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Sri Sri Iswar Jagannath Deb Jew and ors. Vs. Fatick Chand Seal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 32 of 1964
Judge
Reported inAIR1972Cal489
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
AppellantSri Sri Iswar Jagannath Deb Jew and ors.
RespondentFatick Chand Seal and ors.
Appellant AdvocateGouri Mitter, Adv. General and ;M.N. Banerjee, Adv.
Respondent AdvocateH.M. Dhar, Adv. for Defendant (Fatick Ch. Seal) and ;Gopal Law, Adv. for Defendant (Umesh Ch. Seal)
Cases Referred(Sree Iswar Narain Jew v. Henry E. Soler
Excerpt:
- .....by the government on or about the 9th october, 1967. the board of trustee decided unanimously to grant lease of 30 bighas of low land out of the said property, namely, premises no. 98, manicktolla main road. in course of the administration, the court has to pass an order for preservation and protection of the estate and for smooth running the estate. the court has already appointed receiver in respect of the properties belonging to the deity including the said premises no. 98. manicktolla main road. the said premises is now in the custody of court by reason of appointment of (the receiver. the trustees have decided unanimously to grant lease of 30 bighasof low land of the said premises (the client of the advocate general would not recognise the plaintiff as trustee and shebait). the.....
Judgment:
ORDER

Hazra, J.

1. This is an application by Mohan Chand Seal, the defendant No. 2 (b) in this suit, inter alia, for giving leave to Fatick Chand Seal, the Receiver, appointed in this suit, to lease out for a period of 99 years 30 Bighas of land at premises No. 98. Manicktolla Main Road, Calcutta to the intended lessee or lessees.

2. Premises No. 98, Manicktolla Main Road. Calcutta (hereinafter called the said premises'), is one of the properties of the plaintiff deity. This is a very big and valuable property consisting of 40 bighas of land. On the high land of the said premises facing the road there is a two storied building including temple. Nat Mandir, feeding house of the poor, charitable dispensary Jheel, tanks and there is also open low land. The plaintiff deity was installed in the Tha-kur Bari in the said premises. In or about 1948, the said premises was requisitioned by the Government of West Bengal. After the requisition the plaintiff deity was located in another debutter property viz.: No. 14, Madan Datta Lane, Calcutta.

3. The question in this application is whether this court should grant leave to the Receiver appointed in this suit in an interlocutory application tolease out. for 99 years 30 bighas out of 40 bighas of land, which, is debutter property.

4. The relevant facts and circumstances relating to the suit and the application are as follows:

One Durgadas Seal, since deceased, consecreted and established the deity Sri Sri Iswar Jagannath Deb Jew at premises No. 57, Manicktolla Main Road, now known as No. 98, Manicktolla Main Road. By a Deed of Endowment dated October 1, 1916 the settlor settled and endowed several properties including the said premises in favour of the deity, and provided that after his death the trustee-Ship and shebaitship would devolve upon his legal heirs according to the Bengal School of Hindu Law by which he was governed. On September 9, 1925, the settlor died intestate leaving him surviving his seven sons, Manindra, Girish, Ashutosh, Umesh, Ganesh, Subal and Jadab as his heirs and legal representatives. The said sons of the testator became shebaits and trustees in items of the Deed of Endowment. Between 1925 and 1945 there were various litigations between the trustees and shebaits over the administration of the trust or the endowed properties. Manindra relinquished his shebaitship and trusteeship, Ganesh, Subal and Jadab died intestate and unmarried. On May 3, 1943 the plaintiff No. 2 Premchand Seal who is the only son of Manindra instituted a suit in this court being Suit No. 595 of 1943 (Call (Sri Iswar Jagannath Deb Jew v. Girish Chandra Seal) inter alia, for removal of the trustees and appointment of plaintiff No. 2 as the sole trustee, for accounts and other incidental reliefs. By an order dated September 7, 1948 in Suit No. 595 of 1943 Mr. H. K. Bose. Bar-rister-at-Law, (as he then was) was appointed as the Special Referee for the purpose of framing a scheme in accordance with the Deed of Endowment. The said Special Referee framed a scheme in or about September, 1950. Thereafter, on July 29, 1949, final decree was passed in Suit No. 595 of 1943 in accordance with the report or scheme of the management made by the Special Referee. Thereafter. Ashuthosh died intestate leaving defendant Fatick Chand as his only son and heir. On February 3, 1963, Girish died leaving his widow Badam Kumari, defendant No. 2 (a) and his only son Mohan Chand. defendant No. 2 (b) as his sole heirs and legal representatives. The said Badam Kumari and Mohan Chand upon the death of Girish became trustees and shebaits in place of Girish. On March 6. 1962, upon the death of the said Manindra his son Prem Chand instituted this suit claiming to be a shebait and trustee and for removal of some of the shebaits and trustees and for appointment of new shebaits and trustees, for cancellation of the present schema, for framing of a schemem ofmanagement and for other reliefs. In or about July 1967, an application was made by Premchand in this suit, for the appointment of a Receiver to the endowed estate and on the said application Fatick Chand was appointed as the Receiver of the debutter estate by an order dated August 16, 1967. On or about September 29. 1970 an application was made by Umesh Chandra Seal in this court and an ex parte order was passed by Masud, J. inter alia, that Fatick Chand, (the Receiver appointed be at liberty to appoint the shebaits, but this order was directed to be served on the Attorney of the applicant Premchand. with liberty to have this order vacated before the vacation court. Thereafter the said application was finally heard and on or about May 11, 1971 Masud, J. observed that lease for 99 years was equivalent for sale and asked the applicant to cause advertisement to be used in the newspapers, namely, the Statesman and the Viswamitra inviting offers for the sale of the property in the sealed cover and place them before his Lordship for his consideration. However Umesh withdrew the said application on May 11, 1971. This application by Mohan Chand has been made for the same or similar prayers as was made by Umesh before Masud J. According to the petitioner, Umesh withdrew the said application as he was then Won over by Premchand the plaintiff in this suit.

5. Mr. Gouri Mitter, the learned Advocate General of West Bengal, appearing for the petitioner submitted as follows :

In or about August 1948, the said premises was requisitioned by the Government of West Bengal. Since the said requisition the said premises was in occupation of several thousands of refugees. The Government of West Bengal was paying a rent of Rs. 2,375/- per month exclusive of municipal taxes. The said premises had been de-requisitioned by the Government on or about the 9th October, 1967. The Board of Trustee decided unanimously to grant lease of 30 Bighas of low land out of the said property, namely, premises No. 98, Manicktolla Main Road. In course of the administration, the court has to pass an order for preservation and protection of the estate and for smooth running the estate. The Court has already appointed receiver in respect of the properties belonging to the deity including the said premises No. 98. Manicktolla Main Road. The said premises is now in the custody of Court by reason of appointment of (the Receiver. The trustees have decided unanimously to grant lease of 30 Bighasof low land of the said premises (the client of the Advocate General would not recognise the plaintiff as trustee and shebait). The trustees and shebaits cannot give clear title to the lessee because this suit is pending now. Under Order 40, Rule 1, the trustees are disabled to grant such a lease. Only the Receiver could grant such a lease in view of appointment of receiver in this suit and the Court should grant such leave to the receiver to make a lease in view of the absolute urgency of the case. In spite of the urgency the shebaits cannot grant such a lease. Therefore, the Court should grant leave to the receiver to grant such a lease. It was submitted that the right to grant lease is not controlled by the deed of endowment at all. The right of the sebait is the right to carry out the seva and worship of the deity and the right of management of the properties. According to the Advocate General, urgent necessity exists for grant of lease in this case. The deity had to be removed to No. 14, Madan Dutta Lane, Calcutta where some of the sebaits stayed. The Government of West Bengal requisitioned the property in 1948 and de-requisitioned the property on October 10. 1967. The Government of West Bengal was paying a rent of Rs. 2,375/- per month exclusive of municipal taxes. During the period of requisition, the property could not be repaid. Before the requisition during the period of 1940 to 1946 which was war period, nothing could be done for repairs of the property due to conditions of war. During the period of requisition of the premises by the State of West Bengal the entire boundary wall on all sides of the premises were pulled down by the refugees and out of the bricks temporary houses were constructed by the refugees. As a result, the said premises was without any boundary wall. It is absolutely necessary that the thorough repairs should be done to the building and structures. It was decided by the sebaits that 14 bighas of jheel and 16 bighas of low land should be leased out. The learned Advocate General submitted that Sri Sri Iswar Jagannath Deb Jew must go back to its own temple. The temple needs immediate repairs. Unless the temple is repaired the deity cannot be located at the temple. The property had not been repaired for 32 years. A large sum of money is urgently needed for repairs. The right of the deity to be located at the temple at No. 98. Manicktolla Main Road should be immediately implemented. The Deity must go back to its old temple. The property is now being managed by the scheme. According to the Advocate General. Prem Ohand has no right to oppose this application. The court should not postpone what all thesebaits want. The income of the debutter estate is Rs. 55,000/- per year. There is a loss of Rs. 4,000/- every year. This deficit has to be met. It cannot be met unless the lease is granted.

6. The learned Advocate Generalfinally submitted that sale of the said premises is not beneficial to the interest of the deity, because in case of sale, question of payment of capital gain tax would arise, whereas in case of long lease payment of selami or rent do not involve capital gains tax. The Advocate General stated that one cannot also shut his eyes to the fact that ceiling of urban properties would be imposed soon and the deity in such, case may not get the benefit of such vast land. He submitted that it is for the benefit of the deity that this 30 bighas of land should be leased out as prayed for by the petitioner.

7. Mr. Gopal Law, appearing for the defendant Umesh Chandra Seal supported the case of the petitioner that this property should be leased out. Mr. Law submitted that his client Umesh Chandra Seal made an application on September 29. 1970 almost with the same prayer. There was an ex parte order passed by Masud J. But ultimately the said application was withdrawn by his client on May 11, 1971. He referred to a decision of this Court in AIR 1929 Cal 828 equivalent to 50 Cal LJ 333, (Srish Chandra Baneriee v. Debendra Nath Baner-jee) and submitted that a receiver had no power to lease a debutter property without the sanction of the Court. Mr. H. M. Dhar, learned counsel appearing for Fatick Chand Seal supported the cose of the petitioner. In this application, Fatick Chand Seal is not appearing in his capacity as Receiver but only as se-bait and trustee. Mr. Dhar submitted that for the purpose of this application no receiver's meeting need be called, neither Fatick Chand Seal as receiver is a necessary party to this application. The receiver was directed to act in terms of the scheme. The receiver is carrying on management in terms of the scheme. He said that the trustees and sebaits decided in a meeting that 10 bighas of land approximately with temple and nut-mandir be retained and the back portion be let out on a long lease to secure a recurring income. The terms of the lease had been agreed upon and all parties are willing to lease out 30 bighas of land out of the said premises for 99 years. He admitted that this was a trustee's meeting and not a meeting called by Fatick Chand Seal as Receiver, in this suit. Mr. Dhar submitted that leasing out was for the benefit of the estate and this Court as Court of Equity for the protection of the property of the deity should pass the order as prayed by thepetitioner. He also relied on the casa reported in AIR 1929 Cal 828.

8. This application is opposed on behalf of the plaintiffs. Mr. M. N. Banerjee, the learned counsel appearing for the plaintiffs placed several provisions of the Deed of Endowment and invited my attention to the accounts of the estate annexed to the petition. This account shows expenditure over income at the rate of Rs. 4,609.16 per annum. Mr. Banerjee pointed out that in this account expenses for poor feeding has been shown to the extent of Rs. 8,384.86 but expenses for poor feeding can be made under the deed of endowment as also under the scheme only out of surplus Income. Mr. Banerjee submitted that if there was no surplus income the excess expense could not and/or should not be made and in this way deficit in account be shown. According to the plaintiffs the accounts are not truly and properly maintained. If proper accounts were maintained there should not be any deficit at all. He submitted that there was no need to lease out the debutter property as prayed in the petition. Accounts are not audited as provided in the scheme. There is nothing to show what steps the receiver has taken with regard to augment the income of the estate. There is no meeting of the receiver and no notice was given to his client with regard to any meeting of the sebaits. Mr, Baneriee submitted that his client is claiming a declaration 'that he is a sebait and one of the trustees of the endowed estate. He is also asking for removal of defendants other than defendants Nos. 2a, 2b, 4, 5 & 6 from trusteeship and sebaitship. He is also asking for cancellation of the present scheme and framing of a new scheme. Mr. Baneriee relied on Dr. B. K. Mukheriea's Tagore Law Lecture on Law at Endowment. Third Edition, at page 198 and submitted that when there are more sebaits than one, they constitute one body in the eye of law and all of them must act together. It is not competent for one of the sebaits to do anything in relation to the debutter estate without the concurrence either express or implied of his co-sebaits. In the suit he contended that the plaintiff Premchand might succeed. In the event only some of the sebaits are asking for leave to grant long lease without the concurrence of the other sebait. Further, if long lease is granted the prayer for framing of a scheme as made in the plaint may be affected, because a very valuable property of the debutter estate would be leased out be-fore the scheme could be framed. He submitted that the application is not maintainable and no order should be made. Mr. Baneriee invited my attention to Chapter XXI, Rules 9 and 10 ofthe Rules of Original Side, High. Court and submitted that if the receiver wanted to spend beyond the amounts mentioned in the scheme he must have called the meeting and should have applied to Court for directions. Nothing has been done in this case. On the other hand Fatick Chand Seal in his capacity as sebait and trustee is supporting the petitioner. Fatick Chand Seal as Receiver has been made a party to this notice of motion and he has not filed any affidavit in his capacity as Receiver. He further submitted that his client's case is that portions of premises No. 98, Manicktolla Main Road has been let out and Fatick Chand Seal is not maintaining true and proper accounts. A photograph showing scraps of iron heaped and stacked in a portion of premises No. 98, Manicktolla Main Road has been annexed to the affidavit of Prem Chand Seal. Mr. Baneriee submitted that the lands belonging to the estate at No. 98. Manicktolla Main Road are allowed to be used by third parties and the debutter estate must be receiving income. He further said that it is not mentioned in the petition who is the supposed lessee. Nobody knows the particulars about the proposed lessee. With regard to the question of removal of the deity at the temple at No. 98, Manicktolla Main Road, Mr. Baneriee submitted that de-requisitioning was made in 1968. Long time passed since then and after such a length of time when the suit is likely to be heard soon, it cannot be said that before the hearing of the suit major portion of the land should be leased out for 99 years so that the temple can be repaired for removal of the deity in the temple. Mr. Radha Pada Baneriee appearing for Ranimoni Mallick supported Mr. M. N. Banerjee. He also submitted that this application is not maintainable. He submitted that the court has no jurisdiction to pass such an order to grant lease of a valuable debutter property for 99 years. Mr. R. P. Baneriee referred to B. K. Mukherjea, on Hindu Law of Religious and Charitable Trust. Third Edition at page 238 for the proposition that the court has no jurisdiction to grant an application by a sebait to sanction his transaction on the ground of necessity. Mr. Baneriee referred to : [1970]1SCR936 (Kalank Devi Sansthan v. Maharashtra Revenue Tribunal) and : AIR1961All73 (Beharilal v. Thakur Radha Ballabji). In the Allahabad case, it was held that the power of a manager of an idol is analogous to those of the manager of an infant. Whether a transaction by the Manager is beneficial to the estate must depend upon the facts and circumstances of the particular case and guidance alone is to be obtained in regard to the general scope of the doctrine ofthe benefit of the estate from the illustrations which are found in the reported cases. It was held in that case that the sale of an old house which was not in a dilapidated condition but which required extensive repairs was neither a prudent transaction nor for the benefit of the estate.

9. In my view the petitioner Mohan Chand Singh is not entitled to any order in this petition. In this suit one of the parties have been appointed Receiver in an interlocutory application and usual order under Order 40, Rule 1 of the Code of Civil Procedure has been made, namely that, if the Receiver grants lease of any property exceeding three years, leave of the Court will be neces-say. The properties over which Receiver was appointed are debutter properties. In (1937) 41 Cal WN 627 = ILR (1937) 2 Cal 133 (Sree Iswar Narain Jew v. Henry E. Soler) an application was made before Ameer Ali, J. by a shebait asking for leave of the court to sell or mortgage certain debutter property but the learned Judge did not grant such leave stating, inter alia that the court should not give a certificate of necessity. Before me, one of the shebait and trustee is also applying for leave to be given to the Receiver appointed in this suit to grant lease of debutter property for 99 years. The question is, would it make any difference because here a sebait or trustee is applying for leave to be granted to the receiver to lease out debuttar property for 99 years instead of themselves asking for leave to lease out debutter property as was tine case before Ameer Ali, J.

10. Leave to lease out debutter property for 99 years by the Receiver would mean giving of certificate by court to the Receiver for legal necessity. The Learned Advocate General did not give me any authority in support of his proposition that because Receiver was appointed the court will give leave to the Receiver to grant lease for 99 years in respect of the debutter property pending the hearing of the suit. The Learned Counsel appearing for some of the respondents and supporting the Learned Advocate General referred to me a case in AIR 1929 Cal 828 = 50 Cal LJ 333. This decision relates to an appeal which has arisen out of a dispute as to the rights of parties in a debutter estate. One of the questions arising in this appeal is whether lease granted by a Receiver appointed by the Court was properly done. It was stated by the appellants that the decision of lower Appellate Court was not justified. The lease was cancelled on the ground that the Receiver concealed from the court the fact that the lessee was his own grand-son and a brother of a previous sebait. Reliance was placed before me of certain observations in this judgment :

'The Receiver has of course no power to lease the debutter property without the sanction of the court and the court below has quite rightly held that any misrepresentation or concealment of material facts from the court in connection with a proposed lease would vitiate the authority of the Receiver to grant the lease. In the present case there was such concealment and it is possible that the court might not have granted sanction to the lease or at least might have scrutinized the terms more closely had it known of the relationship.'

11. I do not think this decision helps the contention of the parties supporting the Learned Advocate General's client, namely, the court should grant leave to receiver to grant lease for 99 years in respect of Debutter property pending the hearing of this suit. In every case if Receiver is appointed, the receiver cannot grant lease of property for three years unless there is leave from the court. This suit relates to debutter properties. In this suit one of the prayers in cancellation of the present scheme and framing of a scheme of management for the administration of the estate and for the worship of the plaintiff deity and the performance of the ceremonies. In the Deed of Endowment it is expressly stated by the donor that the debutter properties should not be leased out for any term exceeding three years. In the suit there is prayer for framing of another scheme. The admitted position of law is that a debutter property cannot be sold or leased out except on the ground of urgent need or legal necessity. The leasing out or sale of debutter property for such purpose can be made by the sebaits and trustees for the time being. Merely because a receiver has been appointed by this court, on the application of one of the sebaits and trustees the court should not grant a permanent lease for 99 years in respect of a valuable debutter property. Nor the court should grant a certificate for legal necessity. Again, this is not an application by the Receiver for directions pursuant to a Receiver's meeting. Even if there was such an application, either by the Receiver or by any of the parties who is directed to move in a Receiver's meeting, then a question would arise whether this court should grant long lease of 99 years in respect of de-butter property. Granting of such lease by the Receiver for 99 years, would affect the scheme that might be framed under the decree in this suit. In any event, this is an application by one trustee, and although other trustees are supporting him but the plaintiff Prem Chand,who is claiming to be a trustee is opposing. At the final hearing of the suitplaintiff may succeed and in that event lease for 99 years of the debutter property would be given by some of the trustees and sebaits and not all. I do not think that this court should grant a certificate of legal necessity or would grant leave to the Receiver of the debutter properties to make permanent lease of a valuable debutter property pending the hearing of the suit.

12. In view of the above matter, I cannot pass any order on this application. However, I am making it clear that this order of mine will not affect the rights and powers of the sebaits and trustees to act according to law. Neither this order will affect the receiver appointed in this suit to take such steps as may be necessary for carrying out his duties as Receiver. There will be no order on this application except as above. The petitioner must pay the costs of this application to the contesting respondents.


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