1952 Supreme(Cal) 13

HIGH COURT OF CALCUTTA
Harries, Das
GOKUL CHAND DE - Appellant
Versus
GOPI NATH DEY - Respondent
A. F. O. D.  129  Of  1951
Decided On : JANUARY 16, 1952

The procedure by way of an originating summons is not appropriate when the questions raised require a decision on disputed questions of fact, such as estoppel and adverse possession.

Headnote:

TRUST - Construction - Shebaiti right - Line of succession - Validity - Hindu Law - Tagore v. Tagore, Ind. App. Supp. Vol. p. 47 (P. C.) - Monohar Moocher v. Bhupendra Mukerji, 60 Cal. 452 (F. B.) - Ganesh Chandra v. Lal Behary, 63 Ind. App. 448 (P. C.) - Bhabatarini Debi V. Ashalata Debi, 70 Ind. App. 57 (P. C.) - Originating summons - Maintainability - Order 55 Rule 10 of the Rules of the Supreme Court - Costs.

Fact of the Case:

The settlor, Srimati Chuni Moni Dasi, created a trust by a deed dated 18-9-1901, conveying certain properties to her three sons as trustees. The deed provided for the worship of the deities Sree Sree Juggernath Jiu and Sree Sree Radha Gobind Jiu, and laid down the line of succession to the shebaiti right. The plaintiff, Gopinath Dey, one of the trustees, filed an originating summons under chap. XIII of the Rules of this Court (Original Side) for the determination of certain questions relating to the construction of the deed of trust and the rights of the shebaits.

Finding of the Court:

1. The originating summons was not maintainable in the facts of the case, as the questions raised could not be conveniently dealt with on an originating summons and required a decision on disputed questions of fact, such as estoppel and adverse possession. 2. Upon a true construction of the deed of trust, the provisions regarding the devolution of the shebaiti right laid down a line of succession and did not constitute independent gifts with a gift over absolutely. 3. The line of succession to the shebaiti right laid down in the deed of trust contravened the rule of Hindu Law of succession to property and was void. 4. After the death of the sons of the settlor, the shebaiti right would devolve on the heirs of the settlor Srimati Chuni Moni Dasi. 5. The principle in Tagore v. Tagore, Ind. App. Supp. Vol. p. 47 (P. C.) and Monohar Moocher v. Bhupendra Mukerji, 60 Cal. 452 (F. B.) did not apply in the present case, as the shebaits had no control over the endowed property and were merely entitled to receive certain sums of money for the performance of the worship of the deities with a liability to account to the trustees for the sum so received.

Issues: 1. Whether the originating summons was maintainable in the facts of the case. 2. Whether the provisions regarding the devolution of the shebaiti right laid down in the deed of trust were valid or constituted independent gifts with a gift over absolutely. 3. Whether the line of succession to the shebaiti right laid down in the deed of trust contravened the rule of Hindu Law of succession to property. 4. Whether the principle in Tagore v. Tagore, Ind. App. Supp. Vol. p. 47 (P. C.) and Monohar Moocher v. Bhupendra Mukerji, 60 Cal. 452 (F. B.) applied in the present case.

Ratio Decidendi: 1. The procedure by way of an originating summons is not appropriate when the questions raised require a decision on disputed questions of fact, such as estoppel and adverse possession. 2. The literal meaning of the provisions regarding the devolution of the shebaiti right in the deed of trust indicates that a new line of succession to each son, as regards the shebaiti right, was intended by the settlor Srimati Chuni Moni Dasi. 3. The line of succession thus laid down contravened the rule of Hindu Law of succession to property and was void. 4. The principle in Tagore v. Tagore, Ind. App. Supp. Vol. p. 47 (P. C.) and Monohar Moocher v. Bhupendra Mukerji, 60 Cal. 452 (F. B.) did not apply in the present case, as the shebaits had no control over the endowed property and were merely entitled to receive certain sums of money for the performance of the worship of the deities with a liability to account to the trustees for the sum so received.

Final Decision: The appeal was allowed. The plaintiff respondent was directed to pay the costs of the defendants appellants in this Court and in the Court below. The respondents 4 and 12 were allowed their costs paid out of the estate. The costs of the lower Court and in this Court were to be taxed as in a suit and an appeal from the same.