PARAS NATH THAKUR Vs. MOHANI DASI DECEASED ANA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and decree dated 27-4-1954, of the Orissa High Court, passed on second appeal, reversing the concurrent decisions of the courts below, dismissing the plaintiffs' suit instituted under the provisions of R. 63 of O. 21 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). The suit had been instituted by the respondents for a declaration that the deed of trust dated 15-12-1926, in favour of the first defendant, Paras Nath Thakur, installed in the Digamber Jain Temple, in the town of Cuttack in Orissa, was sham and fraudulent and had not been meant to be acted upon, and that the properties covered by the said deed of trust, belonged to the defendants 2 to 4, and were liable to be sold in execution of the decree obtained by the plaintiffs against the defendants-second party (defendants 2 to 4). The deity, the first defendant, was sued under the guardianship of the trustees.

(2.) The facts of this case, leading up to this appeal, in so far as they are necessary for the determination of this appeal, are as follows: The plaintiffs are the assignees of the mortgagee's interest in respect of a simple mortgage bond dated 14-4-1927, executed by the predecessors-in-interest of the defendants-second party aforesaid. The mortgagees instituted a suit in the court of the subordinate Judge at Cuttack to enforce the mortgage. They obtained a preliminary decree on 11-6-1935, which was made final on 13-10-1936. In due course, the mortgaged properties were sold and purchased by the decree-holders, but as the decretal dues were not satisfied by the sale of the mortgage properties, a money decree was obtained against the defendants 2 to 4 for Rs. 11,000 odd, on 29-4-1940. The disputed properties covered by the deed of trust aforesaid, had been attached before judgment, on 23-9-1934. When the decree-holder proceeded against the properties covered by the deed of trust, the defendant-first party, through the trustees, preferred a claim to the properties under R. 58 of O. 21 of the Code, claiming the properties as belonging to the deity and not to the judgment-debtors. The executing court, after holding an inquiry under the Code, passed an order in favour of the claimant. Hence, the plaintiffs instituted the suit under the provisions of R. 63 of O. 21 of the Code, alleging that the trust deed aforesaid, by virtue of which the claim had been allowed by the court, as aforesaid, was a sham and fraudulent transaction which did not convey any title to the property covered by the deed of trust and the subject-matter of the suit. The two courts of fact agreed in holding that there was an idol in fact, and that the deed of dedication was effective to transfer title from the donors to the donee, and that the donors, who were the predecessors-in-title of the defendants-second party, had completely divested themselves of any interest in the properties which were the subject-matter of the deed of trust. It was also found that the disputed properties did not belong to the family of the mortgagors, and that the deed of trust had been executed only with a view to putting the title to the property beyond all doubt or dispute. The plaintiffs, being unsuccessful in the first two courts, preferred a second appeal to the High Court of Judicature at Cuttack. The appeal was heard by a Division Bench, consisting of Panigrahi, C. J., and Narasimham, J. The judgment of the Court was delivered by the learned Chief Justice who set aside the decisions of the Courts below, and allowed the appeal with costs throughout. As the defendant-first party failed to obtain from the High Court the necessary leave to appeal to this Court, it moved this Court for special leave which was granted. Hence, this appeal.

(3.) It is manifest that the question to be determined by the High Court on the second appeal was essentially one of fact. That the High Court was cognizant of this aspect of the case appears from the following observation with which the decision of the High Court begins :