Agarwal & ANR Vs. Subarata Chandra & Damkrishna Dhara & Ors  INSC 822 (6
S.B. Sinha & Lokeshwar Singh Panta
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
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
3. Whether the property in question is a debuttor property is the issue
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
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 3 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.
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
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 5 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 6 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
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.
7 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,
"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, 8 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 9 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 10 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
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.
[S.B. Sinha] .....................................J.
[Lokeshwar Singh Panta] 11 New Delhi;