RAJAT ROY CHOUDHURI Vs. RESHMI MUKHERJEE

JUDGEMENT

(1.) This is an application under Section 7 of the Charitable and Religious Trusts Act, 1920 (hereinafter referred to as the Act of 1920) in the matter of Shri Shri Iswar Shiv Thakur Trust presently having its office at 1A, Raja Subodh Mullick Square, Kolkata 700013 within the jurisdiction of this Court. By a registered deed of dedication dated July 2, 1952 (hereinafter referred to as the deed of dedication) the settlor Smt. Pramila Bala Roy Choudhuri dedicated a plot of land situated in the then District of 24-parganas, at Cossipore, Dum Dum (hereinafter referred to as the debutter property) for construction of a temple of Shri Shri Iswar Shiv Thakur and daily seba puja of the deity as also to carry out the deity at the said temple and to celebrate various festivals. By the deed of dedication the settlor appointed herself and her husband, namely, Manmohan Roy Choudhuri as the first joint trustees and shebaits for performing the work of construction of the temple of Shri Shri Iswar Shiv Thakur (hereinafter referred to as the deity), to perform the daily puja of the deity and to celebrate various festivals. As per the deed of dedication on the death of one of the aforesaid trusteesshebaits, the surviving trusteeshebait would remain as the sole trusteeshebait during hisher lifetime and would perform the daily seba puja of the deity, celebrate the festivals and maintain the debutter estate. The original trustees did not have any son or daughter. The deed of dedication contemplated that if, the original trustees would adopt a son, the said adopted son, Shri Surendra Mohan Roy Choudhuri and the heirs in succession of his male line shall be the trusteesshebaits contemporaneously. It was expressly stated in the deed of dedication that female descendants shall not be entitled to become trustee or shebait of said the trust at any time or for any reason.

(2.) The settlor and her husband did not adopt any son and on their death, the said Surendra Mohan Roy Choudhuri became the sole trusteeshebait. On November 23, 1990 the said Surendra Mohan Roy Choudhuri died and thereafter, his son Upendra Nath Roy Choudhuri was appointed as the trustee of the said trust and shebait of the deity. The petitioner has stated that Surendra Mohan Roy Choudhuri had three sons, namely Upendra Nath Roy Choudhuri, Tapan Roy Choudhuri and Somendra Nath Roy Choudhuri. Upendra Nath Roy Choudhuri died on October 10, 2017 and Tapan Roy Choudhuri died on December 18, 2014. However, in the year 2002 Somendra Nath Roy Choudhuri along with his family left their permanent residence at Deshbandhunagar, Kolkata 700059 and thereafter, from 2006 the whereabouts of Somendra Nath Roy Choudhuri are not known. The petitioner made general diary of the local police station and has also caused advertisement being published in the Bengali and an English newspapers, but to no avail. The petitioner is the only son of late Upendra Nath Roy Choudhuri and Reshmi Mukherjee is her full sister. The only son of Late Tapan Roy Choudhuri is stated to have died on October 11, 2014. Late Tapan Roy Choudhuri also had a daughter, namely Sumana Roy Choudhuri. According to the petitioner, being the only male descendant in the family of the said husband of the settlor, he is the sole trustee of the said trust as well as the sole shebait of the deity. The petitioner has, however, submited that he is an Overseas Citizen of India and as such he is unable to devote sufficient time to perform the duties stipulated in the deed of dedication. The income of the trust is also derived from a high school namely, Pramila Memorial Education Trust (English Medium) which is also situated on the trust property. The monthly rent received from the said school is used to perform the daily seba puja of the said deity as well as for the purpose of holding the festivals of the said deity. It is emphasised that since the petitioner is not residing in India he is unable to perform the daily duties of the shebait of the said deity. The petitioner has, therefore, filed this application under the Charitable and Religious Trusts Act, 1920 (hereinafter referred to as the Act of 1920) seeking for a direction from this Court to amend and modify Clause 2 of the deed of dedication allowing the female descendants of the deceased husband of the settlor to become trusteesshebaits. It is further submitted by the petitioner that he be declared as to the managing trustee of the trust for the time being and in the event he does not intend to hold the office of the managing trustee or upon his death any one of the female descendants of the deceased husband of the settlor be allowed the become of the managing trustee to discharge the functions stipulated in the said deed of dedication.

(3.) Mr. Jayanta Kumar Mitra, learned senior counsel appearing in support of the application submitted that in the instant case, the petitioner has sought for the opinionadvice of this Court solely on the basis of the interpretation of Clause 2 of deed of dedication. According to him, the petitioner has not raised any dispute which requires adjudication by a suit on evidence and as such, this Court in exercise of power under Section 7 of the Act of 1920 can dispose of the application. In this connection, Mr. Mitra relied on the decision of a learned single Judge of this Court in the case of Sukhlal Chandanmull Karnani Trust and Anr. -vs- Shew Kumar Karnani and Ors. reported in AIR 1973 Cal 444. Relying on the Full Bench decision of this Court in the case of Manohar Mukherjee -vs- Bhupendranath Mukherjee reported in AIR 1932 Cal 791 and the Single Bench decision of this Court in the case of Raikishori Dassi -vs- Official Trustee of West Bengal and Ors. reported in AIR 1960 Cal 235 Mr. Mitra further submitted that it is well settled law that when a property is dedicated by the settlor in favour of a deity although the property vests in the deity, but it is the shebait who has the right to manage the affairs of deity and the property dedicated to it. The right of a shebait to carry out the seba puja of the deity and to manage the property dedicated to the deity is a right to be governed by the law of succession of a Hindu. Relying on the said decisions it was argued for the petitioner that clause 2 of the deed of dedication, insofar as the same stipulated that the female descendants shall not be entitled to become the trustee or shebait at any time or for any reason is void being violative of the Hindu Law of Succession. It was, therefore, vehemently urged by the petitioner that this Court would pass appropriate direction in this application allowing his full sister, Reshmi Mukherjee, who is impleaded as the respondent to act as a trusteeshebait to perform the duties of the trusteeshebait of the said deity as stipulated in the deed of dedication.