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2019 Supreme(Cal) 359
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Swapan Majumdar - Petitioner
Versus
Sri. Sri. Rameshwar Shiv Thakur, since deceased, Represented by Shyama Rani Ghosh & Others - Opposite Parties
C.O. Nos. 2151 & 2152 of 2019
Decided On : 24-07-2019
For the Petitioner:Haradhan Banerjee, Sounak Bhattacharya, Advocates
For the Opposite Parties :Saptangsu Basu, Animesh Das, Debayan Roy, Advocates
The central legal principle established in the judgment is the paramount importance of protecting the interest of the deity in a debuttar property, which influenced the court's decision to allow the heirs to continue the suits.
Headnote:
Debuttar Property - Succession - Code of Civil Procedure - Order XXII Rule 5
Fact of the Case:
The case involved disputes over a debuttar property dedicated to a deity. The original plaintiff filed suits challenging the sale of the property and seeking a declaration that it was a debuttar. After the plaintiff's death, his heirs sought to be substituted in the suits. The trial court rejected the applications under Order XXII Rule 5 of the Code, leading to appeals and subsequent revisional applications.
Finding of the Court:
The appellate court allowed the applications under Order XXII Rule 5, impleading the heirs as plaintiffs to continue the suits, emphasizing the need to protect the interest of the deity. The court dismissed the revisional applications, affirming the order of the appellate court.
Issues: The key issues revolved around the succession to the debuttar property, the validity of the Will, and the appointment of next friends to represent the deity's interest.
Ratio Decidendi: The court emphasized the need to protect the interest of the deity and allowed the heirs to continue the suits, rejecting the petitioner's arguments against the validity of the Will and the appointment of the heirs as plaintiffs.
Final Decision: The court dismissed the revisional applications, affirming the order of the appellate court to implead the heirs as plaintiffs in the respective suits.
JUDGMENT :
1. Since the two revisional applications arise between the same parties, from connected matters and similar orders, the two are taken up for hearing together.
2. The genesis of the instant revisions are two suits filed by Sri Ajit Kumar Ghosh (since deceased), the predecessor-in-interest of the opposite party nos. 1(a) and 1(b).
3. The plaint case is that the suit property is a debuttar property in the name of the deity Sri Sri Rameshwar Shiv Thakur. One Sankari Dasi enshrined a deity of 'Shiv Thakur' within a temple and the property was dedicated to the said deity. Sankari bequeathed her property to her nephew Ananda Deuti on February 16, 1886 who used to perform the worship and other ceremonies and festivals in respect of the said deity. The expenses were borne from the income of the debuttar estate. It is stated that, although the property is a private debuttar, local people used to worship on festival and other occasions.
4. Ananda Deuti executed a registered Will on December 8, 1909 (although the same was never probated). Thereafter he died leaving behind three sons, Surendra Nath, Sashibhusan and Parbati Charan Deuty, who became joint shebaits of the debuttar estate. Surendra was pre-deceased by his wife and himself died issueless. Sashibhusan died intestate leaving behind wife Ushangini Deuty and two daughters, Anupama and Nirupama. Ushangini died thereafter in 1959, leaving behind her two daughters, as mentioned above.
5. Anupama died issueless in 1962. Nirupama died, leaving behind her son Ajit Kumar Ghosh, who started acting as a she bait of the deity.
6. As per the plaint case, in terms of the original Will, Lakshmimoni Dasi, wife of the youngest son of Ananda, looked after the debuttar estate during her lifetime and was allotted five cottahs of land for residential purpose.
7. According to the plaint case, Lakshmimoni Dasi did not have any right to transfer the debuttar estate but executed a Will in favour of her daughter Susama. Susama died thereafter, leaving behind her daughter Sabita, who sold the suit property to the defendants/opposite party no. 2 in each of the suits/revisions.
8. Accordingly, challenging the said deeds of sale and seeking a declaration that the property is a debuttar, Ajit Kumar Ghosh filed the present two suits as shebait of the deity. In the said suits, on the death of the original plaintiff Ajit Kumar Ghosh, the present opposite party nos. 1(a) and 1(b) took out applications under Order XXII Rule 3, read with Section 151, of the Code of Civil Procedure (hereinafter referred to as "the Code") for being substituted as heirs of the said deceased. The applications were opposed by the defendant no.2/petitioner. In Title Suit No. 13 of 2008 (subsequently renumbered as Title Suit No. 11063 of 2014), the application was allowed. A challenge was preferred by the petitioner against the same before this court, when a co-ordinate bench, in C.O. No. 3008 of 2012, set aside the impugned order, substituting the petitioner as a legal heir of the deceased plaintiff/shebait. Learned Single Judge directed the trial court to proceed with the matter suo moto by giving opportunity to the parties to take steps under Order XXII Rule 5 of the Code, which, if taken out, would be decided in accordance with law.
9. The application under Order XXII Rule 3 of the Code was not pressed in the other suit, bearing Title Suit No. 57 of 2007 (renumbered as Title Suit No. 246 of 2016). In both the suits, the opposite party nos. 1(a) and 1(b) filed applications under Order XXII Rule 5 of the Code.
10. The trial court, in both the matters, rejected the applications under Order XXII Rule 5, recording that there was no legal representative on the demise of the plaintiff and the suits stood abated.
11. A challenge being preferred against such order by way of appeals, the appellate court reversed the order of the trial court passed in each of the suits and allowed the applications under Order XXII Rule 5 of the Code. The orders
