SUKUMAR BOSE Vs. ABANI KUMAR HALDAR

JUDGEMENT

(1.) This appeal raises an important question of Hindu Law. In Konwur Doorganath Roy v. Ram Chunder Sen, 4 Ind App 52 (PC) (A) their Lordships made an observation in these words:

(2.) The question has been raised in the present appeal whether this observation that "in the case of a family idol, the consensus of the whole family might give the estate another direction", is binding authority for holding that an absolute debutter property of a family idol can be made secular by the members of the family agreeing to do so. The plaintiffs brought the present suit for declaration of their title & for delivery of possession of certain lands on the basis of a lease by the descendants of one Akshoy Kumar Haldar. The defendants contend that this was absolute debutter property of the idol Abhoya Thakurani & so the descendants of Akshoy, who was one of the Shebaits, could not give any valid title to the plaintiffs by giving lease on the representation that the property was their own secular property. Another defence which was canvassed in the Courts below was that the transfer was invalid inasmuch as it offended against the terms of the document of family arrangement in regard to this property.

(3.) Both the Courts held that the property, though originally absolute debutter property of a private debutter of the family idol Abhoya Thakurani, was made secular by the consensus of the whole family. While the trial Court, held, however, that the restriction against transfer contained in the solenama was void, the learned Subordinate Judge held that this restriction was valid in law and as the transfer by Akshoy's heirs offended against this restriction, no title passed thereby. The learned Subordinate Judge who heard the appeal accordingly set aside the order of the learned Munsif, decreeing the suit, and dismissed the suit.