Full Judgment Text
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PETITIONER:
JADU GOPAL CHAKRAVARTHY (DEAD) AFTER HIM HIS LEGAL
Vs.
RESPONDENT:
PANNALAL BHOWMICK AND ORS.
DATE OF JUDGMENT02/05/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
UNTWALIA, N.L.
CITATION:
1978 AIR 1329 1978 SCR (3) 855
1978 SCC (3) 215
ACT:
Construction of deed of settlement where property dedicated
is very large and the religious ceremonies cannot exhaust
the entire income-Though the property may on the face of it
to be an out and out dedication of the entire property, but
if the actual scrutiny reveals intention of the settlor to
reserve some for the benefit for his family relations, the
debuttar is partial-Powers of High Court to scrutinise under
section 103 of the Civil Procedure Code.
HEADNOTE:
One Indra Narayan Biswas executed a deed called "Declaration
of Trust Deed" on April 9, 1904 dedicating 26 items of his
immovable property, mostly houses and buildings situated in
Calcutta and other places, to the family deity Sree Sree
Iswar Lakshmi Janardan. As per term 8, after his death
Sarvashree Abinash Chandra Bhowmick and Jogendra Nath Biswas
were to be the joint Shebaits and trustees with equal
rights. On the same day, ie. 9-4-1904 Indra Narayan Biswas
executed a will, bequeathing, his movable and immovable pro-
perties to his relations. In this will, he further provided
that in case the deed of Declaration of Trust fails, Abinash
Chandra Bhowmick, his sister’s son, would get the properties
included in the said deed.
Indra Naravan Biswas died on 7-8-1905. Jogendra Nath Biswas
predeceased him. Indra Narayan was survived by his sister’s
son,, Abinash Chandra Bhowmick, and Bipin Bihari Biswas ’and
Girindra Biswas, both brothers of Jogendra Nath and sons of
another brother of Indra Narayan. After the death of Indra
Narayan, Girindra, Bipin and Abinash executed on February 2,
1906 an Ekrarnama [deed of agreement Ex. 3] whereby it was
agreed inter alia, that the three executants and their
respective heirs would be in equal rights shebaits and
trustees of the debuttar estate and each would receive Rs.
900/per annum from the debuttar estate. By a subsequent
deed, dated 24-3-1916 (Ex. 2) all the three agreed among
themselves that Abinash Chandra Bhowmick and his heirs would
have an exclusive right to manage the affairs of the deity
and the debuttar estate and neither Bipin, nor Girindra, nor
their respective legal heirs would be entitled to interfere
in any manner, but would continue to receive the annuity of
Rs. 900/- each. The remuneration for Abinash and his heirs
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were increased to Rs. 1200/- per month. Compensation to the
tune of rupees five lakhs and odd, was deposited by the
President Calcutta Improvement Tribunal in C.D. case No. 54
of 1922 by the Calcutta Improvement Trust which acquired
some of the debuttar properties. Girindra died in 1917
survived by his sons and heirs Pulin Behari and Palton
Behari. Abinash Chandra Bhowmick died on April 2, 1936
survived by his sons (respondents 1 to 5 herein and Nandlal
Bhowmick original defendant No. 2 since deceased). Bipin
Bihari died in December 1941 survived by his son Panchanian
Biswas plaintiff-appellant No. 2.
After the death of Abinash, on 8-10-1947 two of his sons
Pannalal and Nihar Ranjan Bhowmick instituted a Title Suit
55/47 against their other brothers Nagendra. Nandlal.
Panchulal and Benoy Kumar Bhowmick for a declaration of the
nature, character and amount of lights of the parties in the
suit property and for framing a scheme for management of
debuttar,but The deity Sree Sree Lakshmi Narain Janardan
Jiew was also impleaded through guardian ad litem Sri Ishwar
Vidyalankar The Trial Court, on an interpretation of the
terms of the Trust, held that it did not create an absolute
debuttar, but only charged the properties with the
expenditure of the worship of the deities and the idol
mentioned in the trust deed. The Trial Court did not accept
the scheme of arrangement filed by the parties, and directed
further that the compensation lying in deposit in C.D. case
No. 54/1922 shall be utilised "for erection
856
of a temple and, Thakurbari" as desired by the founder and
the "surplus income of the property shall, be utilised in
purchasing Government promissory notes, but the interest
whereof shall be given over to the descendants of Abinash,
according to shares". Against that decree, dated 21-4-1949
the plaintiffs Pannalal and Nihar Ranjan in their capacity
as shebaits of the deity preferred an appeal to the Calcutta
High Court. On 28-6-1950, on an application seeking
permission to compromise the claim on behalf of the guardian
ad item of the deity and the appellant plaintiffs, before it
the Division bench granted the permission as it appeared to
be for the benefit of the deity and a decree was passed in
terms of the compromise and the appeal dispose of
accordingly.
On 6-4-1953, the appellant herein being a member of the Guru
family of the founder, Indra Narayan Biswas instituted Tide
Suit No. 31 of 1953 against the respondents, for
preservation of the debuttar properties from waste and mis-
appropriation, in exercise. of the right claimed under Term
No. 1 8 of the Trust deed, and for a declaration that the
properties mentioned in schedules ’A’ and ’B’ of the plaint
are the absolute, debutar properties of the deity and the
respondents were not entitled to withdraw the money or enter
into a compromise and that ’solenama’ or compromise was null
and void being collusive. ’The respondents denied the
allegations and pleaded that a suit for bare declaration was
hit by Section 42 of the Specific Relief Act. The
appellant’s locus stand to maintain the suit was also
questioned. The Trial Court decreed the suit, which was
affirmed in appeal by the District Judge. But the High
Court allowed the second appeal of the respondents and
dismissed the suit. The High Court upheld the findings of
the Court below with regard to the maintainability of the
suit and the suit property being a debuttar property. While
purporting to proceed on the, basis that Bhowmicks obtained
the consent decree collusively held that the decree did not
become null and void and was require to be avoided in proper
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proceedings. In this connection it propounded the proposi-
tion that a collusive and fraudulent decree passed by a
Court in invitum is "not a decree at all" and does not need
setting aside, but a compromise decree being an agreement
between the parties to which the sanction of the Court is
super-added, stands on a different footing and "even if the
sanction obtained by fraud is not sanction in law the
agreement between the parties stands and that contract
requires to be set aside", that the plaintiff could have
sued for setting aside the compromise decree on the ground
of fraud, but he did not, and consequently, he- could not
treat an earlier judgment even if obtained by fraud and
collusion as null and void. The High Court further held :
"In the present suit, the Biswases are not represented as
Shebaits of the deity and therefore, cannot represent the
interest of the deity and they have no personal interest in
the matter. So far as the plaintiff Jadugopal is concerned,
he has filed the suit for the interest of the deity and he
cannot raise pleas which the deity could not, because he
really represented the interest of the deity. Therefore, we
must hold that the compromise decree is binding upon the
deity and unless set aside, it operates as estoppel." A
prayer for the amendment of the plaint on behalf of the
deity, who had been re-transposed as co-plaintiff, for
setting aside the decree was declined. In the result, the
appeal was allowed with costs, and the suit was dismissed.
Dismissing the appeal by certificate, the Court
HELD : 1. When the property dedicated is very large and the
religious ceremonies which are apparently prescribed by the
Settlor cannot exhaust the entire income, some portion of
the beneficial interest may be construed as undisposed of
and cannot ’out vest as secular property in the heirs of the
settlor, where, although the document purports on the face
of it to be an out and out dedication of entire property to
the deity, yet a scrutiny of the actual provisions reveals
the fact that the donor did not intend to give the entire
interest to the deity, but reserved some portions of the
property or its profits for the benefit of his family
relations. In all such cases, the debuttar is partial and
incomplete, and the dedicated property does not vest in the
deity as a judicial person. It remains with the grantee or
secular heirs of the settlor, subject to a trust or charge
for the religious uses. [872 D-F]
Sri Sri Iswari Bhubaneshwari Thakurani v. Brojo Nath Dey and
Ors.. 64 Indian Appeals 203 referred to.
857
2. There is no statutory, rule according to which, it was
obligatory for the Court to issue notices to all persons
which could possibly have an interest in the subject matter
of litigation, before granting leave to the- guardian of the
deity to compromise the case. [875 C-D]
3. In the instant case
(a)The plea of collusion and fraud set up by the plaintiff
appellants is said to be founded on two primary
circumstances : (i) that the suit property was absolute
debuttar and (ii) that no notice or opportunity was given to
Panchanan, who had an interest in Shebaitship. The
existence or non-existence of both these primary facts
depends on a construction of the basic documents : Deed of
Trust (Ex. 1) Deeds Ex. 3 and Ex. 2. Construction of these
basic documents which go to the root of the matter, is a
question of law and could be gone into in Second Appeal.
[871 A-C]
(b)The deed of trust (Ex. 1) prescribes no destination of
the growing income which will become surplus after meeting
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the expenses prescribed by the Settlor for the worship of
the deities, the performance of the specified religious
festivals and the building of the Thakurbari temple. [873 E-
F]
(c) The Deed of Trust (Ex. 1) was capable of two possible
constructions (i) It created only a partial dedication and
not an absolute debuttar, the properties being charged for
seva puja or other religious purposes to the extent
specified therein and (ii) It created an absolute debuttar
in favour of the deity, The former construction was
expressly adopted in the previous suit (Title Suit 55/47) by
the Trial Court and presumably by the High Court in F.A.
257/49 while granting leave to the guardian ad litem of the
deity to compromise the case on terms embodied in the
compromise decree. [873 F-G]
In the present round of litigation, the Courts below have
adopted the latter construction. The view taken by the
Courts in the previous litigation as to the nature of the
dedication was not beyond the orbit of reasonable
possibility. Thus the existence of the first primary
circumstance, viz.-that the suit properties belonged to the
deity as absolute debuttar-from which an inference of
collusion and fraud was sought to be drawn-had not been
clearly and indubitably established. [873 G-H. 874 A]
(d)Panchanan Biswas was not a necessary party to be
implement in the previous suit or F.A. 257/49. His right to
receive the fixed quit-annuity as per the second Ekrarnama
(Ex. 2) dated 24-3-46, was in no way affected by the
Compromise decree. On the contrary, it had been expressly
safeguarded. The name of Iswar Chandra Vidyalankar or his
successor as guardian ad litem of the deity, though put
forth by the plaintiffs in that litigation was accepted by
the Court. [875 C-D]
(e)The failure of the Bhowmicks to impleaded Panchanan
Biswas in the previous suit or in F.A. 257/49 or of the
guardian ad litem to give him notice of the application for
leave to compromise the case was not a circumstance of a
definite tendency which could inevitably lead to an
inference of fraud being practiced on the Court. The High
Court was, therefore, entitled in exercise of its powers
under section 103 of the Code of Civil Procedure to go into
that question and there was no evidence to show that the
compromise decree in question was obtained by fraud. [875 D-
F]
(f)The compromise was not destructive of the endowment or
the object of the dedication. The terms of the compromise
were prima facie not unreasonable. By no stretch of
imagination, it could be said that no prudent Court would
have granted leave to the guardian of the deity to
compromise the case on these terms. The High Court is
presumed to have perused the record including the Trust
deed, and considered the terms of the compromise before
sanctioning, it and allowing a decree in terms thereof. [876
A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1251 of
1968.
From the Judgment and Decree dated the 4th March, 1966 of
the Calcutta High Court in Appeal from Appellate Decree No.
626 of 1959.
4-329SCI/78
858
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P. K. Chatterjee, G. S. Chatterjee, A. K. Sen and D. P.
Mukherjee for the Appellant.
A. K. Sen, D. N. Mukherjee and N. L. Choudhary for Respon-
dents Nos. 1 to 3
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by certificate under Article 133(b)
of the Constitution, is directed against a decree, dated
March 4, 1966, of the High Court of Judicature at Calcutta,
passed in Second Appeal No. 626 of 1959.
It arises out of these facts
One Indra Narayan Biswas owned considerable property. On
April 9, 1904, he executed a deed called "Declaration of
Trust Deed", dedicating 26 items of his immovable property,
mostly houses and buildings situated in Calcutta and other
places, to the family deity. Sree Sree Iswar Lakshmi
Janardan Jiew, which is installed and located at Darhatta,
Police Station Ranghat, District Nadia, which was the
ancestral home of the founder.
Since a good deal of argument before us centered on a
construction of this Trust Deed, it will be appropriate to
extract here its material terms :-
"1. All that properties in Schedule is vested
into the Debuttar and Trust Property
completely and permanently from today.
2. That from the income of the above
mentioned property according to the account
and estimate mentioned in Schedule (Kha) the
expenditure of Durga puja, Kali puja and
Saraswati puja will be made permanently and
these properties are hereby encumbered
permanently for the purpose of meeting these
expenditures, and under these circumstances,
all these properties completely and with all
the rights dedicate to the deity Lakshmi
Janardan.
3. The puja and worship etc. of Lakshmi
Janardan will be carried on as per list
attached in Schedule (ka).
4. I shall remain as the sole Trustee and
shebait of these properties and Debuttar
mentioned above so long as I shall remain
alive, and shall be able to sell or settle
temporarily or permanently or be able to
distribute to the tenants the Trust property
or any part thereof. No Trustee excepting me
shall be able to encumber the Trust and
Debuttar property or the part thereof
excepting letting the property or any part
thereof not more than three years. No Trustee
of Debuttar shall be able to encumber the
859
property in any manner or Transfer or shall
not be able to do anything which shall in any
way diminish the value or Glory of the deity
or do any thing which shall decrease the
income or loss of the Debuttar property.
5.........................
6. In case of any surplus of fund, after
meeting the expenditure mentioned in Schedules
(Ga) and (Gha), arrising out of the Debuttar
property, security papers (company papers) in
the name of Debuttar Trust estate should be
purchased from the surplus amount, and it will
remain as the property of the Trust estate
permanently.
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7................................
8. In my absence after my death Shrijut
Abinash Chandra Bhowmick and Shrijut Jogendra
Nath Biswas both of them on equal rights shall
be the joint Shebait and Trustee for
generations and the said each branch shall get
as remuneration at the rate of Rupees fifteen
per month and the other branch also shall
receive respectively at the rate of Rupees
fifteen per month, generations together
permanently.
9..................................
10. I have a desire to construct one
Thakurbari and a Temple, if I cannot do the
same, in that event my future Trustee and
Shebait shall construct one Thakurbari and a
Temple from the income of the property only.
11.....................
12.......................
13. This Trust Debuttar property shall not
be encumburred by the individual alone of any
Trustee, the Trustee or Shebait shall not be
able to transfer their rights and it shall not
be so transferred.
14........................
15. That I shall be able to change the terms
of this deed but no other Trustee excepting
myself shall be able to change the terms and
conditions of the deed.
16. From today onward all Debuttar Trust
Estate as per the deed ’shall be known as
"Indra Narayan Trust Estate" permanently, and
from today separate khata Book
etc. will be kept, and the said Estate shall
be separated from our own estate permanently
and in that estate myself or my, heirs shall
have no
860
rights or concern or nobody shall be able to
claim anything in that estate.
17..............................
18. In case if any Trustee and Shebait
attempts to waste or tries to misappropriate
the property, any of my relations, Priests or
any one of my Priest family, shall be able to
rectify or shall be able to take such steps
required to protect the property, as per Act
20 of 1863 or as per any other Act or laws.
19 to 22........................
23. All the income and other amounts due to
Debuttar,
beside the expenses which I have fixed as per
list, shall be used for the purchase of
Security "Reserve fund" and will as such go on
increasing, and there paper (sic) will have to
be purchased in the name of Debuttar Trust
fund or in the name of Trustee mentioning the
name of Debuttar Trust estate on its behalf.
24 & 25........................
26. God forbid, the Trustee and the Shebait
of the two branches as divided, if either of
them becomes extinct and no heirs remains or
any one of the heirs becomes incapable for the
Trusteeship and Shebaitship, the other branch
will become full sixteen annas trustee and
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Shebait, but if the other branch also become
extinct or heirless or become incapable for
the Trustee and Shebaitship, then in that
event the then the other branch at the
relevant time shall become Trustee and Shebait
or this Trust and all the terms of this deed
will be applicable to them and if there is no
such heirs at all in that case the Government
will appoint Administrator as per the Terms of
this deed.
27..................................
28.................................
In Schedule (Ka) of the Trust Deed, several items of
expenditure for worship and religious festivals were
prescribed. The total of this annual expenditure fixed in
the Deed comes to Rs. 1,430/for meeting which the income of
the Trust properties was encumbered vide Term (2), above.
On the same date, i.e. April 9, 1904, Indra Narayan Biswas
executed a Will, bequeathing his movable and immovable
properties to his relations. In the Will, be further
provided that in case the Deed of Declaration of Trust
fails, Abinash Chandra Bhowmick, his sister’s son, would get
the properties included in the said Deed.
861
Indra Narayan Biswas died on August 7, 1905. Jogendra Nath
Biswas predeceased him. Indra Narayan Biswas was survived
by his sister’s son, Abinash Chandra Bhowmick, and Bipin
Bihari Biswas, the brother of said Jogendra Nath Biswas, the
son of another brother of Indra Narayan Biswas.
Soon after Indra Narayan’s death, Girindra Biswas, Bipin
Behari Biswas and Abinash Chandra Bhowmick executed on
February 2, 1906, an Ekrarnama (Deed of Agreement, Ex. 3),
whereby it was agreed, inter alia, that the three executants
and their respective heirs would be in equal rights Shebiats
and Trustees of the Debuttar Estate, and each would receive
Rs. 900/- per annum from the Debuttar Estate.
By a subsequent Deed, dated March 24, 1916 (Ex. 2), Bipin
Bihari, Abinash Chandra and Girindra Nath agreed among them-
selves that Abinash Chandra Bhowmick and his heirs would
have an exclusive right to manage the affairs of the deity
and the Debuttar Estate, and neither Bipin Behari, nor
Girindra, nor their respective heirs would be entitled to
interfere in any manner, but would continue to receive the
annuity of Rs. 900/- each. The remuneration for Abinash
Chandra Bhowmick and his heirs was increased to Rs. 1,200/
per annum.
The following geneological table will be useful in
understanding the relationship of Panchanan, plaintiff with
the defendants/-respondents
Baidya Nath Biswas
----------------------------------------------------------
Nilambar Pitambar Indra Narayan Sonatan Nabin Durgadasi
(daughter)
Bipin Jogen Girindra Abinash Bhowmick
Panchanan --------------
(Pltf. 2) Pulin Palton
- - -
Nagendra Pannalal Nandalal Panchu Nihar Benoy
(Defdt. 1)(Defdt. 4) (dead) (Defdt. 2)(Defdt.5) (Dfedt. 6)
Abinash ChandraBhowmick died on April 2, 1936, survived by
his sons (respondentsI to 5 and Nandlal Bhowmick original
defendant 2, since deceased). Bipin Behari Biswas died in
December 1941,
862
survived by his son Panchanan Biswas, plaintiff-appellant 2.
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Girindra died in 1917, survived by his sons and heirs, Pulin
Behari and Palton Behari.
Some of the Debuttar properties were acquired by the
Calcutta Improvement Trust in the year 19,22, and
compensation to the tune of Rs. 5,00,000 and odd was
deposited with the President, Calcutta Improvement Tribunal
in C.D. Case No. 54 of 1922.
After the. death of Abinash Chandra Bhowmick, there was some
trouble among his heirs. On October 8,.1947, Pannalal
Bhowmick and Nihar Ranjan Bhowmick instituted Title Suit No.
55 of 1947 in the Sixth Court of the Subordinate Judge,
Alipore, against Nagendra Nath Bhowmick, Nand Lal Bhowmick,
Panchu Lal Bhowmick and Benoy Kumar Bhowmick. The deity,
Sree Lakshmi Janardan Jiew was also impleaded through
guardian ad litem, Shri Ishwar Vidyalankar,
After pleading all the material facts, it was stated that
Indra Narayan Biswas had doubts that the Declaration of
Trust Deed might not be valid, and this doubt was expressed
in Term 15 of his Will.
The reliefs prayed for in Suit No. 55 of 1947,
were :-
(a) a declaration of the nature, character
and amount of rights of the parties in the
suit property;
(b) a direction of the Court to prepare a
scheme for the management of the Debuttar
property and worship;
(c) a direction of the Court about the
surplus money which will remain in excess
after performing worship of the deity; and
(d) in case the Court holds the suit
property to be qualified Debuttar property,
after making some properties at Debuttar, the
rest be declared as secular properties.
Defendants’ 1, 3 and 4 in Suit No. 55/47, filed a joint
written statement in which they admitted the material
allegations in the plaint and stated that they also "pray
for the true explanation, meaning and effectiveness of those
documents (Declaration of Trust and Will executed by Indra
Narayan Biswas) and fully depend upon the Court for their
decision’. They also agreed with the plaintiffs that there
was a necessity of drawing a scheme for worship of the deity
after determining the true character of the said Debuttar
property.
On behalf of the deity,. its guardian ad litem, Shri Ishwar
Vidyalankar, filed a separate written statement, in which it
was inter alia, I stated that "the said Indra Narayan Biswas
by the Declaration of Trust Deed, donated absolutely all the
properties mentioned in the said Deed to this defendant" and
that "it is written in Term No. 1
863
of the said Deed that all those properties absolutely and
permanently (are) converted to Debuttar Trust property from
today". Further. the substance of Term No. 2 of the Trust
Deed was reproduced in which the founder, inter alia, stated
"I make gift of all these properties absolutely and
permanently to said Lakshmi Janardan Thakur". The guardian
of the deity, further denied the plaintiff’s allegation that
there was no provision in the Trust Deed as to how the
surplus income was to be spent. Lastly, it was pleaded :
"that this defendant has got no objection in preparing a
scheme for the purpose of systematically doing the work of
worship and other works of this deity after keeping all the
absolute rights in tact of this defendant".
Issues were raised and the suit was contested. The Trial
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Court heard the counsel for both the sides, and decreed the
suit. On an interpretation of the various terms of the
Trust Deed, it held that it did not create an absolute
Debuttar but only charged the properties with the
expenditure of worship of the deities and the idol mentioned
in the trust deed. The trial court further directed that
the compensation money lying in deposit in the Reserve Bank
of India shall be utilised "for erection of a temple and
Thakurbari as desired by the testator" and "the surplus
income of the, property shall be utilised in purchasing
Government Promissory Note but the interest whereof shall be
given over to the descendants of Abinash according to
shares". "In the circumstances, it observed, "the scheme of
arrangement (filed) by defendants 1 to 4 and the plaintiff
is not accepted".
Against that decree, dated April 21, 1949 of the Trial
Court, the plaintiffs, Pannalal Bhowmick and Nihar Ranjan
Bhowmick, in their capacity as Shebiats of the deity,
preferred appeal to the High Court at Calcutta. Shri Ishwar
Chander Vidyalankar, the original guardian ad litem of the
deity, having died, the deity was, in appeal, represented
before the High Court by another guardian, Satish Chandra
Bhattacharya.
On June 28, 1950. a petition seeking permission to
compromise the claim on behalf of the guardian ad litem of
the deity and the Bhowmicks was filed in the High Court. A
Division Bench (G.N. Das and B. K. Guja, JJ) granted the
permission to the guardian ad litem of the deity to enter
into the compromise as it appeared to be for the benefit of
the deity and a decree was passed in terms of the compromise
and the appeal disposed of accordingly. The material terms
of the compromise decree were as under
It is declared that
(a) The trust created by Indra Narayan
Biswas, as held by the Court below, by the
Deed of Declaration of the Trust dated 7th
July 1901 is not an absolute Debuttar of Sri
Sri Lakshmi Janardan Jieu Thakur mentioned in
the said Deed but is a qualified trust charged
with the expenses of the daily sheba and Puja
of the said deity Sri Sri Lakshmi Janardan
Jiew Tlakur, annual
864
worship of Goddess Durga, Goddess Kali,
Goddess Saraswati and Goddess Lakshmi and
Ishan Shib Thakur and other religious
ceremonies and festivals mentioned in the said
deed.
(b) The six sons of Abinash Chandra Bhowmick
are the present sole, Shebaits of the deity
Sri Sri Lakshmi Janardan and Trustees to carry
out the other trusts of the said Deed of
Trust. After them the heirs of Abinash are
as entitled under the Hindu Law
(c).......................
(d) The following (thirteen items of)
properties of the Trust would be declared the
absolute debuttar of Sri Sri LaKshmi Janardan
Jieu Thakur :
(Premises Nos. 110/1, 111/1A, 111/lB, 112,
113, 113/1, 115 situated on Belgachia Road,
District 24 Parganas, and Premises Nos. 9, 10,
3 and 7, Uzir Chowdhury Road, District 24-
Parganas), and " (xiii) G. P. Notes of the
face value of Rs. 1, 1 1,300 of 3% interest
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lying in the Land Acquisition Court of 24-
Parganas at Alipore in L.A. Cases No. 155 of
1915 (valuation) to the credit of the Trust
Estate".
(e) "The fixed deposit amounts, with the
different Banks as mentioned in the Schedule
"B" above aggregating to Rs. 58,103-5 will be
utilized and spent by the Shebaits and
trustees for the building of the temple and
Thakurbati as enjoined in the Trust Deed."
(f) "The Shebaits and Trustees jointly. will
get a sum of Rs. 1200 per annum as their
remuneration from the income of the absolute
Debuttar Estate."
(g) "The rest of the properties in,
Schedules "A" and "B" are the secular absolute
properties of the six sons of Abinash Chandra
Bhowmick deceased who are the present
petitioners 1 to 6 in equal shares under the
Will of Indranarayan Biswas."
(h) & (i)......................
(j) "The said annual sum of Rs. 900 payable
to the heirs of Bepin Behari Biswas and the
sum of Rs. 900 payable to Girindra Nath Biswas
will be charged upon the secular immovable
properties as included in Schedule "A" only of
the heirs of Abinash Chandra Bhowmick.
(Amended under Court’s order No. 10 dated 1-8-
1952)."
On April 6, 1953, Jadu Gopal Chakraborty, being a member of
the Guru family of the founder, Indra Narayan Biswas,
instituted Title,
865
Suit No. 31 of 1953 against the defendants for preservation
of the debuttar properties from waste and misappropriation,
in exercise of the right claimed under Term No. (18) of the
Trust Deed. The plaintiff prayed for a declaration that the
properties mentioned in Schedules "A" and "B" of the plaint
are the absolute debuttar properties of the deity, and
defendants 1 to 6 are not entitled to withdraw any part of
the compensation money lying in deposit with the Calcutta
Improvement Trust in the name of the deity in Case Nos.
54/22, 55/22, 59/23, 25/28, 16/49 and 18/49. It was alleged
that the entire proceedings commencing with the institution
of Suit No. 55 of 1947 and with the compromise decree in
F.A. No. 257/49 before the High Court were fraudulent,
collusive and designed to misappropriate some of the
properties of the deity; that the other co-Shebiats, (i.e.
Biswases) of the deity were not made parties; that Ishwar
Chander Vidyalankar who represented the deity, acted against
the interests of the deity; "that all facts were not placed
before the courts and there was material misrepresentation
and fraudulent suppression of facts and of notice of suit to
all parties"; that in these, circumstances the said solenama
or compromise decree passed by the High Court is void,
inoperative and invalid. The reliefs, prayed in the plaint
were
(1) for declaration that the properties
described in Schedules A & B are the absolute
Debuttar properties of the deity-.
(2) for declaration that the defendants or
any of them have no right to sell or dispose
of any of the said properties;
(3) ........................
(4) for declaration that the defendants 1 to
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6 are not entitled to draw any of the moneys
from the Calcutta Improvement Tribunal
deposited in the name of Deity Sree Lakshmi
Janardan Thakur Jiew in G.D. Case No. 54 of
1922, 55 of 22, 59 of 23, 25 of 28, 16 of 1949
and 18 of 1949;
(5) .................
(6) for permanent injunction restraining the
defendants 2 to 6 from withdrawing any of the
money deposited in the Calcutta Improvement
Tribunal in C.D. Case No. 54 of 1922, 55 of
22, 59 of 23, 25 of 28, 16 of 49 and 18 of
1949 or any other money of the Debuttar Estate
deposited in different Banks or other monies
deposited in Calcutta Improvement Tribunal as
fully set forth in Schedule ’B’ of the plaint;
(7).................... ;
(8) for any other relief or reliefs to which
the plaintiff may be entitled;
(9) for permanent injunction restraining the
defendants from in any way transferring,
selling or leasing out or otherwise disposing
of any of the Debuttar properties mentioned in
Schedules "A" & "B".
866
The substance of the case set up by the
defendants/respondents in their written statement was that
there was no absolute debuttar; that the compromise decree
was for the benefit of the minor and was not collusive and
was binding on the deity who was a party to the decree. It
was further pleaded that the suit for bare declaration was
hit by Section 42 of the Specific Reliefs Act. Jadugopal’s
locus stand to maintain the suit was also questioned.
The defendants/respondents, Panchulal Bhowmick, Benoy Kumar
Bhowmick and Pannalal Bhowmick, preferred an appeal to the
District Judge, Alipore. The learned District Judge by his
judgment, dated October 11, 1958, dismissed the appeal and
affirmed the judgment and decree passed by the Subordinate.
Judge, holding-
(a) That the Deed of Trust created an absolute Debuttar
estate in favour of the deity.
(b) That the entire proceedings commencing with Title Suit
No. 55 of 1947 and ending in the compromise decree in F.A.
257 of 1949 were vitiated by collusion between the
Bhowmicks, inasmuch as-
(i) the Deity was not properly represented
by a disinterested person appointed by the
Court after notice to all interested persons.
(ii) Ishan Chandra Vidyalanker did not
properly look after the interest of the deity.
He did not prefer any appeal against the trial
court’s decree declaring Debuttar properties
to be secular. Instead, in the High Court.
he signed the compromise decree which deprived
the deity of a substantial portion of its
estate.
(iii) Jadugopal (deceased), Panchanan, Pulin
Behari and Palton Behari not being parties to
the Suit or to the compromise, the decree did
not bind them and the Suit was maintainable.
(iv) Panchanan was a necessary party, but he
was not impleaded and no notice was given to
him.
(c) On account of the aforesaid collusion of the worst
type, the compromise decree passed by the High Court in T.A.
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257/59 was a nullity and did not bind the deity.
Against the decree of the District Judge, the defendants
(Bhowmicks) carried a second appeal to the High Court-
A Division Bench of the High Court allowed the appeal and
dismissed the Suit. The High Court upheld the findings of
the Court below with regard to the maintainability of the
Suit and the Suit property being absolute Debuttar- While
purporting to proceed on the basis that Bhowmicks obtained
the consent decree collusively, it held that the decree did
not become null and void, and was required
867
to be avoided in proper proceedings. In this connection it
propounded the proposition that a collusive and fraudulent
decree passed by a Court in invitum is "not a decree at all"
and does not need setting aside, but a compromise decree
being an agreement between the parties to which the sanction
of the Court is super-added, stands on a different footing;
and "even if the sanction obtained by fraud is no sanction
in law the agreement between the parties stands and that
contract requires to be set aside"; that the plaintiff could
have sued for setting aside the compromise decree on the
ground of fraud, but he did not, and consequently, he could
not treat an earlier judgment obtained by fraud and
collusion as null and void. The High Court further found :
"We have no evidence before us nor the Court
below had any evidence before itself to show
what happened in the High Court, how such
leave was obtained from the Court and what was
the fraud committed by parties to the suit
upon the Bench of this Court by which leave
was obtained and by which sanction was granted
to the deity to enter into the compromise.
Even if the guardian was careless and
indifferent the High Court had its duty to
grant or not to grant leave to a careless or
negligent guardian of the deity. But we have
nothing on record from which we can say that
the leave to enter into a compromise was
obtained by fraud. We must, therefore, hold
that whether Vidyalankar was competent or not,
whether Vidyalankar acted in collusion with
the Bhowmicks or whether Vidyalankar acted in
fraud of the best interest of the deity, the
High Court granted leave to Vidyalankar to
enter into the terms of the compromise and
finally granted a decree in favour of the
deity in terms of the compromise. Therefore,
we cannot treat as if no sanction was granted
to the deity as if the deity did not enter
into the terms of the compromise. Hence we
must hold that the consent decree does work as
an estopped and the deity cannot raise pleas
conflicting with the rights of the deity as
provided in the consent decree."
The High Court further held : "In the present suit, the
Biswases arc not represented as Shebaits of the deity and
therefore, cannot represent the interest of the deity and
they have no personal interest in the matter. So far as the
plaintiff Jadugopal is concerned, he has filed the suit for
the interest of the deity and he cannot raise, pleas which
the deity could not, because he really represented the
interest of the deity. Therefore, we must hold that the
compromise decree is binding upon the deity and unless set
aside, it operates as estoppel." A prayer for the amendment
of the plaint on behalf of the deity. who bad been re-
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transposed as co-plaintiff, for setting aside the decree was
declined. In the result, the appeal was allowed with costs,
and the suit was dismissed.
The High Court, however, granted a certificate under Article
133(1)(b) of the Constitution, by virtue of which this
appeal has been filed.
868
P. K. Chatterjee, appearing for the appellants, has raised
these contentions :
(a) (i) There were clear averments in the plaint about the
compromise decree in question, having been obtained by fraud
and collusion. Issues 9 and 10 were framed on these points,
and all the courts below have held that the compromise
decree passed by the High Court on 28-6-1950 in First Appeal
No. 257 of 1949, was collusive. The plaintiffs could not be
non-suited merely on account of their failure to pray in
specific terms for the relief of setting aside the decree,
because in view of the clear allegations of fraud and
collusion in the plaint and the finding that the compromise
decree was collusive, the Court was competent to grant the
relief of setting aside the decree under Order 7, Rule 7 of
the Code of Civil Procedure, particularly when the effect of
the declarations specifically claimed, was the same as if a
formal prayer had been added for setting it aside.
(ii) A decree obtained by fraud or collusion is a nullity,
which from its very nature, does not need setting aside.
In support of this contention, reference has been made to
the observations in Prayag Kumari Debi & Ors. v. Sisa Prosad
Singh(1); Mir Muzaffar Ali & Ors. v. Kali Proshad Sahar &
Anr. (2); Hare Krishna Sen v. Umesh Chandra Dutt(3); and
Bishnunath Tewari & Ors. v. Mst. Mirchi. (4)
(b) The High Court was in error inasmuch as it held that
Jadugopal had no locus standi because Jadugopal was a member
of the settles preceptor and, as such, had, apart from the
deity, his own independent right as a worshipper and also
under clause 18 of the Trust Deed to maintain the suit.
(Reference in this connection, has, been made to B. Jangi
Lal v. B. Punna Lal & Anr(5).
(c) Panchanan, co-plaintiff had also a right to maintain
the Suit because he was an her of Jogendra who was one of
the Shebaits nominated by the settler and on the death of
Jogdndra and Jogendra’s wife, the Shehaitship had devolved
on him (Panchanan) (Reference was made to the decisions of
this Court in Kidar Lall Seal & Anr. v. Hari Lall Seal(6);
Jai Jai Ram Manohar Lal v. National Building Material
Supply, Gurgaon(7); Nandurai Yogananda Lakshminarasimachari
& Ors. v. Sri Agastheswaraswami Varu of Kolakalur(8).
(d) On merits : The entire proceedings in Title Suit No. 55
of 1947 instituted by Pannalal and Niharranjan Bhowmicks
against the
(1) A.I.R. 1926 Cal. 1.
(2) 18, Cal. W.N. 271.
(3) A.I.R. 1921 Patna 193 (F.B.)
(4) A.I.R. 1955 Patna 66.
(5) A.I.R. 1957 All. 743.
(6) [1952] S.C.R. 179.
(7) [1970] (1) S.C.R. 22.
(8) [1960] (2) S.C.R. 768.
869
other Bhowmicks, Nagandranath, Nandlal etc., were collusive
and fraudulent, and the permission granted in appeal by the
High Court to compromise, did not purge the decree passed in
terms of that compromise, of the taint of collusion which
vitiated it.
(e) The High Court erred in holding that there is no
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evidence to show that the compromise decree was obtained
from the High Court by fraud and collusion. There war,
cogent circumstantial evidence on the basis of which the
trial Court and the first appellate Court had concurrently
held that the entire proceedings in Suit No. 55 of 1947 and
in First Appeal No. 257 of 1949 before the High
Court,including the compromise decree dated 21-6-1950 were
fraudulent and collusive. This evidence-proceeds the
argument which the first two Courts based this finding of
fraud and collusion, primarily consisted of these
circumstances :
(i) Iswar Chandra Vidyalankar was put up as guardian ad
litem of the deity in the trial Court, or Satish Chandra
Bhattacharyya, who on Vidyalankar’s death stepped into his
shoes later in the High Court, was a nominee of the
Bhowmicks, and was not an independent disinterested person
appointed as guardian ad litem after service of notice to
all the interested parties, particularly Panchanan Biswas
who had an interest in the Shebaitship.
(ii) The trust deed, dated 9th July, 1904 (Ex. 1), as
consistently held by the Courts below, created an absolute
Debuttar, and the said compromise decree substantially’
destroyed the entire endowment created by the settler,
Indranarain.
On the above premises, it is urged that the High Court war,
not right in holding that the deity was estopped from
questioning the compromise. The principle embodied in
Section 44, Evidence Act’ according to Mr. Chatterjee, has
been overlooked, which makes it clear that a decree obtained
by fraud or collusion does not operate as res judicata,
because the same is a nullity. On the other hand, Mr. Asoke
Sen, appearing for the Respondent’s submits :-
(a) It was rightly held by the High Court that since in the
plaint there was no prayer whatever, for setting the
compromise decree, the suit, as laid, was not maintainable.
The appropriate remedy of the party feeling aggrieved by
that decree, was to file a suit for setting it aside. In
this connection, reference has been made to Gulab Koers V.
Badsa Bhadur(1); Karmali Rohimbhoy v. Rahimbhoy Habib
Bhoy(2); Giridharan Prosad v. Bholi Ram(3); and Jones Co. v.
Beard(4).
(b) (i) That the earlier Suit No. 55 of 1947 and the
proceedings therein, could not be called collusive because
the decree in the trial Court was passed on contest.
According to the judgment and decree of the trial Court, the
Trust Deed of July 9, 1904 did not create an absolute
dedication in favour of the deity.
(1) 13 Cal. W.N. 1197.
(2) I.L.R. 13 Bom. 137.
(3) A.I.R. 1941 Patna 574.
(4) [1930] A.C. 298.
870
(ii) By the consent decree in question, the High Court had
varied that decree, considerably in favour of the deity.
(iii) It has to be presumed that the learned Judges of
the High Court who granted leave to compromise, did so after
satisfying themselves from a perusal of all the relevant
documents, including the Trust Deed dated July 9, 1904 (Ex.
1), that the Settlor, Inderanarain did not create an
absolute debuttar in respect of the properties described in
the Schedule thereto, in favour of the deity.
(c) As rightly held by the learned Judges of the High
Court, there was no evidence to show that the compromise
decree in question was obtained by practicing fraud on the
High Court. The twin, circumstances, on which, according to
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the learned counsel for the appellants, the finding of fraud
and collusion recorded by the first two Courts is founded,
were non-existent, because (i) the Deed of Trust, Ex. P. 1,
cannot be construed as creating an absolute debuttar in
favour of the deity, and (ii) the Biswases had no longer any
subsisting interest or right to manage the property of the
deity, and as such, no notice to them was necessary.
In elaboration of Point No. (i) Mr. Sen has taken us through
the Deed of Trust, Ex. P-1, with particular emphasis on its
clauses 4 and 15. In regard to Point No. (ii), learned
counsel has pointed out that according to the terms of the
Deed of Trust, Jogendra Biswas was to become one of the
Shebaits after the death of the Settlor, but Jogendra
predeceased the settlor without ever becoming a Shebait.
Jogendra had not acquired any vested interest in
Shebaitship, which on his death could devolve on his natural
heirs. In this connection, reference has also been made to
the documents Ex. 3. Agreement dated 2-2-1906 and Ex. 2,
deed dated March 24, 1916, according to which the Biswases
confined their claim to the receipt of Rs. 900/per annum and
acknowledged the exclusive rights of the Bhowmicks to manage
the property and affairs of the deity as Shebaits.
We, will first take up the last contention canvassed on both
ides with regard to the question : Whether the compromise
decree, dated. 28-6-10-50, in F.A. No. 257 of 1949 was
obtained by collusion and fraud practised on the High Court.
While the trial court and the first appellate court have
held that this compromise decree was vitiated by collusion
and fraud, the approach of the High Court, if we may say so
with respect, is not entirely clear and consistent. The
High Court, to start with, seems to proceed on the "basis"
(or the assumptions) that the, Bhowmicks obtained the
consent decree collusively, and concludes with the finding
that there is no evidence on the record "from which we can
say that the leave (to compromise) was obtained by fraud".
Mr. Chatterjee assails this finding of the High Court. His
argument is that there was circumstantial evidence from
which the trial court and the first appellate court had
rightly drawn the inference that the compromise decree was
the result of collusion and fraud on the part of the
Bhowmicks. Learned counsel further submitted that in
871
second appeal the High Court was not justified in reversing
that concurrent finding of the first two Courts.
We do not think that the last argument of Mr. Chatterjee is
sustainable.
The plea of collusion and fraud set up by the plaintiff-
appellants, is said to be founded on two primary
circumstances : (i) that the suit property was absolute
debuttar, and (ii) that no notice of opportunity was given
to Panchanan, who had an interest in Shebaitship. The
existence or non-existence of both these primary facts
depends on a construction of the basic documents : Deed of
Trust (Ex. 1), Deeds Ex. 3 and Ex. 2. Construction of these
basic documents which go to the root of the matter, is a
question of law and could be gone into in second appeal.
Our only regret is that the High Court did not go into the
question far enough.
With these prefatary observations, we now turn to the
question whether the suit properties had been absolutely
dedicated by Indernarain to the deity. Or, whether they
were only charged with Seba puja ? Answer to these
questions turn on a construction of the deed (Ex. 1), dated
9-4-1904, captioned : "Declaration of Trust". This deed
(which has been extracted earlier in extenso) starts with a
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declaration that the properties in the Schedule are vested
completely and permanently as debuttar. In Clause 2, the
Settlor states that the income of these properties is
permanently encumbered for meeting the expenditure of Durga-
puja, Kali-puja and Sarswati-puja. In Schedule ’Kha’, the
Settlor fixes with specificity, the amount of the expenses
which are to be incurred for such worship. In Clause 4, he
says that he shall remain the sole Trustee and Shebait of
these properties during his lifetime. But by the same
Clause, he reserves to himself full and unfettered power to
sell, transfer or settle permanently or temporarily the
trust property to any part therein; and further makes it
clear that no other Trustee shall be able to exercise such
power of transfer or do anything which may decrease the
income of the Debuttar property. In Clause 6, he provides
that any surplus income after meeting the expenditure for
worship etc., mentioned in Schedules ’Ga’ and ’Gha’, shall
be invested in purchasing security papers in the name of
debuttar trust estate. In Clause 10, he directs that in the
event of his dying without constructing a Thakurbari and a
temple, the future Trustees and Shebaits shall construct the
same from the income of the property only. Clause 15 is
important. Therein, the Settlor unequivocally reserves to
himself the power "to change the terms of this deed but no
other Trustee excepting myself shall be able to change the
terms and conditions of the deed."
Clauses 4 and 15 of the Deed of Trust, read together seem to
indicate that the Settlor had not completely and permanently
divested himself of the property covered by this Deed.
These Clauses can possibly be read as indicating that even
after the execution of this Deed, Ex. 1, the settolr
retained unto himself an absolute right to sell, transfer,
settle or distribute the trust property or change any of the
terms of this Trust
872
Deed. There is no provision in the Trust Deed, indicating
how the sale proceeds of such sale, if any, made by the
Settlor, Indernarain Biswas, of any of the trust property
would be utilised. It will not be extravagant to say that
in such an event, the Settlor could utilize the sale
proceeds in any manner he liked. Nor is there any direction
in this Trust Deed as to how the interest on the Government
securities would be expended. The possible inference is
that he wanted to utilise the interest on those securities
during his life-time as he wishes, and thereafter leave the
enjoyment thereof to the descendants. The total amount to
be spent on worship and festival was fixed at Rs. 1430/- and
no clear destination was indicated for the rest of the
income which was to accumulate perpetually. In view of the
nature and situation of the properties, the Settlor must
have been aware that the income derived therefrom would in
time grow and far exceed the expenditure prescribed for
worship, religious festivals and even for construction of
the Thakurbari. Even so, he did not make any provision for
utilisation of the surplus.
There is authority for the proposition that when the
property dedicated is very large, and the religious
ceremonies which are expressly prescribed by the Settlor,
cannot exhaust the entire income, some portion of the
beneficial interest may be construed as undisposed of and
cannot but vest as secular property in the heirs of the
Settlor. As pointed out by Shri B. K. Mukherjee (a former
Chief Justice of this Court) in his renowned work. "The
Hindu Law of Religious and Charitable Trusts", there are
cases where although the document purports, on the face of
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it, to be an out and out dedication of the entire property
to the deity yet a scrutiny of the actual provisions reveals
the fact that the donor did not intend to give the entire
interest to the deity, but reserved some portion of the
property or its profits for the benefit of his family
relations. In all such cases, the Debuttar is partial and
incomplete and the dedicated property does not vest in the
deity as a juridical person. It remains with the grantees
or secular heirs of the Settlor subject to a trust or charge
for the religious uses.
We do not want to burden this judgment by discussing the
various authorities cited by both sides. But reference to
only one decision, Sri Sri Iswari Bhubaneshwari Thakurani v.
Brojo nath Dey & Ors.(1) will be useful. In that case by a
deed executed in 1888, two Hindu brothers, R and B, created
an endowment in favour of the family deity, covering a large
number of properties, and provides that the right of
Shebaiti should go to their male heirs by primogeniture. In
1896, the founders conveyed additional properties to
themselves as Shebaits. The deed of endowment purported to
dedicate to the deity absolutely the Thakarbari and another
house which war, intended for the residence of the Shebait.
With regard to the rest of the property, the provision, was
that the Debuttar expenses should be carried on as before
with their income and that the surplus should be invested in
erecting masonry dwelling houses for the residence of the
donor’s family
(1) (64) I. A. 203.
873
and also for letting out some of these houses for the
purpose of increasing the income. The High Court held that
with the exception of the Thakurbari and the Shebait’s
house, the rest of the properties were not absolutely
dedicated to the idol, the ultimate benefit being for
persons other than the family deity, such dedication created
a charge on the endowed property for the expenses of the
worship of the deity.
On appeal, the Judicial Committee affirmed this decision
Lord Macmillan, who delivered the judgment of the Privy
Council, made these pertinent observations :
". . . on a fair reading of the deed as a
whole it was not intended that the ceremonies
and expenditure should increase indefinitely
with the growing income yielded by these
properties : See Surendra Keshav Roy v. Doorga
Soondarce Darsee (L.R. 19 I.A. 108). From the
nature and situation of the properties and the
directions given for their development it must
have been clearly contemplated that the income
derived from them would be a growing one and
must exceed the expenditure required for the
prescribed ceremonies and charities. . . . .
In these circumstances, the directions as to
the disposal of the surplus income became of
much importance. Now the clause dealing with
the ultimate surplus directs that it shall be
applied in the building of additional premises
for the convenience of residence and
habitation of heirs. This destination, it
will be observed, is not in favour of the
Shebaits, but is really in substance a gift in
favour of the settler’s heirs generally."
The instant case is ’not on all fours with the above cited
case, but the fact remains that here, the Deed of Trust (Ex.
1) prescribes no destination of the growing income which
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will become surplus after meeting the expenses prescribed by
the Settler for the worship of the deities, the performance
of the specified religious festivals and the building of the
Thakurbari temple.
Read in the light of the principles enunciated above, the
Deed of Trust, Ex. 1, was capable of two possible
constructions : (i) It created only a partial dedication and
not an absolute debuttar, the properties being charged for
Seva puja or other religious purposes to the extent
specified therein. (ii) It created an absolute debuttar in
favour of the deity. The former construction was expressly
adopted in the previous suit by the trial Court, and
presumably by the High Court in F.A. 257 of 1949 while
granting leave to the guardian ad litem of the deity to
compromise the case on terms embodied in the compromise
decree.
In the present round of litigation, the courts below have
adopted the latter construction. It is not necessary for us
to pronounce as to which of these two constructions is
correct. It is sufficient for us to say, that the view
taken by the Courts in the previous litigation as to the
nature of the dedication, was not beyond the orbit of
reasonable possibility. Thus, the existence of the first
primary circumstance viz.,
5- L329SCI/78
874
that the suit properties belonged to the deity as absolute
debuttar, from which an inference of collusion and fraud was
sought to be drawn-had not been clearly and indubitably
established.
This takes us to the second circumstance, viz., that the
compromise decree was obtained without notice to Panchanan
Biswas.
The first significant circumstance to be noted in this
connection is that on April 9, 1904, contemporaneously with
the Trust Deed (Ex. 1) of the same date, the Settler,
Indernarain, executed a Will by which he bequeathed his
other movable and immovable properties to his relations and
further provided that in case the, Deed of Declaration of
Trust (Ex. 1) fails, Abinash Chandra Bhowmick, his sister’s
son, will get the properties included in the said Deed. The
Settlor died on August 7, 1905. His will was probated on
April 6, 1906. What is said in this contemporaneously
executed Will in regard to the destination of the trust
property in the event of its failure, reveals that the
Settlor himself was possibly labouring under an impression
that he was not creating an absolute debuttar. The Will
further gives an inkling that the Settlor had the intention
to make, Abinash Chandra Bhowmick and his descendants as
ultimate beneficiary in respect of the properties comprised
in the Trust Deed to the exclusion of the Biswases.
It may be further noted that by Clause 8 of the Trust Deed,
the Settlor appointed Jogendra Nath Biswas to be a co-
trustee (co-shebait) along with Abinash Chandra Bhowmick,
after his (Settlor’s) death of the Trust property. Jogendra
Nath Biswas, however, predeceased the Settlor, without
becoming a Shebait or Trustee. Jogendra was survived by his
widow. She also died and Panchanan Biswas, a nephew of
Jogendra, is her heir.
From the document, Ex. 3, dated 2-2-1906, it is evident that
soon after the death of the Settlor, a dispute arose in
regard to the properties left behind by the Settlor,
including those covered by the Trust Deed between the,
Biswases, i.e. the heirs of Jogendra Biswas on the one hand
and Abinash Chandra Bhowmick on the other. By this deed,
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Ex. 3, the Biswases who were the 1st and 3rd Party and the
Bhowmick who was the Second Party, agreed that they had
equal rights to supervise the Debuttar property and to get
an annuity of Rs. 900/- each from the income of the Debuttar
Estate "for doing the worship and for the remuneration etc.
"The rights of Bipin Behari Biswas, and Girendra Nath
Biswas, the elder brother and cousin respectively, of
Jogendra deceased, to perform the worships as co-shebaits
were recognised.
Next comes the document, dated 24-3-1916 (Ex. 2). This
document was executed by Bipin Behari Biswas, Girendra Nath
Biswas and Abinash Chandra Bhowmick. It evidences a
settlement of a dispute with regard to the management and
administration of the, Debuttar properties. This dispute
had cropped up between them in certain Land
875
Acquisition Case No. 181 of 1915 pending in the Court of
District Deputy. By this document, the said Biswases
recognised the right of Abinash Chandra Bhowmick and his
line of heirs to manage as Shebaits of the debuttar
property, to the entire exclusion of Bipin Behari Biswas and
Girendra Biswas and their line of heirs. The Biswases,
thenceforth, had no right or claim to participate in the
affairs of the Trust. Their right had become restricted to
receiving an annuity of Rs. 900/,from the surplus income of
the property. There is no evidence on the record that after
the execution of this deed, the Biswases or their heirs ever
participated in the management of the Trust Property or its
affairs, beyond receiving the quit-annuity. Thus the Biswas
had lost long ago their rights as Shebaits by relinquishment
and/or adverse possession.
This being the actual position, Panchanan Biswas was not a
necessary party to be impleaded in the previous suit or F.A.
257 of 1949. His right to receive the fixed annuity from
the income of the trust property was in no way affected by
the compromise decree; on the contrary, it had been
expressly safeguarded. The name of Ishwar Chandra
Vidyalankar or his successor as guardian ad item of the
deity, though put forth by the plaintiffs in that
litigation, was accepted by the Court. No statutory rule
has been cited before us, according to which, it was
obligatory for the court to issue notice to all persons who
could possibly have an interest in the subject matter of the
litigation, before granting leave to the guardian of the
deity to compromise the case. Be that as it may, the
failure of the Bhowmicks to implead Panchanan Biswas in the
previous suit or in F.A. 257 of 1949, or of the guardian ad
litem to give him notice of the application for leave to
compromise the case, was ’not a circumstance of a definite
tendency which could inevitably lead to an inference of
fraud being practised on the Court.
Thus, none of the circumstances from which Mr. Chatterjee
wants the Court to spell out the conclusion that the
compromise decree was.. obtained by practicing fraud on the
High Court, was firmly established. Indeed, the first two
Courts did not pointedly address themselves to the question
as to whether the leave to compromise the case was obtained
by perpetrating fraud on the High Court. In the present
litigation, therefore, the High Court was entitled in
exercise of its powers under Section 103 of the Code of
Civil Procedure, to go into that question. The High Court
was therefore right in holding that there was no evidence to
show that the compromise decree in question was obtained by
fraud.
Lastly, a perusal of the Terms of the Compromise which was
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sanctioned by the High Court in F.A. 257 of 1949, would show
that substantial properties, 12 in number, were recognised
as absolute Debuttar properties of the deities; which
included G.P. Notes of the face value of Rs. 1,11,300/-.
Further, a sum of Rs. 58,103/- would be spent for the
purpose of building a Thakurbari in terms of the Trust Deed.
The then income of the properties declared to be absolute
debuttar properties,, was stated as Rs. 17,478/- per annum.
It is likely to have escalated till then. Furthermore,
lavish pecuniary provisions would be made for Deb Seva etc.
Instead of confining such expenses to Rs. 1,430/-
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annually which is the limit specified in the Trust Deed-the
expenses for the religious purposes specified in the Trust
Deed would be raised to Rs. 18,000/-.
It is, therefore, not correct to say that the compromise was
destructive of the endowment or the object of the
dedication. The terms of the compromise were prima facie
not unreasonable. By no stretch of reasoning it could be
said that no prudent Court would have granted leave to the
guardian of the deity to compromise the case on these terms.
As already mentioned, the High Court is presumed to have
perused the record, including the Trust Deed, ’and
considered the Terms of the compromise before sanctioning it
and allowing a decree in terms thereof.
In view of the finding that the compromise decree in F.A.
257 of 1949 was not obtained by committing collusion and
fraud, this appeal must fail. It is therefore, not
necessary to determine the other points raised before us by
the appellants because they have become wholly academic.
In the result, we dismiss this appeal, leaving the parties
to bear and pay their own costs.
S.R Appeal dismissed.
877