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1977 Supreme(Cal) 328
High Court Of Calcutta
Padma Khastgir
SRI ISWAR DASHABHUJA THAKURANI - Appellant
Versus
SM.KANCHANBALA DUTTA - Respondent
Suit 1347 Of 1965
Decided On : 09/12/1977
A deed of dedication that uses expressions of absolute dedication, provides for the utilization of the entire income for deva seva and surplus for improvement of debutter properties, and is followed by subsequent conduct of the parties treating the properties as debutter, creates a complete debutter.
Headnote:
DEBUTTER PROPERTY - DEDICATION - CONSTRUCTION - SCHEME - APPOINTMENT OF NEXT FRIEND - PRESUMPTION OF DEATH - SECTION 108 OF THE EVIDENCE ACT, 1872.
Fact of the Case:
Hari Mohan Roy, the owner of various properties, executed a deed of dedication on 9th June, 1935, dedicating all his properties to his family deities, the plaintiffs. The deed provided for the appointment of shebaits, the performance of daily puja and other seasonal festivals, and the use of surplus funds for the improvement and preservation of the debutter estate. Hari Mohan Roy died in 1959, and the defendants, his sons and daughter, took possession of the properties and began to treat them as their personal properties. The plaintiff No. 3, one of the sons of Hari Mohan Roy, filed a suit for appointment as the next friend of the plaintiff deities, declaration that the properties are debutter properties, framing of a scheme, injunction, Receiver, accounts, etc.
Finding of the Court:
The Court held that the deed of dedication created a complete debutter in favor of the plaintiff deities and that Hari Mohan Roy had divested himself of all the properties. The Court also held that the plaintiff No. 3 was a fit and proper person to be appointed as the next friend of the plaintiff deities and that the presumption of death of Hari Mohan Roy could be drawn under Section 108 of the Evidence Act, 1872. The Court framed a scheme for the management of the debutter estate, providing for a committee of shebaits, rotation of worship, and the filing of accounts.
Issues: 1. Whether the deed of dedication created a complete debutter in favor of the plaintiff deities? 2. Whether Hari Mohan Roy had divested himself of all the properties? 3. Whether the plaintiff No. 3 was a fit and proper person to be appointed as the next friend of the plaintiff deities? 4. Whether the presumption of death of Hari Mohan Roy could be drawn under Section 108 of the Evidence Act, 1872?
Ratio Decidendi: 1. The Court held that the deed of dedication created a complete debutter in favor of the plaintiff deities based on the following factors: - The deed used expressions such as "I give absolutely all immovable properties to my deities" and "I stand completely divested myself of the rights in the property and my rights devolve in the said deities in my place and stead." - The settlor made specific provisions in the deed that the entire income from the property would be utilized solely for the deva seva and any surplus thereto would be spent for addition and/or improvement of the debutter properties. - The subsequent conduct of the parties, including the settlor himself, showed that they treated the entire properties as debutter. 2. The Court held that Hari Mohan Roy had divested himself of all the properties based on the following factors: - The deed of dedication contained a specific provision that the settlor stood completely divested of the rights in the property and his rights devolved in the plaintiff deities. - The settlor himself treated the entire properties as debutter, made additions and improvements to the debutter properties, and completely divested himself of all the said properties. - The settlor described himself and acted as the shebait of the plaintiff deities. - The sons and daughter of the settlor acted as shebaits of the said deities and accepted the dedication as a total debutter. 3. The Court held that the plaintiff No. 3 was a fit and proper person to be appointed as the next friend of the plaintiff deities based on the following factors: - He was a shebait jointly with other defendants. - He had the prospect of holding the office of shebait. - He had filed an affidavit of fitness and no evidence was laid by any of the parties to the effect that he was not a fit and proper person. 4. The Court held that the presumption of death of Hari Mohan Roy could be drawn under Section 108 of the Evidence Act, 1872, based on the following factors: - Hari Mohan Roy had not been heard of by anybody since 24th June, 1959, till the day when the suit was heard. - The suit was heard in the year 1977 and it was in evidence that till then neither Hari Mohan Roy did come back nor was he heard of by any of the parties.
Final Decision: The Court appointed the plaintiff No. 3 as the next friend of the plaintiff deities, declared that the properties are debutter properties belonging absolutely to the plaintiff deities, framed a scheme for the management of the debutter estate, and granted injunction and Receiver.
( 1 ) THIS suit has been filed by the plaintiffs (1) Sri Sri Iswar Dashabhuja Thakurani (2) Sri Sri Iswar Govinda Jew Thakur and (3) Rash Behari Roy against the defendants (1) Sm. Kanchanbala Dutta (2) Gosta Behari Roy and (3) Brojo Behari Roy inter alia for appointment of the plaintiff No. 3 Rash Behari Roy as the next friend of the plaintiff deities, declaration that the properties mentioned in Annexure 'a' to the plaint are debutter properties belonging absolutely to the plaintiff deities, framing of a scheme, injunction, Receiver, accounts, etc.
( 2 ) THE case of the plaintiffs is that the defendant No. 1 is a daughter and the plaintiff No. 3 and the defendant Nos. 2 and 3 are the sons of one Hari Mohan Roy. This Hari Mohan Roy owned and possessed two immovable properties at Calcutta, being premises No, 16a, Nandan Road and 20, Ahiritola Street and various properties at Mogra in the district of Hooghly. Full particulars of which will appear from Annexure 'a' to the plaint.
( 3 ) THE said Hari Mohan Roy during his lifetime by a registered deed dated 9th June, 1935 dedicated all his properties to his family deities i. e. the plaintiffs Nos. 1 and 2 of this suit.
( 4 ) THE salient terms and conditions as contained in the said deed of dedication (Arpananama) are the following:--" (a) The first shebait would be the settlor Sri Hari Mohan Roy. After his death his three sons, namely, the plaintiff No. 3 and the defendants Nos. 2 and 3 and his daughter the defendant No. 1, would be the next shebaits. (b) Out of the income of the debutter properties in the first instance the revenues and taxes would be paid as also the amount necessary for the sheba of the said deities. (c) Thereafter out of the surplus, the necessary amounts would be spent for the performance of 'dol Jatra' and 'durgatsav' every year and for daily puja of the said family deities. (d) Out of the surplus funds remaining, moneys would toe spent for the improvement and preservation of the debutter estate and for acquiring other properties for the debutter estate. None of the shebaits would be entitled to sell or make a gift of any of the debutter properties and such properties would not be liable for any debts incurred by them. (e) If any debutter properties were acquired by the Government then the shebaits would purchase other properties of equivalent value for the debutter estate. (f) The shebaits would do all the acts necessary for the due performance of deba sheva and for the preservation and betterment of debutter estate. "
( 5 ) BETWEEN 1935 and 1958 the said Hari Mohan Boy out of the funds of the said debutter estate erected buildings on some of the lands forming part of the debutter estate and also made various additions to the said estate. Full particulars of such additions would appear from the Annexure 'c' to the plaint. During the lifetime of the said Hari Mohan Roy some of the properties were compulsorily acquired by the Government and various proceedings are pending for realisation of the said compensation moneys.
( 6 ) A suit was filed by Gostha Behari Roy, the defendant No. 2 herein, being Suit No. T. S. 464 of 1957 in the 4th Court of Munsif at Alipur in 1957 against Hari Mohan Roy as shebait to the deities being plaintiff Nos. 1 and 2 herein. That suit was filed in respect of premises No. 16a, Nandan Road. By consent of the parties therein it was declared that Gostha Behari Roy was the tenant in respect of the said property at a monthly rent of Rs. 225 p. m. on and from 1st March 1955. The said terms of settlement were signed by Hari Mohan Roy as shebait of the plaintiff deities.
( 7 ) IT is the common case of the parties to this suit that the said Hari Mohan Roy suddenly left his Mogra house on 24th June, 1959 and since then his whereabouts are unknown. At the time he left the house for good, his age was of about 80 years. So long as Hari Mohan Roy was at his Mogra house he acted as a shebait and performed the daily puja and
