M.M. Dutt, J.
1. This is an application praying for the stay of the operation of the order dt April' 19, 1983 of R. N. Pyne,, J., whereby the learned Judge confirmed the sale by the trustee to the Radha Kanta Deb Trust Estate of three parcels of land of the said Trust Estate measuring 9 cottahs, appertaining to premises No. 33/R, Raja Naba Kissen Street, Calcutta.
2. Raja Sir Radha Kanta Deb Bahadur of Sova Bazar Raj family died leaving a Will and Testament dt. Aug. 3, 1863 whereby he created a Trust in respect of his properties and appointed one Ananda Krishna Bose and one Shyamlal Mitra, both since deceased, as his executors and trustees in respect of his said Will. It appears that a scheme was framed by this Court on Mar. 1, 1944, and the management and affairs of the Trust was carried on by the trustees under the said Scheme of Management. From time to time, such Scheme of Management was modified under the orders of this Court. Sunilendra Krishna Deb is the present trustee to the said Trust Estate. He has been appointed the sole trustee by this Court.
3. It is not disputed that Raja Radha Kanta Deb Bahadur installed some Deities in the temple or Thakur Bari situate at 33/R, Raja Naba Kissen Street, Calcutta. It is also not disputed that by the Will he made provisions for the appointment of Shebaits and the trustees were directed to meet all expenses of the Seba Puja of the Deities and other religious festivals. The temple or the Thakur Bari of the Deities has been in a dilapidated condition. In order to renovate the temple or Thakur Bari of the Deities, a prayer was made before this Court for the sale of a part of the Trust Estate so that the work of renovation or repair of the Thakur Bari could be done with the sale proceeds.
4. Padma Khastgir, J. by her order dt. Nov. 22, 1973 granted leave to the trustee to sell 12 Cottahs 9 Chittacks of vacant land divided into four lots, as shown in the plan prepared by M/s. Talbot & Company, to the highest bidder by public auction. It is the case of the trustee that all the parties agreed that the sale would be conducted by the trustee from the office of his Advocate on record. Mr. R. N. Ghosh at 8/2, K. S. Roy Road, Calcutta. The sale was advertised once in the 'Statesman' and once in the Ananda Bazar Patrika for the sale of the said 12 Cottahs, 9 Chit-tacks of land comprising the said four lots situated at 33/R, Raja Nab Kissen Street, Calcutta on June 7, 1980. On that date, Sm. Gita Banerjee was the highest bidder in respect of Lot 1 comprising 2 cottahs g Chittacks and 3s sq. ft. of land, her bid being to the extent of Rs. 1,40,100/-, that is to say, at the rate of Rs. 55,554/- per Cottah approximately. The highest bidder in respect of Lot 2 comprising 3 Cottahs 6 Chittacks 21 square feet of land was Sm. Mandira Mitra, her bid being Rs. 1,21,300/-, that is to say, at the rate of Rs. 35,802/- per Cottah approximately. Sm. Nandita Banerjee was the highest bidder in respect of Lot 3 comprising-3Cottahs 2 Chittacks 40 Square feet of land, her bid being Rs. 1,02,300/- which means Rs, 32,476/- per Cottah approximately. Lot 4 comprising 3 Cottahs 6 Chittacks 39 Square feet of land was not put up for sale as there was an injunction granted by the Appeal Court restraining the trustee from selling the said Lot. Thus, out of 12 Cottahs 9 Chit-tacks of land only 9 Cottahs of land was sole to the said highest bidders. It may be stated here that the auction purchaser of Lot No. 1 Sm. Gita Banerjee is the mother-in-law of Sm. Nandita Banerjee who is a Shebait of the Deities. The auction purchaser of Lot No. 2, viz., Sm. Mandira Mitra, since deceased, was also a Shebait. The other Lot, i. e., Lot No. 3 was sold to Sm. Nandita Banerjee, a Shebait.
5. On Aug. 4, 1982, the trustee made an application before the learned Judge praying for confirmation of the sales. This prayer for confirmation of the sales was opposed by the appellant before us, viz., Amal Deb, a Shebait. In his affidavit opposing the confirmation of sales, allegations were made against the trustee. We are, however, not concerned with those allegations. It was, however, further alleged that on the date of the said auction sale, i. e. on June 7, 1980, the appellant as well as various intending purchasers were prevented by one Ashis Banerjee, the husband of Sm. Nandita Banerjee, the Shebait and auction purchaser, and his associates from entering into the office room of the said R. N. Ghosh, Advocate on record for the trustee and were also prevented from bidding at the said auction sale. Further, one Mr. Sankar Mitra, Advocate lodged a diary at the Hare Street Police Station on June 8, 1980 stating, inter alia, that he himself and his client, Achinta Kumar De, were prevented by goondas to take part in the said auction sale. It was alleged that in spite of request, the trustee did not stop holding of the auction sales. A similar allegation has been made in the present application for interim order, wherein a copy of the said diary and also the joint affidavit affirmed by one Mukul Mitra, Sukumar Mondal and Netai Ghosh have been annexed. In the joint affidavit of the said persons it has been alleged by them that they were not permitted to enter the office room of Mr. R. N. Ghosh, Advocate and to participate in the said auction sales by unruly mob. It is, accordingly, contended by theappellant that the said auction sales were not fair, genuine and impartial.
6. It is also the case of the appellant in support of his prayer for the stay of operation of the order of the learned Judge confirming the sales that the prices at which the said three lots were sold are quite inadequate. It is, accordingly, contended that the impugned order of the learned Judge should be stayed and a fresh auction sale should be directed.
7. Mr. Amalesh Mitter, learned Advocate appearing on behalf of one Rathindra Narayan Deb, a Shebait, has urged that as Lot Nos. 2 and 3 have been sold to two Shebaits, viz., Sm. Nandita Banerjee and Sm. Mandira Mitra such sales were illegal inasmuch as no sale could be made to a Shebait,
8. The trustee in his affidavit-in-opposition has denied all the above al-legations. It has been denied by him that the intending bidders were scared away by any unruly mob or by the said Ashis Banerjee, who has been alleged by the appellant and others to be a notorious goonda of Calcutta. Further, it has been denied by him that the prices at which the said three lots were sold to the auction purchasers are inadequate. In other words, his case is that the auction sales were held properly and with-out any illegality or irregularity whatsoever.
9. One of the most significant facts is that although the appellant has made the above allegations, no step was taken by the appellant to brine it to the notice of the learned Judge that the intending bidders were not allowed to participate in the auction sales by the said Asish Banerjee and his associates. No complaint was made by him either to the trustee or to Mr. R. N. Ghosh. The auction sales were held on June 7, 1980 and it was only on Aug. 4, 1982, when an application for confirmation of the auction sales was made by the trustee, that these allegations were made by the appellant and others. In other words for a period of over two years that appellant and others did not think it prudent to bring the alleged illegality and irregularity in the holding of auction sales by the trustee to the notice of the court by any application. The appellant has, however, placed reliance upon a diary that has been lodged by the said Mr. Shankar Mitra, Advocate. It is allegedby the learned Advocate in his diary that has been lodged by him with the Hare Street Police Station on June 8, 1980 i. e., on the next day of the holding of the auction sales that his client was unable to join in the bid due to some goondas who surrounded the said sales and threatened his client not to take part in the sales. It has also been alleged in the diary that his client then requested Mr. R. N. Ghose, Advocate-on-record for the trustee, to close the sales but the said Sri Ghosh did not care for that and, accordingly, at about 1 p. m., he along with his client was forced to leave the place by the goondas. What has been alleged in the diary by the said Sri Shankar Mitra is not, however, correct. It appears from the bid sheet, which has been produced before us on behalf of the trustee, that Achinta Kumar De, the client of the said Shankar Mitra did take part in the bid. As a matter of fact his bids were for Rs. 1,10,000/-, Rs. 1,12,000/- and Rs. 1,21,000/- and the property was sold for Rs. 1,121,300/- to Sm. Mandira Mitra. None of the parties challenged the genuineness of the bid sheet which has been recorded by Mr. R. N. Ghosh, Advocate. It is, therefore, difficult, on our part to place any reliance upon the allegations made in the diary by the said Shankar Mitra. We are unable to place any reliance upon the joint supporting affidavit of Mukul Mitra, Sukumar Mondal and Netai Ghose filed on Mar. 3, 1983 before the learned Judge for the simple reason that for about 3 years they did not consider it necessary to lodge any complaint with the police or file any application before the trial court pointing out the irregularities and illegalities committed in the auction sales held on June 7, 1980. We do not find any reason why we should not accept the case of the trustee that the auction sales were held quite properly without any illegality or irregularity.
10. Now let us consider whether the prices at which the three lots were sold to the auction purchasers are adequate or not. All the three lots were valued by Messrs. Talbot & Co. on the basis of the market price. The lot No. 1 was valued at Rs. 95,000/- and sold at Rs. 1,40,100/-. Lot No. 2 was valued at Rs. 1,09,009/-and sold at Rs. 1,21,300/- and Lot No. 3 was valued at Rs. 1,02,000/- and sold at Rs. 1,02,300/-. Prima facie, therefore, itcannot be said that the prices at whichthe said three lots were sold were inadequate or less than the market price. It is, however, alleged that market price of one cottah of land at Raja Naba Kishen Street is above Rs. 55,000/-. There is, however, no evidence before us in support of the said allegation. In our opinion, without any material whatsoever we shall not be justified in setting aside the auction sale on the ground that the prices fetched in such sale were below the market price.
11. We may now consider the point of law that has been raised by Mr. Amalesh Mitra, learned advocate appearing on behalf of Mr. Rathindra Narayan Dev. It is submitted by him that the sale of Lot Nos. 2 and 3 to two shebaits of the deity is illegal inasmuch as no property belonging to the deity can be sold to or purchased by a shebait. In support of that contention Mr. Mitra has placed strong reliance upon a decision of the Privy Council in Raja Peary Mohan Mukherjee v. Monohar Mukherjee, (1921) 48 Ind App 258 : (AIR 1922 PC 235). It has been held in that case that a shebait cannot purchase a debutter property of which he is a shebait even when the sale is in execution proceeding, and the shebait has paid a full market value of the property. There is a good deal of difference between the shebait in the case before the Privy Council and the shebait in the instant case. In the case before the Privy Council the property belonged to the deity and the shebait was in the management and custody of the property of the deity. There the shebait stood in regard to his dealings with the estate of the deity in a fiduciary relationship, but in the instant case the property vests in the trustee and the shebaits are only to perform the Seva Puja, the costs of which are to be borne by the trustee from the trust estate in accordance with the direction of the settlor. The shebaits, therefore, have no fiduciary relationship, in their dealings with the property of the trust estate. Moreover, the two shebaits who are the auction purchasers having disclosed their identity as she-baits before they had bid at the sales, the sales cannot be held to be illegal even assuming that they are the shebaits in the true sense of the term. Be that as it may the said decision of the Privy Council is not at all applicable to the farts and circumstances of the instant case. The contention made on behalf ofthe said Rathindra Narayan Dev is, accordingly, overruled.
12. Lastly, Mr. Jayanta Kumar Mitra, learned advocate appearing on behalf of one Alok Mitra, a shebait submits that as one of the lots also consists of a small structure, the sale of that lot is illegal inasmuch as the direction of the learned Judge was to sell vacant land and not any land consisting of any structure. We are afraid, we are unable to entertain such a contention at such a distant point of time. No resistance was offered by Mr. Alok Mitra at the time the sale was advertised and also when the sale was held. Further no step was taken by him in getting the sale of the lot concerned set aside by the learned Judge till it was confirmed. In the circumstances, this contention does not appear to be a bona fide one and is, accordingly, overruled. In our opinion, therefore, the auction sales have been held quite legally and properly. The order of the learned Judge confirming the sales is affirmed.
13. This order virtually disposes of the appeal. This appeal is treated as on the day's list and both the appeal and the application are dismissed with costs in favour of the trustee to be paid by the appellant.
14. The appellant prays for stay of the operation of this order. We do not think that there is any necessity for granting stay of the operation of this order as prayed for in view of the fact that we are told by the trustee that the conveyance cannot be executed and registered even within a month from date, for certain requirements of law have -to be complied with.
C.K. Banerji, J.
15. I agree.