Supreme Court of India
SITARAM AGARWAL & ANR.versusSUBARATA CHANDRA & DAMKRISHNA DHARA & ORS.
- Citation
- 2008 INSC 599
- Decided
- 6 May 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Supreme Court upheld the finding that the property is a debutter and the deed of sale executed by the shebait in the deity’s name is valid, dismissing the appeal.
Summary
The father of the respondents purchased land as the shebait of the deity Sri Sri Durgamata Thakurani and later sold it to the appellants. The appellants sought to enforce the sale, while the respondents claimed the land was a debutter (charitable endowment) and that the shebait could not validly sell it. The trial court dismissed the respondents' suit, but the first appellate court held the property to be a debutter and the vendor merely a shebait; the Calcutta High Court affirmed this finding. The appellants appealed to the Supreme Court, arguing that the deed was a benami transaction and that the deity’s name was entered by mistake. The Supreme Court held that the deed was executed in the name of the deity, there was no evidence of a mistake or benami character, and the burden of proof lay on the appellants, which they failed to discharge. Consequently, the Court dismissed the appeal, upholding the lower courts' finding that the property is a debutter and the sale is valid.
Issues considered
- Whether the suit property is a debutter (charitable endowment) under Hindu law.
- Whether a shebait can validly execute a deed of sale in the name of the deity.
- Whether the deed of sale is a benami transaction or was entered by mistake.
- Who bears the burden of proof to establish that the sale is invalid or the deity’s name was a mistake.
Legislation cited
Subjects
Hindu lawdebuttercharitable endowmentshebaitbenami transactionburden of proofdeed of salereligious trustcivil appeal
Judgment
[2008] 7 S.C.R. 954
A SITARAM AGARWAL & ANR.
V.
SUBARATA CHANDRA & DAMKRISHNA OHARA & ORS.
(Civil Appeal No. 3319 of 2008)
MAY 6, 2008
B
(S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.)
Hindu Law:
Charitable endowment - Debutter property - Sale of by
c Shebait - Effect of - Property purchased by Shebait in name
of deity - Record of rights showing property to have been
mutated in the name of deity - Sale of by Shebait - HELD: ~
Finding of fact arrived by first appellate court that suit property
was a debutter one, and the same having been affirmed by
D High Court there is no reasons to take a different view- Burden
to prove that 'lame of deity was written in the sale dPed by
mistake and transaction was 'benami' in character was on the '
party claiming it - Questions raised before Supreme Court
were not raised before High Court - Evidence - Burden of
E proof - Constitution of India, 1950 - Article 136.
The suit property was purchased by the father of the
respondents as a Shebait of the deity. He sold the said
property to appellant nos. 1 and 2 under two separate
deeds of sale. Appellant No. 2 filed Suit No. 130 of 1964
F against the said Shebait for a declaration that the suit
property was not a debutter one. The suit was decreed ex
J
parte as the Shebait did not contest. The respondents,
who were sons and daughters of the Sheba it, filed another
suit contending that the suit property was a debutter
G property and the Shebait could not have executed the sale
deed. The suit was dismissed by the trial court holding
that the property was purchased by the said vendor from
his own funds and since he was alive, the plaintiffs had
no locus standi to file the suit. The first appellate court, "'
H 954
SITARAM AGARWAL & ANR v SUBARATA CHANDRA 955
& DAMKRISHNA OHARA & ORS
··' however, held the property as debutter and the vendor A
•-:.... as merely a Shebait. The second appeal of the vendees
having been dismissed, they filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1 The deed of sale was executed in favour B
of the deity through its Shebait. There is nothing in~the
said deed of sale to show that the Shebait intended to
purchase the said property for his own benefit. The very
fact that the deed of sale was executed not only in the
name of deity but in the presence of other villagers clearly. c
goes to show the intention of the said purchaser. The
records of rights clearly showed that the suit property
was mutated in the name of the deity. The very fact that
the purchasers thought it necessary to file a suit as against
- their vendor is itself a pointer to show· that the said suit
-
D
was a collusive one. Neither the deitY was impleaded
as a party therein nor the s'tate Gove-rnment. [para-10 and
13] {958-D,E, 960-E:,F]
Maharanee Brojosoondery Debea v
Ranee Luchmee
Koonwaree & Ors. 187~ (XX) Weekly Reporter 95 - E
distingLJ'fshed.
S. Shanmugam Pillai & Ors. v. K. Shanmugam Pillai &
Ors: (1973) 2 SCC 312 - referred to.
Ram ..mnkijee Deities·& Ors. v. State· of Biha·r and Ors. F
(1999) 5 sec 50 - held inapplicable.
1.2 No evidence. has been adduced to show as to
whether the income of the said property was substantially
intended to be used for the purpose of charity or for the
personal benefit of the Shebait. The positive case of the G
appellants only was that name of the·deity was written in
the deed of sale by-mistake. The onus was on them to
prove the same. A finding of fact was arrived at by the
>
:t.1 court of first appeal that the deity was in existence. The
plea of the appellant that the deity was not in existence H
956 SUPREME COURT REPORTS [2008] 7 S.C.R
.. ,
A was clearly negatived. Appellants did not examine the
Shebait. If the appellant raised a contention that the ~'
transaction was 'benami' in character, it was for them to
prove the same. [para 17] [962-D,E,F]
1.3 Furthermore, the questions which have been
B raised before this Court hava not been raised before the
High Court. No substantial question of law, as propounded
before this Court had been formulated in the Memo of
Appeal. Even no substantial question of law in precise
terms has been taken in the Special Leave Petition. In view
c of the finding of fact arrived at by the first appellate court
which has been affirmed by the High Court, there is no
reason to take a different view. There is no merit in the
appeal. [para 18 and 19] [962-G, 963-A]
-
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3319
D
of 2008.
From the Judgment and Order dated 16.2.2005 of the High
Court at Calcutta in S.A.T. No. 3600/2004.
Abrathous Majumdar, Abhisth Kumar, Archana Singh and
c
Vibhakar Mishra for the Appellants.
D. Bharat Kumar, M. lndrani, Abhijit Sengupta and Salish
Vig for the Respondents.
The Judgment of the Court was delivered by
F
S.B. SINHA, J. 1. Leave granted.
~
2. This petition is directed against a judgment and order
dated 16.2.2005 passed by a Division Bench of the Calcutta
High Court whereby and whereunder the second appeal filed
G by the appellant herein from a judgment and order dated
3~ 72004 passed by the Additional District Judge, 3rd Court,
Suri, Birbhum was dismissed.
3. Whether the property in question is a debuttor property ~ ,,.
is the issue involved herein.
H
SITARAMAGARWAL & ANR. v. SUBARATA CHANDRA 957
& DAMKRISHNA OHARA & ORS. [S.B. SINHA, J.]
4. Indisputably, it belonged to Badal Das and Bala ram Das. A
They, by reason of a registered deed of sale dated 3.5.1954
transferred their right, title and interest in favour of one Amar
Chandra Ohara. He purchased the said property as a sebait of
a deity Sri Sri Durgamata Thakurani. The said Amar Chandra
Ohara in turn sold 2.31 acres of land in favour of the appellant B
No.2 and the remaining 22 cents of land in favour of the appellant
"
No.1 by two deeds of sale 14.5.1963.
5. Second Appellant instituted a suit being Title Suit No.130
of 1964 in the court of Munsif, Dubrajpur against the said Amar
Chandra Ohara for a declarati.on that the suit property was not c
a debottar one. It was decreed ex parte in his favour. Amar
Chandra Ohara did not contest the suit. Respondents herein,
however, who were sons and daughters of the said Amar
Chandra Ohara, filed a suit contending that the property in
question being a Debottar property, Amar Chandra Ohara could D
not have executed the said ~eeds of sale dated 14.5.1963. ·
'
The suit was dismissed by the Civil Judge (Junior Division),
Dubrajpur holding that the property was purchased by Amar
Chandra Ohara from his own funds and that plaintiffs have no
locus standi to institute the suit as Amar Chandra Ohara was
E
alive. It was opined that there exists a distinction :~tween a
deed of dedication and a deed of sale.
6. Respondents herein preferred an appeal thereagainst.
By reason of a judgment and order dated 30.7.2003, the F
Additional District Judge, Suri, Birbhum allowed the said appeal
opining that the said deed of sale dated 3.5.1954 was executed
in favour of the deity and Amar Chandra Ohara was merely a
sebait. The deity Sri Sri Durgamata Thakurani was in existence
and in that view of the matter, the property was purchased in its G
name.
7. The High Court, by reason of the impugned judgment
) dated 16.2.205, as noticed hereinbefore, dismissed the second
appeal.
H
958 SUPREME COURT REPORTS [2008] 7 S.C.R
A 8. Mr. Majumdar, learned counsel, in support of the appeal,
would submit that the High Court committed a serious error in
passing the impugned judgment insofar as it failed to take into
consideration that the learned District Judge wrongly opined
that the said deed of sale dated 3.5.1954 was in effect and
B substance a Benami transaction although the Benami
Transactions Prohibition Act had no application in relation ,,
thereto. It was urged that from a perusal of the deed of sale
dated 3.5.1954, it would appear that the dedication was not
complete and, thus, it was open to the said Amar Chandra Ohara
c to alienate the property, particularly when it was alienable in terms
of the deed of sale itself.
9. Mr. Abhijit Sengupta, learned counsel appearing on
behalf of the respondent, on the other hand, would support the
impugned judgment.
0
10. The deed of sale was executed in favour of Sri Sri '
Du.rgamata Thakurani through it::; sebait. There is nothing in the
said deed of sale to show that Amar Chandra Ohara intended
to.purchase thl:l sald ptoperty for his own be~ent. Th.every fact
that·tl'1e deed qJ salf:! was executed notor:ily in the name of deity
E but in !lie presence of. other villagers clearly goes to show the
intention otthe said purch~ser. .
11. Subm1ssi~n of the .learned counsel that by reason of
the said de~d of sale, the vendee acquired the right to transfer
F the same which wbuld indicate that the property wa~ not a
debottar proper:ty, in our opjnion, is wholly misconceived. Such
a power -0falienation, in terms. of the provisions of the Transfer
of Property Act n~ed not even be conferred~ it is inherent. While
executing a deed of, sale what is essential is transfer of the
interestof the vendor in favour of the vendee, How the vendee
G
shall deal with the property is not the concern of the vendor. If
the vendee, for.one reason or the othe.r, cannot make any
alienation of the property by reason of any provision of any statute
or otherwise, such a restricted right cannot be overcome at the '
instance of what would be necessary for determination of :.ssue
H
SITARAM AGARWAL & ANR. v. SUBARATA CHANDRA 959
& DAMKRISHNA OHARA & ORS. [S.B. SINHA, J)
• in the ascertainment of interest on the part of Amar Chandra A
~hara at the relevant time. How the de"ity was installed is not
known. Whether other properties had been dedicated in its
favour is also not known. On what basis Amar Chandra Ohara
was appointed as a shebait is also not known.
Reliance has been placed by the learned counsel on 8
Maharanee Brojosoondery Debea v. Ranee Luchmee
Koonwaree & Ors. [1873 (XX) Weekly Reporter 95]. The said
decision arose out of a judgment and order passed by the High
Court of Judicature at Fort William in Bengal which decision is
reported in [1869 (XI) WLR 13]. The question which arose for C
consideration before the Calcutta High Court and the Privy
Council was as to whether the idol was set up for the benefit of
public worship. In the facts of the said case, the answer to the
said question was rendered in the negative, stating:
D
"But the question is whether there is any evidence of an
endowment properly so called. Now what is the evidence
of an endowment? This was clearly not an endowment for
the benefit of the public. The idol was not set up for the
benefit of the public worship. There are no priests
appointed, no Brahmtns who have any legal interest E
whatever in the fund. It is not like a temple endowed for the
support of Brahmins, for ·the purpose of performing
religious service for the benefit of any Hindoo who might
please to go there. It is simply arr idol set up by the
Maharajah,. apparently in his own house, and for what F
purpose? Why, for his own worship, We constantly have
suits claiming certain turns of worship, but ~re there is no
turn or right of worship established. There is nothing stated
in any way to snow tharth_e Maharajah intended that the
idol should be kept up for the benefit ·of his heirs in G
perpetuity; and before it c;m be established that lands
have been endowed ih perpetuity, so that they can never
be sold and must be tied up in perpetuity, some clear
evidence ofan endowment must be given. What are the
objects of the endowment? None of the essentials of an H
960 SUPRE1\lE COURT REPORTS [2003] 7 S.C.R
A endowment are stated. The Maharajah appears to have •
purchased the property in the name of the idol, and that is
all. Then he deals with the funds of the idol as if it were his
own property. There is no evidence at all of any of the
essentials of an endowment in favour of the idol."
B No such case was pleaded. No evidence in this regard
was led.
Each case, therefore, has to be considered on its own
merits.
c 12. In that case, Calcutta High Court noticed that the
question as to whether Maharaja Govindnath Roy knew that the
properties stood in the name of the idol was itself decisive of
the fact as to who was the real purchaser and who was the
beneficiary. The High Court itself held that the question was one
D of fact.
13. In this case, the appe1iants did not adduce any '
evidence as to how the property has been dealt with. There is
nothing on record to show that the endowment was merely
nominal. Whether the conduct of the parties was consistent with
E
the setting up of a genuine trust or not is not known.
In this case, apparently, the records of rights clearly
showed that it was lillutated in the name of the deity. The very
fact that the purchasers thought it necessary to file a suit as
F against their vendor is itself a pointer to show that the said suit
was a collusive one. Neither the deity was impleaded as a party
therein nor the State of West Bengal was. On what basis the
entry in the record of rights was made in the name of the deity is
not known. The correctness of the said ent ·y might have been
the basis for this suit but why the deity was not impleaded as a
G
party is not known.
14. Reliance has also been placed by the learned counsel
on S. Shanmugam Pillai & Ors. v. K. Shanmugam Pillai &
Ors. [(1973) 2 SCC 312]. This Court, therein, clearly held that
.
H the question as to whether the dedication of a property was
SITARAM AGARWAL & ANR. v. SUBARATA CHANDRA 961
& DAi'v1KRISHNA OHARA & ORS. [S.B. SINHA, J.]
complete or partial is a question of fact, stating A
"Whether or not a dedication is complete would naturally
be a question of fact to be determined in each case on the
terms of the relevant document if the dedication in question
was made under a document. In such a case, it is always
B
a matter of ascertaining the true intention of the parties, it
is obvious that such an intention must be gathered on a
fair and reasonable construction of the document
considered as a whole. If the income of the property is
substantially intended to be used for the purpose of a
charity and only an insignificant and minor portion of it is c
allowed to be used for the maintenance of the worshipper
or the manager, it may be possible to take the view that
dedication· is complete."
' 15. Our attention has also been drawn to a decision of this
D
Court in Ram Jankijee Deities & Ors. v State of Bihar and
Ors. [(1999) 5 SCC 50], wherein it was opined :
"In the conception of Debutter, two essential ideas are
required to be performed: in the first place, the property
which is dedicated to the deity vests in an ideal sense in E
the deity itself as a juristic person and in the second place,
the personality of the idol being linked up with the natural
personality ofthe shebait, being the manager or being the
~
Dharamkarta and who is entrusted with the custody of the
idol and who is responsible otherwise for preservation of F
the property of the idol. The Deva Pratistha Tatwa of
Raghunandan and Matsya and Devi Puranas though may
not be uniform in their description as to how pratistha or
consecration of image does take place but.it is customary
that the image is first carried to the snan mandap and
G
thereafter the founder utters the sankalpa mantra and upon
I;
completion thereof the image is given a bath with holy
water, ghee, dahi, honey and rose water and thereafter
the oblation to the sacred fire by which the pran pratistha
takes place and the eternal spirit is infused in that particular
H
962 SUPREME C©URT REPORTS [2008] 7 S.C.R.
A idol and the image is then taken to the temple itself and
the same is thereafter formally dedicated to the deity. A
simple piece of wood or stone may become the image or
idol and divinity is attributed to the same. As noticed above,
it is formless, shapeless but it is the human concept of a
B particular divine existence which gives it the shape, the
size and the colour. While it is true that the learned Single
Judge has quoted some eminent authors but in our view
the same does not hGwever lend any assistance to the
matter in issue and the principles of Hindu law seem to
c have been totally misread by the learned Single Judge."
16. In that case, the question arose as to whether a deity
should be allotted separate units in terms of the Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus
Land) Act, 1961. Keeping in view the existence of the deity, this
D Court held that such units should be allotted.
17. As noticed hereinbefore that in thi& case, no evidence
has been adduced to show as to whether the income of the
said property was substantially intended to be used for the
E purpose of charity or for the personal benefit of Amar Chandra
Ohara. The positive case of the appellants only was that name
of Sri Sri Durgamata Thakurani was written in the deed of sale
by mistake. The onus was on them to prove the same. A finding
of fact was arrived at by the court of first appeal that the deity
was in existence. The plea of the appellant that the deity was
F not in existence was clearly negatived. Appellants did not
examine the said Amar Chandra Ohara. If the appellant raised
a contention that the transaction was 'Benami' in character, it
was for them to prove the same.
G 18. Furthermore, the questions which have been raised
before us have not been raised before the High Court. No
substantial question of law, as propounded before us, had been
formulated in the Memo of Appeal. Even no substantial question
of law in precise terms has been taken in the Special Leave
Petition.
H
SITARAM AGARWAL & ANR v. SUBARATA CHANDRA 963
)'
& DAMKRISHNA OHARA & ORS. [S.B. SINHA, J.]
19. In view of the finding of fact arrived at by the learned A
Court of First Appeal which has been affirmed by the High Court,
we see no reason to take a different view. There is no merit in
this appeal: It is dismissed accordingly with costs. Counsel's
fee assessed at Rs.25,000/- (Rupees twenty five thousand only).
20. However, on a query made by us, the learned counsel 8
for the respondent categorically stated the property which having
since been acquired under the land Acquisition Act, the amount
of compensation payable therefor would be expended only
towards the maintenance of-the deity: A copy of the judgment
may be sent by the Registry to the Official Trustee of the Calcutta C
High Court who may take necessary steps in that behalf.
R.P. Appeal dismissed
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