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Sri Iswar Dashabhuja Thakurani and ors. Vs. Sm. Kanchanbala Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberSuit No. 1347 of 1965
Judge
Reported inAIR1977Cal473
ActsHindu Law; ;Civil Procdure Code , 1908 - Order 31, Rule 1; ;Evidence Act, 1872 - Section 108
AppellantSri Iswar Dashabhuja Thakurani and ors.
RespondentSm. Kanchanbala Dutta and ors.
Cases Referred(Ram Kishorelal v. Kamal Narayan).
Excerpt:
- orderpadma khastgir, j. 1. this suit has been filed by the plaintiffs (1) sri sri iswar dashabhuja thakurani (2) sri sri iswar govinda jew thakur and (3) rash behari roy against the defendants (1) sm. kanchanbala dutta (2) gosta behari roy and (3) brojo behari roy inter alia for appointment of the plaintiff no. 3 rash behari roy as the next friend of the plaintiff deities, declaration that the properties mentioned in annexure 'a' to the plaint are debutter properties belonging absolutely to the plaintiff deities, framing of a scheme, injunction, receiver, accounts, etc. 2. the case of the plaintiffs is that the defendant no. 1 is a daughter and the plaintiff no. 3 and the defendant nos. 2 and 3 are the sons of one hari mohan roy. this hari mohan roy owned and possessed two immovable.....
Judgment:
ORDER

Padma Khastgir, J.

1. This suit has been filed by the plaintiffs (1) Sri Sri Iswar Dashabhuja Thakurani (2) Sri Sri Iswar Govinda Jew Thakur and (3) Rash Behari Roy against the defendants (1) Sm. Kanchanbala Dutta (2) Gosta Behari Roy and (3) Brojo Behari Roy inter alia for appointment of the plaintiff No. 3 Rash Behari Roy as the next friend of the plaintiff deities, declaration that the properties mentioned in Annexure 'A' to the plaint are debutter properties belonging absolutely to the plaintiff deities, framing of a scheme, injunction, Receiver, accounts, etc.

2. The case of the plaintiffs is that the defendant No. 1 is a daughter and the plaintiff No. 3 and the defendant Nos. 2 and 3 are the sons of one Hari Mohan Roy. This Hari Mohan Roy owned and possessed two immovable properties at Calcutta, being premises No, 16A, Nandan Road and 20, Ahiritola Street and various properties at Mogra in the district of Hooghly. Full particulars of which will appear from Annexure 'A' to the plaint.

3. The said Hari Mohan Roy during his lifetime by a registered deed dated 9th June, 1935 dedicated all his properties to his family deities i. e. the plaintiffs Nos. 1 and 2 of this suit.

4. The salient terms and conditions as contained in the said deed of dedication (Arpananama) are the following:--

'(a) The first shebait would be the settlor Sri Hari Mohan Roy. After his death his three sons, namely, the plaintiff No. 3 and the defendants Nos. 2 and 3 and his daughter the defendant No. 1, would be the next shebaits.

(b) Out of the income of the debutter properties in the first instance the revenues and taxes would be paid as also the amount necessary for the sheba of the said deities.

(c) Thereafter out of the surplus, the necessary amounts would be spent for the performance of 'Dol Jatra' and'Durgatsav' every year and for daily puja of the said family deities.

(d) Out of the surplus funds remaining, moneys would toe spent for the improvement and preservation of the debutter estate and for acquiring other properties for the debutter estate. None of the shebaits would be entitled to sell or make a gift of any of the debutter properties and such properties would not be liable for any debts incurred by them.

(e) If any debutter properties were acquired by the Government then the shebaits would purchase other properties of equivalent value for the debutter estate.

(f) The shebaits would do all the acts necessary for the due performance of deba sheva and for the preservation and betterment of debutter estate.'

5. Between 1935 and 1958 the said Hari Mohan Boy out of the funds of the said debutter estate erected buildings on some of the lands forming part of the debutter estate and also made various additions to the said estate. Full particulars of such additions would appear from the Annexure 'C' to the plaint. During the lifetime of the said Hari Mohan Roy some of the properties were compulsorily acquired by the Government and various proceedings are pending for realisation of the said compensation moneys.

6. A suit was filed by Gostha Behari Roy, the defendant No. 2 herein, being Suit No. T. S. 464 of 1957 in the 4th Court of Munsif at Alipur in 1957 against Hari Mohan Roy as shebait to the deities being plaintiff Nos. 1 and 2 herein. That suit was filed in respect of premises No. 16A, Nandan Road. By consent of the parties therein it was declared that Gostha Behari Roy was the tenant in respect of the said property at a monthly rent of Rs. 225 p. m. on and from 1st March 1955. The said terms of settlement were signed by Hari Mohan Roy as shebait of the plaintiff deities.

7. It is the common case of the parties to this suit that the said Hari Mohan Roy suddenly left his Mogra house on 24th June, 1959 and since then his whereabouts are unknown. At the time he left the house for good, his age was of about 80 years. So long as Hari Mohan Roy was at his Mogra house he acted as a shebait and performed the daily puja and other seasonal festivals as shebait of the plaintiff deities. After his departure from the house, the defendants in the suit have taken possession of the properties and according to the plaintiffs they are also treating the said properties as their personal properties. The plaintiff No. 3 Rash Behari Roy has further alleged that the defendants are wrongfully misappropriating the income from the lands and properties of the debutter properties to their own use and to the detriment of the debutter estate,

8. It is also the case of the plaintiff No. 3 that the defendants Nos. 1, 2 and 3 have wrongfully alienated some of the debutter properties. Full particulars of the instances of the above allegations have been given in paragraph 9 of the plaint According to the plaintiff No. 3 there is no shebait and no person is there to look after and protect the interests of the deities. Defendants Nos. 1, 2 and 3 and the plaintiff No. 3 are the prospective shebaits under the deed dated 9th June, 1935. The plaintiff No. 3 has specifically pleaded in paragraph 15 that the defendants are denying and/or interested in denying the title of the plaintiff deities to the said debutter properties. According to the plaintiff No. 3, he is the second son of Hari Mohan Roy and he has no interest adverse to that of the plaintiff deities and he is a fit and proper person to act as the next friend of the plaintiff deities. As such he should be appointed the same and he has filed an affidavit of fitness to that effect.

9. The defendant No. 1 Kanchanbala Dutta filed a written statement stating that as the said Hari Mohan Roy is sole shebait of the plaintiffs Nos, 1 and 2 and he is still alive on the date the suit was filed, as such the suit as framed without making him as party thereto is not maintainable at all. She has denied the right of the plaintiff No, 3 to act as the next friend of the plaintiff deities and also his right to file the present suit. She has disputed the particulars given in Annexures 'A' and 'C' to the plaint. It is her case that before the said Hari Mohan Roy left the house, he executed a general power of attorney in her favour. According to her, since the execution of the said power of attorney, she has been looking after and managing the properties at Mogra and the defendant No. 3 is looking after and managing the properties situated at Ahiritola Street and defendant No, 2 is looking after the property situated at 16A Nandan Road. She has denied that there has been any mis-appropriation of rents and issues or profits of the debutter properties for her own use. She, in terms of the power of attorney, has let out a part of the de-butter properties at Kola and realising the rents for the purpose of meeting the daily deb seva puja. She collects a sum of Rs. 500 per year from the paddy field, She has most emphatically denied that she has alienated any part of the debutter properties. According to her, Hari Mohan Roy is still the sole shebait and as the constituted attorney of the said Hari Mohan Roy she has the right to manage and look after the properties of the plaintiff deities.

10. The defendant No. 2 Gostha Behari Roy has filed a written statement mainly taking the point that the said debutter was a partial debutter, and not an absolute one. According to him, by a registered deed dated 9th June, 1935 the said Hari Mohan Roy created a trust in respect of all his ancestral and self-acquired properties providing for the preservation, maintenance and seba puja of the deities. He further disputed the particulars given in Annexure 'A' to the plaint. His positive case is that the dedication of the properties as mentioned in the Schedule to the said deed in favour of the said deities was partial and not an absolute dedication. It was merely a trust or a charge and was created only for the purpose of preservation and maintenance of properties, as Hari Mohan Roy was afraid that his sons and daughter would waste his properties. As such to achieve the said object, he created a trust or charge in favour of the deities by the deed dated 9th June, 1935. According to him, it was not the intention of the said testator that his properties be absolutely dedicated in favour of the plaintiff deities but his only intention was to create a charge in respect of the properties for seba puja of the dei-ties. It was not the intention of Hari Mohan Roy to deprive his sons and daughter of the properties. According to the defendant No. 2, Hari Mohan Roy was not divested of the said properties and he continued to remain as the sole and absolute owner of all the properties, subject only to a charge and he treated the said properties as his personal properties even after the execution of the said deed dated 9th June, 1935. According to the said defendant, the properties do not belong to the plaintiff deities absolutely. Although this defendant has given various particulars of the variousfinancial help that he has given to hie brothers and sister he has not substantiated the same by giving evidence. According to him, since 1954 he was occupying premises No. 16A Nandan Road as a tenant under the said Hari Mohan Roy. As the rent, was doubled all on a sudden and a suit was filed against the tenants of that defendant, the defendant No. 2 thereupon filed a suit as stated above. According to him, the defendants Nos. 1 and 3 herein have approved in writing of the terms of settlement filed in the said suit at Alipur. The said document has been tendered and marked as an Exhibit in this suit. According to this defendant when at the end of the year 1959 all the hopes of return of the said Hari Mohan Roy were given up, his sons and daughters entered into an agreement or arrangement between themselves for partition and separate enjoyment of the said properties mutually amongst themselves, subject to a charge created in favour of the deities and according to him under the said agreement and arrangement, 16A Nandan Road was allotted to him. The plaintiff No. 3 also agreed to the said agreement of the sale of his share in No. 16A Nandan Road to the defendant No. 3 for a sum of Rs. 15,000 and the plaintiff No. 3 was given possession of the premises at 4D Palm Avenue Calcutta. Properties at Kola Mogra were allotted to the defendant No. I and since then she is in possession and actually residing there. Premises No. 20, Ahiritola Street was allotted to defendant No. 3 and he also paid a sum of Rs. 3,000 being the value of his 1/4th share to defendant No. 2 for the premises No. 16A, Nandan Road.

11. After hearing the parties through their respective lawyers, the followingissues were framed:--

1. What is the effect of the Registered Deed dated June 9, 1935 executed by Hari Mohan Roy?

2. Did the said Hari Mohan Roy in fact divest himself of the premises No. 16A, Nandan Road, Calcutta after execution of the said Deed dated June 9, 1935?

3. Did the plaintiff No. 3 and the defendants enter into an agreement for partition or separate enjoyment of all the properties of Hari Mohan Roy mutually amongst themselves subject to a charge in favour of the plaintiff deities as alleged in Sub-paragraph (d) of para,10 of the written statement filed by the defendant No. 2?

4 (a). Did the plaintiff No. 3 and the defendant No. 3 enter into agreement for sale with the defendant No. 2 on May 10, 1962 and December 16, 1961 respectively in respect of their respective undivided 1/4th share in the premises No. 16A, Nandan Road, Calcutta as alleged in Sub-paras, (f) and (e) of para. 10 of the written statement filed by the defendant No. 2?

(b) Did the defendant No. 2 spend a sum of Rs. 25,000 for improvement, addition and alteration, repairs and payment of taxes of premises No. 16A, Nandan Road, Calcutta as alleged in paragraphs 11 and 12 of the written statement filed by the defendant No. 2?

(c) If so, to what effect?

5. Did Hari Mohan Roy executed a general power of Attorney dated 21st July, 1958 in favour of the defendant No. 1?

6(a). Did the defendant No. 1 realise rent from the tenants at the rate as mentioned in Sub-paras, (a), (ib) and (c) of the para. 9 of the plaint? If so, at what rate?

(b) Did the defendant No. 1 settle the properties in her own name or in the name of her relation as alleged in Sub-para, (d) of para. 9 of the plaint?

(c) Did the defendant No. 1 sell or transfer the properties as alleged in Sub-paras, (e), (f) and (i) of para. 9 of the plaint?

(d) If so, to what effect?

7. Is the suit bad for non-joinder of Hari Mohan Roy (Sole Shebait) as alleged in para. 1 of the written statement filed by the defendant No. 1?

8. To what relief, if any, are the plaintiffs entitled?

12. The defendant No. 2 Gostho Behari Roy has first of all taken the point through his counsel at the time of the argument that the deed of dedication D/- 9th June, 1935 is not a complete dedication but only a partial one. In the alternative he has submitted through his counsel, that even assuming there was a total dedication as his father Hari Mohan Roy did not divest himself of premises No. 16A, Nandan Road as such the said property should be kept outside the scope and purview of the deed of dedication. It is his case that although there was a direction under the deed of dedication for mutation of properties after the deed of dedication was made, suchmutation has not been done in respect of premises No. 16A, Nandan Road and that is the pointer to show that it was the intention of the settlor to keep the said property outside the scope of the deed of dedication. He has also taken the point that Rash Behari Roy has no right to be appointed as the next of kin of the plaintiffs nor has he any right to institute or continue the suit on behalf of the plaintiff deities. Lastly, he has taken the point that as Hari Mohan has not been made a party to the suit as such this suit is bad for non-joinder of parties.

13. The case of Kanchanbala Dutta is that the deed of dedication is not only valid but is a complete dedication. She has emphatically denied of mismanaging the debutter properties or having alienated any part thereof either in the name of her son-in-law or in the name of any other relative. Her positive case is that the presumption of death cannot be drawn in this case as the suit was filed on 2-8-65 and Hari Mohan Roy left his house on 24th June, 1959. As the complete period of 7 years time had not lapsed on the date when the suit was filed, so no presumption can be drawn under Section 108 of the Evidence Act. Hari Mohan Roy should be deemed to he alive. In the absence of making him a party this suit is not maintainable. She has justified her conduct of collecting rent as it is her case that there is a valid power of attorney granted by Hari Mohan Roy in her favour and she has been exercising her right under the said power of attorney. Moreover she was appointed a joint Receiver by this Hon'ble Court along with plaintiff No. 2. As such any collection made by her during that period was as an officer of Court so the collections made by her were perfectly legal and valid. Lastly she has submitted that if this Court decides to frame a scheme it should be framed in such a way so that all the brothers and sisters get a chance to have a turn or 'pala' periodically.

14. The defendant No. 3 Brojo Behari Roy neither filed written statement nor appeared at the time of hearing of the suit. The plaintiff's counsel submitted that although he has not been able to substantiate and give evidence on all the charges made in the plaint against the defendants but sufficient materials are before the Court to come to the conclusion that there is mismanagement in carrying out the duties of the debutterestate. Moreover, in view of the stand taken by Gostha Behari Roy, the plaintiff deities' interest is in jeopardy and as such a scheme should be framed by the Court. The plaintiff has given evidence that Hari Mohan Roy completely diverted himself of all the properties mentioned in Schedule 'A' to the plaint. Hari Mohan Roy himself collected rents and issues by granting receipts on behalf of the deities and describing himself as a shebait, so long as he was present. After Hari Mohan Roy left the house, rents were being collected by the defendants Nos. 1, 2 and 3 themselves as shebaits and on behalf of the plaintiff deities. The case of the plaintiff is that Gostha Behari Roy has never made any cash payment under the consent decree but always adjusted the rent with the purported payments made by Gostha Behari Roy for and on behalf of the plaintiff deities, including payment of rates and taxes and alleged repair works. The plaintiff has stated that Gostha Behari Roy being a lawyer persuaded all the other parties to enter into an amicable settlement and partition of the debutter properties among themselves treating the same as secular properties and a document to that effect was executed on 10th May, 1962.

15. In this case the following main points have arisen for my decision:--

First of all whether the present suit filed by Rash Behari Roy for and on behalf of the plaintiff deities is maintainable.

16. Although there has been no issue to that effect but Mr. Gopal Law appearing on behalf of Gostha Behari Roy has submitted that the suit is not maintainable by his brother Rash Behari Roy. No evidence has been laid by any of the parties to the effect that Rash Behari Roy is not a fit and proper person to be appointed as the next of kin or that his affidavit of fitness should be ignored and no reliance be placed on such affidavit.

17. A Hindu deity is a juristic person and has the right to sue or be sued. There are preponderance of decisions to the effect that a shebalt has a right on his own to institute and proceed with the suit on behalf of the deities making other shebaits as parties to the suit. On the death of Hari Mohan Roy, Rash Behari Roy became one of the shebaits jointly with other defendants. So on his own right Rash Behari Roy can, not only bring a suit but also proceed withthe suit on behalf of the plaintiff deities as a prospective shebait in case of family endowment even though not appointed by Court as guardian, can maintain a suit on behalf of the deity. This is more so when a prospective shebait brings a suit on behalf of the idol making all other shebaits as parties to the suit. : AIR1966Pat235 , Ram Ratanlal v. Kashinath Tewari). In a case reported in AIR 1931 Cal 776 (Girih Chandra v. Upendra Nath) it has been held that a person interested in a private trust as a member of the family and who has further the prospect of holding the office of shebait, can maintain a suit challenging the alienation of debutter properties by a shebait. A future shebait can maintain a suit to have it declared that alienation made by a shebait is unauthorised and does not affect the deity.

18. Rash Behari Roy is not only ashebait but also a member of the settlor's family. In Nirmal Chandra v. Jyoti Prosad reported in 45 Cal WN 709 : (AIR 1941 Cal 562) it has been held that a shebait as a party interested in the endowment can bring an action. In the first place a co-shebait can bring a suit on the principle that a suit on behalf of the deity can be brought by some of the co-shebaits when the rest are unwilling to join the plaintiff or have done acts precluding them from doing so. In the second place it can be justified on the ground that the deity can sue through a next friend who has no interest adverse to it and it is immaterial that such next friend happens to be one of the shebaits.

'In respect of a debutter in this country a founder or his heirs may invoke the assistance of a judicial Tribunal for the proper administration thereof on the allegation that the Trusts are not properly performed.'

19. The second point for consideration arises, whether the dedication made by the deed of dedication dated 9th June, 1935 is an absolute or a partial one.

'Dedication of a property to a religious or charitable purpose may be either complete or partial. If the dedication is complete a Trust in favour of the public religious charity is created. If the dedication is partial a Trust in favour of the charity is not created but a charge in favour of the charity is attached and follows the property which retains its original, private and secular character. Whether or not a dedication is completewould naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such a case it is always a matter of ascertaining the true intention of the parties. It is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole.' (AIR 1957 SC 797, Dasaratharami Reddi v. Subba Rao),

'The golden rule of construction, it has been said, is to ascertain the true Intention of the parties to the instrument after considering all the terms in the ordinary natural sense. To ascertain this intention the Court has to consider the relevant portions of the document as a whole and also to take into account the circumstances under which the particular words, were used.' : AIR1963SC890 , (Ram Kishorelal v. Kamal Narayan).

20. In a case of absolute dedication, the property is given out and out to an idol or to a religious or charitable institution and the donor completely divests himself of all the beneficial interest of the property but where the dedication is partial only a charge is created on the property or there is a trust to receive and apply a portion of the income for the religious or charitable purposes. If there is an express endowment there is no difficulty in coming to the conclusion whether the endowment is absolute or partial. It is only where there is an implied endowment, the question of construing the same in the light of the intention of the settlor by construing various terms and conditions of the deed of dedication as a whole would arise and one will have to come to the conclusion after considering the same. Where the terms of dedication have been clearly and in an unambiguous language expressed the interpretation becomes easy and one does not have to search or go into all the facts and surrounding circumstances including the subsequent dealing of the property by the parties as also their conduct and mode of dealing with the said properties,

21. In this case the intrinsic evidence of the document is reinforced by the subsequent conduct of the parties. It would appear from the expressions used in the deed of dedication such as-- 'I give absolutely all immovable properties to my deities' and 'I stand completely divested myself of the rights in the property and my rights devolve in the said deities in my place and stead' thatthere was an absolute dedication and not a partial one. The settlor Hari Mohan Roy not only dedicated the entire properties to the plaintiff deities tout he has also made specific provisions in the deed itself that the entire income from the said property would be utilised solely for the deva seva and any surplus thereto would be spent for addition and/or improvement of the debutter properties.

22. In the present case I am of the opinion that the terms and conditions of the deed of dedication are not at all ambiguous but the intention of the testator has been clearly laid down in various terms and expressions used in the saio^ document in unequivocal language. Moreover, apart from the deed itself the very conduct of the settlor from 9th June, 1935 till 24th June, 1959 when he left his residential house for good would show that he himself treated the entire properties as debutter, made additions and improvements to the debutter properties and also completely divested himself of all the said properties. He described himself and acted as the shebait of the plaintiff deities.

Pursuant to the power of attorneys granted by the settlor, two sons and daughter of the settlor acted as shebaits of the said deities and have accepted the said dedication as a total debutter. Even Gostho Behari Roy in the suit filed by him before Alipore Court described his father Hari Mohan Roy as shebait and treated himself as a tenant in respect of the premises No. 16A, Nandan Road and agreed to pay a sum of Rs. 225 per month to the shebaits of the deities. In fact the rent receipts, the deed of settlements the consent decree and all other exhibits in the suit go to show that not only the settlor himself but also all of his sons and daughter treated the said properties as debutter till the day when the sons and daughter of the settlor divided the said properties among themselves by treating the same as secular properties.

23. A specific provision has been made in the deed that after the death of Hari Mohan Roy his sons and daughter would be the shebaits and as such she-baits they shall never be competent to make any gift or sale or encumber in any manner the properties. I have the least doubt that it was the intention of the testator that the dedication would toe absolute and his sons and daughterwould have no interests to the properties, save and except to act as shebait and carry out the terras and conditions contained therein.

24. The next point taken by Mr. Gopal Law appearing on behalf of Gostho Behari Roy is that premises No. 16A, Nandan Road does not belong to the plaintiff deities and does not form a part of the debutter estate as the testator did not divest himself of the said property. In support of his contention he has relied on the fact that the said property has not been mutated in the names of the plaintiff deities with the records of Corporation of Calcutta. According to him it was the intention of the settlor as also the parties to keep the said property outside the purview of the debutter estate. It is surprising that Gostho Behari Roy should take such a stand in this suit in view of his own conduct in the past. He himself has filed a suit in the Alipore Court treating himself as a tenant and making Hari Mohan Roy a party defendant and describing him as shebait of the debutter estate. The consent decree was also entered into by Hari Mohan Roy as a shebait of the plaintiff deities. Subsequently, the defendants Nos. 1 and 3 also consented to the arrangement arrived at under the said consent decree. In that document the defendants Nos. 1 and 3 have been described as shebaits of the plaintiff deities. Moreover, all the rent receipts in respect of No. 16A, Nandan Road have been granted in the capacity as shebaits of the plaintiff deities. Although Gostho Behari Roy has been in possession of the said property since 1954 and also considering the fact that he is a lawyer himself, he neither himself took any steps nor advised his father Hari Mohan Roy or other brothers to have the said property mutated in the name of the plaintiff deities in the records of the Corporation of Calcutta. There is a specific provision in the deed itself directing the shebaits to have the same done. On this lone ground of non-mutation I cannot hold that Hari Mohan Roy did not divest himself of the said property. Where there has been total dedication of property, non-mutation of the property, would not be a ground for holding that there has been no divestation of the property after the dedication, considering the dealing of the said property by the parties and their conduct.

25. The third point taken in this suit is that no presumption of death can bedrawn till after the expiry of 7 years' time on the date of filing of the suit. It has been contended that Hari Mohan Roy left the house on 24th June, 1959 and the present suit has been filed on 2nd August, 1965. As such the total period of 7 years' time had not lapsed and accordingly Section 108 of the Evidence Act would not be attracted.

26. Section 108 of the Evidence Act provides -- 'When the question is whether a man is alive or dead and it ia proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the persons who affirm it'

27. It is the common case of the parties that Hari Mohan Roy has not been heard of by anybody since 24th June, 1959 till the day when the suit was heard. According to me, presumption of death arises at the end of 7 years and not at the time when the suit is instituted.

28. Under Section 108 of the Evidence Act presumption of death is not rigid and may be proved before lapse of 7 years from the 'proof of special circumstances'. Such presumption may arise before the end of 7 years 'if the deceased person has been exposed to specific peril of death.'

29. In a case reported in AIR 1926 Cal 1056 (In the goods of Ganesh Das Aurora) it has been held by C. C. Ghosh J. that the question for which presumption is made under Section 108 of the Evidence Act 19 whether a man is alive or dead when the question is raised. In other words, presumption of continuation of being alive ceases at the expiration of 7 years from the period when the person in question was last heard of.

30. Applying the above principles to the present facts of the case the presumption of death can be drawn in this suit When Hari Mohan Roy left his residential house on 25th June, 1959 he was over 80 years of age and nobody in his family or others who are expected to hear of him have heard of him since then. This suit was heard in the year 1977 and it is in evidence that till then neither Hari Mohan Roy did come back nor was he heard of by any of the parties. As such. I have no hesitation in coming to the conclusion that such a presumption of death can safely be drawn. Moreover, it is for the defendants to displace such presumption bygiving evidence that he is still alive. In the present case none of the defendants gave any evidence to that effect.

31. Considering the facts that the plaintiff deities are not being properly looked after, specially the income of the debutter properties is not being collected properly and also considering the fact that the present shebaits have chosen to divide the debutter properties among themselves and are fully enjoying the same without performing any duties as conferred upon them by the deed of dedication dated 9th June, 1935, I am inclined to frame a scheme in the manner following for the purpose of carrying out the various terms and conditions of the deed of dedication dated 9th June, 1935.

32. It is true that the shebaits should act jointly but division of functions and duties among themselves may be made for convenience.

'Without detriment to the trust in order to avoid confusion or any unnecessary scramble, parties interested may arrange themselves for the discharge of the functions belonging to the office in turn. There is no breach of trust in such an arrangement nor any improper delegation of duties of the trustees.'

Dr. B. K. Mukherjee in Tagore Law Lectures on Hindu Law on Religious and Charitable Trust, page 242.

33. All the appearing parties at the end of arguments jointly submitted that if I am inclined to hold the dedication as a total dedication, in that event I should frame a scheme giving opportunity to each party in turn to carry out the deva seva and other works as provided in the said deed.

34. I answer the issues in the manner following: --

The deed dated 9th June, 1935 executed by Hari Mohan Roy created a complete debutter in favour of the plaintiff deities Nos. 1 and 2 and I answer Issue No. 1 accordingly.

Issue No. 2 is answered in the affirmative.

I answer Issues Nos. 3 and 4 (i) in the affirmative but in view of my finding on issues Nos. 1 and 2 in favour of the plaintiff deities Nos. 1 and 2, the same agreement is not binding on the plaintiff deities and is of no effect. As there has been no evidence adduced by the defendant No. 2, I answer Issue No. 4 (b) in the negative. As such answering Issue No. 4 (c) does not arise.

Issue No. 5 is answered in the affirmative but in view of the facts and circumstances of the case that has no effect now.

The plaintiff has failed to give any evidence in respect of issue No. 6 (a). aS such, I answer the said issue in the negative. In the absence of any evidence being laid in respect of issues Nos. 6 (b) and (c), I answer the same in the negative. As such answering issue No. 6 (d) does not arise.

I answer Issue No. 7 in the negative, in view of my finding that the presumption of death of Hari Mohan Roy is drawn under Section 106 of the Evidence Act in the facts and circumstances of the case as stated above.

In respect of Issue No. 8 I frame a scheme strictly in accordance with the intention of the settlor as set out here-under:

1. There would be a committee consisting of 4 shebaits, namely, plaintiff No. 3 and defendant Nos. 1 to 3. The eldest of shebaits at present being Sm. Kanchanbala Dutta, defendant No. 1, will have the final say in all matters regarding the management of the debutter estate created in favour of the plaintiffs Nos. 1 and 2. On the death of Sm. Kanchanbala Dutta, the next eldest shebait will have the same power and thereafter also in accordance with seniority in case of other shebaits.

2. On the death of any of the existing shebaits his or her eldest heir would become the shebait and also become automatically a member of the committee. The daily deva seva and also the periodical and annual festivals like 'Doljatra', 'Durga Puja' would be performed in turn by one of the shebaits every year (from 1st January to 31st December). The first of such turn would come to the eldest descendant of Sri Hari Mohan Roy being Kanchanbala Dutta, defendant No. 1 at present from this day till 31st Dec., 1978 and thereafter to others in accordance with seniority and it will go on by rotation as indicated above.

3. The shebait whose turn would fall in a year would be entitled to collect all rents, issues and profits of all properties situated at Kola Mogra, 16A, Nandan Road and 20 Ahiritola Street and out of the said income pay the rates, taxes, statutory demands apply therefrom towards expenses of the deb sebas and the balance amount would be deposited in an account to be opened in a scheduled bank by all members of the committee in the name of the plaintiff deities which would be operated by the shebait whose turn of worship would fall in a particular year but would not withdraw more than a fixed gum which would be decided by the other shebaits at a meeting to be held by all of them.

4. The shebait would, at the end of the year when his turn of worship is over, prepare and file accounts in the department after serving notice on all other shebaits.

5. In case of any dispute or difference of opinion the shebaits would be entitled to take opinion of the Court either by making a formal application or by writing a letter to the Registrar and act accordingly.

6. The shebaits would be entitled to engage a purohit (priest) for the purpose of making arrangement of daily and periodical deb sevas. Expenses for such would be provided by the shebait whose turn of worship falls in a year.

7. The members of the committee, jointly should immediately apply and make every endeavour to collect the compensation money from the Government in respect of the debutter properties acquired by the Government and/or taken possession by anybody else.

8. Members of the committee would take immediate steps for mutation in the name of the plaintiff deities in respect of the properties at Mogra, 16 Nandan Road and 20 Ahiritola Street Calcutta.

9. Save as aforesaid, all the provisions and conditions of the deed of dedication dated 10th June, 1935 will remain in force and be binding on all the parties to the suit.

10. None of the shebaits would be entitled to adjust the rent payable, with any expenses made by him unless approved of by all the members of the committee.

11. The shebaits will maintain books of account, open to inspection, by any of the shebaits after making appointment and by giving prior notice. The shebaits will be at liberty to pay income-tax, wealth tax and other statutory liabilities if and when required to do so. The she-baits will make every endeavour to increase the income of the debutter properties by fully utilising the same and the plans for such improvement and increase would be made by the members of the committee jointly at a meeting. In case of any dispute regarding the same, the opinion of the eldest surviving trustee should prevail althoughthe Court will have the ultimate say in the matter.

12. The shebaits shall never be competent to make gift or sale or encumber in any manner the debutter properties.

13. The Receiver is discharged, although in future in case of any dispute the Court will re-appoint & Receiver over all the debutter properties.

14. The shebaits will carry out necessary repairs of the properties.

35. The remuneration of the outgoing Receiver would be borne and paid by plaintiff No. 3 and defendants Nos. 1, 2 and 3 equally. According to the Receiver Mr. P. N. Dutt he has incurred a total expense of a sum of Rs. 3,700. Whatever money has been advanced by Shri Gostho Behari Roy would be deducted from his share of contribution already made to the Receiver.

36. The remuneration and the expenses of the Receiver to be paid within a month from date.

37. Each party to pay and bear its own costs.


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