SRI ANNAPURNA DEBI MATA THAKURANI, REPRESENTED BY DEBASHIS CHAKRABORTY Vs. SRI ANNAPURNA DEBI MATA THAKURANI, REPRESENTED BY SATYA BRATA CHAKRABARTY & ORS.

JUDGEMENT

(1.) This revisional application, at the instance of the plaintiff is directed against the order dated June 20, 2014 passed by the learned Civil Judge (Junior Division), 1st Court, Bankura in Title Suit No. 116 of 2010. By the impugned order, the learned Court below allowed the application filed by the heirs and legal representatives of the deceased defendant no. 3 to be substituted in the suit as the defendants.

(2.) The brief facts of the case, necessary to be considered for deciding the present revisional application are that the petitioner filed the suit, before the learned Court below against the opposite party nos. 1, 2, 4, 5 and the defendant no. 3, since deceased. In his plaint, it is the case of the petitioner that by a registered deed of Arpannama dated 2nd May, 1928, one Baikuntha Nath Chakraborty, since deceased (hereinafter referred to as"the settlor") dedicated his immovable landed properties situated both in the city of Kolkata and in the district of Bankura to the Deity, namely Sri Annapurna Debi Mata Thakurani, (hereinafter referred to as the"said Deity"), and appointed himself as the shebait of the said Deity. According to the petitioner, as per the said Arpannama, the settlor appointed himself as the shebait of the said Deity during his life time, after his death his three sons would be the shebaits and so long as they would remain joint, all the said three sons would act as shebaits and carry out the seba puja of the said Deity but, if the said three sons got themselves separated from each other, each of them would perform the seba puja by pala, that is, by turn for one year each. In his plaint, the petitioner alleged that the opposite party nos. 1, 2, 4, 5 and the original defendant no. 3 committed various illegal acts and omissions and rendered themselves to be removed from the shebaitship of the said Deity. On these allegations, in the suit the petitioner claimed a decree declaring the opposite party nos. 1, 2, 4,5 and the original defendant no. 3 have not performed their duties as enjoined under the said Deed of Arpannama, a decree for their removal from the shebaitship of the said Deity, as well as a decree directing them to render accounts for the period from April 01, 2008 to March 31, 2009. During the pendency of the suit, on Dec. 06, 2013 the original defendant no. 3, died intestate, leaving behind his wife and four daughters as his heirs and legal representatives, being opposite party nos. 3(a) to 3(e) of this application. Immediately after the death of the original defendant no. 3, on Dec. 09, 2013 the petitioner filed an application in the suit alleging that as per the said Deed of Arpannama, only the male heirs and legal representatives of a deceased shebait can become the shebait of the said Deity and since the defendant no. 3 had no son, his wife and daughters are not entitled to be shebaits of the said Deity and prayed for expunging the name of the original defendant no. 3. By order dated December 10, 2013 the learned Court below allowed the said application of the petitioner by directing that the name of deceased defendant no. 3 be expunged from the cause title of the plaint. On Feb. 19, 2014 the heirs and legal representatives of the deceased defendant no. 3 filed an application before the learned Court below for substituting themselves in the plaint, in place and stead of the deceased defendant no. 3. The petitioner contested the said application filed by the heirs and legal representatives of the deceased defendant no. 3. In the said application, it was the contention of the petitioner that in view of the order dated Dec. 09, 2013 passed by the learned Court below expunging the name of the deceased defendant no. 3 from the cause title of the plaint, the application of the heirs and legal representatives of the deceased defendant no. 3 was barred by the principle of res judicata. The petitioner further contended that in any event, as per the said Deed of Arpannama only the male heirs and legal representatives of any shebait of the said Deity are entitled to inherit shebaitship and the female heirs and legal representatives of the deceased defendant no. 3 have no locus standi to claim shebaitship of the said Deity. By order dated June 20, 2014 the learned Court below repelled both the said contentions raised by the petitioner and allowed the female heirs and legal representatives of the deceased defendant no. 3 to be substituted in the suit as the defendant nos. 3(a) to 3(e). The learned Court below held that the said order dated Dec. 09, 2013 did not decide any issue in the suit and, as such, the said application filed by the heirs and legal representatives of the deceased respondent no. 3 under Order 22, Rule 4 of the Code of Civil Procedure was not hit by the principle of res judicata. Relying on the decision of the Division Bench of this Court in the case of Siddheswar Das and Ors. Vs. Smt. Maya Das and Ors., reported in 2003 CWN 929, the learned Court below further held that shebaitship being a heritable property and in the absence of any clause in the said Deed of Arpannama prohibiting a female heir of a shebait to inherit the shebaitship of the Deity, the female heirs and legal representatives of the deceased defendant no. 3 are entitled to be substituted in place and stead of the deceased defendant no. 3. As mentioned earlier, it is the said order dated June 20, 2014 passed by the learned Court below, which is the subject matter of challenge in this revisional application.

(3.) Assailing the impugned order passed by the learned Court below Mr. Dilip Kumar Banerjee, learned Senior Advocate appearing on behalf of the petitioner, strenuously contended that from a reading of said registered deed of Arpannama executed by the said settlor dedicating the suit properties in favour of the said Deity, it is clear that after the death of the said settlor so long as his three sons would remain joint, they would remain the shebaits and in case of the said three sons separated themselves from each other, they ceased to be shebaits and each of them would become only a paladar, having a right to worship the Deity separately for one year each. According to Mr. Banerjee, in the present case, the petitioner and the defendants in the suit have failed to remain joint and, as such, they are not the shebaits of the said Deity and they became paladars of the said Deity. It was argued that the female heirs and legal representatives of the deceased defendant no. 3 cannot claim to be substituted in the suit in place and stead of the deceased defendant no. 3. In support of such contention, reliance was placed on behalf of the petitioner on the Single Bench decision of this Court in the case of Sm. Padmabati Dassi and Ors. Vs. Biswanath Dhar and Ors., reported in AIR 1976 Cal 344. In paragraph 5 of the said decision, Sabyasachi Mukharji, J (as His Lordship then was) held that shebaitship is property but pala of shebait or turn of worship is a right of peculiar nature. It was strenuously urged on behalf of the petitioner that the impugned order passed by the learned Court below allowing the heirs and legal representatives of the deceased respondent no. 3 to be substituted as defendant nos. 3(a) to 3(e) of the suit, is vitiated by patent illegality and, as such, this Court should set aside the same. The petitioner also urged that in view of the order dated Dec. 09, 2013 passed by the learned Court below, expunging the name of the original defendant no. 3 from the cause title of the plaint, the substitution application filed by the opposite party nos. 3(a) to 3(e) was hit by the principle of res judicata and the learned Court below fell into an error of law in allowing the heirs and legal representatives of the deceased defendant no. 3 to be substituted as defendants in the suit. It was the petitioner's last contention that in any event, the application filed by the opposite party nos. 3(a) to 3(e) for their substitution in the suit, in place and stead of the deceased defendant no. 3 was barred by limitation.