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HIGH COURT OF CALCUTTA
A. N. SEN, JANAH AND SHARMA
JOGENDRA NATH NASKAR - Appellant
Versus
OFFICIAL RECEIVER - Respondent
Appeal 223 Of 1963 In Ex. Or. Suit No. 6 Of 1957
Decided On : DECEMBER 24, 1974
1. A committee of 3 members is competent to grant long leases exceeding 3 years in view of the provisions contained in the scheme framed by the Court. 2. The injunction order passed in the Alipore Suit and Sealdah Suit would not confer any authority on the committee if otherwise the committee had no authority to act under the terms of the scheme. 3. The 3 meetings in question were not held as claimed by the defendants. 4. The failure to serve notice in accordance with the procedure prescribed by the scheme will render the meetings invalid in law even if such meetings were held. 5. The majority of the Shebaits within the meaning of clause 17 (b) of the scheme did not sanction the grant of the leases. 6. There was no legal necessity justifying the alienation. 7. The Naskars, having made bona fide enquiry as to the existence of legal necessity they entered into the transaction and as such their interest is protected under the law. 8. The Official Receiver is competent to file the suit. 9. The suit as framed is not maintainable. 10. The appellant must pay three-fourths of the taxed costs of this appeal to the plaintiff-respondent No. 1.
Fact of the Case:
The respondent No. 1, the Official Receiver, challenging the alienation of certain debottar properties, filed a suit. The said suit was instituted by the Official Receiver as a Receiver appointed in the suit No. 4575 of 1950 for cancellation of another lease in favour of the same lessees and for a declaration that the same was not binding on the debuttar estate. The defendants impleaded in both the suits are the deities in respect of whose estate the Official Receiver was appointed as Receiver, the two lessees, Hem Chandra Naskar and Jogendra Nath Naskar, and the 3 members of the managing committee who granted the leases, namely, Khagendra Lala Mitra, Sachindra Lala Mitra and Abani Ghosh. During the pendency of the suit Hem Chandra Naskar and Sachirdra Lala Mitra died. It is alleged that after the death of Rajendra Lala Mitra who during his lifetime was acting with the consent of the other shebaits as the person in management of the debuttar estate dispute arose amongst the descendants of Raja Pitambar Mitra which ultimately led to the institution of the suit No. 1528 of 1926. It is alleged that after the death of Subodh Lala Mitra and the resignation of Jogendra Lala Mitra, two members of the managing committee elected in December, 1943 the remaining 3 members were guilty of violation of the provision of the scheme in not filling up the vacancy and they unlawfully purported to continue to act as the managing committee. It is further alleged that the disputed leases were granted fraudulently without any legal necessity in brench of the scheme at an abnormally low rent. The grantors obtained a selami on the said 3 leases amounting to Rs. 10,000/-, Rs. 5,000/- and Rs. 5,000/- respectively. The 3 members and the lessees have been charged with collusion and conspiracy to deprive the debuttar estate. The capacity and the authority of the grantors who granted the, leases has also been challenged. It is pleaded that the leases were void ab initio as the grantors had no authority to grant leases on behalf of the defendant deities. The grants were made in direct contravention of the scheme framed by this Court. It is alleged that no general meeting was called and the procedure prescribed in the scheme had not been observed for obtaining of the approval and sanction of the shebaits to grant the leases. The lessees were alleged to have obtained the leases with full knowledge of the breach of trust and the want of authority on the part of the grantors and also with full knowledge of the illegality of the transaction.
Finding of the Court:
1. The managing committee consisting only of 3 members is competent to function inasmuch as is Title Suit No. 63 of 1946 filed for a declaration that the scheme framed in Title Suit No. 1528 of 19 was not working smoothly and for framing of a new scheme, an order of injunction was passed restraining all the Shebaits from interfering with the possession of the debuttai estate by the present managing committee. 2. The disputed leases were not held as claimed by the defendants. 3. The failure to serve notice in accordance with the procedure prescribed by the scheme will render the meetings invalid in law even if such meetings were held. 4. The majority of the Shebaits within the meaning of clause 17 (b) of the scheme did not sanction the grant of the leases. 5. There was no legal necessity justifying the alienation. 6. The Naskars, having made bona fide enquiry as to the existence of legal necessity they entered into the transaction and as such their interest is protected under the law. 7. The Official Receiver is competent to file the suit. 8. The suit as framed is not maintainable.
Issues: None
Ratio Decidendi: 1. A committee of 3 members is competent to grant long leases exceeding 3 years in view of the provisions contained in the scheme framed by the Court. 2. The injunction order passed in the Alipore Suit and Sealdah Suit would not confer any authority on the committee if otherwise the committee had no authority to act under the terms of the scheme. 3. The 3 meetings in question were not held as claimed by the defendants. 4. The failure to serve notice in accordance with the procedure prescribed by the scheme will render the meetings invalid in law even if such meetings were held. 5. The majority of the Shebaits within the meaning of clause 17 (b) of the scheme did not sanction the grant of the leases. 6. There was no legal necessity justifying the alienation. 7. The Naskars, having made bona fide enquiry as to the existence of legal necessity they entered into the transaction and as such their interest is protected under the law. 8. The Official Receiver is competent to file the suit. 9. The suit as framed is not maintainable.
Final Decision: The appeal is allowed in part and the judgment and decree of the trial court with regard to mesne profits is set aside and in its place a preliminary decree for mesne profits in favour of the plaintiff is passed. The rest of the judgment and decree are affirmed. The Extraordinary Suit No. 6 of 1957 is remitted back to the trial court of pas-sing an appropriate order with regard to the plaintiff's prayer for enquiry into damages or mesne profits. The appellant must pay three-fourths of the taxed costs of this appeal to the plaintiff-respondent No. 1.
( 1 ) THIS appeal is directed against the judgment and decree dated June 19, 1963 passed by Mullick, J. in Title Suit No. 79 of 1952 of the 8th Court of the Subordinate Judge, Alipore, which, on transfer to this Court was registered as Extraordinary Suit No. 6 of 1957. The said suit was instituted by the respondent No. 1, the Official Receiver, challenging the alienation of certain debottar properties.
( 2 ) BY a Deed executed on January 18, 1806, one Raja Pitambar Mitra established and consecrated the deity Sri Sri Iswar Bakleo Jew Thakur, and by another Deed dated May 17, 1824, his wife Sm. Nandarani Dasi established and consecrated the deity Sri Sri Gopal Jew Thakur. The debettar estate consisted of a large number of valuable properties, both land and premises, in and around Calcutta. The alienations challenged in the suit were by way of long leases granted by 3 persons consisting the committee of management under a scheme framed by this Court in an administration suit being, suit No. 1528 of 1926. The scheme was framed in the said suit and a preliminary decree was passed on March 30, 1934, and the final decree was passed on January 28, 1939, confirming the report of the Official Referee dated March 7, 1938.
( 3 ) ON December 4, 1950 a second suit for administration of the same debuttar estate was instituted in this Court, being Suit No. 4575 of 1950, by one Ashaiata Majumdar, one of the shebaits of the aforesaid deities, as a next friend of the said deities All the other shebaits were impleaded as defendants in that suit. Allegations have been made in the plaint in that suit that the debottar estate was not being administered in accordance with the scheme framed in Suit No. 1528 of 1926, that out of 5 members constituting the managing committee, one died and one resigned, and no steps were taken to fill up the vacancy as provided in the scheme, that the remaining members of the managing committee were administering the debottar estate illegally and contrary to the scheme, that the said 3 members granted long leases of the debuttar properties and were otherwise guilty of various acts of mismanagement and dereliction of duty and that the scheme had become infructuous and it had inherent defects. On these allegations it was prayed that a new scheme be framed, that the surviving members of the managing committee elected in 1943 be removed from the management and that the debuttar estate be administered by the Court. In the said suit the Official Receiver was appointed Receiver in respect of the entire debuttar properties by an order dated December 30, 1950. By another order dated December 20, 1951 leave was granted to the Official Receiver to institute suit or suits in the Court of competent jurisdiction to set aside or avoid the leases granted by the said 3 members of the managing committee in favour of Hem Chandra Naskar and Jogendra Nath Naskar. Pursuant to the leave granted the suit out of which this appeal arises was instituted by the Official Receiver as a Receiver appointed in the suit No. 4575 of 1950 for a declaration that the 3 leases dated May 3, 1946, November 29. 1946 and December 26, 1946 in favour of Hem Chandra Naskar and Jogendra Nath Naskar or either of them are void and not binding on the debuttar estate. There is also a prayer for cancellation of the said leases. The properties cove red by the said 3 leases are outside the original jurisdiction of this Court. The suit was instituted in the court of the Subordinate Judge at Alipore on 1st May. 1952. Subsequently by an order of this Court under clause 13 of the Letters Patent the suit was transferred to this Court. Pursuant to the leave granted on April 28, 1952 another suit was instituted by the Official Receiver being suit No. 1654 of 1952 for cancellation of another lease in favour of the same lessees and for a declaration that the same was not binding on the debuttar estate. Most of the properties covered by the said lease are situated within
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