Kanak Kanti Banerji v. Sachindra Kumar Bose — 1989 DIGILAW 460 (CAL)

Judgment Lilamoy Ghosh. J : The original plaintiff, Kanak Kanti Banerji, filed a suit in the couert of the Subordinate. Judge, Alipore for a scheme in respect of the private debuttor property and for accounts it is not disputed that by an indenture dated 11.10.39, one Sm. Matangini Dasi dedicated the suit property in favour of the named deities. As per terms of the Indenture, it was said, the plaintiff became the sole Shebait on the death of one Mathuranath Mitra which took place on the 3rd of July, 1963 The plaintiff alleged that he was performing the Sheba Puja of the deities in accordance with the terms of the Arpanamma deed. Under another clause of the instrument, the plaintiff and the defendant continued to act as Joint Managers of the debuttor properties. Certain allegation were made against the defendant as regards maladministration etc.. in respect of the debuttor properties. Now in advance, the plaintiff alleged that he once look loan from one Manick Ghosal one of the tenants in occupation of the debuttor properties and in that connection he had to sign on certain blank papers. Apprehending that the defendant might have obtained one such paper and converted the same into a sham document the plaintiff stated that if any such document be produced it must be declared as void and manufactured by the defendant. 2. The main defence of the defendant was that the plaintiff mismanaged the properties and did not perform his duties. On a certain date, it was said the plaintiff, while being in a predicament, handed to the defendant a letter, purporting to be relinquishment of tile office of the Shebaitship and Trusteeship in respect of the debottor properties. The defence urged that as the plaintiff relinquished his right, he could not have any locus -standi to ask for any relief from the court. 3. The learned trial court devoted mainly to a consideration of whet her the document Ext. A, was a voluntary document or not. On a consideration of the evidence the learned trial court came to the finding that the plaintiff relinquished the office of Shebaitship on the strength of the letter, Ext. A. On that ground, he held that the plaintiff has no locus standi to file the suit. A, was a voluntary document or not. On a consideration of the evidence the learned trial court came to the finding that the plaintiff relinquished the office of Shebaitship on the strength of the letter, Ext. A. On that ground, he held that the plaintiff has no locus standi to file the suit. The learned trial court also made some observations as to the nun-performance of the duty of the plaintiff as a Shebait- Specifically, the learned trial court commented that the daily worships of the deities were left to one Jogen Bhattacharjee and then to Narayan Bhattacharjee. Then again, the trial court observed that the plaintiff him elf was guilty of mismanaging the properties by not paying the arrears to tax, electric bills etc. On these findings, the learned trial court dismissed the suit. 4. An appeal before the District Judge was preferred and that was heard by the learned Additional District judge, Alipore. The appellate court affirmed the findings of the learned trial court and dismissed the appeal. 5. The first question for consideration would be whether by the said relinquishment, the plaintiff's right to take interest in the affairs of the deity came to an end and whether the defendant acquired any light on the basis there of. The next question to be decided would be whether after the said relinquishment, the original plaintiff could and now the substituted appellants can have any right to maintain the suit or the appeal. 6. We are of the view that the courts below misdirected themselves as to the real question involved in the suit. It is now concluded factually that the plaintiff purported to make surrender of his shebait right in favour of the defendant by Ext. A, As that is a concluded finding of fact, the same cannot be reopened in this appeal But the learned courts below have not Considered the legal effect of the said relinquishment. It is a matter of record borne out by the deed, Ext. 7, that the defendant had not become a Shebait. As per the deed, he could be only a trustee. The settlor had thus made the distinction between a trustee and a Shebaits. Now it is settled law that if a Shebait intends to get rid of his duties, the proper thing for him to do would be to surrender his office in favour of the remaining Shebait. As per the deed, he could be only a trustee. The settlor had thus made the distinction between a trustee and a Shebaits. Now it is settled law that if a Shebait intends to get rid of his duties, the proper thing for him to do would be to surrender his office in favour of the remaining Shebait. When the transfer is in favour of the remaining Shebait, or the sole and immediate heir of the transferor, it can safely be said that no policy of Hindu law is likely to be affected, nor can such transaction be held to be against the presumed intentions of the founder (Page 236 of B.K. Mukherjee’s Law of Religious and Charitable Trusts 5th End.) The above view of the Bombay High Court has been approved by the Supreme Court in Prafulla Chorone’s case (AIR 1979 SS 1682). In this case, the defendant was not a Shebait and, therefore, even if the original plaintiff purported to relinquish his shebait right in his favour, that would not be valid. This aspect of the case was not considered by the learned courts below. Then again, even assuming that the relinquishment was effectual, it could enure only upto the life time of Kanak, himself had any right. Therefore, on the basis of Ext. A, no conclusion favourable to the defendant should have been made by the learned courts below. The learned trial court has also made some observations about the non-performance of the duties by Kanak. The learned trial court has even referred to the fact that the plaintiff could not recite any of the incantations. It was also noticed that one Jogen Bhattacharjee and after him, Narayan Bhattacharjee, performed the puja of the deities. We are of the view that nothing turns upon that. The learned court below overlooked the distinction between the Pujari and a Shebait. A Poojari is a servant of the Shebait and it is quite competent for a Shebait to appoint a Poojari to perform the daily poojas. The non-performance of the daily poojas cannot detract from Shebait right of a Shebait, which is not only an office, but a property too. As to the alleged mismanagement etc. by the plaintiff, the learned courts below overlooked the fact that the case was not for removal of a Shebait for mismanagement. The non-performance of the daily poojas cannot detract from Shebait right of a Shebait, which is not only an office, but a property too. As to the alleged mismanagement etc. by the plaintiff, the learned courts below overlooked the fact that the case was not for removal of a Shebait for mismanagement. We find that the learned courts below were carried mainly by the physical act of execution of Ext. A and some extraneous circumstances. The judgments of the courts below are, therefore, infirm in the respect. 7. That, however, is not sufficient for affirming the plaintiff’s claim. In a suit, it is for the plaintiff to establish his own right, based on certain allegations. As per the Arpannama, Matangini Dasi made herself the first Shebait. After that, accordings to the device, Mathuranath Mitra was the intended Shebait. After that, Shidhyeswar Halder, alias Sidhyeswar Banerjee was the contemplated Shebait. After that, according to the device, Kanak Kanti Banerjee, the plaintiff, was the intended Shebait. It is now settled that gift cannot be made by a Hindu to a person not in existence at the time of the gift. In the case of Manohar Mukherjee v. Bhupendra 37 CWN 29, it has been settled by the Full Bench that the rel in Tagore v. Tagore in applicable. Their Lordships further decided that Shebaitship was to be considered a kind of property in the eye of Hindu Law and not merely a right to an office. After the Full bench decision, the earlier decisions to the contrary, to the effect that the rule of Tagore v. Tagore did not apply to shebaiti interest. Must be taken to have been overruled. It has been argued in the appeal that both kanak and one the substituted appellants, Ajoy were in existence when succession opened. Even assuming so, we do not find how the device for successive devolutions of shebaiti right could be accepted as valid. After therefore, even if the original plaintiff purposed to relinquish his Shebaiti right in his favour, that would not be valid. This aspect of the case' was not considered by the learned court below. Then again, even assuming that the relinquishment was effectual, it could enure only upto the life time of Kanak, the original plaintiff. It cannot be binding on heirs of Kanak, if Kanak himself had any right. Therefore, on the basis of Ext. This aspect of the case' was not considered by the learned court below. Then again, even assuming that the relinquishment was effectual, it could enure only upto the life time of Kanak, the original plaintiff. It cannot be binding on heirs of Kanak, if Kanak himself had any right. Therefore, on the basis of Ext. A, no conclusion favourable to the defendant should have been made by the learned courts below. The learned trial court has also made some observations about the non-performance of the duties by Kanak. The learned trial court has even referred to the fact that the plaintiff could not recite any of the incantations. It was also noticed that one Jogen Bhattacharjee and after him, Narayan Bhattacharjee, performed the puja of the deities. We are of the view that nothing turns upon that. The learned court below overlooked the distinction between the Pujari and a Shebait. A Poojari is a servant of the Shebait and it is quite competent for a Shebait to appoint a Poojari to perform the daily poojas. The non-performance of the daily poojas cannot detract from Shebaiti right of a Shebait, 'which is not only an office, but a property too. As to the alleged mismanagement etc. by the plaintiff, the learned courts below overlooked the fact that the case was not for removal of a 'Shebait for mismanagement. We find that the learned courts below were carried mainly by the physical act of execution of Ext. A and some extraneous circumstances. The judgments of the courts below are, therefore infirm in that respect. 7. That, however, is not sufficient for affirming the plaintiff's claim. In a suit, it is for the plaintiff to establish his own right, based on certain allegations. As per the Arpannama, Matangini Dasi made herself the first Shebait. After that, according to the device, Maihuranath Mitra was the intended Shebait. After that, Sidhyewar Halder, alias Sidhyenvar Banerjee was the contemplated Shebait. After that, according to the device, Kanak Kanti Banerjee, the plaintiff, was the inter-deli Shebait It is now settled that gift cannot be made by a Hindu to a person not in existence at the time of the gift. In the Case of Manohar Mukherjee v. Bhupendra 37 CWN 29, It has been settled by the Full Bench that the el in Tagore v. Tagore is applicable. In the Case of Manohar Mukherjee v. Bhupendra 37 CWN 29, It has been settled by the Full Bench that the el in Tagore v. Tagore is applicable. Their Lordships further decided that shebait ship was to be considered a kind of property in the eye of Hindu Law and not merely a right to an office. After the Full Bench decision, the earlier decisions to the contrary, to the effect that the rule of Tagore v. Tagore did not apply to shebaiti interest. must be taken to have been overruled. It has been argued in this appeal that both Kanak and one of the substituted appellants, Ajoy were in existence when succession opened. Even assuming so, we do not find how the device for successive devolutions of shebaiti right could be accepted as valid. After Manohar's case, the judicial committee of the Privy Council in the case of Ganesh Chandra observed that the rule in Tagore v. Tagore applied to Shebaiti right also. The position now is that the founder of a debottar is competent to lay down any rules to govern succession to the office of the shebait subject to the restriction that he cannot create any estate unknown or repugnant to Hindu Law. Rules for succession to shebaitship cannot be valid it they provide for the office to be held by some one among the heirs of the founder to the exclusion of others in a succession differing from the line of heirs according to Hindu law. That was settled in the case of Ganesh Chandra v. Lal Behery (41 CWN 1) already referred to. Therefore, even though under the device of the Arpannama, Kanak was a contemplated Sheba it at a remote future, that device would be invalid. Kanak could not be entitled to be a shebait by virtue of the Arparnnama, which departed from the rule of Hindu law as regards successsion. The shebait right, like any other right, would devolve upon the heirs of the last holder of the property. There is yet another aspect of the matter. Even assuming that Kanak, as a de facto shebait was to be recognised as a shebait, after his death during the pendency of the appeal, the present substituted appellants cannot have any right to maintain an action. From the terms of the Arpannama it would appear that he was given only shebaiti right fur life. Even assuming that Kanak, as a de facto shebait was to be recognised as a shebait, after his death during the pendency of the appeal, the present substituted appellants cannot have any right to maintain an action. From the terms of the Arpannama it would appear that he was given only shebaiti right fur life. After his life, that right would revert back to the heirs of the settler. The present substituted appellants are not the heirs of the settlor; nor they are contemplated to be the shebaits even under the device. Thus the present appellants cannot maintain the suit and the appeal, which is continuation of the suit. Moreover, on the death of Kanak, the right to sue did not survive to the substituted appellants. In such position, the court cannot be caned upon to frame a scheme on the invocation of the substituted appellants, who are no better than strangers in relation to the property. Mr. Mitra, the learned Advocate for the appellant has contended that in any case. the court is to frame a scheme, as the deity cannot be left in a state of helplessness. Mr Bhattacharjee, the learned Advocate for the substituted respondents, on the other hand, has contended that if the substituted appellants themselves have no say in the matter, the court cannot give effect to their prayer. It is true that the court is in a position of a guardian in relation to a deity. But unless proper persons make out a case for framing a scheme, the Court cannot embark upon an enquiry as to a scheme, or direct the trial court to framing a scheme. The proper case for framing a scheme must be made out by persons competent. Whether the conditions call for a framing of a scheme, must be determined on the facts of each case, when proper persons come forward to the court and lead cogent evidence. Merely on the asking of anybody, the court cannot frame a scheme which might disturb the present position. Moreover, in this appeal, we are not in a position to determine as to who are the heirs of the settlor. Mr. Mitra has suggested that the matter may be sent back to the trial court for determining that question. We have expressed the limitation in that respect. Moreover, in this appeal, we are not in a position to determine as to who are the heirs of the settlor. Mr. Mitra has suggested that the matter may be sent back to the trial court for determining that question. We have expressed the limitation in that respect. We add that if the right to sue does not survive, we cannot proceed to make any further direction to the trial court, because we would not have any seisin to do so after the appeal virtually abates. 8. For those reasons, we are of the view that the appeal must fail though the reasonings of the learned courts below are wholly unacceptable to us. In this appeal, we cannot do more and pass any direction. With these observations, we dismiss the appeal. We make no order for costs for any stage and direct that the parties must bear their own costs upto this stage. Ajit Kumar Nayak, J : I agree. Appeal dismissed.