quite correct in directing a partition of these two items of properties.
13. However, with regard to the contention of Mr. Das that the moveables should have been directed to be divided in accordance with the inventory prepared by the pleader commissioner, Mr. Mohapatra, counsel for the respondents very fairly conceded that the learned Additional Subordinate Judge should have directed a division of the moveables as were found to be in actual possession of the parties. Hence in view of this concession, the decree of the learned trial judge will stand modified to the extent that the movables as mentioned in the inventory made by the pleader-commissioner should be partitioned and not as in Sen. D of the plaint.
14. The only other contention that remains to be considered is that whether the room in which the deity is installed should have been excluded from partition. The learned Additional Subordinate Judge came to the finding that the debottar was an absolute debottar and as such is not liable for partition. But he has recorded no finding with regard to the room in which the deity is installed. Once it is admitted by the plaintiff that the deity 'Bhagabat Basudeb Goswami' was their ancestral deity and was in Basu's house for sometime and subsequently removed to the residential house of the plaintiff and the defendants, the deity must have a room to be housed in.
I will advert to the discussion of the evidence on the point in detail while considering the cross-appeal on behalf of the respondents, but for the present I am clearly of opinion that in view of the admission by the plaintiff and the evidence on record, the deity should be properly and conveniently housed in one of the rooms of the joint family which will be excluded from partition. The actual room for the sake of convenience of the parties, will be the subject-matter of allotment by the commissioner to be appointed in this case.
15. Now, coming to the cross-appeal on behalf of the respondents, it is contended by Mr. Mohapatra that the properties described in Schedule B/1 are not absolute debottar properties, but merely nominal and hence are liable to be partitioned. The property in dispute is 6.98 acres. Ext. D/4 relates to Khewat of Lot No. 1 which is described as 'Bramhottar', the Marfatdars being defendant-13 to the extent of four annas and the joint family to the extent of the balance of twelve annas. Ext. D/3 is similarly a Khewat of Lot No. 2 which describes the property as 'Debottar' with similar specifications of shares. The learned Additional Subordinate Judge, as I have stated earlier, while disposing of issue No. 5 came to the finding that:
'The extent of property also indicates that the debottar must have been absolute. In the result, I am inclined to take the view that theproperties are absolute. The debottar are not liable to partition.'
Mr. Mohapatra contended that there is no account either of income or of expenditure maintained of these properties except certain tipas which were found at the time of inventory. The disputed tipa does not refer to any particular year nor has it been legally proved. He referred us to the evidence of the plaintiff (P. W. 1) which is to the following effect:
'The extent of the property of Bhagabat Basudeb Thakur will be approximately 7 to 8 acres, out of our 12 annas share. The extent can be found out in Ext. I, in Kabalas and Khatians ....One Dinabandhu Padhidoes the Seba Puja of the Thakur Bhagabat Basudeb. Krupasindhu Padhi is the brother of Dinabandhu Padhi. The father is dead. I was not present when the properties were endowed to the Thakur. The income from the 7 or 8 acres endowed in the name of Thakur will be about 7 or 6 Bharans of paddy in 3 1/2 seers Gouni. Dinabanbhu Padhi was paid for his services. The Thakur has moveables, i. e., bell etc. Basudeb is the family deity (Ishoto Debata).'
Mr. Mohapatra then referred us to the evidence of D. Ws. 1 and 3. (After discussing the evidence for defence the judgment proceeds).
16. On a consideration of the above evidence, it is apparent that the property had been dedicated to the Thakur who is the sole beneficiary. Mr. Mohapatra referred us to paragraph 793 of Mayne's Hindu Law (11th Edition), at P. 924, where the learned author states as follows:
'Very strong and clear evidence of an endowment is required and the onus lies upon a party who sets up a dedication to prove that property has been inalienably conferred upon an idol to sustain its worship or upon a religious or charitable institution. Where there is no instrument of gift or trust, the mere fact that the rents and profits of immoveable property have been utilised for the support of an idol or a religious or charitable institution is ' insufficient to establish an endowment or dedication. The fact that the deceased karta of a joint Hindu family regularly paid the expenses of a choultry out of the profits of the family property, the expenses however not exhausting the whole of the profits, would not establish a dedication of the profits to the charity; for a distinction must be made between meeting all the expenses of a charity out of a particular property and applying all the receipts of that property to the charity.'
He also referred to Section 409 in Mulla's Hindu Law which is almost to the same effect. Reliance was then placed upon a decision of the Privy Council reported in Iswari Bhubaneswari Thakurani v. Brojo Nath Dey', AIR 1937 PC 185 (A), wherein Lord Macmillan relying upon a previous decision of the Board, Har Narayan v. Surja Kunwari, AIR 1921 PC 20 (B), held that:
'The effect of a valid deed of dedication is to place the property comprised in the endowments extra commercium and beyond the reach of creditors. The dedication is not invalidated by reason of the fact that members of the settlor's family are nominated as shebaits and given reasonable remuneration out of the endowment and also rights of residence in the dedicated property. In view of the privileges attached to dedicated property it has not infrequently happened that simulate dedications have been made and a close scrutiny of any challenged deed of dedication is necessary in order to ascertain whether there has been a genuine divestiture by the settlor in favour of the idol.
The dedication moreover may be either absolute or partial. The property may be given out and out to the idol or it may be subjected to a charge in favour of the idol. The question whether the idol itself shall be considered the true beneficiary subject to a charge in favour of the heirs or specified relatives of. the testator for their upkeep, or that on the other hand, these heirs shall be considered the true beneficiaries of the property subject to a charge for the upkeep, worship and expenses of the idol is a question which can only be settled by a conspectus of the entire provisions of the deed.
It is also of importance to consider the extent of the property alleged to be dedicated in relation to the expense to be incurred and the ceremonies to be observed in the worship of the idol. The purposes of the dedication may be directed to expand as the income increases, or the purposes may be prescribed in limiting terms so that if the income increases beyond what is required for the fulfilment of these purposes it may not be protected by the dedication.'
Strong reliance was placed on a decision of this Court reported in Mahani Dasi v. Pareshnath, Thakur, AIR 1954 Orissa 198 (C). It was held therein that where the dedication of property to an idol is alleged to be oral and is not followed by mutation of names and no accounts are produced to show how the rents and profits and the income of the dedicated property were used, the inference would be that there was no complete divestment of ownership. In coming to this decision, Panigrahi C. J. relied upon a previous decision of the Patna High Court reported in Harihar Prasad v. Siri Gurugranth Saheb, AIR 1930 Pat 610 (D). The principles thus decided in this case do not seem to help the contentions of Mr. Mohapatra; for in the instant case, the properties stand recorded in the name of the Thakur and are described as 'Bramhottar' and 'Debottar' in the final record of rights showing the members of the joint family as the Marfatdars along with certain others. Evidence has been adduced as to the nature of expenses made out of the rents and profits of the Debottar properties. The only other case which was referred to us was another decision of this Court reported in Krishna Ballav v. Sibananda De, 22 Cut LT 65 (E). Although that case was decided as far back as on 20-4-1949, it was not reported until 1956. Be that as it may, in that decision Panigrahi J., (as he then was) ' held that a collection of books, however sacred, is not a legal person.
If, therefore, the consecration has not been established or attempted to be proved, all the subsequent documents purporting to endow property on this collection of books is, in the eye of law, invalid. I express no opinion at the present moment with regard to the correctness of that decision since it is not called for in this case. In this case the deity 'Bhagabat Basudeb' has been admitted by the plaintiff to be the 'Isto Debatta' or the family deity of the joint family, and the extent of the properties endowed to the said deity is seven to eight acres. Thus, in view of this admission, it does not fall to be decided that the 'Bhagabat Basudeb Goswami' is or is not a deity in the legal sense.
Mr. B.N. Das referred us to a decision reported in Nilamani Kundu v. Ghanashyam Jena, 1 Cut LT 3 (P). What was decided in that case was that the records of rights being in favour of God, a statutory presumption arises that the entry is correct and it was not therefore for the person relying on it to show at the outset either by production of the Sanad or by other evidence that debottar property had been validly dedicated. When the person challenging the record proves that it is incorrect, then only the burden would be shifted and it should be proved that the property had been validly dedicated to the worship of the deity and is not the property of the marfatdars.
17. The law with regard to the absolute or partial character of a debottar property is now well settled. The position is that where the dedication made by a settlor in favour of an idol covers the entire beneficiary interest which he had in the property, the debottar is an absolute or complete debottar. Where however some proprietary or pecuniary right or interest in the property is either undisposed of or reserved for the settlor's family or relation, a case of partial dedication arises. In a partial dedication the deity does not become the owner of the dedicated property, but is in the position of a charge-holder in respect of the same.
The charge is created to the property and there is an obligation on the holder to apply a portion of the income for the religious purposes indicated by the settlor. The property does not become extra commercium like a debottar property strictly speaking, but is alienable subject to the charge and descends according to the ordinary rules of inheritance. It can be attached and sold in execution of a decree against the holder. Whoever gets the property however takes it burdened with the charity or religious trust.
18. Keeping this principle in view it is abundantly clear from the evidence on record that the deity is the owner of the property and holds the entire beneficiary interest to himself. The different members of the joint family are however in charge of the property for management, the deity being a perpetual minor. Thus, there is no doubt that the properties as described in Schedule B/1 of the plaint are the absolute debottar properties and I would uphold the finding of the learned Additional Subordinate Judge in that respect.
19. There still remains the question whether the marfatdari right is partible. There is no doubt that it is so. The marfatdar takes the property with the charge, and takes upon himself the obligation to apply the income for the religious purposes for which the property was originally dedicated. Hence, I am clearly of opinion that even if the Schedule B/1 properties are absolute debottar properties the marfatdari right therein is liable to be partitioned; but the marfatdars will take the properties with the obligation that they would spend the entire income thereof for the religious purposes in the interest of the deity Bhagabat Basudeb.
20. In the result, the decree of the learned Additional Subordinate Judge will stand modified to the extent that the joint family movables will be partitioned in accordance with the list prepared by the pleader-commissioner in his inventory, and a suitable room will be allotted for installing the deity 'Bhagabat Basudeb Goswami' according to the convenience of the various members of the joint family which will he kept joint and will be excluded from the partition. The marfatdari right in the properties described in Schedule B/l will be liable to partition with the obligation that the entire income thereof will be spent for the Sebapuja of the deity. With the above modifications, the decree as passed by the learned Additional Subordinate Judge, Puri, is confirmed and the appeal stands dismissed.
21. In the ultimate result, the appeal is dismissed subject to the above modifications and the cross-appeal is partly allowed subject to the marfatdari right in Schedule B/1 being liable to partition with the obligation that the entire income in the hands of the different members will be spent for the sebapuja of the deity; but in the peculiar circumstances of this case, it is directed that each party will bear its own costs.
22. I agree.