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HIGH COURT OF CALCUTTA
A. C. Gupta, S. C. Deb
RADHA GOBINDA JEW - Appellant
Versus
KEWALA DEVI JAISWAL - Respondent
L. P. A. 70 Of 1973
Decided On : February 13, 1974
DEBUTTER PROPERTY - DEDICATION - ACTING UPON - LIMITATION - MAINTAINABILITY OF SUIT - SPECIFIC RELIEF ACT, 1963, SECTION 34.
Fact of the Case:
The appellants filed a suit for a declaration that the premises No. 6 Bansidhar Lane, Calcutta and a property at Nabadwip are debutter properties of the plaintiff deities and for permanent injunction restraining the respondent No. 1 from interfering with their possession of the said Calcutta property and from exercising any act of possession including the realization of rents of the said property.
Finding of the Court:
The Calcutta property was purchased by those three brothers out of their joint family funds. The defence had failed to substantiate the charge of fraud leveled against those two brothers and Gopinath. The Deeds of Partition and Arpannama executed by Chintaharan were genuine documents and the suit properties were validly dedicated to the appellant deities by Chintaharan who had acted as their sole shebait during his lifetime. Krishna Kamini was not the owner of the Nabadwip property and Sashimukhi had wrongfully sold the Calcutta property to the respondent No. 1. The suit was not time barred and it was maintainable.
Issues: 1. Whether the Calcutta property was purchased by those three brothers out of their joint family funds? 2. Whether the Deeds of Partition and Arpannama executed by Chintaharan were genuine documents? 3. Whether the suit properties were validly dedicated to the appellant deities by Chintaharan? 4. Whether Krishna Kamini was the owner of the Nabadwip property? 5. Whether Sashimukhi had wrongfully sold the Calcutta property to the respondent No. 1? 6. Whether the suit was time barred? 7. Whether the suit was maintainable?
Ratio Decidendi: 1. The Calcutta property was purchased by those three brothers out of their joint family funds as evidenced by the Deed of Partition and Arpannama executed by Chintaharan. 2. The Deeds of Partition and Arpannama executed by Chintaharan were genuine documents as found by the Courts below. 3. The suit properties were validly dedicated to the appellant deities by Chintaharan who had acted as their sole shebait during his lifetime. 4. Krishna Kamini was not the owner of the Nabadwip property as she had dedicated the same to an alleged deity named Sree Sree Radha Gobind Jew. 5. Sashimukhi had wrongfully sold the Calcutta property to the respondent No. 1. 6. The suit was time barred as the cause of action arose in 1957 when Sashimukhi filed her written statement in an earlier suit filed by the appellants, and the present suit was filed in 1965, beyond the limitation period of six years under Article 58 of the Limitation Act, 1963. 7. The suit was not maintainable as the appellants were out of possession of the suit properties and did not ask for recovery of possession in the plaint.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS Letters Patent Appeal arises out of the Title Suit No. 101 of 1967 of the Court of the learned Munsif at Krishnagore filed by the appellants for a declaration that the premises No. 6 Bansidhar Lane, Calcutta and a property at Nabadwip are debutter properties of the plaintiff deities and for permanent injunction restraining the respondent No. 1 from interfering with their possession of the said Calcutta property and from exercising any act of possession including the realization of rents of the said property.
( 2 ) THESE are the main averments made in the plaint. Chintaharan Kundu and his two brothers were members of an undivided joint Hindu family and out of their joint family funds they purchased the aforesaid Calcutta property in the name of Chintaharan and the said Nabadwip property in the name of Krishnakamini Devi, the wife of Chintaharan. They divided all their properties by a Deed of Partition dated January 12, 1922 and these two properties were allotted to Chintaharan who dedicated them to the appellant deities by a Deed of Arpannama dated 12. 1. 1922. Chintaharan and Krishna Kamini died respectively in the years 1923 and 1940 and before their death they respectively acted as shebaits in terms of the said Deed of Arpannama. Thereafter, those two brothers acted as joint shebaits with Sashimukhi, and after the death of those two brothers their present heirs namely Gopinath, his brother and their cousins acted as joint shebaits with Sashimukhi to whom they left the management of the said estate like their respective fathers. Gopinath came to reside in a portion of the said Calcutta property in 1956 and started realizing the rents from the tenants but due to a dispute between him and Sashimukhi he could not go on realizing the rents and the said dispute was settled by the execution of a Power of Attorney dated June 18, 1962, by Sashimukhi in favour of Gopinath and his two cousins. Thereafter, Sashimukhi fraudulently sold the Calcutta property to the respondent No. 1 on May 29, 1964 by falsely alleging that the Deed of Arpannama executed by Chintaharan had never been acted upon. It also transpires that in 1930 Krishna Kamini purported to dedicate the Nabadwip property to an alleged deity named Sree Sree Radha Gobind Jew falsely alleging that she was the owner of the said property and she had installed the said deity. Sashimukhi died intestate on June 27, 1965 leaving the respondents Nos. 2 and 3 as her only son and daughter and thereafter the appellants have filed this suit through their shebaits Gopinath, his brother and cousins for the reliefs mentioned earlier.
( 3 ) THE respondents Nos. 1 to 3 contested the suit by denying all the allegations made in the plaint and on this main defence. Those two properties were not purchased out of the alleged joint family funds. Chintaharan was the sole owner of the Calcutta property whereas Krishna Kamini was the absolute owner of the Nabadwip property. Chintaharan never acted upon the said Deeds of Partition and Arpannama for they were fraudulently procured from him by his two brothers. Krishna Kamini, as the widow of Chintaharan, had inherited the Calcutta property and it was in her exclusive possession during her lifetime. By a Deed of Arpannama dated September 30, she dedicated the Nabadwip property to a deity named Sree Sree Radha Gobinda Jew installed and worshipped by her. She and Sashimukhi has acted respectively as the Shebaits of the said deity during their lifetime and the respondent No. 2 is now the sole shebait of the said deity. On 6. 7. 1962 Sashimukhi revoked the said Power of Attorney which was fraudulently procured from her by Gopinath. The appellants and their alleged shebaits were never been nor are in possession of the suit properties which were in exclusive possession of Krishna Kamini and Sashimukhi during their respective lifetime ad they used to realise the rents of the said Calcutta Property as its owners until it was lawfully sold by S
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