GAURI SHANKERJI DEITY Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS first appeal by the plaintiffs is directed against the decree passed by the District Judge, Raigarh, dismissing their suit for declaration that certain house property belongs to the deity, Shri Gauri Shankerji, and is, therefore, not liable for attachment and sale for recovery of the income-tax and other dues against the HUF of late Paluram Dhanania of Raigarh in the State of Madhya Pradesh.

(2.) SETH Paluram Dhanania was the karta of an HUF consisting of himself and his sons. He had extensive business and owned considerable movable and immovable properties. This property included a bungalow styled as "Sewa Kunj" and also ten other adjoining houses in Raigarh said to have been acquired under the sale deed, dated November 23, 1941, (Ex. D-35), wherein Paluram and his son, Baijnath, are shown as purchasers. Paluram's father and uncle were respectable persons of the society and were also businessmen. They had a house at Raigarh and lived and traded jointly. Paluram created a temple within the house situate in the premises "Sewa Kunj" and installed his family deity of Shri Gauri Shankerji in the said temple. By a registered deed of endowment dated August 6, 1953, (Ex. P-1), he purported to dedicate to the said deity of Shri Gauri Shankerji all the house property including the garden and out houses in the premises "Sewa Kunj". The purpose of this dedication is shown in the deed of endowment to be the maintenance of the temple and meeting out the necessary expenses of worship of the "deity. The property is described as Paluram's self-acquired property. Under this deed, Paluram appointed himself as first shebait. The deed further envisages that on the death of Paluram, his sons jointly, and thereafter, the descendants in the male line will succeed as shebaits and in the absence of male shebaits, the widow, and in absence of any such widow, some other person in his family only was to be the shebait. The income of the property so dedicated was directed to be applied for the maintenance and repair of the property and for payment of cess, nazul taxes and other outstandings and for the remuneration of the pujari and other servants. The remainder was to be applied for the daily worship of the deity. Yet by another deed of endowment, dated March 26, 1955, (Ex. P-2), Paluram for himself and as karta of the joint Hindu family, and for and on behalf of his heirs and successors, further purported to dedicate ten houses to that family deity and described himself as the sole and absolute owner of the property. The details of these houses are given in the schedule to Ex. P-2. These houses are occupied by tenants and fetch income. One or two of these houses are occupied by the I.T. Dept.

(3.) ON behalf of the plaintiffs-appellants, it was first argued that the lower court has gone wrong in holding that the property was not the self-acquired property of Paluram Dhanania. This contention, in our opinion is not sound. It is in the evidence of Bodhram Yadav (P.W. 3) that Paluram's father, Biharilal and uncle, Hardwarilal, possessed land and had a rice mill in Tarapur and were men of repute. Paluram had an ancestral house at Raigarh (Gopaldas Gupta, P.W. 5, para. 56, and Niranjanlal Sharma, P.W. 11, para. 25,). Paluram first started his career in Calcutta and then shifted to Raigarh, where he had ancestral property and business, which had already gained reputation. It appears that the business at Raigarh in the hands of Paluram soon expanded. Admittedly, Paluram's family remaind joint and the buriness was carried in different names. His sons associated themselves in that business. The suit property was acquired on November 23, 1941, under sale deed, Ex. D-35. The purchasers therein are Paluram and his joint son, Baij-nath. It is not the plaintiffs' case that Baijnath's name in the sale deed was included only benami. Thus, to begin with, the acquisition of the suit property is by Paluram and his joint son, Baijnath, and not by Paluram alone. It is true that mere existence of joint family will not lead to an inference that this property was joint nor will mere existence of some ancestral property and business permit inference that it was acquired out of that property or business unless it could be further shown that the said ancestral property/business yielded enough income out of which the property in question could be acquired. As there is no evidence of income of the ancestral property in the present case, it is not possible to draw any presumption that the suit property belonged to the joint family of Paluram. Evidence adduced in the case along shall be decisive. Niranjanlal Sharma (P.W. 1), who had come to depose that the suit property was Paluram's self-acquired property, has clearly stated in paras. 12 and 13 of his deposition that he was unable to state the source of capital invested by Paluram in his business at Calcutta, as also at Raigarh. He could not say if Paluram acquired the suit property out of the income derived from his business.