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CASE NO.: Appeal (civil)  3319 of 2008

PETITIONER: Sitaram Agarwal & Anr

RESPONDENT: Subarata Chandra & Damkrishna Dhara & Ors

DATE OF JUDGMENT: 06/05/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: JUDGMENT

                                                         REPORTABLE

                 IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NO.        3319      OF 2008                   (Arising out of SLP (C) No.9768 of 2005)

Sitaram Agarwal & Anr.                                  ... Appellants

                                 Versus

Subarata Chandra & Damkrishna Dhara & Ors.              ... Respondents

                            JUDGMENT

S.B. Sinha, J.

1.    Leave granted.

2.    This petition is directed against a judgment and order dated 16.2.2005

passed by a Division Bench of the Calcutta High Court whereby and

whereunder the second appeal filed by the appellant herein from a judgment

and order dated 30.7.2004 passed by the Additional District Judge, 3rd

Court, Suri, Birbhum was dismissed.

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3.    Whether the property in question is a debuttor property is the issue

involved herein.

4.    Indisputably, it belonged to Badal Das and Balaram Das. They, by

reason of a registered deed of sale dated 3.5.1954 transferred their right,

title and interest in favour of one Amar Chandra Dhara. He purchased the

said property as a sebait of a deity Sri Sri Durgamata Thakurani. The said

Amar Chandra Dhara in turn sold 2.31 acres of land in favour of the

appellant No.2 and the remaining 22 cents of land in favour of the appellant

No.1 by two deeds of sale 14.5.1963.

5.    Second Appellant instituted a suit being Title Suit No.130 of 1964 in

the court of Munsif, Dubrajpur against the said Amar Chandra Dhara for a

declaration that the suit property was not a debottar one. It was decreed ex

parte in his favour.     Amar Chandra Dhara did not contest the suit.

Respondents herein, however, who were sons and daughters of the said

Amar Chandra Dhara, filed a suit contending that the property in question

being a Debottar property, Amar Chandra Dhara could not have executed

the said deeds of sale dated 14.5.1963.

     The suit was dismissed by the Civil Judge (Junior Division),

Dubrajpur holding that the property was purchased by Amar Chandra Dhara

from his own funds and that plaintiffs have no locus standi to institute the

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suit as Amar Chandra Dhara was alive. It was opined that there exists a

distinction between a deed of dedication and a deed of sale.

6.    Respondents herein preferred an appeal thereagainst. By reason of a

judgment and order dated 30.7.2003, the Additional District Judge, Suri,

Birbhum allowed the said appeal opining that the said deed of sale dated

3.5.1954 was executed in favour of the deity and Amar Chandra Dhara was

merely a sebait. The deity Sri Sri Durgamata Thakurani was in existence

and in that view of the matter, the property was purchased in its name.

7.    The High Court, by reason of the impugned judgment dated 16.2.205,

as noticed hereinbefore, dismissed the second appeal.

8.    Mr. Majumdar, learned counsel, in support of the appeal, would

submit that the High Court committed a serious error in passing the

impugned judgment insofar as it failed to take into consideration that the

learned District Judge wrongly opined that the said deed of sale dated

3.5.1954 was in effect and substance a Benami transaction although the

Benami Transactions Prohibition Act had no application in relation thereto.

It was urged that from a perusal of the deed of sale dated 3.5.1954, it would

appear that the dedication was not complete and, thus, it was open to the

said Amar Chandra Dhara to alienate the property, particularly when it was

alienable in terms of the deed of sale itself.

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9.    Mr. Abhijit Sengupta, learned counsel appearing on behalf of the

respondent, on the other hand, would support the impugned judgment.

10.   The deed of sale was executed in favour of Sri Sri Durgamata

Thakurani through its sebait. There is nothing in the said deed of sale to

show that Amar Chandra Dhara intended to purchase the said property for

his own benefit. The very fact that the deed of sale was executed not only

in the name of deity but in the presence of other villagers clearly goes to

show the intention of the said purchaser.

11.   Submission of the learned counsel that by reason of the said deed of

sale, the vendee acquired the right to transfer the same which would indicate

that the property was not a debottar property, in our opinion, is wholly

misconceived. Such a power of alienation, in terms of the provisions of the

Transfer of Property Act need not even be conferred; it is inherent. While

executing a deed of sale what is essential is transfer of the interest of the

vendor in favour of the vendee.         How the vendee shall deal with the

property is not the concern of the vendor. If the vendee, for one reason or

the other, cannot make any alienation of the property by reason of any

provision of any statute or otherwise, such a restricted right cannot be

overcome at the instance of what would be necessary for determination of

issue in the ascertainment of interest on the part of Amar Chandra Dhara at

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the relevant time. How the deity was installed is not known. Whether other

properties had been dedicated in its favour is also not known. On what

basis Amar Chandra Dhara was appointed as a shebait is also not known.

     Reliance has been placed by the learned counsel on Maharanee

Brojosoondery Debea v. Ranee Luchmee Koonwaree & Ors. [1873 (XX)

Weekly Reporter 95]. The said decision arose out of a judgment and order

passed by the High Court of Judicature at Fort William in Bengal which

decision is reported in [1869 (XI) WLR 13]. The question which arose for

consideration before the Calcutta High Court and the Privy Council was as

to whether the idol was set up for the benefit of public worship. In the facts

of the said case, the answer to the said question was rendered in the

negative, stating :

            "But the question is whether there is any evidence              of an endowment properly so called. Now what is              the evidence of an endowment? This was clearly              not an endowment for the benefit of the public.              The idol was not set up for the benefit of the              public worship. There are no priests appointed, no              Brahmins who have any legal interest whatever in              the fund. It is not like a temple endowed for the              support of Brahmins, for the purpose of              performing religious service for the benefit of any              Hindoo who might please to go there. It is simply              an idol set up by the Maharajah, apparently in his              own house, and for what purpose? Why, for his              own worship. We constantly have suits claiming              certain turns of worship, but here there is no turn              or right of worship established. There is nothing

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            stated in any way to show that the Maharajah              intended that the idol should be kept up for the              benefit of his heirs in perpetuity; and before it can              be established that lands have been endowed in              perpetuity, so that they can never be sold and must              be tied up in perpetuity, some clear evidence of an              endowment must be given. What are the objects              of the endowment? None of the essentials of an              endowment are stated. The Maharajah appears to              have purchased the property in the name of the              idol, and that is all. Then he deals with the funds              of the idol as if it were his own property. There is              no evidence at all of any of the essentials of an              endowment in favour of the idol."

     No such case was pleaded. No evidence in this regard was led.

     Each case, therefore, has to be considered on its own merits.

12.   In that case, Calcutta High Court noticed that the question as to

whether Maharaja Govindnath Roy knew that the properties stood in the

name of the idol was itself decisive of the fact as to who was the real

purchaser and who was the beneficiary. The High Court itself held that the

question was one of fact.

13.   In this case, the appellants did not adduce any evidence as to how the

property has been dealt with. There is nothing on record to show that the

endowment was merely nominal. Whether the conduct of the parties was

consistent with the setting up of a genuine trust or not is not known.

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     In this case, apparently, the records of rights clearly showed that it

was mutated in the name of the deity. The very fact that the purchasers

thought it necessary to file a suit as against their vendor is itself a pointer to

show that the said suit was a collusive one. Neither the deity was impleaded

as a party therein nor the State of West Bengal was. On what basis the entry

in the record of rights was made in the name of the deity is not known. The

correctness of the said entry might have been the basis for this suit but why

the deity was not impleaded as a party is not known.

14.   Reliance has also been placed by the learned counsel on S.

Shanmugam Pillai & Ors. v. K. Shanmugam Pillai & Ors. [(1973) 2 SCC

312]. This Court, therein, clearly held that the question as to whether the

dedication of a property was complete or partial is a question of fact,

stating:

            "Whether or not a dedication is complete would              naturally be a question of fact to be determined in              each case on the terms of the relevant document if              the dedication in question was made under a              document. In such a case, it is always a matter of              ascertaining the true intention of the parties, it is              obvious that such an intention must be gathered on              a fair and reasonable construction of the document              considered as a whole. If the income of the              property is substantially intended to be used for              the purpose of a charity and only an insignificant              and minor portion of it is allowed to be used for              the maintenance of the worshipper or the manager,

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           it may be possible to take the view that dedication             is complete."

15.   Our attention has also been drawn to a decision of this Court in Ram

Jankijee Deities & Ors. v. State of Bihar and Ors. [(1999) 5 SCC 50],

wherein it was opined :

           "In the conception of Debutter, two essential ideas             are required to be performed: in the first place, the             property which is dedicated to the deity vests in an             ideal sense in the deity itself as a juristic person             and in the second place, the personality of the idol             being linked up with the natural personality of the             shebait, being the manager or being the             Dharamkarta and who is entrusted with the             custody of the idol and who is responsible             otherwise for preservation of the property of the             idol. The Deva Pratistha Tatwa of Raghunandan             and Matsya and Devi Puranas though may not be             uniform in their description as to how pratistha or             consecration of image does take place but it is             customary that the image is first carried to the             snan mandap and thereafter the founder utters the             sankalpa mantra and upon completion thereof the             image is given a bath with holy water, ghee, dahi,             honey and rose water and thereafter the oblation to             the sacred fire by which the pran pratistha takes             place and the eternal spirit is infused in that             particular idol and the image is then taken to the             temple itself and the same is thereafter formally             dedicated to the deity. A simple piece of wood or             stone may become the image or idol and divinity is             attributed to the same. As noticed above, it is             formless, shapeless but it is the human concept of             a particular divine existence which gives it the             shape, the size and the colour. While it is true that             the learned Single Judge has quoted some eminent

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            authors but in our view the same does not however              lend any assistance to the matter in issue and the              principles of Hindu law seem to have been totally              misread by the learned Single Judge."

16.   In that case, the question arose as to whether a deity should be

allotted separate units in terms of the Bihar Land Reforms (Fixation of

Ceiling Area and Acquisition of Surplus Land) Act, 1961. Keeping in view

the existence of the deity, this Court held that such units should be allotted.

17.   As noticed hereinbefore that in this case, no evidence has been

adduced to show as to whether the income of the said property was

substantially intended to be used for the purpose of charity or for the

personal benefit of Amar Chandra Dhara.            The positive case of the

appellants only was that name of Sri Sri Durgamata Thakurani was written

in the deed of sale by mistake. The onus was on them to prove the same. A

finding of fact was arrived at by the court of first appeal that the deity was

in existence. The plea of the appellant that the deity was not in existence

was clearly negatived. Appellants did not examine the said Amar Chandra

Dhara.    If the appellant raised a contention that the transaction was

‘Benami’ in character, it was for them to prove the same.

18.   Furthermore, the questions which have been raised before us have not

been raised before the High Court. No substantial question of law, as

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propounded before us, had been formulated in the Memo of Appeal. Even

no substantial question of law in precise terms has been taken in the Special

Leave Petition.

19.   In view of the finding of fact arrived at by the learned Court of First

Appeal which has been affirmed by the High Court, we see no reason to

take a different view. There is no merit in this appeal. It is dismissed

accordingly with costs.    Counsel’s fee assessed at Rs.25,000/- (Rupees

twenty five thousand only).

20.   However, on a query made by us, the learned counsel for the

respondent categorically stated the property which having since been

acquired under the Land Acquisition Act, the amount of compensation

payable therefor would be expended only towards the maintenance of the

deity. A copy of the judgment may be sent by the Registry to the Official

Trustee of the Calcutta High Court who may take necessary steps in that

behalf.

                                            .....................................J.                                                    [S.B. Sinha]

                                            .....................................J.                                                      [Lokeshwar Singh Panta]

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New Delhi; May 6, 2008