1. This is the defendants Second Appeal against the confirming judgment dated 9-1-1948, of Shri C. C. Coari, District Judge of Cuttack, arising out of a suit brought by the plaintiff for setting aside a 'SEBA SAMABPANA PATRA' (a deed of transfer in respect of Marfatdari rights) Ex. A dated 16-11-1940, executed by the plaintiff himself in favour of defendants 1 and 2, who are admittedly the co-marfatdars. Exhibit A purports to be in respect of the eight annas share of the plaintiff and the plaintiff also claims eight annas share in the marfatdari rights in the suit.
2. Both the Courts below, after fully discussing this position, have come to a concurrent finding that the plaintiff is entitled to only two annas eight pies interest instead of eight annas. There being no cross-appeal on behalf of the plaintiff, the position is final that if the plaintiff gets a decree, he is only entitled to two annas eight pies.
3. One of the main grounds of the plaintiff to set aside the aforesaid deed of transfer was on the ground of fraud and misrepresentation on the allegation that in fact he was seriously in at the time of the execution of the document, and was unable to understand the import of the document and was all through under the impression that he was executing a power of attorney in favour of the defendants. Both the Courts below have given a concurrent finding that the plaintiff has not been able to establish his case of fraud & misrepresentation; but they have given a decree to the plaintiff on the ground that the transaction in dispute is an alienation for consideration of the religious office and is, therefore void. The appeal was first heard, by Das C. J., who referred it to a Division Bench.
4. Mr. S. K. De, appearing on behalf of the defendants-appellants, has strongly argued that the transfer cannot be said to be a transfer for consideration. It is pertinent to observe here that Ex. A was executed on 16-11-1940, but was registered on 18-11-1940. On 18-11-1940, the plaintiff also executed another document (Ex. J) under which the plaintiff had received a sum of Rs. 50/- from defendant 1. Indeed on a persual of the terms of Ex. A, it is clear that it purports to be a deed for no consideration at all & prima facie it appears to be a deed of surrender of the marfatdari rights in favour of defendants 1 and 2 for the reason that the plaintiff on account of the straitened circumstances and incapacity was unable to carry on the duties of the office and, therefore, executed the document by surrendering his rights for the better management of the religious institution in favour of the co-marfatdar. But the Courts below have been very much influenced on a consideration of the recitals of Ex. J to come to the conclusion that the transaction is after all a transaction for consideration. It will be proper to give the recitals of Ex. J. at this stage.
'I (the plaintiff) have executed a Sebasamarpan Patra with respect to A.2-842 decimals of land on 16-11-40 and have got it registered on 18-11-40. However, as it was not proper for me to receive any money on the strength of that deed, and as I have been in need of money, I have received a sum of Rs. 50/- on the strength of aforesaid document. I hereby bind myself that you will remain in possession of the properties mentioned in the deed from this date and in case of interference of possession by anybody else, I and my heirs will be liable to repay the said sum of Rs. 50/- with interest at the rate of Rs. 3/2/- per cent per mensem, together with cost of litigation.'
The recitals are perfectly clear that the plaintiff received a sum of Rs. 50/- as consideration of the transaction Ex. A. It clearly states that as it was not proper for him to receive any money on the strength of Samarpan Patra he receives this money on the strength of the aforesaid deed, that is, Samarpana Patra as he is badly in need of money. It further recites that he hereby binds himself that the defendants will be in possession of the properties from this date and if he fails to deliver possession he will be liable to repay the said sum of Rs. 50/- with interest. To our mind, it is absolutely clear that both these documents form part of the same transaction, that is, transaction of the transfer of the marfatdari rights and are two separate documents only by way of contrivance to do away with the legal effects of the transactions being for consideration. Our view is sufficiently strengthened by reference to para. 10 of the written statement wherein the defendants clearly state that the plaintiff received a sum of Rs. 50/- on the basis of the aforesaid document (Seba Samarpana Patra) in an 'indirect way' and that the plaintiff after receipt of Rs. 50/- made the defendants owners in respect of the properties and delivered possession thereof to the defendants. We may here further refer to the statement on oath made by the defendant himself in Court wherein he states that the Seba Samarpana Patra (Ex. A) was registered only on receipt of Rs. 50/- and further in a subsequent sentence he makes it clear that the plaintiff received a sum of Rs. 50/- as a consideration of the Seba Samarpana Patra.
5. Mr. De, however, very strongly relies upon the statement of the plaintiff himself that he received no consideration for the Seba Samarpana Patra. To our mind, this statement of the plaintiff is sufficiently outweighed by the consideration of the above three features, and particularly the recitals in Ex. J which leave absolutely no doubt in our mind that Ex. A was for pecuniary consideration.
6. The position of law is very well settled that the transaction of sale in respect of spiritual Office is absolutely void 'ab initio' as offending against the public policy that there should be no trafficking in spiritual office. Mr. De has, however, strongly relied upon the position that this transaction is to be supported inasmuch as it is manifestly for the benefit of the deity and it does not matter it is for consideration. He, however, was not able to cite a single authority in support of this proposition; but to our mind, the position seems to be clear that if the transaction in respect of the above spiritual office or right of management of the properties of a deity is for consideration or personal gain of the transferor it can never be supported as offending against the larger principle which is very fundamental to the Hindu conception of spiritual offices and which is also a matter of public policy that on no account trafficking in spiritual offices should be tolerated. In such a case, the benefit of the institution is irrelevant and has to be taken out of consideration.
Indeed, the matter will stand on a different footing if the transaction is substantially for the benefit of the deity or the religious endowment and that the transferor receives money completely independent of the transaction, that is to say, if the transferee in the present case had made a charity of Rs. 50/- to the present plaintiff as a matter of sheer pity for his straitened circumstances; but it did not serve as a consideration for which the transaction was executed. But as in our view as indicated above from the three important features, that is, the recitals in document Ex. J. the written statement and the statement of defendant on oath, the conclusion is irresistible that this Rs. 50/- served as a consideration for the transaction. We will only refer in this connexion to the Tagore Law Lectures, delivered in 1951 on the subject of the Hindu law of Religious and Charitable Trust by the Hon'ble Mr. Justice B. K. Mukherjea, M.A., LL.D., Judge, Supreme Court of India. At p. 235, he discusses the question of the doctrine that whether alienation of shebaitship can be upheld, if it is justified by necessity or the deity is benefited by such transfer. This position, as he comments, may prima facie be supported by a few decisions of the Calcutta High Court; but a careful examination of the cases, however, shows that they are of doubtful authority, and are to a great extent based upon misconstruction of certain pronouncements of the Judicial Committee. At p. 238, he places Importance on the observation of Mr. Justice Page in the case of -- 'Nagendra Nath v. Rabindra Nath', AIR 1926 Cal 490 (A).
'that the entire doctrine of benefit to the deity as a justification for alienation of the office is based upon a misconception of some of the pronouncements of the Judicial Committee.'
In the case of -- 'Nirmal Chandra Banerjee v. Jyoti Prasad', AIR 1938 Cal 709 (B) the transfer '' was held valid even though the transferor received some monetary help from the appointee who was left in charge of the debutter property. The learned Judges having found that the transfer was not by way of a sale and although the shebait received a pecuniary assistance from the appointee that was not a consideration for the transfer. Dr. Mukherjea. in his book, at p. 239, doubts the correctness of this decision indeed on the ground that the relinquishment of the office coupled with taking a substantial sum of money from the person appointed looks very much like the sale of the office. On a review of several cases on the subject of the Indian High Courts and of their Lordships of the Privy Council, he concludes that in any view, the question of the deity being benefited or not does not appear to be at all relevant. From the above consideration, therefore, we are definitely of the view that if it is a case of sale, that is to say if the transfer of marfatdari right is for consideration, the transaction is void 'ab initio' and the benefit to the deity is irrelevant.
7. In our view also that it is a well-settled principle of law that if the document is void 'ab initio' there would be no question of estoppel as against the plaintiff. In conclusion, therefore, the Second Appeal fails and is dismissed with costs.
8. I agree.