ORAMBA SUNDARI DASI Vs. ISHWAR GOPAL JIEU

JUDGEMENT

(1.) These two analogous appeals, which are between the same parties and involve the same points in dispute, are directed against a common judgment of a Division Bench of the Calcutta High Court dated 12-8-1948, by which the learned Judges affirmed, in appeal, the decision of the Subordinate Judge of Burdwan passed in two analogous proceeding under S. 36, Bengal Money Lenders Act. The fact material for our present purpose lie within a narrow compass and may be stated as follows: The principal respondents are certain idols, represented by their managing Shebit Ram Govinda Roy. The idols are the family deities of the Roys of Bonpash in the district of Burdwan, and the number of Shebaits being very large, there is a recognised usage in this family that the seniormost member amongst the descendants of the founder acts as the managing Shebait and it is he who manages the endowed properties and looks after the due performance of the worship of the idols. It is not disputed by the parties that it is within the competence of the managing Shebait to borrow money to meet the necessities of the idols and to execute such documents as may be necessary for that purpose. Admittedly Adwaita Charan Roy was the managing Shebait of the deities from 1926 to 1930 and as Shebait, he executed a Hatchita in favour of one Nanitosh Chakraborty some time in April 1928 on the basis of which he received advances of money from time to time from the latter. The last entry in the Hatchita was made in March 1929 and the total amount borrowed up to that date came up to Rs. 3,801/-. Adwaita died in March 1930 and after his death Satish Chandra Roy became the managing Shebait and continued to act as such till his death in 1940. There was an adjustment of accounts between Nanitosh, the creditor, in whose favour the Hatchita was executed, and Satish Chandra, the managing Shebait some time in October 1931 and a sum of Rs. 5,068/- having been found due to the creditor, Satish Chandra gave him a renewed Hatchita for that amount. It appears that while Adwaita was still the managing Shebait, a suit was instituted by some of his co-Shebait, to remove him from his office and pending the hearing of the suit, Ramjanki Roy, another co-Shebait, was appointed a Receiver of the debutter property by the court. With the permission of the court, Ramjanaki borrowed from the same Nanitosh Chakraborty three sums of money on three different promissory notes executed respectively on 27-9-1929, 1-10-1929 and 14-1-1930. The suit was eventually dismissed for non-prosecution after Adwaita's death. Nanitosh died in 1931, and in 1932, his two sons Aditya and Dhirendra, who figure as respondents 14 and 15 in these appeals, instituted two Money Suits against Satish Chandra, the managing Shebait, in the court of the Subordinate Judge, Burdwan, being Money Suits Nos. 261 and 262 of 1932 for recovery of the moneys due in respect of the Hatchita and the promissory notes mentioned aforesaid. Both the suits were decreed on the basis of a compromise dated 23-7-1933 and two consent decrees were passed, one for a sum of Rs. 5,800/- and the other Rs. 2,200/- both payable in sixteen yearly instalments, with a further stipulation that in default of payment of any one of the installment, the whole or balance of the decretal amount would become due and payable in each. The installments not having been paid in either of the cases, both the decrees were put into execution. In Execution Cases Nos. 76 and 77 of 1936, arising out of Money Suits Nos. 261 and 262 of 1932, the properties mentioned in Schedule Ka in each case were put up to sale and they were purchased ostensibly by two decree-holders Aditya and Dhiren . Three years later, Execution Cases Nos. 17 and 18 of 1939 were started again in connection with the said decrees and this time the properties specified in Schedule Kha were attached and put up to sale and they were also purchased by the Chakraborty decree holders. Finally, in the Execution Cases Nos. 163 of 1939 and 5 of 1940, the properties described in Schedule Ga were sold and they were knocked down to Srimati Oramba Sundari Dasi, who figures as the appellant in the appeals before us and who it may be noted, is the wife of Aghore Nath Roy, a son of Adwaita, the former managing Shebait of the debutter estate. Subsequently, the decree-holders, who purchased Ka and Kha Schedule properties sold them by a registered Kobala to the said Oramba Sundari Dasi on 26-7-1940. The result, therefore, was that the properties described in the three Schedules came to vest in Oramba Sundari, the wife of Aghore Nath Roy. On 28-8-1941, the deities represented by some of the Shebaits filed two applications under S. 36(6)(a)(ii), Bengal Money-Lenders act, praying for the reopening of the two compromise decrees mentioned aforesaid and the passing of new instalment decrees in accordance with the provisions of the Act. There were prayers also for restoration to the deities of all the properties mentioned in Schedule Ka, Kha and Ga which were purchased in execution of the decrees. The principal opposite parties to these proceedings were the Chakraborty decree-holders, Oramba Sundari, the ostensible purchaser, and Aghore Nath Roy, her husband.

(2.) The allegations in the applications, in substance, were that the Chakrabortys were mere benamidars for Aghore Nath Roy, who was the real lender and the real decree-holder in both these suits. It was alleged that Aghore Nath Roy purchased these properties in the benami of the decree-holders in two out of the three execution proceedings and in the benami of his wife Oramba Sundari in the third. The subsequent Kobala executed by the Charabortys in favour of Oramba Sundari was also asserted to be a fictitious conveyance made in favour of Aghore Nath Roy in the name of his wife. In these circumstances, the judgment-debtors prayed that they were entitled to have the two compromise decrees reopened and on the passing of new installment decrees to have the properties which were in possession of the real decree-holders, restored to the deities in terms of S. 30(2)(c), Bengal Money-Lenders Act. The trial Judge decided in favour of the judgment-debtors and granted their prayers in both the applications. Orders were made for reopening of the decrees and making of fresh decrees in the place in accordance with the provisions of the Bengal Money-Lenders Act. Direction was also given for restoration of the properties mentioned in Schedules Ka, Kha and Ga to the deities under the provision of S. 36 (2) (c). Against this decision, Oramba Sundri took two appeals to the High Court of Calcutta and the learned Judges, who heard the appeals, affirmed the decision of the court below and dismissed both the appeals. Oramba Sundari has now come up in appeal to this court on the strength of a certificate given by the High Court under Ss. 109 (a) and 110 of the Civil P. C.

(3.) Mr. Chatterjee, who appeared in support of the appeals, has not challenged before us the findings of Act concurrently arrived at by the courts below, viz., that the appellant Oramba Sundari was a mere benamidar her husband Aghore in respect of the purchase of Ga Schedule properties in court sale and also that the Khobala executed by the Chakrabortys in her favour on 26-7-1940 was fictious transaction. The point, which he has pressed for our consideration, is that in a proceeding under S. 36, Bengal Money-Lenders Act, it is not open to the court to go behind the decree and launch an enquiry as to whether the decree-holders on record were in fact benamidars for another person. In other words, the contention is, that even if Aghore was proved to have advanced the money upon which the chakrabortys obtained the decrees, in reopening the decrees and in working out the rights of the parties in accordance with the provisions of the Bengal Money-Lenders Act, the court could treat the Chakrabortys alone as the decree-holders For a proper determination of this point, it is necessary to examine the scope of S. 36, Bengal Money-Lenders Act and the reliefs which the court is competent to grant in terms of that Section.