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Jagannath Deb Roy Vs. Byomkesh Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1102 of 1959
Reported inAIR1973Cal397
ActsHindu Law; ;Transfer of Property, 1882 - Section 8
AppellantJagannath Deb Roy
RespondentByomkesh Roy and ors.
Advocates:A.D. Mukherjee and ;Amulya Dhan Mukherjee, Advs.
DispositionAppeal allowed
Cases ReferredNirmal Chandra v. Jyotiprasad
- .....of each of the shebaits. it will not, therefore, be correct to say that by the transfer of the 'pala' shebaiti right of the executant was not transferred. even assuming that a portion of the annual rent covered by the patta in respect of the property of the deity was retained by the shebait that fact by itself will not necessarily establish that his shebaiti right was not transferred in favour of the transferee under the impugned document. in my view, appropriation of a part of incomes of the deity's estate by the shebait himself is not unknown in hindu religious endowments, see vidyavarathi v. balusami, 48 ind app 302 = (air 1922 pc 123). in this case it will not be unreasonable to suppose from the tenor of the documents that the shebaits under the age old practice observed in the.....

A.K. Sinha, J.

1. This appeal is preferred by the plaintiff against an appellate judgment and decree of affirmance.

2. The appellant filed a suit for a declaration that the disputed properties were the absolute Debuttar Properties and by virtue of transfer the plaintiff acquired the Shebaiti right to the extent of six annas odd gandas to the exclusion of the defendant respondents Nos. 1 and 3 who claimed underthe same shebaiti right by virtue of a Will left hy same transferor one Satish Chandra Roy and for permanent injunction and for other reliefs.

3. I need not repeat the facts of the case which are fully set out in the judgment of the appellate court. The controversy centres round the question whether by the deed of transfer named as 'Arpannama' dated 12-6-1935 the transferor Satish Chandra Roy who was admittedly a Co-shebait of the family Deity of Roys 'Sri Sri Radhakanta Jew Thakur' transferred absolutely his Shebaiti right to the present plaintiff. It is admitted in this case that the disputed properties are the absolute Debutter properties of the Deity. It is also admitted that along with the Arpannama Satish Roy executed one 'Ijarapatta' (lease) in favour of the defendant No. 5, brother of the plaintiff, on the same date for thirty years in respect of the disputed properties. Now, the case of the plaintiff in substance is that by the Arpannama and by the Ijarapatta the entire Shebaiti right of Satish Roy was transferred absolutely to the present plaintiff a co-shebait and out of the rent of Rs. 190/- reserved in the Patta the appellant would be entitled to get Rs. 100/-to carry on the Seba Puja of the Deity forever. The defendants Nos. 1 and 2 grandsons, and the defendant No. 3, a son of Satish Roy, who died on 14-10-1949 set up his will and claimed the Shebaiti right in his share and denied the plaintiff's claim of Shebaiti right. Some of the other defendants who were the Co-shebaits filed written statement supporting the case of the plaintiff.

4. It appears that sons and grandsons of Satish Roy contested the suit at the trial stage but the other defendants who filed the written statement did not appear at the trial. The Trial Court took the view of a construction of both the documents that the plaintiff obviously acquired some interest in the 'Palas' but they were not sufficient to confer full title or right. The trial Court also on a further question of adverse possession held against the plaintiff and dismissed the suit. The appellate Court below, though the appeal was not contested by any of the respondents, substantially agreed with the trial Court and held that the alienation of Satish Roy in favour of the plaintiff by the Arpannama was not valid and operative against his legal heirs and the plaintiff could not claim title to Shebaiti right on additional reason that the Arpannama was not a document of transfer and the Shebaiti right was not at all transferred to the plaintiff by this document. The correctness of this decision is now challenged before me in the present appeal.

5. The first question that arises for consideration is whether the Arpannama is a document of transfer of Shebaiti right absolutely and secondly, whether such Arpannama could operate as a valid deed of transfer against the legal heirs of Satish Roy. Itappears that the appellate court from a construction of the operative portion of the document Arpannama read with 'Ijarapatta' found that the executant did not divest himself of Shebaiti right but simply made arrangement for the proper performance of Puja during his Pala. Mr. Mukherjee appearing in support of the appeal has contended that since the 'Pala' or turn of worship of Satish Roy by the impugned document was made over to plaintiff absolutely and forever in favour of the appellant and his heirs and assignees successively with a further covenant binding the executant, his heirs and assigns the document must be accepted as a deed of transfer of Shebaiti right absolutely. This document, it is further argued, if read along with the Patta which is a benami document would show that the disputed property belonging to the Deity in the share of the executant was also transferred with a direction to spend Rs. 100/- out of the rent reserved for the Sheba Puja of the Deity and Rs. 90/- to be paid to the executant. The question is whether 'Pala' or the turn of worship is equivalent to the word or expression Shebaiti right. There does not appear to be any English synonym of the word 'Shebait' though the term 'Pala' has been translated as turn of worship'. Now, worship in the present context clearly signifies service to God in the turn of particular Shebait which only indicates divided rights and duties of Shebaitship of the Idol when there are more Shebaits than one. It can now be safely said on the authority of the proposition laid down by the Judicial Committee in Ramanathan v. Murugappa, (1906) 33 Ind App 139 (PC) that the Shebaits are entitled to carry out their duties and management of- deity's properties in such order as they think proper. The exercise of such Shebaiti rights by rotation by different Shebaits is, it seems to me, commonly called 'Pala' in Bengal. It is also well established that Shebaitship is not mere office but it is admixture both of duties and the right to property which is subject to devolution according to ordinary Hindu Law of Succession. See Full Bench decision of this Court in Manohar v. Bhupendra, ILR 60 Cal 452 = (AIR 1932 Cal 791) (FB) and Ganesh v. Lal Behary, 63 Ind App 448 = (AIR 1936 PC 318).

6. But before 1 proceed further Imust notice at this stage that the appellate Court below did not enter into the question whether the Ijarapatta was benami document but proceeded on the footing that the document was granted really to the plaintiff though in the name of defendant No. 5. It is also not disputed in this case that such a Patta in favour of the plaintiff by Shebait of Debuttar properties was not a valid document. If that be so, then, clearly, under the law of vesting as it stands under the relevant provision of West Bengal Estate Acquisition Act 1953 (Act 1 of 1954) it is not the Shebait or the Deity but the plaintiffwho has become a direct tenant under the State on the same terms and conditions or, it may be, on such further or other terms as may be settled by the State. The Deity in any case or His Shebait not being in khas possession of the property could not retain the lands under the Estate Acquisition Act. That being the position, it seems clear that whatever may be the terms of the document of the 'Ijarapatta' the Deity or His Shebait has no longer any right, title or interest in the properties covered by the Patta in favour of the plaintiff. So, in view of the changed circumstances the question left for consideration essentially is whether by virtue of Arpannama the plaintiff could acquire the Shebait right absolutely or what interest if any has been acquired by the plaintiffs in the Shebaiti rights of the executant.

7. Now, it is already seen, that 'Pala' means divided rights and duties of Shebait which mean not merely office but right to property. In other words Pala stands for, so to say, divided Shebaitship. It is to be seen therefore whether this 'Pala' was transferred absolutely by the Shebait executing the Arpannama. On a plain reading of the relevant provisions of the Arpannama it appears that the 'Pala' in question was clearly made over absolutely in favour of the plaintiff and his sons, grandsons, heirs and assigns successively as the Shebait transferring his Pala bound himself along with his heirs, executors and assigns to pay a sum of Rs. 100/-out of the income of the properties of the deity which was transferred to the plaintiff by 'Izara Patta' in the name of the defendant No. 5 at a rental of Rs. 190/- and further not to demand the return of Pala, so long as the plaintiff or his heirs and successors would continue to perform the Pala. The Appellate Court below in spite of such provisions held that the Shebaitship was not transferred but the plaintiff was given right to perform the Sheba Puja of the deity during the five months 'Pala' of the Shebait, I think such a construction put upon the document is erroneous. It is quite clear even from the operative portion that the 'Pala' was transferred and not merely the right to perform 'Sheba' Puja of the deity. It is specifically provided that the 'Pala' was intended to be transferred absolutely to carry on the 'Deb Sheba' in the turn of worship of the executant after his death by the plaintiff and his heirs and successor. It cannot be doubted that 'Deb Sheba' in the present context would clearly mean the divided rights and duties of the particular Shebait and not merely performing Sheba Puja during the 'Pala'.

8. The reasons given, substantially in support of such construction are, firstly, that the executant reserved for himself the balance of Rs. 90/- out of the annual rent mentioned in the Patta and secondly, if the plaintiff failed to worship the deity properly,he would be entitled to return the Pala to the executant on his heirs. I will deal with second reason first. This reason in support of the interpretation given by the Appellate Court below is not correct. One of the well-established rule of construction is that the document must be read as a whole. A piecemeal reading of the document either of recital or operative portion or the covenants cannot bring about a fair and proper construction of a document. In the instant case the executant in the recital of the document made it sufficiently clear that for carrying on the 'Deb Sheba' he wanted to make a permanent arrangement for several reasons given there and with that object in view he transferred his Pala of 5 months in favour of the plaintiff who was a co-shebait. These recitals, read with the operative portion of the document lead invariably to the only conclusions that the Pala in question was transferred in favour of the plaintiff and his successors absolutely. It may be, there was further covenant that if the plaintiff or his successors would become unable or unwilling to carry on the Deb Sheba, they would be either entitled to appoint a Shebait in his or their place or return back the Pala to his sons, grandsons or their heirs or successors. Such a condition by no means would establish that what was transferred was a mere right to perform the Sheba Puja of the deity during the Pala of five months or created only a temporary arrangement. By this condition no restriction was imposed on the right created or conferred upon the plaintiff but in case of his inability or unwillingness the decision was entirely left with him.

9. Then, coming to the first reason, namely, the reservation of executant's right to receive a sum of Rs. 90/- out of the total rent, I think consideration of this aspect of the matter is no longer relevant for as already noticed the properties have vested in the State. It cannot also be said at the same time that with the vesting of deity's estate in the State Shebaitship has ceased to exist. There still remains the Shebaiti rights which are to be carried on according to the turn of each of the Shebaits. It will not, therefore, be correct to say that by the transfer of the 'Pala' Shebaiti right of the executant was not transferred. Even assuming that a portion of the annual rent covered by the Patta in respect of the property of the deity was retained by the Shebait that fact by itself will not necessarily establish that his Shebaiti right was not transferred in favour of the transferee under the impugned document. In my view, appropriation of a part of incomes of the Deity's estate by the Shebait himself is not unknown in Hindu religious endowments, see Vidyavarathi v. Balusami, 48 Ind App 302 = (AIR 1922 PC 123). In this case it will not be unreasonable to suppose from the tenor of the documents that the shebaits under the age old practice observed in the family used to ap-propriate a part of the income to themselves and in the impugned arpannama the transferor only retained that right under mutual agreement and not the shebaiti rights considered the matter, therefore, from both aspects it must be said that Pala of the She-baits was transferred absolutely.

10. In the view I have taken it is sufficient to dispose of the appeal but the Appellate Court below has further considered the second question as to whether even if the Arpannama was a document of transfer of the Shebaiti right, such a transfer could, be valid and operative against the legal heirs after the death of the executant. In considering this question the Appellate Court below while agreeing with the principle that such transferability of the Shebaiti right was permissible firstly, if it was for the benefit of the deity and secondly, under the family customs, found on the second question that no such custom was established in the instant case. On the question of benefit of the deity the Appellate Court below on consideration of several decisions of this Court and also certain comments made by Dr. Mukherjea, (the Learned Chief Justice of Supreme Court) in his 'Tagore Law Lectures' held on the doctrine of benefit to the deity that the transfer of the Shebaiti right could not be totally disregarded and each case had to be decided on its own facts. Even so, it was held, however, that alienation of the Shebaiti right in the present case in favour of the plaintiff changing the line of succession could not be valid and operative as against the legal heirs of the transferee, of the deity.

11. Now, the question whether there was a family custom permitting transfer of Shebaiti right was not in issue and no case appears to have been made out that there was no such family custom nor the transfer of Pala or the Shebait right was not permissible under the family custom. Plainly, therefore, such a question is not called for a decision in the present case. In any event in absence of any such objection raised against the transferability of the Shebait right under the family custom it may be reasonably inferred that the transfer of the Pala was prevalent or permissible under the custom of the family to which the deity belonged. In this case it was noticed that a similar transaction took place in the family by which the executant of the impugned Arpannama purchased from his uncle his Shebaiti right. The Appellate Court below held that this was not sufficient to establish the custom. But the previous sale of the Shebaiti right by the uncle of the present executant it, appears. was accepted and treated as binding on all the other Shebaits. The mere fact that there is no evidence of any other transaction relating to transfer of Shebaiti right by any other Shebait in the past cannot be treated as a proper guide to hold that the family custom has not been established. In Mahamaya Debiv. Haridas Haldar, (1915) ILR 42 Cal 455 this Court while laying down that Pala or the turn of worship was alienable by custom found on evidence that 'in practice Kalighat temple Palas have been transferred at least during 90 years, though in a limited market which those alone can enter who are qualified to become Shebait by birth or marriage, the time when this custom originated being unknown'. It was further held that 'the proof of the existence of custom need not be carried back by direct evidence to the year 1773 when the Supreme Court was established or even to 1793 when the first Regulation was passed by Indian Legislature. In this case there was a serious dispute on the question of existence of custom and, therefore, on the evidence adduced showing the practice to be existing at least for 90 years, the custom was found to have been established but here in the instant case as I have already stated the question as to the existence of custom did not come in the forefront nor there was any issue framed and no rebutting evidence at least appears to have been adduced by the defendants. In these circumstances, as the standard of proof of such family custom cannot be uniform, it is not right to hold that the custom of transferability of Pala or the turn of worship was not in existence in the family.

12. The other qestion, namely, whether the Pala is transferable for the benefit of the idol does not call for a decision equally in this case but even if it does I do not see any reason why the transfer of Pala in the present case should not be upheld on the ground of benefit of the deity.

13. It is true, as has been noticed by the Lower Appellate Court, that Dr. Mukherjea in exploding this theory has expressed an opinion that certain Calcutta decisions which lay down this propositions 'are of all doubtful authority' and are to a great extent, based upon misconstruction of certain pronouncements of the Judicial Committee. He has also sought to support his comments from the observation made by Page, J., in Nagendra Nath Palit v. Rabindra Nath, 53 Cal 132 = (AIR 1926 Cal 490) where the Learned Judge has condemned the doctrine as 'heresay which has crept into the Hindu Law' substantially on the view that the principle enunciated by the Judicial Committee in (1875) 2 Ind App 145 (PC), Prosunno Kumari v. Golab Chand applied only to an alienation of temporarilities of the idol and not the spiritual rights and duties the fulfillment of which is primarily the function of the Shebait. It is, however unnecessary to examine this question on the facts of the present case for this is a point which never formed the subject-matter of controversy between the parties at any stage. In any case, the transfer in question being not to a stranger but to a co-shebait of the deity, the proposition laid down by Page, J., inNagendra Nath's case ILR 53 Cal 132 = (AIR 1926 Cal 490) (Supra) cannot offer any obstacle to a question of transfer of Shebaiti rights on the theory on the benefit of the deity. The Appellate Court below, however, did not rest its decision on the principle indicated in the judgment of Nagendra Nath's case but proceeded further into the question on the footing that each case in view of the divergence of the Judicial opinion had to be decided on its own facts. Thus, on a reading of the recital of the impugned Arpannama it thought that apprehension of the transferor that his successors, legal heirs would not perform the Deb Sheba was merely imaginary and had no real justification in depriving their legal heirs of their Shebaiti right in the deity. In my view such an approach to the question is certainly erroneous. The question is not one of change of line of succession but of the circumstances tending to benefit the idol. The recital made by the transferor himself in the document of transfer, if it is otherwise permissible could not be rejected as merely imaginary apprehension of the transferor. The trial Court as a fact found that heirs of the transferors were neglectful of their duties.

In any case in absence of any clear and cogent evidence to the contrary, the recital in document must be accepted as representing the true state of affairs. In this case, therefore, there being no evidence showing that the statement by the transferor in the document impressing the urgency and necessity of the transfer in favour of the co-shebait for the worship of the idol, no other course is left open than to accept those statements as correct and in that event, there can be little doubt that the transfer was for the benefit of the deity. The Appellate Court below though referred to the case of Nirade Mohini v. Shibadas, (1909) ILR 36 Cal 975 sought to distinguish it from the facts of the present case entirely on a mis-appreciation of the principles stated there. In my view, the principle laid down in that case that the transfer is permissible if it is for the benefit of the idol is not based on the mere fact that a stranger purchaser was challenging the validity of the transfer to a co-shebait but on a broader view, namely, that such a transfer would be deemed to be valid if it is for the benefit of the idol. In a later Bench decision of this Court in Nirmal Chandra v. Jyotiprasad, 42 Cal WN 1138 = (AIR 1938 Cal 709), Nirod Mohini's case has been referred to and it has been laid down broadly that 'special circumstances conducive to the benefit of the idol have sometimes been held to validate the alienation inter vivos.' This being so, the principle thus stated is equally applicable to the facts of the present case as the recital of the document of the transfer together with other circumstances and relevant evidence and materials on record sufficiently establish thatthe instant transfer under Arpannama in question made in favour of the co-shebait was for the benefit of the deity. In my view the decision of the Court of Appeal below is not correct.

14. In the above view of the matter it is unnecessary to go into the question of adverse possession by the plaintiff which though held against him by the trial Court was left undecided by the Appellate Court below.

15. In the result this appeal is allowed, the judgments and decrees of both the Courts below are set aside. The plaintiff's suit is decreed.

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