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CALCUTTA HIGH COURT
Rankin, C.J, Costello, J.
Surendrakrishna Roy - Appellant
Versus
Shree Shree Ishwar Bhubaneshwari Thakurani - Respondent
Decided On : 13-05-1932
Dedication - Hindu Idol - [Transfer of Property Act, 1882, Section 53A, Transfer of Property Act, 1882, Section 100, Limitation Act, 1908, Section 10, Limitation Act, 1908, Section 28, Limitation Act, 1908, Article 142, Limitation Act, 1908, Article 144] - The court examined the validity of a dedication of property to a Hindu idol, the termination of the dedication, and the application of the Limitation Act in determining the idol's right to recover the property. The court held that the dedication was valid, but not absolute, and that the idol was entitled to a charge for the upkeep, worship, and expenses of the idol. The court also held that the shebaits' possession of the property was not adverse to the idol, and that the idol's right to recover the property was not extinguished by the Limitation Act. The court's decision was based on the interpretation of the relevant legal provisions, including the Transfer of Property Act, 1882, and the Limitation Act, 1908.
Fact of the Case:
Two brothers dedicated certain properties to a Hindu deity in 1888. The dedication deed provided for the use of the income for the deity's worship and for the construction of tenanted houses for the benefit of the grantors' heirs. In 1902, the brothers' widow and son sued to set aside the dedication, alleging it was a fraudulent device. A consent decree was passed in 1904, dividing the property between the brothers and their son. The son, upon attaining majority, sued his brother for partition in 1918. The brother, in his defense, claimed that the properties were dedicated to the deity. The brother later mortgaged the properties in 1922 and 1924. After the brother's death, his son, on behalf of the deity, sued to establish title and possession of the properties.
Finding of the Court:
The court found that the dedication of the properties to the deity was valid, but not absolute. The court held that the idol was entitled to a charge for the upkeep, worship, and expenses of the idol. The court also found that the shebaits' possession of the property was not adverse to the idol, and that the idol's right to recover the property was not extinguished by the Limitation Act. The court held that the shebaits were not trustees of the deity, but managers or bailiffs, and that their possession was not adverse to the idol. The court also held that the son's possession of the property was adverse to the idol, and that the idol's right to recover the property was barred by the Limitation Act.
Issues: The main issues in the case were: (1) whether the dedication of the properties to the deity was valid; (2) whether the dedication was terminated by the consent decree of 1904; (3) whether the idol's right to recover the properties was barred by the Limitation Act; and (4) whether the shebaits' possession of the properties was adverse to the idol.
Ratio Decidendi: The court's decision was based on the following legal principles: (1) a dedication to a Hindu deity is valid if it is made for a religious or charitable purpose; (2) a dedication can be terminated by the consent of all the parties interested in the endowment; (3) the Limitation Act applies to suits by a Hindu deity to recover its property; (4) the possession of a shebait is not adverse to the idol unless it is shown to be hostile to the idol's title; and (5) the possession of a person who is not a shebait can be adverse to the idol if it is open, continuous, and exclusive.
Final Decision: The court allowed the appeal and set aside the decree of the lower court. The court declared that the idol was entitled to a charge for the upkeep, worship, and expenses of the idol in respect of the properties in suit, other than the thakurbarhi and shebait's house. The court also declared that the idol was entitled to one-half share in the thakurbarhi and shebait's house, the other half share belonging to Satya. The court restrained the mortgagees from selling or otherwise dealing with the properties mortgaged to them otherwise than subject to the charge in favour of the idol.
JUDGMENT
Rankin, C.J. - We have before us three appeals Nos. 23, 24 and 25 of 1931, by different parties-defendant in a suit brought by a Hindu deity on 22nd January 1929, for the purpose of establishing title and obtaining possession of, (a) four properties alleged to have been dedicated to the deity on 5th May 1888, and (b) certain mofussil properties alleged to have been purchased on behalf of the plaintiff deity by a conveyance, dated 5th April 1896. The plaintiff's claim in respect of one of the four properties comprised in the deed of 1888, namely, the property known as 45, Elliot Road was withdrawn at the trial and need not further concern us. The learned Judge, by his decree, dated 19th December 1930, has declared that the plaintiff is absolutely entitled to the other properties comprised in these two deeds free from all encumbrances. He has directed such of the defendants, as have been found by him to be in possession, to deliver up possession to the plaintiff and has given other forms of relief to the plaintiff as against mortgagee-defendants not in possession, He has directed, as against Brajanath De, that an account of mesne profits be taken. The other reliefs need not be mentioned here.
2. In Appeal No. 23, the appellant is Brajanath De, who, with his brother Rakhalchandra De, was a grantor of the deed of 5th May 1888, by which he was declared to be a shebait of the plaintiff deity. In Appeal No. 24, the appellant is Satyacharan De, the younger son of Rakhal. Satya appears to have been born in February, 1899. He is the son of Rakhal, by his second wife, whose name is Sreemati Thakamani Dasee. Appeal No. 25 is brought by two sets of mortgagees, who may be called the Ray defendants and the Mandal defendants, and who claim under mortgages made in. 1922 and 1924, respectively, by Pulinbihari De, the elder son of Rakhal. Pulin's estate is before the Court, it is represented by Mohini and Jamini, but we have already pointed out that Mohini should sue as plaintiff on his own account as well as on behalf of the idol and this amendment has without objection been ordered by us. By the deed of 1888, the two brothers Rakhal and Braja dedicated to the idol properties, which now may be regarded as four: (i) 30, Beniapukur Road, (ii) 46, 47 and 48, Phulbagan Road, (iii) 45, Elliot Road and (iv) 4, Royd Street.
3. Of these properties, though all are in the environs of Calcutta, only 4, Royd Street, is within the ordinary original civil jurisdiction of this Court. The deed provides that, out of the income to be produced from the properties, a sufficient sum is to be set aside for repairs; then that the sheba is to be performed in a manner therein set forth; that Government securities are to be purchased out of the surplus income left after meeting these expenses and that, when a sufficient sum has in this way been accumulated; the shebaits are to cause tenanted houses to be built on the dedicated land and that, out of the increased surplus, buildings are to be erected for the residence and habitation of the heirs of the grantors. The deed states that the value of the properties granted as debuttar is Rs. 47,050.
4. In 1892, Rakhal and Braja entered into a document, which shows that, at that time, they had a business which had not been dedicated to the idol; and, in 1895, this document was cancelled by another, which shows that the brothers possessed properties at 34 and 35 Beniapukur Road, another property in Hooghly and a shop in Wellesley Street. On 5th April 1896, Rakhal and Braja, on the narrative that the purchase price of Rs. 2,461-14-0 had been saved by the idol out of the debuttar property, executed a Bengali conveyance, selling their mofussil property, excluding their dwelling house, to the idol for this sum. Prima facie, in 1896, the brothers were still acting on the basis of the deed of 1888. Rakhal died in 1901. Braja is still alive and is a defendant in this suit. By his will, dated 29th July 1901, Rakhal appointed Pulin
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