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1984 Supreme(Cal) 178
High Court Of Calcutta
S. N. Sanyal
BHARATI MAJUMDAR - Appellant
Versus
BISWANATH MUKHERJEE - Respondent
. 2418 Of 1981
Decided On : 05/15/1984
AMAR NATH SINGH, ASOKE BANERJI, Sudhis Das Gupta, SYMA PRASANNA ROY CHAUDHURY
The transfer of pala, a right to worship by turn, is an immovable property and requires registration under Section 54 of the Transfer of Property Act, 1882.
Headnote:
PALA TRANSFER - REGISTRATION OF INSTRUMENT - SECTION 54, TRANSFER OF PROPERTY ACT, 1882 - Whether the transfer of pala, a right to worship by turn, requires registration under Section 54 of the Transfer of Property Act, 1882.
Fact of the Case:
Plaintiff filed a suit against the defendant for a declaration that he had the right to conduct the pala of Dhirendra Nath Mukherjee for a period of 11 years with the right to enjoy the income and usufructs of the said pala. The plaintiff also filed an application for temporary injunction restraining the defendant from interfering with his right to carry on and conduct the pala. The Munsif dismissed the application, holding that the document required registration and the price was unduly low. On appeal, the Subordinate Judge allowed the appeal and granted the prayer for temporary injunction, holding that pala was a movable property and the right to collect offerings was not an intangible thing annexed to immovable property.
Finding of the Court:
The court held that pala, which is a right to worship by turn, is an immovable property and the transfer of pala has to be made by a registered instrument. The court further held that the document in the instant case showed that not only the right to collect usufruct was transferred but there was also transfer of the duties and functions, which devolved upon Dhirendra as Shebait. There was thus transfer of the pala for a certain period, which required a registered instrument.
Issues: Whether pala, a right to worship by turn, is an immovable property and requires registration under Section 54 of the Transfer of Property Act, 1882.
Ratio Decidendi: The court relied on the Supreme Court decision in Ramrattan (dead) by legal reprentatives v. Bajranglal and ors. AIR 1978 Supreme Court 1393, which held that the right to worship by turn is an immovable property and the gift of which can only be made by a registered instrument. The court also referred to Mulla's Commentary on the Transfer of Property Act (6th Edition Page 18), which observes that a pala or turn of worship is a movable property. However, the court held that the Supreme Court decision in Ramrattan's case was directly on point and laid down the principles of law applicable to the transfer of turn of worship known as Pala in West Bengal.
Final Decision: The court set aside the order of the Subordinate Judge granting temporary injunction and restored the order of the Munsif dismissing the application for temporary injunction.
( 1 ) THIS revisional application is at the instance of the defendant and it is directed against an order dated August 8, 1981 passed by the learned Subordinate Judge, Sixth Court, Alipore allowing Misc Appeal no 346 of 1981 and granting the plaintiff's prayer for temporary injunction after setting aside the order dated May 18, 1981 made by the learned Munsif, Forth Court, Alipore in Title suit no 118 of 1981.
( 2 ) THE opposite party Biswanath Mukherjee filed the suit against the petitioner Sm. Bharati Majumder for declaration that the plaintiff had right to conduct the palas of Dhirendra Nath Mukherjee recorded in the same of his predecessor-in-interest Kshetrakali Mukherjee for the period of 11years from 1388 B. S. To 1389 B. S. with right to enjoy the income and usufructs of the said Palas for the said period. The plaintiff prayed for further declaration that the defendant had no right whatsoever to interfere with the plaintiff's right of carrying on or conducting the said palas. There was a prayer for permanent injunction. It was alleged that Dhirendra Nath Mukherjee was a Shebait of Goddess Kali of Kalighat Kali Temple. Plaintiff is also a shebait and he used to manage the Palas allotted to Dhirendra. Plaintiff paid Rs. 8000/- to Dhirendra on April 10,1980 and Dhirendra granted a receipt. Plaintiff is entitled to usufruct of Dhirendra's Palas from 1388 B. S. To 1398 B. S. Dhirendra died on July 22, 1980.
( 3 ) THE plaintiff filed on application for temporary injunction restraining the defendant from interfering with the plaintiff's right to carry on and conduct Palas for the period mentioned above. The said application was opposed by the defendant. The contention of the defendant was that the transfer of Shebaiti interest as Paladar could not be made without a registered instrument. The defendant also denied the allegations of the plaintiff that he had purchased the right from Dhirendranath Mukherjee on payment of Rs. 8000/ -.
( 4 ) THE learned Munsif after hearing the parties dismissed the application for temporary injunction. The decision of learned Munsif rests mainly on two grounds, that is, the document required registration and also the price was unduly low. The other ground, which weighed with the learned Munsif was the availability of adequate damages. On appeal the learned Subordinate judge came to the conclusion that pala was a movable property and the right to collect offerings was a tangible thing, at any rate not an intangible thing annexed to immovable property. The learned Judge thus found that no registration was required. The learned Judge also held that collections must be widely fluctuating depending on the auspiciousness of the day of the week on which he would be entitled to collect offerings and no damages thus could be ascertained. The learned judge accordingly allowed the appeal and granted the prayer for temporary injunction.
( 5 ) MR. Banerjee, appearing in support of the Rule, has argued that the learned judge wqas entirely wrong in holding that pala was not an immovable property and transfer of the same did not require registration. Mr. Banerjee argues that the document dated April 10, 1980 (Annexure 'b' to the plaintiff's application for temporary injunction) by which the plaintiff obtained the right to usufructs of the pala belong to Dhirendranath Mukherjee clearly shows that not only the usufruct of the Pala was transferred but also the rights and duties of Dhirendranath Mukherjee as Paladar Shebaiti right and as such in view of the decision of the Supreme Court in Ramrattan (dead) by legal reprentatives v. Bajranglal and ors. AIR 1978 Supreme Court 1393, the said document required re4gistration Mr, Banerjee argues that the learned Subordinate Judge has acted illegally and with material irregularity when he failed to take into consideration the relevant principles of law. It has been further contended that the plaintiff has no Primaface case. In such circumstances, the
