Bidhu Bhusan Chowdhury v. Susama Moyee Debi — 1988 DIGILAW 387 (CAL)

JUDGMENT 1. THE present revisional application has been filed against Order No. 40 dated 9/7/83 passed by the Learned Munsif, 1st Court at Malda in Miscellaneous Case No. 28 of 1981 arising out of Execution Case No. 8 of 1980. 2. BY the impugned order the Learned Munsif has dismissed the misc. case, under Section 47 of the Code of Civil Procedure. It tranpires from the said order that Smt. Susama Moyee Debi filed an execution case against 13 persons in connection with O. C. Suit No. 12 of 1980. She filed the execution case bearing no. 8 of the 1980 as a legal representative of Prafulla Ch. Sanyal, since deceased, who was a Shebait of the Deity sri Sri Madan Mohan Thakur Deb Jew on 6/5/81. Bidhu Bhusan Chowdhury one of the Judgment-Debtors of the said execution case filed an objection which was registered as Misc. Case No. 28 of 1981. The contention of the petitioner/judgment-debtor is that the O. P. /decree-holder has no locus standi to file the execution case as she is not a Shebait of the Deity. His further contention is that the Opposite Party has no locus standi to become a Shebait after the demise of Pafulla Chandra Sanyal. The management of Debattar Estate and the Debi-Seva has been going on by trust committee and neither Prafulla Chandra Sanyal nor Susama Moyee Debi acted as Shebait of the Deity and as such Susama Moyee Debi is not entitled to proceed with the execution proceedings. The Opposite Party/decree-holder contested the case stating inter alia that the alleged Trust Committee has no existence. Prafulla chandra Sanyal was accepted as Shebait and the O. C. Suit No. 12 of 1960 was filed by Prafulla Chandra Sanyal praying for injunction to restrain the members of the Trust Committee from interfering with "deb Puja" as Shebait of Deity. An appeal was preferred against the decision dismissing the suit, being O. C. No. 35 of 1963 and the said appeal was allowed in his favour. The members of the Trust Committee were permanently restrained from interfering with the acts and activities of Prafulla Chandra sanyal as a Shebait of the said Deity. Against the judgment and decree of O. C. Appeal No. 35 of 1963, the members of Trust Committee preferred a Second Appeal bearing No. 1509 of 1965 before the Hon'ble Court and the said appeal has also been dismissed. Against the judgment and decree of O. C. Appeal No. 35 of 1963, the members of Trust Committee preferred a Second Appeal bearing No. 1509 of 1965 before the Hon'ble Court and the said appeal has also been dismissed. After the demise of Prafulla chandra Sanyal his mother was appointed as Shebait of Deity and accordingly she had filed the present execution case. It was also stated that when Jyotindra Nath Moitra became a Shebait of Sri Sri Madan Mohan thakur Deb Jew, he executed a Deed of Indenture on 4/1/1954 appointing prafulla Chandra Sanyal and by forming a Committee consisting of Amarendra nath Moitra, Jamini Kumar Lahiri and Dr. Binod Pal for effective deb Seva and management of Debattar Property. After Prafulla Chandra sanyal was murdered, his mother has succeeded as a Shebait and the petitioner/judgment-debtor has no right to make Seva Puja of the Deity. 3. THE Learned Munsif has considered the contention of the rival parties. It was considered as to whether (the Opposite Party is the Shebait of the Deity of Sri Sri Madan Mohan Thakur Deb Jew having the right to file the execution case for an order. By construing the conditions as laid down in the Deed of Indenture (Exhibit "a") it was found that Susama moyee Debi has not been appointed as Shebait but the fact remains that she has had been acting as a Shebait of the Deity but the Successors of the deceased members of the Committee can only challenge the Shebaitship of the petitioner. Since none of them came to challenge the validity of the appointment of Susama Moyee Debi as Shebait, Bidhu Bhusan Chowdhury cannot challenge the same as observed by the Learned Munsfi. While there is a judgment in O. C. Appeal No. 35 of 1963 (Exhibit No. "e") and the second appeal has been dismissed, the objections raised under Section 47 of the Code of Civil Procedure cannot be considered. The Learned munsif has further held that a person in possession of the Estate or a person who intermeddles with the Estate is a legal representative even he is not a legal heir. As a result thereof, the execution case filed on behalf of the Deity against the Judgement-Debtors is maintainable. The Learned munsif has further held that a person in possession of the Estate or a person who intermeddles with the Estate is a legal representative even he is not a legal heir. As a result thereof, the execution case filed on behalf of the Deity against the Judgement-Debtors is maintainable. The learned Munsif found that Susama Moyee Debi has however, the right to file the execution case on behalf of the Deity in absence of her son prafuila Chandra Sanyal. 4. CONSIDERING all the aspects, the objections raised under Section 47 of the Code of Civil Procedure were overruled and the Misc. Case was dismissed. The revisional case has accordingly arisen out of the aforesaid decision of the Learned Munsif. Mr. Sudhis Dasgupta, the Learned Advocate for the petitioner has argued that the Learned Musif had not properly appreciated the objections as raised under Section 47 of the Code of Civil Procedure. He has laid much emphasis upon the definition of "legal representative" as envisaged in Section 2 (ii) of the Code of Civil Procedure. It would be clear from the definition of "legal representative" meaning a person who in law represents the Estate of a deceased person and includes any person who intermeddles with the Estate of the deceased and where a party sues or is sued in a representative character the person on whom the Estate devolves on the death of the party so suing or sued. The attention of the Court has also been drawn to Sections 50 and 52 of the Code of Civil procedure. Section 50 C. P. C. indicated the position of "legal representative":- (1) Where a judgment-debtor dies before the decree has been fuly satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the court executing the decree may, of its own motion on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit. 5. 5. IT will be found from Section 52 of the Code of Civil Procedure as to the scope of the enforcement of the decree against legal representative. It is quite clear that - (1) where a decree is passed against the party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. (2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally. 6. THE main thrust of the argument of Mr. Dasgupta is that the opposite Party who has filed the execution case is not the legal representative of the decree-holder and she has no right to proceed with the execution case and the objections raised under Section 47 C. P. C. ought not to have been overruled. No question relating to the decree has been raised. There is a challenging to the right of the person who proposes to execute the decree. Mr. Bagchi, the Learned Advocate appearing for the Opposite party has however, tried to support the impugned order. By referring to the scope of legal representative as envisaged in the Code of Civil procedure and by referring to several clauses of the instrument (Exhibit "a"), he has tried to convince this Count that in the present position the decree must be allowed to be executed and the Opposite Party has the locus standi to maintain the same. 7. CONSIDERING the submissions of the lawyers of the rival parties and looking to the various authorities and reported decisions cited from the Bar it appears that the executing Court has to consider whether the person who proposes to execute the decree has right to maintain the same or not. 7. CONSIDERING the submissions of the lawyers of the rival parties and looking to the various authorities and reported decisions cited from the Bar it appears that the executing Court has to consider whether the person who proposes to execute the decree has right to maintain the same or not. Even it the decree itself suffers from no infirmity, yet the locus standi of a person to execute the same can be challenged by any person who is going to be affected by the execution of the decree itself. Naturally, a question arises in the instant case as to whether Susama Moyee Debi can claim to be a Shebait after the demise of her son Prafulla Chandra sanyal. The right of the Deity Sri Sri Madan Mohan Thakur Deb Jew to obtain the decree is not challenged. The decree remains as it is. But it is to be seen whether Smt. Susama Moyee Debi has acquired any right to represent the Deity and she can proceed with the execution case on behalf of the decree-holder. 8. THE argument advanced by the present petitioner is that even as an inter meddler of the Estate left by the Prafulla Chandra Sanyal, his mother Susama Moyee Debi shail be deemed to be his legal representative in this behalf. This Court has considered the case of (Sobha Ram and Ors. v. Bahadur Singh and Ors.) reported in AIR 1973 HP 44 . The scope of Section 2 (11) of the Code of Civil Procedure has been considered to find out that a person in possession of an Estate or a person who intermeddles with the Estate of a deceased are legal representatives even though they are not the legal heirs of the deceased. It was, however, considered in the background of Order 22 Rule 3 of the Code of Civil Procedure that a transferee during the life-time of a deceased cannot be called a legal representative or is an inter meddler so as to represent his Estate after his death because that is a voluntary devolution and not an involuntary devolution. The deceased has left no Estate which could be represented after his death, hence, he has no right to be brought on record under rule 3. This aspect has also been considered in the case reported in CWN 860 (Baisnab Das Sen v. Bholanath Sen and Anr.. The deceased has left no Estate which could be represented after his death, hence, he has no right to be brought on record under rule 3. This aspect has also been considered in the case reported in CWN 860 (Baisnab Das Sen v. Bholanath Sen and Anr.. The scope of Section 146 and Order 21 Rules 10 and 16 of the Code of Civil Procedure were considered along with Sections 3, 55 and 56 of the Trust Act. It was held that in India there is no such thing as equitable ownership and when properties vested in a trustee the owner is the trustee. The beneficiary can only have rights against the trustee which are laid down by the Indian trust Act. Section 3 of the said Act expressly says - the beneficial interest or interest of the beneficiary is his right against the trustee as the owner of the trust property. The right of the beneficiary is a right to call upon the trustee to administer the property so as to give the beneficiary his dues according to the provisions of the trust under Section 55 of the Act or property to convey the property to the beneficiary under Section 56 of the said Act. It is also observed that in the absence of conveyance or transfer by the trustee of the suit, the property to the beneficiary, he would execute the decree under Section 146 read with Order 21 of rule 10 of the Code of Civil Procedure. Applying this principle it is to be seen whether Smt. Susama Moyee Debi has acquired any right in respect of the Estate, if any, left by Prafulla Chandra Sanyal was a Shebait and in terms of the endowment such Shebaitship is heritable. The attention of this Court has been drawn to the discussion made in this regard in Dr. B. K. Mukherjee's "hindu Law of Religious and Charitable Trusts", 3rd Edn. at page 163. The nature of Shebaitship has been discussed in details but that does not lead to solve the present problem. The attention of this Court has been drawn to the discussion made in this regard in Dr. B. K. Mukherjee's "hindu Law of Religious and Charitable Trusts", 3rd Edn. at page 163. The nature of Shebaitship has been discussed in details but that does not lead to solve the present problem. Looking to AIR 1975 Allahabad, p. 255 (Brindaban v. Ram Lakhan lalji and Mahadeoji and Ors.) it is found that when a property has been dedicated by a donor and he has thereby' divested himself of interest in the property the rule of succession to the office of Shebait assumes considerable importance in the case of trust, and if the line of succession has been laid down by the donor at the time of the dedication, the same cannot be changed by the donor in the absence of any reservation of power to himself of changing the line pf succession. A Shebait cannot also alter the line of succession to the office of Shebait laid down by the founder. Thus, it could have been considered as to whether Susama Moyee Debi has acquired any right or had Prafulla Chandra Sanyal executed any document by enlarging the power in the endowment from where he derived the right of 5hebaitship. In fact, there is no such document. It is not disputed that Prafulla Chandra Sanyal has not left behind any Estate at all to be inherited by his mother Smt. Susama Moyee Debi. If Prafulla chandra Sanyal has not left behind any Estate, the question of intermeddling with such estate does not arise. It is the Estate be framed but any person claiming to be an inter meddler after the demise of the Shebait cannot claim to represent the Deity. 9. LOOKING to the case of Chacko Pyli v. Iype Varchese, as reported in AIR 1956 Travancore, Cochin (full Bench) at Page 147 it has been found that in order to constitute (1) a legal representative, it is necessary that he shold have a beneficial interest in the Estate. Executors and Administrators are legal representatives although they may have no beneficial interest. A person usurping the position of Executor and/or Administrator would also he a legal representative as an Executive or Administrator "de-Son Tort". A trespasser into the property of the deceased claiming title himself independently of the deceased will not be legal representative. Executors and Administrators are legal representatives although they may have no beneficial interest. A person usurping the position of Executor and/or Administrator would also he a legal representative as an Executive or Administrator "de-Son Tort". A trespasser into the property of the deceased claiming title himself independently of the deceased will not be legal representative. The heirs on whom beneficial interest devolve under the law, whether by Statute or otherwise, governing the parties, will be legal representative. This Court has considered anxiously this aspect of the matter. It cannot be reconciled with the position that while after the demise of a Judgment-Debtor the Estate, if any, left by the judgment-debtor can be recovered from the hands of the inter meddler tout whereas after the demise of a decree-holder if his Estate managed by any inter meddler having neither any beneficial interest in the Estate nor having any right to administer the Estate under any colour of right will be deemed to be a legal representative or not? The necessary will be obviously against the last proposition. A person who is found to be an inter meddler in respect of any Estate not having beneficial interest having any semblance of right to represent the office left by the deceased the person cannot claim to execute the decree by stepping to the shoes of the decree-holder. The Court has also considered the case reported in AIR 1979 SC p. 1682 (Prafulla Chorone requitte and Ors. v. Satya Choron Requitte. The illustration as to words "to hold, retain and use" the premises as endowed or Debater property for service and worship of the, family Thakur - intention of words "management" "manager", "custodian "idol" or "ministrant of the idol" have been discussed and it was held by construing a will as if Shebaitship remained undisposed of, and as such the heirs and testators became co-shebaits of the Deity that right to use the house as their dwelling house. This court finds upon facts, that there are distinguishable features, and the principle does not apply in the instant case. 10. AFTER perusing the materials an record and looking to the document (Ext. "a") and finding the undisputed position that Smt. Susama moyee Debi is neither a Shebait nor having acquired any interest in the property of the deity cannot ask for the execution of the decree standing in the name of the Deity. 10. AFTER perusing the materials an record and looking to the document (Ext. "a") and finding the undisputed position that Smt. Susama moyee Debi is neither a Shebait nor having acquired any interest in the property of the deity cannot ask for the execution of the decree standing in the name of the Deity. This Court has anxiously considered the impugned order in the light of the materials on record and by appreciating the principles of law attracted in the instant case, it finds that there is erroneous exercise of jurisdiction in rejecting the position under Section of the Code of civil Procedure. Accordingly, the revisional application is allowed and the Rule is made absolute by setting aside the impugned order and in consequence whereof the misc-case is allowed and the execution case is dismissed. This order will not, however, prevent the proper persons to execute the decree in accordance with law. Application allowed.