Niharbala Roy v. Dhatri Charan Chakravarty — 1977 DIGILAW 193 (CAL)

JUDGMENT The judgment of the Court was as follows :–– Banerjee, J.: This Letter Patent appeal at the instance of the appellant-defendants arises out of a suit for possession of the disputed property filed by the plaintiff-respondent after eviction of the principal defendants nos. 1, 2 and 3. The case of the plaintiff is as follows:–– The disputed properties constitute absolute debutter of the plaintiff deity and appertain to Taidad No. 2830 of 1309 B.S. of Midnapore Collectorate. The plaintiff's case is that at the time of the Taidad, Bejoyram, Balaram and Ramsundar Chakravarty were the shebaits of the plaintiff-deity. Bejoyram's great grandson was Ramgopal whose only son is the plaintiff. Balaram's great-grandson was Jyotish whose only heir was his sister's son Kalobaran, the deceased husband of the defendant no. 4. The shebaiti interest of Ramshundar devolved on his grandsons, Abinash and Dinannth. Abinash was succeeded by his widow Bidhumukhi and Dinanath by his two sister's sons Upendra Roy and Sripati Chakravarty. It is alleged that Bidhumukhi, Upendra and Sripati transferred their 1/3rd shebaiti right along with the debutter properties in their possession to the plaintiff's father Ramgopal by three registered documents. Hence the plaintiff's father used to perform the pala of shebapuja of the deity for 8 months in respect of his 2/3rd shebaiti right and held debutter properties measuring 2.18 acre recorded in khatian no. 302 of mouza Pirchak. Jyotish performed the pala for 4 months out of the usufruct of the debutter properties measuring 1.29 acre including the disputed properties in his possession and recorded in khatian of 304 of the same mouza. The properties of these two khatians are the same as the 7½ bigha lands of Mouza Brahmapur as also in the Taidad and it is alleged that they are absolute debutter properties of the plaintiff-deity. Jyotish died in 1327 B. S. and his heir Kalabaran sold the disputed property as his personal properties to one Surendra Roy by a kobala dated 4th February, 1921. The case of the plaintiff is that this transfer is fraudulent, illegal and void. The father of the plaintiff being the other shebait brought a T. S. No 22 of 1930 in this Court (Midnapore Court) against Jamini, Bholanath and Madanmohan as the defendants and Kalobaran as the pro-defendant in order to avoid the alienation and remove Kalobaran from Shebaits hip. The father of the plaintiff being the other shebait brought a T. S. No 22 of 1930 in this Court (Midnapore Court) against Jamini, Bholanath and Madanmohan as the defendants and Kalobaran as the pro-defendant in order to avoid the alienation and remove Kalobaran from Shebaits hip. But the plaintiff's father was gained over with money and was made to compromise the suit admitting that the disputed properties were personal properties of Jyotish. Kalabaran died in Jaistha 1361 B. S. and after the death of Kalabaran, the plaintiff brought the present suit for recovery of the properties. 2. For the purpose of consideration of this case and of the point raised it is not necessary for us to advert to other facts. The question is one of limitation and therefore the relevant facts for consideration in this case and the transfer of the debutter properties was made on 4th February, 1921, and Kalabaran in 1361 B. S. and the suit was brought on 8th December, 1954. In the Court below it has been held that the disputed properties are absolute debutter properties. It was further held that Kalabaran sold the properties on 4th February, 1921 as if it was his personal properties and it was further found that Kalabaran died in 1361 B. S. 1954. The trial court dismissed the suit. The appeal filed by the deity having been allowed the defendants preferred the second appeal to this Court. The second appeal having been dismissed the defendants on a leave granted by the Hon'ble single Judge preferred this appeal under clause 15 of the Letters Patent. 3. The only point argued by Mr. Ghose on behalf of the appellants before us is regarding the starting point of the limitation and whether Art. 144 of the Limitation Act or Arts. 134A, Band C would apply. It must be stated that by the amendment, in 1929 of the Limitation Act Arts. 134A, 134B and 134C were added. Art. 134 A, Band C of the Limitation Act run as follows :–– Description of suit Period of Time from which period Limitation begins to run. 134-A. To set a side a transfer Twelve years When the transfer be- of immoveable property com- comes known to the prised in a Hindu, Muhamma- plaintiff. dan or Buddhist religious or charitable endowment, made by a manager thereof for a valuable consideration. 134-A. To set a side a transfer Twelve years When the transfer be- of immoveable property com- comes known to the prised in a Hindu, Muhamma- plaintiff. dan or Buddhist religious or charitable endowment, made by a manager thereof for a valuable consideration. 134-B. By the manager of a Twelve years The death, resignation Hindu, Muhammadan or Bud- or removal of the trans- dhist religious or charitable en- feror. dowment to recover possession of immoveable property com- prised in the endowment which has been transferred by a pre- vious manager for a valuable consideration. 134-C. By the manager of a Twelve years The death, resignation Hindu, Muhammadan or Bud- or removal of the seller. dhist religious or charitable en- dowment to recover possession of moveable property com- prised in the endowment which has been sold by a previous manager for a valuable con- sideration. The learned single Judge held that the suit is not barred by limitation as the suit is governed by Art. 134-B of the Limitation Act and the starting point of the limitation would run from the date of death of Kalabaran, that is, 1954 and not from the date of the transfer, that is 4th February, 1921. 4. Mr. Ghose on behalf of the appellant strongly relied upon the case reported in (1) Sm. Hemanta Kumari v. Iswan Sridhar Jew, 50 CWN, 628 in support of his contention. Mr. Mukherjee however, relied upon the cases of (2) Srinivasa v. Ramaswamy, reported in AIR 1966 SC 859 . The case of Sm. Hemanta Kumari v. Iswar Sridhanr Jew, arose out of a suit for recovery of the possession of land on establishment of title of the plaintiff, Sree Sree Iswar Sridhar Jew, Deity. The suit property, it is alleged, was an absolute debutter property belonging to the Idol Sri Sri Iswar Sridhar Jew and the land was mortgaged in 1905 by the then shebait of the deity to secure an advance received from the latter. Baburam brought a suit to enforce the mortgage and in execution of the decree obtained by him, the mortgaged properties were put up to sale and purchased by him in 1908. Since then Baburam and after his death, his successors were in possession of these properties. Baburam brought a suit to enforce the mortgage and in execution of the decree obtained by him, the mortgaged properties were put up to sale and purchased by him in 1908. Since then Baburam and after his death, his successors were in possession of these properties. In the year 1932 the last of the shebaits who mortgaged the property to Baburam died and in 1934 the present plaintiff instituted a suit to recover possession of the debutter property. In considering the question of limitation of such suit the Division Bench of this Court speaking through Bijon Kumar Mukherjee J. (as his Lordship then was) held as follows :–– "It seems clear to us that the former shebaits when they mortgaged the property did so not in their capacity as shebaits but as secular owners of the property which they purported to hold in niskar right. The mortgage decree has not been made an exhibit in this case, but the sale certificate makes it clear that the decree in execution of which this property was sold was not against the previous shebaits qua shebaits but against them in their own personal capacity, and only the right, title and interest of the defendants personally vested in the purchaser. This being the position, we are bound to hold that the purchase was void altogether, and the possession of the purchaser was adverse from the date of the sale. As more than 12 years have elapsed since that date, the suit must be deemed to be barred by limitation". While Mr. Ghose strongly relied upon the said paragraph Mr. Mukherjee contended that the statement of law as made in the case reported in (1) 50 CWN 629, Sm. Hemanta Kumari v. Iswar Shridhar Jew is no longer correct in view of the case reported in (2) AIR 1966 SC 859 , Srinivasa v. Ramaswamy. In our opinion, Mr. Mukherjee's contention must be accepted to be correct in view of the above Supreme Court's decision. In the said case the Supreme Court had to deal with the said argument advanced by the learned Counsel for the appellant. In paragraph 11 of the said judgment the Supreme Court stated as follows :–– "11. In our opinion, Mr. Mukherjee's contention must be accepted to be correct in view of the above Supreme Court's decision. In the said case the Supreme Court had to deal with the said argument advanced by the learned Counsel for the appellant. In paragraph 11 of the said judgment the Supreme Court stated as follows :–– "11. The argument is that in cases falling under Art. 134-B the transfer made by the manager of a Hindu endowment is challenged by his successor on the ground that it was beyond the authority of the manager; and such a challenge necessarily postulates that the transfer was effected by the manager as manager purporting to deal with the property as belonging to the religious endowment. Where, however, the transfer is made by the manager not as manager, but as an individual, and he deals with the property not on the basis that it belongs to the religious endowment, but on the basis that it belongs to himself, considerations which would govern the application of limitation are substantially different; and in such a case, the transfer being void ab initio the possession of the transferee is adverse from the date of the transfer. That is how Mr. Tatachari has attempted to avoid the application of Art. 134-B in the present case. There can be no doubt that if the assumption made by Mr. Tatachari is well founded the appellants' title to the three transactions in question would have to be upheld". The Supreme Court did not accept Mr. Mukherjee's view on the principle laid down by the Privy Council in the case reported in (3) 27 I.A., 69 Gnanasambanda Pandara Sannadhi v. Velu Pandaram and (4) 39 I.A. 147, Damonar Das v. Adhikari Lakhan Das. At paragraph 20 of the said judgment the Supreme Court repelled the argument of the learned Advocate for the appellant before the Supreme Court and held that Art. 134-B of the Limitation Act as amended after 1929 will apply in respect of all the transfer made by the Shebait either in personal capacity or as a shabait. At paragraph 20 of the said judgment the Supreme Court repelled the argument of the learned Advocate for the appellant before the Supreme Court and held that Art. 134-B of the Limitation Act as amended after 1929 will apply in respect of all the transfer made by the Shebait either in personal capacity or as a shabait. In paragraph 20 their Lordships stated as follows :–– "Confining ourselves to the first column of Art. 134-B at this stage, the question which we have to decide is : does this article permit any distinction to be made between transfers effected by a previous manager on the basis that the property transferred belongs to the religious endowment, and those made by him on the basis that the said property is his own private property? If the property is transferred by the manager on the basis that it belongs to the endowment, Art. 134-B clearly applies but does it make any difference to the application of Art. 134-B if the transfer is made on the other basis that the property belongs not to the endowment, but to the manager himself ? In either case, the successor who challenges the alienation, will have to prove that the property in fact belongs to the religious endowment. Once that is proved, is it necessary for him also to show that the transfer was made on the basis that the property belonged to the religious endowment? In our opinion, such a limitation cannot be read in the words used by the said article. Article 134-B applies to all cases, where it is shown that the immovable property was comprised in the endowment and that it has been transferred by a previous manager for a valuable consideration. The successor has to prove three facts : (1) that the property belongs to the religious endowment : (2) that it was transferred by a previous manager and (3) that the transfer was for a valuable consideration. The character of the representations made by the previous manager in regard to his relation with the property which is the subject-matter of transfer, is irrelevant for the purpose of Art. 134-B. All transfers made would fall within Art. 134-B if the three essential facts are proved by the successor of the transferor-manager of the Hindu religious endowment. Therefore, we do not think that Mr. Therefore, we do not think that Mr. Tatachari is justified in contending that the transfers with which we are concerned in the present appeal fall outside the purview of Art. 134-B inasmuch as they are effected by the alienors on the representations that the properties transferred belonged to them as their separate properties. On the findings recorded by the High Court, it is clear that the properties belonged to the temple; that they have been transferred by person who must be deemed to be the previous managers of the temple; and that they have been transferred for valuable consideration. The present suit has been brought against respondents 1 to 3 who are appointed trustees of the temple by respondent No.4; and so, all the ingredients prescribed by the first column of Art. 134-B are satisfied. That is why we must reject the ingenious argument urged before us by Mr. Tatachari that Art. 134-B does not apply to the present case". In view of the specific rejection of the argument advanced by the learned Advocate for the appellant, by the Supreme Court based on the case reported in (Sm. Hemanta Kumari v. Iswar Sridhar Jew) 50 CWN 629 we are of the opinion that the case reported in 50 CWN 629 cannot now be applied in the facts and circumstances of the present case and that the starting point of the limitation will be from the date of transfer and not from the date of death of the transferor. Applying the principle laid down in the case it appears to us that the three facts which are relevant fur consideration have been proved against the appellant. It has been held that the property belonged to the absolute debutter. It was also held that the transfer was for a valuable consideration. The character of representation made, therefore, by the previous manager in regard to his relation with the property is irrelevant for the purpose of consideration of the application of Art. 134-B of the Act. All the transfers of the debutter property will come with in the mischief of Art. 134-B if the three essential elements in the judgment approved by the successor of the transferor and the starting point of the limitation will be from the date of the death of the transferor. All the transfers of the debutter property will come with in the mischief of Art. 134-B if the three essential elements in the judgment approved by the successor of the transferor and the starting point of the limitation will be from the date of the death of the transferor. Admittedly in this case Kalabaran died on Jaistha 1361 B.S., that is, in 1954 and the suit was brought immediately thereafter on 8th December, 1954, that is, within 12 years from the date of death of Kalabaran who was the shebait and who made the transfer as his personal property on 4th February, 1921 and after the death of Kalabaran, the last heir of the other shebaits filed the suit for recovery of possession. In our opinion, therefore, the appeal must fail and is dismissed. There will be no order as to costs. Ray, J. : I agree.