Judgement

Consolidated Appeals (No. 37 of 1920) against a judgment and decree of the High Court (July 24, 1919) reversing a decree of the Subordinate Judge of Hugli (December 23, 1915).

The suit was instituted by the present first respondent to obtain the removal of the appellant from the office of shebait of certain debottar property, to set aside a purchase of part of that property—namely, a four-fifths share of lot Bahirgora, and for the appointment of a receiver.

It was alleged by the plaint, and found by both Courts in India, that the purchase in question in the name of the first appellants son (appellant in the connected appeal) was made benami by the first appellant, the shebait. Other acts of misconduct as shebait were alleged.

The facts of the case sufficiently appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the appellant was entitled to retain the property purchased by him in his sons name, and rejected the claim to have it declared to be still part of the debottar estate. He also rejected the claim to have the shebait removed, being of opinion that his conduct had riot been such as to render him unfit to retain the office.

An appeal to the High Court was allowed. The learned judges (Mookerjee and Panton JJ.), after affirming the finding that the purchase money had been supplied by the shebait, proceeded to consider whether the sale was valid. They said "It is regarded as a principle of fundamental importance in English equity jurisprudence that a trustee for sale is absolutely disabled from purchasing the trust property, directly or indirectly. The rule is universal that however fair the transaction the cestui que trust is at liberty to set aside the sale and take back the property.....It is equally well settled that a trustee for other purposes than for sale cannot purchase the property where the purchase would conflict with his duty respecting it, or his position in regard to it; but in this class of case there is no absolute rule against the trustee purchasing the trust property from his cestui que trust, although Courts of equity always regard such transactions with the utmost jealousy, and will not hesitate to set them aside if their fairness is not conclusively estab lished. The controversy before us has centered round the question, which of these principles govern the present case. Now, it is perfectly plain that the sale in this case was not by a cestui que trust to the trustee. As Sir Arthur Wilson pointed out in delivering the opinion of the Judicial Committee in the case of Jagadindra Nath v. Hemanta Kumari(( 1904) L. R. 31

I. A. 203, 209.), though there is no doubt that an idol may be regarded as a juridical person, capable as such of holding property, it is only in an ideal sense that property is so held, for the possession and management of the dedicated property must, in the nature of things, belong to the shebait, whether the religious dedication is of the completest kind known to the law or is of a less strict character. Consequently, when a shebait purchases debottar property, it is a purchase by a person who is the custodian of the property and who is charged with the duty to preserve it for the benefit of the endowment. In a case of this description, if the purchase were allowed, precisely the same mischiefs would result as have been apprehended by eminent judges in cases of purchases of trust properties by trustees for sale. Indeed, the mischief might be of a more aggravated character, less likely to be discovered and rectified, as, unless the shebait was removed, it might be impossible to determine the impropriety of the transaction and the injury inflicted thereby on the debottar estate. If the contrary view prevailed, it is not inconceivable that an unscrupulous shebait, anxious to seize a particular portion of the debottar estate for his personal use, might, notwithstanding ample funds at his disposal, be encouraged to borrow money in the character of sheb