ANADI NATH NANDI Vs. GOPAL CHANDRA NANDI

JUDGEMENT

(1.) THIS appeal at the instance of the defendant no. 1 arises out of a suit filed by the plaintiff against the defendant no 1. and others for declaration of title of the deity in respect of the suit property and recovery of possession and for permanent injunction. The plaintiff's case was that the suit land was absolute debutter of the family deity of the plaintiff and defendants nos. 1 and 3 to 10 Plaintiff's father Suresh became a shebaiti of the deity after the death of his grandfather bepin and as shebaiti he possessed the suit lands. In 1343 B. S. Suresh became insane and he died on 29th of Baisakh, 1354 B. S. and after his father's death the plaintiff became a sebait of the deity ; but he was a minor when his father died. After attaining majority when the plaintiff went to exercise acts of possession in the suit lands the defendant no. 1 disclosed that he had purchased the suit land by a kobala from Suresh on the 10th of Ashar, 1347 B. S, it is alleged that the kobala was obtained by defendant no. 1 by practising fraud, misrepresentation and undue influence on Suresh who was insane when the kobala was made. There was no legal necessity for the sale and the deity was not benefited. Defendant no. 1 leased out a portion of the suit lands to defendant no. 2, but that transfer was also not for legal necessity and so it was not binding on the deity and the plaintiff is therefore entitled to get back possession of the suit lands.

(2.) THE defendants nos. 1 and 2 contested the suit. Their defence was that Suresh was not insane. The suit lands were not absolute debuttar. They are only nominal or family debuttar. Suresh transferred the suit lands to the defendant no. 1 for legal necessity of the deity and the defendant no. 1 did not obtain the kobala by any unfair means and the defendant no. 1 leased out a portion of the suit lands to defendant no. 2 for legal necessity of the deity. The suit was barred by limitation as the plaintiff attained majority more than three years before the filing of the suit. The defendants nos. 3 to 5 in a written statement supported the contesting defendants.

(3.) BOTH the courts below held that the property is absolute debutter and not secular property of the party. The courts below further held that the suit was not barred by limitation under Article 142 of the Limitation Act and transfer of the property to the defendant no. 1 was not for legal necessity. The appellate court also held in favour of the plaintiff holding inter alia that the transfer was not for legal necessity of the deity. Secondly, the property was absolute debuttar and thirdly, the suit was not barred by limitation and fourthly, the defendant's kobala was not obtained by misrepresentation or fraud.