Upendra Nath Poddar vs Anath Chandra Lodh

Bachawat, J.—This is an application on behalf of Abinash Chandra Lodh and Hari Mohan Lodh, two of the shebaits of Sri Sri Lakshminarayan Jiu, goddess Durga, Basanti, Kali and Lakshmi, for an order that certain attachments levied on the estate be at once withdrawn and for other reliefs.

On May 6, 1949, a decree was passed in this suit by consent against the Defendant. The decree was for a sum of Rs. 4,547-3-3. Certain instalments were agreed to and there was an undertaking on behalf of the Defendant not to dispose of his house, being premises No. 14/3, Nimtala Ghat Street. He was in default in payment of instalments and on March 3, 1950, the Plaintiff levied an attachment in execution of the decree on the one-third share of the Defendant in premises No. 14/3, Nimtala Ghat Street and also several trunks, two chairs and one fan lying in that premises. On March 17, 1950, this'' notice of motion was taken out. The ground taken in the petition is that the properties attached are debater properties and that the premises No. 14/3, Nimtala Ghat Street, was dedicated to the Deities by a deed, dated April 24, 1937.

By that deed, the settlors, Anath Chandra Lodh, Hari Mohan Lodh, Abinash Chandra Lodh, appointed themselves and one Hriday Chandra Lodh and Sanatan Lodh as shebaits.

Mr. A.K. Sen, appearing on behalf of the Plaintiff, contended that this application is not maintainable, inasmuch as the application is made by only two shebaits. He contended that the notice of motion ought to have been taken out on behalf of all the shebaits and that, in the circumstances, this application ought to be dismissed on a point of demurrer. It is to be noticed that one of the shebaits, Hriday, is dead. The other shebait, Sanatan, was at Tripura. Obviously Anath in view of his undertaking was not prepared to join in this application.

When the notice of motion was heard before me on a previous occasion and after this point was taken, Mr. Sanyal, appearing on behalf of the Applicant, asked for an adjournment in order to enable him to serve the other shebaits. After such adjournment, the other shebaits including the legal representatives of Hriday have been served.

It is true that ordinarily all shebaits should join in any suit or application relating to a debater estate. See Nirmal Chandra Banerjee v. Jyotiprosad Bandopadhyay (1941) 45 C.W.N. 709 and Sree Sree Sreedhar Jew v. Kanta Mohan Mullick (1945) 50 C.W.N. 14. But this rule is not an inflexible one. If the exigencies of the case require, the other shebaits may be made co-Defendants or co-Respondents. In this, connection, reference may be made to an observation in the decision of Monghibai v. Cooverji Umersey ILR (1939) Bom. 503, (510) : L.R. 66 IndAp 210, (219). In that case, there was a mortgage in favour of the firm. Certain partners in the firm retired and by a registered deed assigned their interest in the mortgage deed in favour of the continuing partners. The continuing partners instituted a suit to enforce the mortgage. They did not join the retired partners as parties to the suit. On objection being taken, the retired partners were subsequently added as parties to the suit. The question rose as to whether the suit as framed was maintainable. Their Lordships of the Judicial Committee observed as follows:

It has long been recognised that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as Plaintiffs, if they will consent, or as co-Defendants if they will not. Such cases as Luke v. South Kensington Hotel Co. (1879) 11 Ch.D 121 and Cullen v. Knowles (1898) 2 Q.B. 380 are examples of this principle. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action. See Hughes v. Pump House Hotel Co., Ltd. (1902) 2 K.B. 485. Once all the parties are before the Court, the Court can make the appropriate order and should give judgment is favour of all the persons interested whether they be joined as Plaintiffs or Defendants. Prima facie, therefore, the trial Court in the present case should have given judgment in favour of the eight of the original partners who survived, though some of them had been made Defendants.

All the interested parties, namely, all the co-shebaits are now before me and it is my duty to give relief to them if they are entitled to any relief.

It is next contended by Mr. Sen, appearing on behalf of the Plaintiff, that, assuming that deed, dated April 24, 1937, is admissible in evidence, the properties have not been dedicated to the Deities by that deed. He contends that there are words of transfer to and for the sheba of the Deity but there are no words of transfer or dedication in favour of the Deity. This contention, in my judgment, is also unsound. It is not necessary for the purpose of creating dedication that there must be express words of gift to the Deity. See Sir Dinshaw Mulla''s Hindu Law, 10th Ed., Article 407, p. 492. The deed on the face of it purports to transfer and dedicate the property to and for the daily worship of the Deities absolutely and for ever. Transfer and dedication to and for the sheba of the Deities, in my judgment, quite clearly means transfer and dedication to the Deities in order that their sheba may be performed. If there are two constructions open to me, one of which will uphold the deed and the other will defeat it, I must give that construction which upholds it. I must, therefore, construe the deed as a deed purporting, on the face of it, to dedicate the property to the Deities. It seems that in the case of Prasad Das Pal v. Jagannath Pal (1932) 37 C.W.N. 181, the dedication was to the sheba of the Deity and the judgment in that case proceeds on the assumption that there was a valid dedication in favour of the Deity.

It is next contended by Mr. Sen, appearing on behalf of the Plaintiff, that the deed, dated April 24. 1937 is at best a deed of dedication and therefore, a deed of gift to the Deities. The deed has been stamped on the footing that it is a deed of settlement. It is not affixed with stamp which is requisite if the deed is a deed of gift. Mr. Sen contends that the deed, not being properly stamped, is not admissible in evidence, unless the proper stamp as also the penalty is levied and paid. The court ordinarily looks with disfavour on a stamp objection, taken by counsel, when such objection does not invalidate the document, entirely. It is, however, the duty of the court to notice and decide stamp objections where such objection is brought to the notice of the Court.

Mr. Sen relied on the case of Bhoapati Nath Chakrabarti v. Basanta Kumaree Debee ILR 63 (1936) Cal. 1098. This case was followed in Chief Controlling Revenue Authority, AIR 1944 33 (Nagpur) . In both these cases, it was held that the deed of dedication or transfer directly in favour of a Hindu Deity is not a trust deed nor a deed of settlement but a deed of gift and that the deed ought to be stamped as a deed of gift under Article 33 of the Stamp Act.

The reasons given in this judgment may be shortly summarised as follows:

(a) The word "settlement" refers to a disposition of successive interests in property. In support of this, reference is also made to Section 3 of the Specific Relief Act, where settlement for the purpose of Specific Relief Act is defined as meaning an instrument other than a Will or a Codicil as defined in Indian Succession Act whereby the destination or devolution of successive interest in movable or immovable property is disposed of or agreed to be disposed of. An analogous definition will appear in Halsbury''s Hailsham Ed., Vol. 29, p. 528.

(b) The conception of trust underlies a settlement. There is no trust in the case of a direct gift to the Deity.

(c) There can be a gift in favour of the image, although it is not a sentient being.

For the purpose of deciding whether the deed in question in this proceeding is a deed of settlement, reference must be made to the definition of settlement in the Indian Stamp Act. Section 2(24) of the Indian Stamp Act reads as follows:

"Settlement" means any non-testamentary disposition, in writing, of movable or immovable property made--

(a) in consideration of marriage;

(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him; or

(c) for any religious or charitable purpose;

and includes an agreement in writing to make such a disposition and where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, of any such disposition.

The word "settlement" is authoritatively defined in the Stamp Act. Where a statute gives a definition for an instrument, that definition cannot be controlled by the meaning commonly attributed to such instrument or by the meaning attributed to it by another statute. No extrinsic evidence is admissible to show that the word has a meaning other than what is defined in the Act under consideration. See Burrows'' "Interpretation of Documents", p. ''81. The definition given in a section very commonly extends and alters the ordinary meaning attribute to the word. Reference may be made to the case of the Queen v. Commissioners under the Boiler Explosions Act, 1882 (1), where the statute under consideration gave a meaning to the word "boiler" widely different from its ordinary meaning.

It is pointed out in Halsbury 2nd Ed., Vol. 29, p. 528, that the legislature has from time to time given definition of the word "settlement" for the purpose of particular statutes, but there is no generally accepted legal definition of the word.

There is some high authority that in the popular sense the word "settlement" contemplates and connotes the retention of the property by the donee and not its immediate alienation or consumption. Even conceding for the sake of argument that such popular meaning ought to control the statutory meaning, a deed of dedication is made with a view to make property inalienable and such deed may fairly be called a deed of settlement even in the popular sense.

In my judgment, the express meaning given to the word by the Indian Stamp Act cannot be controlled by reference to any so-called popular meaning. The ordinary meaning or the meaning given by the Specific Relief Act is entirely irrelevant in construing the word "settlement" with reference to the Stamp Act. The Stamp Act itself authoritatively declares the meaning of the word "settlement". The word "settlement" has been apparently used in the Act merely for the purpose of convenience of drafting to convey the idea of several kinds of instruments mentioned in Section 2(24) of the Act. If a document answers the description of settlement as defined in the Act, it must be held to be a deed of settlement for the purpose of the Act. It must be remembered that the Stamp Act is a fiscal enactment and if there is a doubt or ambiguity, such doubt and ambiguity must be resolved in favour of the citizen.

Neither the intervention of trust nor disposition of successive interest in property is an essential requisite of settlement as defined in the Indian Stamp Act. There are numerous cases in which it has been held that a gift of property for the purpose of distributing it amongst the members of the settlor''s family or for those whom he desires to provide is a settlement as defined in the Indian Stamp Act. AIR 1937 684 (Lahore) , a gift by mother to sons in equal shares and in Stamp Reference by the Board of Revenue (1915) ILR 37 All. 264, a gift to a brother was held to be a deed of settlement. In Reference under Indian, Stamp Act, Section 46(4) a gift to sister for life was held to be a settlement. The definition of "settlement" in the Indian Stamp Act of 1879 suggested the creation of separate interest in favour of several persons and accordingly a joint gift to a sister and her son was held not to be a settlement. Reference from the Board of Revenue u/s 46 of the Indian Stamp Acts, 1879 (1). The object of the present Stamp Act was to widen the definition of the word "settlement" so as to include within the definition of the word "settlement" a disposition of property even if separate interests in favour of several persons have not been created. The object of the extended definition of Section 2(24)(b) in the Indian Stamp Act will appear from the speech of Sir James Westland in introducing the bill:

In the Madras Presidency, it has been ruled that the use of the word "distribution" in the definition of "settlement" indicates that a settlement must necessarily be in favour of more than one person. It has consequently been ruled in that Presidency that if a settlement is made in favour of one person it is not a settlement within the meaning of the Stamp Act. We propose to alter the definition of the word "settlement" so as to prevent the exclusion from it of what is not an infrequent document--a settlement in favour of single person. A person, of course, includes persons and the consequence is that a settlement is made to include not only a document which has for its object the distribution of property of the settlor, but of providing, whether by distribution or otherwise, for some person dependent on him.

In all the foregoing cases which I have cited, there was a gift pure and simple. There was neither a trust nor any disposition of successive interests in property. In my judgment, a deed of disposition of property for the purposes mentioned in Section 2(24) of the Indian Stamp Act is a deed of settlement notwithstanding that there is no trust and notwithstanding that there is no disposition of successive interest in immovable property.

An instrument may be an instrument of settlement notwithstanding that it is an instrument of gift. Articles 33 and 58 of the Indian Stamp Act deal with instruments of gift and settlement respectively. Article 33 is the more specific and Article 58 is the more general article. An instrument of gift which answers the description of settlement need not be stamped under Article 33. Article 33 expressly relates to instruments of gift not being a settlement. If an instrument may be described both as an instrument of gift and settlement, it may be stamped under Article 58.

The simple question before me is whether a deed of direct gift of property in favour of the Hindu Deity answers the description of an instrument of settlement as defined in the Stamp Act. It cannot be disputed that such a deed is a deed of non-testamentary disposition of property. The deed, therefore, must be held to be an instrument of settlement if the disposition of property made by it is for a religious or charitable purpose. I am quite clearly of the opinion that the disposition of property made by such deed is for a religious purpose and that such a deed must be held to be an instrument of settlement.

If the form of that deed was that the property was conveyed to certain trustees in trust for the sheba of the Deity, there would have been no doubt that there would have been a disposition of property for a religious and charitable purpose. The fact that the dedication is made directly in favour of the Deity and not through the medium of a trust, in my judgment, makes no difference. The Hindu law recognises juridical persons or subjects called foundations. A Hindu, who wishes to establish a religious or charitable institution, may express his purpose and endow it. A trust is not required for that purpose. The juridical person is the ideal embodiment of a pious idea and is the centre of the religious foundation. See judgment of West J. in Monohar Ganesh Tambekar v. Lokshiram Govindram (1887) ILR 12 Bom. 247, 263-265. When a Hindu dedicates property to a Deity, he is manifestly making a disposition for religious purpose. The image is the symbol of the religious idea and is a compendious expression of the pious purpose. The dedication is a gift to the Deity only in an ideal and special sense. The custodian of the Deity, by whatever name he is called, stands in a fiduciary capacity and is quasi-trustee for carrying out the purposes of the institution : see the observations of Jenkins C.J. in Bhupati Nath Smrititirtha v. Ramlal Maitra (1909) ILR 37 Cal. 128, 137, 140.

A gift to a corporation, whose object and purpose is only religious and charitable, has always been held to be a gift to charity. By way of illustration, gifts to the Royal Geographical Society, the Protestant Alliance and the Church Missionary Society may be mentioned. Numerous cases are quoted in Halsbury, Vol. 4, Article 154 and Article 156, pp. 117 and 119.

In Beaumont v. Oliveira (1969) 4 Ch App. 309, 315 the question was whether a legacy to the Royal Geographical Society was a charitable bequest. Selwyn L. J. observed in that case as follows:

In the case now before us, both the bequests are bequests to corporations, the objects and purposes of which are the diffusion and improvement of particular branches of knowledge. They subsist for these purposes and no others, therefore for public purposes--therefore, for the advancement of objects of general public utility--therefore for purposes analogous and similar to those mentioned in the Statute of Elizabeth--therefore for charitable purposes; and this being so, we agree with Sir John Stuart V.C. that the legacies given to them are charitable legacies and applicable only to the purposes for which the recipients exist as corporations.

A gift to a Hindu Deity is ex necessitate rei a gift for a religious purpose. The Deity is the symbol of the religious purpose. It exists only for the religious purpose. In fact, it is the religious purpose itself. Dedication to the Deity is a dedication to and for the religious purpose. Treated as a foundation or corporation, the Deity exists for no other purpose except the purpose of religion and a dedication to the Deity must, in my judgment, be held to be a disposition of property for a religious purpose.

It is noteworthy that a deed of wakf al dulad has been held to be an instrument of settlement for the purposes of this Act. See the case of AIR 1933 461 (Oudh) . It is well-known that in such wakfs, there is ordinarily no trust.

In my judgment, the deed of dedication in this proceeding is a deed of disposition of an immovable property for a religious purpose and is therefore a deed of settlement. It is not disputed that if it is a deed of settlement, it is properly stamped.

In my judgment, no cogent or sound reason has been advanced in any of the judgments which I have mentioned for holding that a deed of direct gift to the Deity cannot be held to be a deed of settlement. I am convinced that the judgments in the case of Bhoopati Nath Chakrabarti v. Basanta Kumaree Debee (supra) and Chief Controller Revenue Authority C.P. and Berar v. Sarjubai (supra) are wrongly decided and that I ought not to follow these decisions. With very great respect to the learned and eminent Judges who decided the two cases, I dissent from those two decisions.

The deed of dedication, therefore, must be held to be admissible in these proceedings. I have held that on, the face of it, the deed purports to dedicate the property to the Deities. The next question is what is the effect of such deed. In this connection, I will refer to a passage in Sir Dinshaw Mullah''s Hindu Law, 10th Ed., Article 407A at p. 493. That passage is as follows:

The mere execution of a deed though it may purport on the face of it to dedicate property to an idol is not enough to constitute a valid endowment, for the real object of the executants may be to defraud creditors or defeat the provisions of the ordinary law of descent or to restrain alienations and keep the property in perpetuity in the family. It is necessary for the validity of a deed of endowment that the executant should divest himself of the property. Whether he has done so or not is to be determined by his subsequent acts and conduct.

Order XXI, Rules 58 to 62 of the CPC provide for summary investigation into possession. It is however, impossible to separate the questions of possession and of title. The question of title can be gone into only in so far as it may be necessary to determine whether the person holds the property as trustee or agent of another. See Mohunt Bhagawan Ramaunj Das v. Khetter Moni Dassi (1896) 1 C.W.N. 617. The sole question before me is whether the attached property was in the possession of the judgment-debtor and if so, whether such possession was on his own account or in trust for some other person. It appears that the property was in the possession of the judgment-debtor and therefore, the only question is whether the property was in his possession on his own account or in trust for some other person.

If dedication is not established, the property lies where it originally lay, namely, with the settlors. See Hriday Krishna Kundu v. Benode Behari Bandhopadhaya (1929) 34 C.W.N. 56. However, complicated questions of title like questions of benami cannot be investigated in the summary proceeding. See Reliance Development and Engineering, Ltd. v. Bhabani Chandra Banerjee (1949) 54 C.W.N. 372 and (sic) Sundari Chaudhury v. Reliance Bank Ltd. (1947) 52 C.W.N. 56.

If there is apparent possession tacked on the apparent title, the Court must give effect to it in a summary proceeding.

It is to be observed that the onus of proof in these proceedings is upon the claimants. They must prove to my satisfaction that they are possessed of the property in trust for and on account of the deities and under the title which they set up. The Applicants are asserting jointly on behalf of themselves and the three Respondent shebaits that the property is debater property and is possessed by them as shebaits of a debaters estate. The normal procedure was to apply on behalf of the shebaits and if relief is to be given in these proceedings, the relief must be given to all the shebaits jointly and on the same basis as if the application had been by all the shebaits. The Applicants cannot improve their case by making some of the shebaits co-Respondents. One of the shebaits, namely, the judgment-debtor formally admitted before this Court when the decree in this suit was passed that the property was his property. He certainly then claimed to have the title to the property in his personal capacity and therefore, the possession thereof on his own account. The deed of dedication does not provide for residence of shebaits in the attached premises, but admittedly Anath and Harimohan resided there.

There has been no mutation in the records of the Corporation of Calcutta and the three settlors, namely, Anath, Abinash and Harimohan are still shown as owner of the property in the records of the Corporation of Calcutta. So far as such records are concerned, they are still in possession as owners.

Certain rent receipts are produced. They purport to have been issued by certain persons on behalf of Sri Sri Lakshmi Narayan Jew debttar property. It is, however, to be observed that there is no mention of any other Deity or Deities in such rent receipts. It is alleged that the sheba of the Deity is met out of the income but there is no allegation that the entire income is spent on account of such sheba. The Deities are said to be in Eastern Pakistan. I am not satisfied that they in fact exist or that any money is spent on account of their sheba. I am not satisfied that the settlors divested themselves of the property. I am also not satisfied that the properties attached are debater or are possessed by the claimants as shebaits of Hindu Deity or Deities. For the purpose of this summary investigation I am satisfied that 1/3rd share in the premises No. 14/3, Nimtala Ghat Street, is in the possession of the judgment-debtor on his own account and not on account of any other person.

With regard to the movable properties, Mr. Sanyal had not seriously pressed the application and I am also satisfied for the purposes of summary investigation that these properties were also in possession of the judgment-debtor on his own account and not on account of any other person.

The result is that this application must be dismissed with costs. However, if the claimant file an appropriate suit under Order XXI, Rule 63, within a month, the costs of this application will abide by the result of such suit.

The costs of this application will be taxed as that of a motion.