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Judgment
The defendant-respondents have made considerable attempts to waste time in the absence of an adequate reply to the legal questions that have arisen. When an adjournment was obtained on March 28, 2019, authoritative pronouncements on Hindu law were referred to, to suggest such high authorities would be brought to court to demonstrate that the plaintiffs in this case had no right to institute the suit and the impugned rejection of the plaint was justified. However, nothing is cited on behalf of the defendants today.
The matter pertains to a land which stands in the name of a deity. The plaintiffs are the deity and an individual claiming to be entitled to the office of sebaitship. The land is a huge plot in the upmarket Ballygunge area and there is no doubt that several species and sizes of land-sharks have descended upon the land. It is submitted on behalf of the respondents that the suit in this case is purely speculative and by a person who has failed in her previous attempts to establish any element of interest over the land in question.
The plaint has been rejected primarily on the ground that the plaintiffs have no cause of action; or, in other words, the second plaintiff could not have represented the deity or claimed the office of sebaitship in view of the predecessor-in-interest of the second plaintiff having failed in her attempts to assert a right over sebaitship pertaining to the same deity.
One Sital Chandra Bandyopadhyay dedicated the relevant land in favour of the deity by a deed executed in 1922. Sital died leaving behind son Panchanan and two daughters Bhabatarini and Sudhangshubadani. Panchanan was one of the sebaits. Panchanan died in 1932 leaving behind daughters Ashalata, Kanaklata and Diptilata. Ashalata, who was married by or about 1950 when the two other daughters were not, claimed a right of sebaitship. However, such attempt failed and the suit was decreed on compromise sometime in 1951. An attempt to re-open the legal issue failed by or about 1955.
Thus, according to the respondents, Ashalata's heirs could no longer claim any right or interest in respect of the deity or the office of sebaitship connected with the deity.
Panchanan's daughters, Ashalata, Kanaklata and Diptilata, died, respectively, in 1982, 2002 and 2010. Kanaklata, like Ashalata, was married and left sons and daughters; but Diptilata died issueless. Thus, in 2010, at the time of Diptilata's intestate death, if the office of sebaitship were to be reckoned to be a property, Diptilata's share in such property passed on to the heirs of Panchanan, as if Panchanan had died immediately after Diptilata, in accordance with the legal fiction in Sections 15, 16 and 8 of the Hindu Succession Act, 1956 read with the Schedule thereto. Upon Diptilata's death, if Panchanan had died immediately thereafter, Panchanan's estate would have devolved upon Panchanan's death to the sons and daughters of Panchanan's pre-deceased daughters and, thus, some part thereof would have been inherited by the second plaintiff. As long as the second plaintiff had an infinitesimal share in the office of sebaitship, the second plaintiff could have espoused the cause of the deity.
Thus, notwithstanding Ashalata's personal rights as a sebait being defeated effectively in the 1950s and such matter being incapable of being resurrected, upon Diptilata dying intestate, Ashalata's heirs would have been entitled to a part of the share in the sebaitship and such right can be traced de hors Ashalata and despite the orders against Ashalata passed in 1951 and 1955.
Ordinarily, when there is an involved question which arises as to whether the plaint discloses any element of right for the plaintiffs to pursue the action, every benefit of the doubt is given to the plaintiffs since the dismissal of an application in the nature of demurrer does not cause the relevant defendants any prejudice except to suffer the trial. All points urged by the defendants in course of demurrer may be repeated in course of a trial and unless the court finds that the best arguable case of the plaintiffs does not disclose a cause of action, courts are slow to reject a plaint on the ground of it not disclosing a cause of action ahead of the trial. The considerations are somewhat different in cases pertaining to objections on the ground of territorial jurisdiction or of the claim being barred by law.
Though a substantial part of the judgment and order impugned herein refers to the suit being barred by law on the ground that the second plaintiff traced her rights through Ashalata and Ashalata's case stood dismissed in 1955, what the judgment really speaks of is that the second plaintiff had no cause of action to further since the second plaintiff could not have represented the deity or claimed any right in sebaitship de hors Ashalata. What the trial court failed to appreciate was that unlike trusteeship, sebaitship or the office of sebait is a property that is capable of being passed on and being inherited. Thus, despite Ashalata's failure in the 1950s to claim any right in respect of sebaitship, by virtue of the death in intestacy of Diptilata, Ashalata's heirs may have got a fresh lease of life qua the property and the sebaitship pertaining to the deity.
It is submitted on behalf of the respondents that in view of the paragraph 53 of the plaint, the trial court was justified in rejecting the plaint. Paragraph 53 of the plaint refers to how the cause of action of the plaintiffs was alive at the time that the suit was instituted. Such paragraph refers to an order dated August 8, 2014. The respondents say that since the relevant order is referred to in the body of the plaint, it is open to the court to look at the document or the order and ascertain its scope of relevance. The order of August 8, 2014 was passed by the interlocutory court here in a suit which was pending in this court. The deity was the first defendant in such suit. The respondents seek to demonstrate, by referring to the order of August 8, 2014, that it recorded that certain nominees had been appointed by Diptilata in the year 2008. The point that the respondents seek to make is that once a sebait has appointed nominees to discharge the duties of sebaits, the subsequent death of such person would not annul the nomination or result in the sebaitship or the property envisaged therein to pass on intestate succession under the said Act of 1956.
It is a possible argument and one cannot completely brush the same aside. However, merely because paragraph 53 of the plaint refers to the order dated August 8, 2014 and such interlocutory order of August 8, 2014 speaks of some nomination, it does not follow that the nomination was not required to be inquired into or the relevant document read, construed and interpreted to ascertain whether the cause of action pleaded by the plaintiffs to institute the present suit was real or imaginary. Such exercise has to await the trial.
In any event, it will be open to the respondents herein to file their written statements, if not already done, and take whatever points are available to them on merits, including that upon Diptilata's death the sebaitship did not open up according to the laws of succession since Diptilata had nominated sebaits to discharge Diptilata's duties upon Diptilata's demise. It is evident that such matters have not been conclusively pronounced upon in the order under appeal.
The respondents also claim that several other points were taken in the application for rejection of the plaint, including the multiplicity of proceedings indulged in by the second plaintiff.
However, the principal ground which was taken up and dealt with by the trial court was as to whether the plaintiffs had any cause of action to institute the suit. The trial court appropriately found that Ashalata had no right to the sebaitship and as an heir of Ashalata, the second plaintiff may also have had no right. However, the trial court failed to take into account the fact that upon the Diptilata's death in intestacy, even Ashalata's heirs became entitled to a part of Diptilata's estate to claim some modicum of right to the office of sebaitship pertaining to the deity in question.
For the reasons aforesaid, it cannot be conclusively said at this stage that the plaintiffs had no case to carry to a trial. Accordingly, the judgment and order dated March 9, 2017 passed in T.S. No.35403 of 2014 by the II Bench, City Civil Court at Calcutta is set aside. The suit is restored to the board of the trial court. If written statements have not been filed yet, a period of three weeks is afforded to the defendants to file their written statements.
It is made clear that all grounds taken by the defendants in the application under Order VII Rule 11 of the Code may be canvassed at the time of trial.
FA 66 of 2019 along with CAN 3443 of 2017 stand disposed of.
FMA 245 of 2019 along with CAN 2176 of 2017 and CAN 2179 of 2017 will appear a fortnight hence.
There will be no order as to costs.