# \ .,_ , JADU GOPAL CHAKRAVARTY (DEAD) AFTER HIM HIS LEGAL REPRESENTATIVES v. PANNALAL BHOWMICK AND ORS

- **Citation:** [1978] 3 S.C.R. 855
- **Court:** Supreme Court of India
- **Decided:** 1978-05-02
- **Bench:** R. S. Sarkaria, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jadu-gopal-chakravarty-dead-after-him-his-legal-representatives-v-pannalal-7447
- **Pages:** 22

## Headnote

855Construction of deed of settlen1ent where property dedicated is very large
and the religious ceren1onies cannot exhaust the entire income-Though the
prop.erty 1nay on the face of it to be an out and out dedication of the eiztire
property, but if the actual scrutiny reveals intention of the settlor to reserve
sorne for 1!te benefit for his family relations, the debuttar is partial-Powers of
lligh Court to scrutinise under section 103 of the Clvil Procedure Code.
One Indra Narayan Biswas executed a deed called "Declaration of Trust
Deed" on April 9, 1904 dedicating 26 items of his immovable property, mostly
houses and buildings situated in Calcutta and other places, to the family deity
Sree Sree lswar Lakshmi Janardan.
As per term 8, after his death Sarvashree
Abinash Chandra Bhowmick and Jogendra Nath Biswas were to be the joint
Sheba.its and trustees with equal rights.
On the same day, i.e. 9-4-1904 Indra
Narayan Biswas executed a will, bequeathing his movable and immovable properties to his relations, In, this will, he further provided that in case the deed
of Declaration of Trust fails, Abinash Chandra Bhowmick, his sister's son,
wonl<l gel the properties included in the said deed.
Indra Naravan Biswas died on 7-8-1905. Jogendra Nath Biswas predeceased
J1im.
Indra Narayan was survived by his sister's son,, Abinash Chandra
Bhowmick, and Bipin Bihari Bisv...·as and Girindra Biswas, both brothers
of
Jogendra Nath and sons of another brother of Indra Narayan. After the death
of Indra Narayan, Girindra, Bipin and Abinash executed on February 2, 1906
an Ekrarnama [deed of agreement Ex. 3J whereby it was agreed inter alia,
that the three executants and their respective heirs would be in equal rights
shebaits and trustees of the debuttar estate and each would receive Rs. 900/-
per annum from the debuttar estate.
By a subsequent deed, dated 24-3-1916
(Ex. 2), a1l the
three agreed
among themselves that Abinash
Chandra
Bhowmick and his heirs would have an exclusive right to manage the affairs
of the deity and the debuttar estate and neither Bipin, nor Girindra, nor their
respective legal heirs would be entitled to interfere in any manner, but would
continue to receive the annuity of
Rs. 900/- each.
The
remuneration for
Abinash and his heirs were increased to Rs. 1200/- per month. Compensation
to the tune of
rupees
five Iakhs and odd, was
deposited by the President
Calcutta Improvement Tribunal in C.D. case No. 54 of 1922 by the Calcutta
Improvement Trust which acquired some of the debuttar properties.
Girindra
died in 1917 survived by his sons and heirs Pulin Behari and Palton Behari.
Abinash Ch~ndra Bhowmick died on April 2, 1936 survived by his sons (respondents 1 to 5 herein and Nandlal Bhowrnick original defendant No. 2 since
deceased). Bipin Bihari died in December 1941 survived by his son P<lnchaiian
Biswas plaintiff-appellant No. 2.
After the death of Abinash, on 8-10-1947 two of his sons Pannalal and
Nihar Ranjan Bhowmick instituted a Title Suit 55/47
against their
other
brothers Nagendra. Nandlal.
Panchulal and Benoy Kumar Bhowmick for a
declaration of the nature, character and amount of rights of the parties in the
suit property and for framing a scheme for management of debuttar property.
The deity Sree Sree Lakshmi Narain Janardan Jiew was also impleaded through
guardian ad !item Sri Ishwar Vidyalankar The Trial Court, on an interpretation
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of the terms of the Trust, held that it did not create an absolute debuttar, but
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only charged the properties with the expenditure of the worship of the deities
and the idol mentioned in the trust deed. The Trial Court did not accept the
scheme of arrang,ement filed by the parties, and directed further that the com·
pCnsation lying in deposit in C.D. case No. 54/1922 shall be utilised ~'for erection
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856
SUPREME COURT REPORTS
(1978] 3 S.C.R.
f·i.
of a temple and Jhakurbari" as desired by the founder and the "surplus income
of the property shall be utilised in purchas

## Text

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JADU GOPAL CHAKRAVARTY (DEAD)
AFTER HIM HIS LEGAL REPRESENTATIVES
v.
PANNALAL BHOWMICK AND ORS.
May 2, 1978
[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J
855Construction of deed of settlen1ent where property dedicated is very large
and the religious ceren1onies cannot exhaust the entire income-Though the
prop.erty 1nay on the face of it to be an out and out dedication of the eiztire
property, but if the actual scrutiny reveals intention of the settlor to reserve
sorne for 1!te benefit for his family relations, the debuttar is partial-Powers of
lligh Court to scrutinise under section 103 of the Clvil Procedure Code.
One Indra Narayan Biswas executed a deed called "Declaration of Trust
Deed" on April 9, 1904 dedicating 26 items of his immovable property, mostly
houses and buildings situated in Calcutta and other places, to the family deity
Sree Sree lswar Lakshmi Janardan.
As per term 8, after his death Sarvashree
Abinash Chandra Bhowmick and Jogendra Nath Biswas were to be the joint
Sheba.its and trustees with equal rights.
On the same day, i.e. 9-4-1904 Indra
Narayan Biswas executed a will, bequeathing his movable and immovable properties to his relations, In, this will, he further provided that in case the deed
of Declaration of Trust fails, Abinash Chandra Bhowmick, his sister's son,
wonl<l gel the properties included in the said deed.
Indra Naravan Biswas died on 7-8-1905. Jogendra Nath Biswas predeceased
J1im.
Indra Narayan was survived by his sister's son,, Abinash Chandra
Bhowmick, and Bipin Bihari Bisv...·as and Girindra Biswas, both brothers
of
Jogendra Nath and sons of another brother of Indra Narayan. After the death
of Indra Narayan, Girindra, Bipin and Abinash executed on February 2, 1906
an Ekrarnama [deed of agreement Ex. 3J whereby it was agreed inter alia,
that the three executants and their respective heirs would be in equal rights
shebaits and trustees of the debuttar estate and each would receive Rs. 900/-
per annum from the debuttar estate.
By a subsequent deed, dated 24-3-1916
(Ex. 2), a1l the
three agreed
among themselves that Abinash
Chandra
Bhowmick and his heirs would have an exclusive right to manage the affairs
of the deity and the debuttar estate and neither Bipin, nor Girindra, nor their
respective legal heirs would be entitled to interfere in any manner, but would
continue to receive the annuity of
Rs. 900/- each.
The
remuneration for
Abinash and his heirs were increased to Rs. 1200/- per month. Compensation
to the tune of
rupees
five Iakhs and odd, was
deposited by the President
Calcutta Improvement Tribunal in C.D. case No. 54 of 1922 by the Calcutta
Improvement Trust which acquired some of the debuttar properties.
Girindra
died in 1917 survived by his sons and heirs Pulin Behari and Palton Behari.
Abinash Ch~ndra Bhowmick died on April 2, 1936 survived by his sons (respondents 1 to 5 herein and Nandlal Bhowrnick original defendant No. 2 since
deceased). Bipin Bihari died in December 1941 survived by his son P<lnchaiian
Biswas plaintiff-appellant No. 2.
After the death of Abinash, on 8-10-1947 two of his sons Pannalal and
Nihar Ranjan Bhowmick instituted a Title Suit 55/47
against their
other
brothers Nagendra. Nandlal.
Panchulal and Benoy Kumar Bhowmick for a
declaration of the nature, character and amount of rights of the parties in the
suit property and for framing a scheme for management of debuttar property.
The deity Sree Sree Lakshmi Narain Janardan Jiew was also impleaded through
guardian ad !item Sri Ishwar Vidyalankar The Trial Court, on an interpretation
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of the terms of the Trust, held that it did not create an absolute debuttar, but
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only charged the properties with the expenditure of the worship of the deities
and the idol mentioned in the trust deed. The Trial Court did not accept the
scheme of arrang,ement filed by the parties, and directed further that the com·
pCnsation lying in deposit in C.D. case No. 54/1922 shall be utilised ~'for erection
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856
SUPREME COURT REPORTS
(1978] 3 S.C.R.
f·i.
of a temple and Jhakurbari" as desired by the founder and the "surplus income
of the property shall be utilised in purchasing Government promissory notes, but
the interest whereof shall be given over tQ the descendants of Abina~h. accordin:g
to shares". Against that decree. dated 21-4-1949 the plaintiffs Pannalal and Nihar
Ranjan in their capacity as Shebaits of the deity preferred an appeal to the
Calcutta High Court.
On 28-6-J 950, on an application seeking permission to
compromise the_ claim on behalf of the guardian ad litem of the deity and
the appellant plaintiffs, before it the Division bench granted the perm1ssioll as
it appeared to be for the benefit of the deity and a decree wa1S passed in tl!rn1s
of the compromise and the appeal disposed of accordingly.
On 6-4-1953, the appellant herein being a 111ember of the Guru family of
the founder, Indra Narayan Bis\vas instituted Title Suit No. 31 of 1953 ag.iirl~t
the respondents for preservation of the debuttar properties from v.'aste and mis-.
appropriation, in exercise of the right claimed under Term No. 18 of the Trust
deed, and for a declaration that the properties mentioned in schedules •A' .:tond
'B' of the plaint are the absolute <lcbuttar properties of the deity and the
re~,
pondents were not entitled to withdraw the money or enter into a cornprouu"e
and that 'solenama' or compron1ise was null and void being collusive. 'l"he
respondents denied the allegations and pleaded that a suit for bare declaration
was hit by Section 42 of the Specific Relief Act.
The appelant's locus s1a11di
to maintain the suit \Vas also questioned.. The Trial Court decreed the suit,
which was affirmed in appeal by the District Judge. But the High Court
allowed the second appeal of the respondents and dismissed the suit. The High
Court upheld the findings of the Court belnw with regard to the maintainability
of the suit and the suit property beingi a debuttar property. While purporting to
proceed on the basis that Bhowmicks obtained the consent decree collusively, it
held that the decree did not become null and void and was required to be
avoided in proper proceedings.
In this connection it propounded the proposition that a collusive and fraudulent decree passed by a Court in
invitum
is
"not a decree at all" and does not need setting aside, but a compromise decree
being ~n agreement between the parties to which the sanctiori of the Court is
super-added, stands on a different footing and "even if the sanction obtained
by fraud is not sanction in law the agreement between the parties stands and
that contract requires to be set aside'', that the plaintiff could have sued for
setting aside the compromise decree on the ground of fraud, but he did not,
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and consequently, he could not treat an earlier judgment even if obtained by
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fraud and collusion as null and void. The High Court further held : "In the
present suit, the Bisw<!fies are not represented as Shebaits of the deity and theri!-
fore, cannot represent the interest of the deity and they have no personal interest
in the matter. So far as the, plaintiff Jadugopal is concerned, he has filed the
suit for the interest of the deity and he cannot raise pleas which the deity
could not, because he really represented the interest of the deity. Therefore,
\Ve must hold that the compromise decree1 is binding upon the deity and unless
set aside. it operates as estoppel."
A prayer for the an1endment of the pl.ai11t
on behalf of the deity. who had been re-transposed as co-plaintiff, for setting
a~ .de the decree was declined. In the result, the appeal
\Vas
allowed with
~
costs, and the suit was dismissed.
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Dismissing the appeal by certificate, the Court
HELD : 1. When the property dedicated is very large and the
religious
ceremonies which are apparently prescribed by the Settler cannot exhaust the
entire income. some portion of the beneficial interest may
be
construed
as
undisposed of and cannot but vest as secular property in the
heirs of the
settler, where, although the document purports: on the face of it to be an out
and out dedication of entire property to the deity, yet a scrutiny of the actual
provisions reveals the fact that the donor did not intend to give the entire
interest to the deity, but reserved some portions of the property or its profits
for the benefit of his family relations. In all such cases, the debuttar is partial
and incomplete and the dedicated property does not vest in the deity as a
judicial person. It remains with the grantee or secular heirs of the settler,
subject to a trust or charge for the religious uses.
[872 D-F]
Sri Sri lswari Bhubaneshwari Tltakurani v. Brojo Nath Dey and Ors .. 64
Indian Appeals 203 referred to.
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J. G. CHAKRAVARTY V. BHOWMICK
857
2. There is no statutory rule according to which, it was obligatory for ~e
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Court to issue notices to all persons which could possibly have an interest in
the subject matter of litigation, before granting leave to the 2uardian of the
deity to con1promise the case.
[875 C-D]
3. Jn the instant case :
(a) The plea of collusion and fraud set up by the plaintiff appellants is
:said to be founded on two primary circumstances : (i) that the suit property
was absolute debuttar and (ii) that no notice or opportunity was given to
Panchanan who had an interest in Shebaitship. The existence or non-existence
of both th;se primary facts depends on a construction of the basic documents :
Deed of Trust (Ex. 1) Deeds Ex. 3 and Ex. 2.
Construction of these
basic
documents \.vhich go to the root of the matter, is a question of law and could
be gone into in Second Appeal.
[871 A-C]
(b) The deed of trust (Ex. I) prescribes no destination of the growing
income \Vhich will become surplus after meeting the expenses prescribed by the
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Settlor for the worship of the deities, the performance of the specified religious
C
festivals and the Quilding of the Thakurbari temple.
[873 E-F]
(c) The Deed of Trust (Ex. 1) was capable of two possible constructions
(i) ]t created only a partial dedication and not an absolute debuttaof, the properties being charged for seva puja or other religious purposes to the extent
specified therein and (ii) It created an absolute debuttar in favour of the deity,
rhe fonner construction was expressly adopted in the previous
suit
(Title
Suit 55/47) by the Trial Court and presumably by the High Court in F.A.
257 I 49 "'rhile granting leave to the guardian ad lit em of the deity to compromise
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the case on terms erpbodied in the compromise decree.
[873 F-G]
Jn the present round of litigation, the Courts below have adopted the latter
construction. The view taken by the Courts in the previous litigation as to the
nature of the dedication was not beyond the orbit of reasonable possibility.
Thus the existence of the first primary circumstance, viz.-that the £uit
properties belonged to the deity as absolute debuttar-from which an inference of
collusion and fraud was sought to be drawn-had not been clearly a-nd :ndub,-
tabiy estabiished.
[873 G·H. 874 A]
E
(d) Panchanan Biswas was not a necessary party to be impleaded in the
previous suit or P.A. 257/49.
His right to receive the fixed quit-annri1ty a•:.
~Jt!r
the second Ekrarnama (Ex. 2) dated 24·3-46, was in no way affected by ~he
compromise decree.
On the contrary, it had been expressly safeguarded.
The
name· of Iswar Chandra Vidyalankar or his successor as guardian ad liten1 of
the deity. though put forth by the plaintiffs in that litigation was accepted by
the Court.
[875 C-D]
(e) The failure of the Bhowmicks to impleaded Panchanan Biswas in the pre·
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vious suit or in F.A. 257 I 49 or of the guardian ad !item to give him notice of
the application for leave to compromise the case \vas not a circumstance of a
definite tendency lNhich could inevitably lead to an inference of fraud being
practised on the Court.
The High Court was, therefore, entitled in exercise of
its powers under section 103 of the Code of Civil Procedure to go into that
question and there was no evidence to sho\v that the compromise decree in
question was obtained by fraud.
[875 D-F]
(f) The compromise was not destructive of the endowment or the object
G
of the dedication. The terms of the compromise were prin1a facie not unrem;onable.
B}' no stretch of imagination, it could be said that no pn1dent Court
would have granted leave to the guardian of the deity to c:omgromise the case
on these terms.
The High Court is presumed to have perused the
record
including the Trust deed, and considered the terms of the con1promise before
'>ancticning it and allowing a decree in terms thereof.
[876 A-BJ
CIVIL APPELLATE JuRTSDICTION : Civil
Appeal
Ne. 1251
of
1968.
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From the Judgment and Decree dated the 4th March, 1966 of the
Calcutta High Court in Appeal from Appellate Decree No. 626
of
1959.
4-329SCT 178
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
P. K. Chatterjee, G. S. Chatterjee, A. K. Sen and D. P. Mukherjee for the Appellant.
A. K. Sen, D. N. Mukherjee and N. L. Choudhary for Respondents Nos. 1 to 3
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by certificate under Article 133(b) of
the Constitution, is directed against a decree, dated March 4, 1966,
of the High Court of Judicature at Calcutta, passed in Second Appeal
No. 626 of 1959.
It arises out of these facts :-
One Indra Narayan Biswas owned considerable property.
On
April 9, 1904, he executed a deed called "Declaration of Trust Deed",
dedicating 26 items of his immovable property, mostly houses and
bnildings situated in Calcutta and other places, to the family deity.
Sree Sree Iswar Lakshmi Janardan Jiew, which is installed and located
at Darhatta, Police Station Ranghat, District Nadia, which was the
ancestral home of the founder.
Since a good deal of argument before us centered on a construction of this Trust Deed, it will be appropriate to extract here
its
material terms :-
"!. All that properties in Schedule is vested into the
Debuttar and Trust Property completely and permoncntly from today.
2. That from the income of the above mentioned property according to the account and estimate mentioned in Schedule (Kha) the expenditure of Durga
puja, Kali puja and Saraswati puja will be made permanently and these properties are hereby
encumbered permanently for the
purpose
of
meeting
these expenditures, and under these circumstances.
all these properties completely and with
all
the
rights I dedicate to the deity Lakshmi Janardan.
3. The puja and worship etc. of Lakshmi Janardan will
be carried on as per list attached in Schedule (ka).
4. I shall remain as
the sole Trustee and shebait of
these properties and Debuttar mentioned above
so
long as I shall remain alive, and shall be able to sell
or settle temporarily or permanently or be able to
distribute to the tenants the Trust property or any
part thereof.
No Trustee excepting me
shall
be
able to encumber the Trust and Debuttar ,>roperty
or the part thereof excepting lcttin~ the property or
any part thereof not more than three
years.
No
Trustee of Debuttar shall be able to encumber the
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J. G. CHAKRAVARTY v. BHOWMIK (Sarkaria, J.)
859
property in any manner or Transfer or shall not be
able to do anythinfj which shall in any way diminish
the value or Glory of the deity or do any thing which
shall decrease the income or loss of the Debuttar property.
5 ........................ .
6. In case of any surplus of fund, after meeting the
·expenditure
mentioned
in
Schedules (Ga) and
(Gha), arrising out of the Debuttar property, secur~ty papers (company papers) in the name of Debuttar Trust estate should be purchased from the surplus amount, and it will remain as the. property of
the Trust estate permanently.
7 .................... .
8. Jn my absence after
my
death
Shrijut Abinash
Chandra Bhowmick and
Shrijut
Jogendra
Nath
Biswas both of them on equal rights shall be
the
joint Shebait and Trustee for generations
and
the
said each branch shall get as remuneration at the rate
cf Rupees fifteen per month and the other branch
also shall receive respectively at the rate of Rupees
fifteen per month, ,generations together permanently.
9 ........................ .
IO. I have a desire to construct one Thakurbari and a
Temple, if I cannot do the same, in that event my
future Trustee and Shebait shall construct
one
Thakurbari and a Temple from the income of the
property only.
11 .
12.
13. This Trust Debuttar property shall not be encumburred by the individual alone of any Trustee, the
Trustee or Shebait shall not be able to transfer
their rights and it shall not be so transferred.
14.
15. That I shall be able to change the terms of this deed
but no other Trustee excepting myself shall be able
to change the terms and conditions of the deed.
16. From today onward all Debuttar Trust Estate as per
the deed "shall be known as "Indra Narayan Trust
Estate" permanently, and
from
today
separate
khata Book etc. will be kept, and the said Estate
shall be separated from our own estate permanently
and in that estate myself or my heirs shall have no
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860
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
rights or concern or nobody shall be able to claim
anything in that estate.
18. In case if any Trustee and Shebait attempts to waste
or tries to misappropriate the property, any of my
relations, Priests or any one of my Priest family,
shall be able to rectify or shall be able to take such
steps required to protect the property, as per
Act
20 of 1863 or as per any other Act or Jaws.
19 to 22 ............. ..
23. All the income and other amounts due to Debuttar,
beside the expenses which I have fixed as per list,
shall be used for the purchase of Security "Reserve
fund" and will as such go on increasing, and there
paper (sic) will have to be purchased in the name of
Debuttar Trust fund or in the name of Trustee
mentioning the name of Debuttar Trust estate on its
behalf.
24 & 25 ................ .
26. God forbid, the Trustee and the Shebait of the two
branches a's divided, if either of them becomes
extinct and no heirs
remains or any one of the
heirs becomes incapable for the Trusteeship
and
Shebaitship, the
other
branch will become full
sixteen annas trustee and Shebait,
but if the othe.r
branch also become extinct or heirless or become
incapable for the Trustee and Shebaitship, then in
that event the then the other branch at the relevant
time shall become Trustee and Shebait or this Trust
and all the terms of this deed will be applicable to
them and if there is no such heirs at all in that case
the Government will appoint Administrator as per
the Terms of this deed.
27.
28.
In Schednle (Ka) of the Trust Deed, several items of expenditure for . worship and ·religious festivals were prescribed.
The total
of this annual expenditure fixed in the Deed comes to Rs. 1.430/-
for meeting which the income of the Trust properties was encumbered vide Term (2), above.
On the same date, i.e. April 9, 1904, Indra Narayan
Biswas
executed a Will, bequeathing his movable and immovable properties
to his relations.
In the WiU, he further provided that in case the
Deed of Declaration of Trust fails, Abinash Chandra Bhowmick, hi~
sister's son, would get the properties included in the said Deed.
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J. G. CHAKRAVARTY v. BHOWMICK (Sarkaria, J.)
861
Indra Narayan Biswas died on Augnst 7, 1905. Jogendra Nath
Biswas predeceased him. Indra Narayan Biswas
was
survived
by
his sister's son, Abinash Chandra Bhowmick,
and Bipin Bihari
Biswas, the brother of said Jogendra Nath Biswas, the son of another
brother of Indra Narayan Biswas.
Soon after Indra Narayan's death, Girindra Biswas, Bipin Behari
Biswas and Abinash Chandra Bhowmick executed on February 2, 1906,
an Ekrarnama (Deed of Agreement, Ex. 3), whereby it was agreed,
inter alia, that the three executants and their respective heirs would
be in equal rights Shebiats and Trustees of the Dehuttar Estate, and
each would receive Rs. 900/- per annum from the Debuttar Estate.
By a subsequent Deed, dated March 24, 1916 (Ex. 2), Dipin
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Bihari, Ahinash Chandra and Girindra Nath agreed among
them-
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selves that Abinash Chandra Bhowmick and his heirs would have an
exclusive right to manage the affairs of the deity and the Debuttar
Estate, and neither Bipin Behari, nor Girindra, nor their respective
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heirs would be entitled to interfere. in any inanner, but would conti-
)
nue to receive the annuity of Rs. 900/- each. The remuneration for
Abinash Chandra Bhowmick and his heirs was increased to Rs. 1,200/
per annum.
The following genealogical table will be useful in nnderstanding
the relationship of Panchanan, plaintiff with the defendants/respondents:-
Nilambar
Baidya Nath Biswas
Pitan1bar Indra Narayan Sonatan Nabin
Bipin Jogen Girindra
I
Durgadasi
(daughter)
Abinash Bhowmick
Panchanan
(Pltf. 2)
Pulin
Palton
Nagendra Pannalal
Nandalal
Panchu
Nihar
Benoy
(Defdt. I)
(Defdt. 4)
(dead)
(Defdt. 2)
(Defdt. 5)
(Dfedt. 6)
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Abinash Chandra Bhowmick died on April 2, 1936, survived by
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his sons (respondents 1 to 5 and Nandlal Bhowmick original defendant
2, since deceased).
Bipin Behari Biswas died in December 1941,
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862
SUPREME COURT REPORTS
[1978] 3 S.C.R.
survived by his son, Panchanan Biswas, plaintiff-appellant 2. Girindra
died in 1917, survived by his sons and heirs, Pulin Behari and Palton
Behari.
Some of the Debuttar properties were acquired by the Calcutta
Improvement Trust in the year 1922, and compensation to the tune
of Rs. 5,00,000 and odd was deposited with the President, Calcutta
Improvement Tribunal in C.D. Case No. 54 of 1922.
After the death of Abinash Chandra Bhowmick. there was some
trouble among his heirs.
On October 8, 1947. Pannalal Bhowmick
and Nihar Ranjan Bhowmick instituted Title Suit No. 55 of 1947 in
the Sixth Court of the Subordinate Judge, Alipore, against Nagendra
Nath Bhowmick, Nand Lal Bhowmick, Panchu Lal Bhowmick and
Benoy Kumar Bhowmick. The deity, Sree Lakshmi Janardan Jiew was
also impleaded through guardian ad /item, Shri Ishwar Vidyalankar,
After pleading all the material facts, it was stated
that
Indra
Narayan Biswas had doubts that the Declaration of Trust Deed might
not be valid, and this doubt was expressed in Term 15 of his Will.
The reliefs prayed for in Suit No. 55 of 1947, were :-
(a) a declaration of the nature, character and amount of
rights of the parties in the suit property;
(b) a direction cf the Court to prepare a scheme for the
management of the Debuttar property and worship;
( c) a direction of the Court about the surplus money
which will remain in excess after performing worship
of the deity; and
(d) in case the Court holds the suit property to be qualified Debuttar property, after fi1aking
some
properties at Debuttar, the rest be declared as secular
properties.
Defendants 1, 3 and 4 in Suit No. 55/47. filed a joint written
statement in which they admitted the material allegations
in
the
plaint and stated that they also "pray for the true explanation. meaning and effectiveness of those documents (Declaration of Trust and
Will executed by Indra Narayan Biswas) and fully depend upon the
Court for their decision".
They also agreed with the plaintiffs that
there was a necessity of drawing a scheme for worship of the deity
after determining the true character of the said Debuttar property.
On behalf of the deity, its guardian ad /item, Shri Ishwar VidyaIankar, filed a separate written statement, in which it was inter alia,
stated that "the said Indra Narayan Biswas by the Declaration of
Trust Deed, donated ·absolutely all the properties mentioned in the
said Deed to this defendant" and that "it is written in Term No. l
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J. G. CHAKRAVARTY v. BHOWMIK (Sarkuria, J.)
863
of the said Deed that all those properties absolutely and permanently
(are) converted to Debuttar Trust property from today".
Further.
the substance of Term No. 2 of the Trust Deed was reproduced· in
which the founder, inter alia, stated "I make gift of all these
properties absolutely and permanently
to
said
Lakshmi
Janardan
Thakur".
The guardian of the deity, further denied the
plaintiff's
allegation that there was no provision in the Trust Deed as to how the
surplus income was to be spent.
Lastly, it was pleaded : "that this
defendant has got no objection in preparing a scheme for the purpose of systematically doing the work of workship and ether works
of this deity after keeping all the absolute rights in
tact of
this
defendant".
Issues were raised and the suit was contested.
The Trial Court
heard the counsel for both the sides, and decreed the suit.
On an
interpretation of the various terms of the Trust Deed, it held that it
did not create an absolute' Debuttar but only charged the properties
with the expenditure of worship of the deities and the idol mentioned
in the trust deed.
The trial court further directed that the compensotion money lying in depos!t in the Reserve Bank of India shall be utiiis· ·
ed "for erection of a temple and Thakurbari as desired by the testator"
and "the surplus income of the property shall be utilised in purchasing
Government Promissory Note but the interest whereof shall be given
over to the descendants of Abinash according to shares".
"In the
circumstances·. it observed, "the scheme of arrangement (filed)
by
defendants 1 to 4 and the plaintiff is not accepted".
Against that decree, dated April 21, 1949 of the Trial Court, the
plaintiffs, Pannalal ·Bhowmick and Nihar Ranjan Bhowmick, in their
capacity as Shebiats of the deity, preferred appeal to the High Court
at Calcutta.
Shri Ishwar Chander Vidyalankar, the original guardian
ad litem of thCJ deity. having died, the deity was, in appeal, represented
before the High Court by another guardian. Satish Chandra Bhattacharya.
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On June 28, 1950. a petition seeking permission to compromise
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the clairn on behalf of the gnardian ad Utem of the deity and the
Bhowmicks was filed in the High Court.
A Division Bench (G.N. Das
and B. K. Guja, JJ) granted the permission to the guardian ad !item
of the deity to enter into the ccmpromise as it appeared to be for the
benefit of the deity and a decree was passed in terms of the compromise
and the appeal disposed of accordingly.
The material terms of
the
compromise decree \Verei as under :
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It is declared that :
(a) The trust created by Indra Narayan Biswas, as held
by the Court below, by the Deed of Declaration of the
Trust dated 7th July 1901 is not an absolute Debuttar
of Sri Sri Lakshmi Janardan Jieu Thakur mentioned
in the said Deed but is'. a qualified trust charged with
the expenses of the daily sheba and Puia of the said
deity Sri Sri Lakshmi Janardan Jiew Thakur, annual
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864
(b)
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SUPREME COURT REPORTS
(1978] 3 S.C.R.
worship of Goddess Durga, Goddess Kali, Goddess
Saraswati and Goddess Lakshmi and
Ishan Shib
Thakur and other religious ceremonies and festivals
mentioned in the said deed.
The six sons of Abinash Chandra Bhowmick ...... :.
are the present sole Shebaits of the deity Sri
Sri
Lakshmi Janardan and Trustees to carry out the other
trust~ of the said Deed of Trust. After them the heirs
of Abinash .......... are as entitled under the :Hindu
Law ....... .
. . . . . . . . . . . . . . . . . . . . . . . .
The following (thirteen items of) properties of
ti)~
Trust would be declared the absolute debuttar of Sn
Sri Lakshmi Janardan Jieu Thakur :
(Premises Nos. 110/1, 111/lA, 111/lB, 112, 113,
11311, 115 situated on Belgachia Road, District 24Parganas, and Premises Nos. 9, 10, 3 and 7, Uzir
Chowdhury Road, District 24-Parganas), and
"(xiii) G. P. Notes of the face value of Rs. 1,11,300
of 3 % interest lying in· the Land Acquisition Court
of 24-Parganas at Alipore in LA. Cases No. 155 of
1915 (valuation) to the credit of the Trust Estate".
"The fixed deposit amounts with the different Banks as
mentioned in the Schedule "B" above aggregating to
Rs. 58,103-5 will be utilized and spent by the Shebaits
and trustees for the building of
the temple and
Thakurbati as enjoined in the Trust Deed."
(f) "The Shebaits and Trustees jointly will get a sum of
Rs. 1200 per annum as their remuneration from the
income of the absolute Debuttar Estate."
(g) "The rest of the properties in Schedules "A" and "B"
are the secular absolute properties of the six sons of
Abinash Chandra Bhowmick deceased who are the
present petitioners 1 to 6 in equal shares under the
Will of Indranarayan Biswas."
(h) & (i) ................... .
(j) "The said annual sum of Rs. 900 payable to the heirs
of Bepin Behari Biswas and the sum of Rs. 900 payable to Girindra Nath Biswas will be charged upon
the secular immovable properties as
included in
Schedule "A" only of the heirs of Abinash Chandra
Bhowmick.
(Amended under Court's order No. 10
dated 1-8-1952)."
On April 6, 1953, Jadu Gopal Chakraborty, being a member of
the Guru family of the founder, Indra Narayan Biswas, instituted Title
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J. G. CHAKRAVARTY v, BHOWMICK (Sarkaria, J.)
865
Suit No. 31 of 1953 against the defendants for preservation of the
debuttar properties from waste and misappropriation, in exercise
Of
the right claimed under Term No. (18) of the Trust Deed.
The
plaintiff prayed for a declaration that the properties mentioned
in
Schedules "A" and "B" of the plaint are the absolute debuttar properties of the deity, and defendants 1 to 6 are not entitled to withdraw any
part of the compensation money lying in deposit with the Calcutta
Improvement Trust in the name of the deity in Case Nos. 54/22, 55/22,
59/23, 25/28, 16149 and 18149. It was alleged that the entire proceedings commencing with the institution of Suit ·No. 55 of 1947 and
with the compromise decree in F.A. No. 257149 before the High Court
were fraudulent, collusive and designed to misappropriate some of the
properties of the deity; that the other co-Shebiats, (i.e. Biswasos) of
the deity were not made parties; that Ishwar Chander Vidyalankar who
represented the deity, acted against the interests of the deity; "that all
facts were not placed before the courts and there was material misrepresentation and fraudulent suppression of facts and of notice of suit
to all parties"; that in fhese circumstances the said solenama or compromise decree passed by the High Court is void, inoperative and
invalid.
The reliefs prayed in the plaint were :-
" (1) for declaration that the properties
described
in
Schedules A & B are the absolute Debuttar properties
of the deity;
(2) for declaration that the defendants or any of them have
no right to sell or dispose of any of the said properties;
(3)
(4)
(5)
(6)
.......................... ;
for declaration that the defendants 1 to 6 are not entitled to draw any of the moneys from
the
Calcutta
Improvement Tribunal deposited in the name of Deity
Sree Lakshmi Janardan Thakur Jiew in G.D. Case
No. 54 of 1922, 55 of 22, 59 of 23, 25 of 28, 16 of
1949 and 18 of 1949;
.......................... ,
for permanent injunction restraining the defendants 2
~o 6 from withdrawing any of the money deposited
m the Calcutta Improvement Tribunal in C.D. Case
No. 54 of 1922, 55 of 22, 59 of 23, 25 of 28, 16 of
49 and 18 of 1949 or any other money of the Debuttar Estate deposited in different Banks or other monies
deposited in Calcutta Improvement Tribunal as fully
set forth in Schedule 'B' of the plaint;
(7) .................... ,
(8) for any other relief or reliefs to which the plaintiff
may be entitled;
(9) for p7rmanent injunction restraining the defendants
from m any way transferring, selling or leasing out or
otherwise disposing of any of the Debuttar pnmerties
mentioned in Schedules "A" & "B".
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SUPREME COURT REPORTS
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The substance of the case set up.by the defendants/respondents in
their written statement was that there was no absolute debuttar that
the compromise decree was for the benefit of the minor and w;s not
collusive and was binding on the deity who1 was a party to the ~ecree.
It was fm1her pleaded that the suit for bare declaration was hit
by
Section 42 of the Specific Reliefs Act.
Jadugopal's locus standi to maintain the suit was also questioned.
The defendants/respondents, Panchulal Bhowmick, Benoy Kunrnr
Bhowmick and Pannalal Bhowmick, preferred an appeal to the District Judge, Ali pore.
The· learned District Judge by his judgment,
dated October 11, 1958, dismissed the appeal and affirmed the judgment and decree passed by the Subordinate Judge, holding-
( a) That the Deed of Trust created an absolute Debuttar estate
in favour of the deity:
(b) That the entire proceedings commencing with Title Suit No.
55 of 1947 and ending in the compromise decree in F.A. 257 of
1949 were vitiated by collusion between the Bhowmicks, inasmuch
as-
(i) the Deity was net properly represented by a disinterested person appointed by the Court after notice
to all interested persons.
(ii)
(iii)
Ishan Chandra Vidyalanker did not properly look
after the interest of the deity.
He did not prefer
any appeal against the trial court's decree declaring
Debuttar properties to be secular.
Instead, in the
High Court he signed the compromise decree which
deprived the deity of a substantial portion of its
estate.
Jadugopal (deceased), Panchanan, Pulin Behari and
Palton Behari not being parties to the Suit or to the
compromise, the decree did not bind them and the
· Suit was maintainable.
(iv) Panchanan was a nec~ssary pa~ty, but ~e was not
impleaded and no notice was given to him.
(c) On account of the aforesaid collusion of the worst type. th<>
compromise decree passed by the High Court in T.A. 257 /59 was a
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nullity and did not bind the deity.
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Against the decree of
the
District
Ju~ge,
the
defendants
(Bhowmicks) carried a second appeal to the High Court.
A Division Bench of the High Court allowed the appeal and dismissed the Suit.
The High Court upheld the findini;s of the Court
below with regard to the maintainabil!ty of the. Suit and the Su'.t
property being absolute Debuttar·
Whil(,' purportmg to procee~ 0.1
the ba5is that Bhowmicks obtained the consent . decree
collus1~ely.
it held that the decree did not become null and vmd, and was Nqu,red
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J. G. CHAKRAVARTY v. BHOWMICK (Sarkaria, !.)
867
to be avoided in proper proceedings.
In this connection it propounded the proposition that a collusi\'._e and fraudulent decree passed by a
Court in invitum is "not a decree at all" and does not need setting
aside. but a compromise decree being an agreement between the parties to which the sanction of the Court is super-added, stands on a
different footing; and "even if the sanction obtained by iraud is no
sanction in law the agreement between the parties stands and that
contract requires to be set aside"; that the plaintiff could have sued
for setting aside the compromise decree on the ground of fraud, but
he did not, and consequently, he could not treat an earlier judgment
obtained by fraud and collusion as null and void.
The High Cour(
further found :
"We have no evidence before us nor the Court below
had any evidence before itself to show what happened in
the High Court, how such leave was obtained from the Court
and what was the fraud committed by parties to the suit
upon the Bench of this Court by which leave was obtained
and by which sanction was granted to the deity to enter
into the compromise.
Even if the guardian was careless
and indifferent the High Court had its duty to grant or not to
grant leave to a careless or negligent guardian of the deity.
But we have nothing on record fro111 which we can say that
the leave to enter into a compromise was obtained by fraud.
We must, therefore, hold that whether Vidyalankar was competent or not, whether Vidyalankar acted in collusion with
the Bhowmicks or whether Vidyalankar acted in fraud of
the best interest of the deity, the High Court granted leave
to Vidyalankar to enter into the terms of the compromise
and finally granted a decree in favour of the deity in terms of
the compromise. Therefore, we cannot treat as if no sanction was granted to the deity as if the deity did not enter
into the terms of the compromise.
Hence we must hold
that the consent decree does work as an estoppel and the
deity cannot raise pleas conflicting with the rights of the
deity as provided in the consent decree."
The High Court further held : "In the present suit, the Biswases
are not represented as Shebaits of the deity and therefore, cannot
represent the interest of the deity and they have no personal interest
in the matter.
So far as the plaintiff Jadugopal is concerned, he has
filed the suit for the interest of the deity and he cannot raise pleas
which the deity could not, because he really represented the interest
of the deity.
Therefore. we must hold that the compromise decree
is binding upon the deity and unless set aside, it operates as estoppel."
A prayer
for the amendment of the plaint on behalf of the deity,
who had been re-transposed as co·plaintiff, for setting aside the decree
was declined.
In the result, the appeal was allowed with costs, and
the suit was dismissed.
The High Court, however, granted a certificate
under
Article
l33(l)(b) of the Constitution, by virtue of which this appeal has
been filed.
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P. K. Chatterjee, appearing for the appellants, has raised these
content10hs :
(a) (i) There were clear avermrnts in the plaint about the compromise decree in question, having been obtained by fraud and collusion.
Issues 9 and 10 were framed on these points, and all the courts below
have held that the comproniise decree passed by the High Court oh
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28-6-1950 lo First Appeal No. 257 of 1949, was collusive. The plaintiffs could not be non-suited merely on account of their failure to pray
in sp•,cific terms for the relief of setting aside the decree, because in
view of the clear allegations of fraud and collusion in the plaint and
the finding that the compromise decree was collusive, the Court was
competent to graht the relief of setting aside the decree under Order 7,
Rule 7 of the Code of Civil Procedure, particularly when the effect of
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the declarations specifically claimed, was the same as if a formal prayer
had been added for setting it aside.
(ii) A decree obtained by fraud or collusion is a nullity, which
from its very nature, does not need setting asid·~.
In support of this contention, reference has been made to the obserD
vations in Prayag Kumari Debi & Ors. v. Sisa Prosad Singh('); Mir
Muzafjar Ali & Ors. v. Kali Prashad Sahar & Anr. ('); flare Krishna
Sen v. Umesh Chandra Dutt(3 ); a,nd Bishnunath .Tewari & Ors. v. Mst.
Mirchi.(4)
(b) The High Court was in error inasmuch as it held that J adugopal had no locus standi because Jadugopal was a member of the
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settler's preceptor and, as such, had, apart from the deity, ius
own independent right as a worshipper and also und•er clause 18 of
the Trust Deed to maintain the suit.
(Reference in this connection,
bas. been made to B. Jangi Lal v. B. Punna Lal & Anr(•).
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( c) Panchanan, co-plaintiff had also a right to maintain the suit
because he was an heir of Jogendra who was one of the Shebaits nominated by the settler and on the death of Jogehdra and Jogendra's wife,
the Shehaitship had devolved on him (Panchanan)
(Reference was
made to the decisions of this Court in Kidar Lall Seal & A11r. v. Hari
Lall Seal(•); Jai Jai Ram Manohar Lal v. National Building Material
Supply, Gurgaon(1); Nandurai Yogananda Lakshminarasimachari &
Ors. v. Sri Agastheswaraswami Varu of Kolakalur( 8 ).
(d) On merits : The entire proceedings in Title Suit No.- 55 of
1947 instituted by Pannalal and Niharranjan Bhowmicks against the
(I) A.LR. 1926 Cal. I.
(2) 18, Cal. W.N. 271.
(3) A.LR.