ISWAR MADAN MOHUN JIEW Vs. PRIYAMONI DASI

JUDGEMENT

(1.) This is an appeal by the defendant against a judgment and decree of reversal decreeing the suit. The suit was instituted by Smt. Priyamoni Dasi for the deity Iswar Madan Mohan Jew Thakur for possession in her shebaiti right of the suit lands on removal of the defendant from the office of the shebait of the deity. The plaint case in that deity was the family deity of the plaintiff since the time of her ancestor. The properties in suit were gifted over by the owner Satrughana, an ancestor of the plaintiff, to her husband, by a deed of gift dated Agrahayana 25, 1298 B.S. for meeting the expenses of sebapuja of the deity and thereupon he was put in possession of the properties. The plaintiff's husband died leaving the plaintiff as his only heir and legal representative and she came in possession of the properties. Thereafter she had been carrying on the sebapuja of the deity out of the usufructs of the said properties as shebati of the deity. By a deed of gift dated March 9, 1921 (Ext. 4), a co-sharer of the plaintiff made a gift of some other properties to the plaintiff as such shebait for the performance of the sebapuja of the deity out of the income of such properties. By a third deed of gift dated September 24, 1921 (Ext. 5) certain other properties were gifted the plaintiff as shebait of the said deity with directions on her to perform the sebapuja out of the income thereof. The plaintiff since had been regularly carrying on the sebapuja as such shebait out of the income of the said properties. She was a childless woman and in advanced age and was attacked with various ailments. She engaged the defendant for the purpose of carrying on shebapuja property and by a deed of gift dated September 4, 1926 (Ext. A), she transferred the said properties to the defendant as shebait of the said deity. The deed contained certain conditions so that the sebapuja of the deity could be carried on properly by the defendant whom she knew to be pious Brahmin. The conditions of the gift were that the entire income of the properties so gifted would be utilized for the sebapuja and for no other purpose. The deity would not be removed from the house of the plaintiff at any time and if it is so done the deed of gift would be invalid. The defendant and after him has male decendants thereby were made the shebait of the deity and given power to receive and realise rent mutating their names in the landlord's office. The defendant was also required to reside in the bastu land comprised within the land so transferred and was not entitled to live elsewhere. There were also further directions for observing Rus festivals as also other festivals. The plaintiff come to learn that the defendant had been negligent in the performance of the sebapuja. He did not reside in the bastu land of the plaintiff and also caused the structure therefrom to be destroyed by his negligence and had also removed the deity from its original temple. The defendant had been treating the debuttar lands as secular properties and also had been misappropriating the paddy and other crops of the gifted lands. For misappropriating the debuttar lands permanently the defendant got recorded in the settlement proceedings his own personal name in respect of most of the debutter lands. For all these and other reasons, the defendant had proved himself unfit to remain as shebait of the deity and it is necessary to remove him from that office in the interest of the deity. Accordingly the suit was instituted for recovery of possession as shebiat of the lands described in schedule Ka for lands which did not vest in the state, on removal of the defendant from office of shebait upon the finding that he was unfit to be the shebait of the deity. This suit was instituted on November 13, 1964.

(2.) The suit was contested by the defendant who filed a written statement denying all material allegations in the plaint. It was stated that the properties were not debuttar properties and never belonged to the deity nor was the plaintiff a shebait as alleged and accordingly the plaintiff had no locus standi to institute the suit. It was further stated that the properties were all through treated as the personal properties of the plaintiff as would also appear from the deed of gift. The defendant contended that the properties were the personal properties of the plaintiff Priyamoni, charged with debaseva only and were transferred to him as such and accordingly, the question of his removal did not arise. There was never any dedication of the properties of the deity and the defendant had been in occupation of the gifted properties in due compliance of sebapuja as required by the deed of gift. It was further stated that no part of income of such properties was ever spent for his personal benefit, and, on the contrary, the entire income of usufructs of the lands were spent for sebapuja in accordance with the directions of the deed. It was further stated that the deed was not a conditional gift but the provisions thereof were merely directory. The defendant further stated that in the district settlement, the suit properties were recorded in the personal name of the plaintiff and they were mutated in his own name in the current settlement as the properties never belonged to the deity nor was the defendant a shebait. Though in respect of the khatian No. 277 it was noted that the usufructs of the properties wee used for debaseva, such recording was not necessary. As to the allegations about the removal of the deity, it was stated that as the temple of temporary structure fell down in the cyclone of 1349 B.S. in spite of the repairs, the deity was removed to adjoining pucca bastu and the sebapuja and festival were all through being carried on regularly without interruption. The defendant alleged that this suit was instituted at the instant of interested parties and there was a further objection that the suit was barred by limitation.

(3.) On a trial on evidence before the learned Subordinate Judge, it was held that the suit properties were absolute debuttar properties for which no document was necessary, and not secular properties as claimed by the defendant and even though the plaintiff conveyed the suit properties to the defendant in her personal capacity the same would not change the nature and character of the properties. It was also held that the defendant could not follow the terms of the gift when the removed the deity elsewhere as the original temple fell down and also himself resided outside the gifted bastu as there was no existence of the plaintiff's husband. It was also held that there was no appropriate evidence to hold that the defendant did not duly perform the sebapuja of the deity nor there was any violation of the provisions of the deed. In absence of proof of the defendant's default, the suit was bound to fail. There was a further case by the plaintiff during hearing that the deed of was a document but the learned Judge did not allow the plaintiff to make a case a different from the plaint during hearing. The learned Judge also held that though the right of management as a shebait could not be transferred, in absence of a specific case the defendant could not make out a case of acquisition by adverse possession of the shebait right. It was further held that the suit was not maintainable in the present form by the plaintiff as shebait if she relied on the deed of gift and it was doubtful whether the plaintiff could be allowed to sue in the capacity of a shebait of the deity. Further anamoly was noticed as the suit in effect was by the deity against itself. In view that was taken, the suit was dismissed.