MANU/WB/0217/2020
IN THE HIGH COURT OF CALCUTTA
FA 125 of 2019 and CAN 4627 of 2019
Decided On: 07.02.2020
Appellants: Sibani Rakshit and Ors.
Vs.
Respondent: Keya Dey
Hon'ble Judges/Coram:
Soumen Sen and Saugata Bhattacharyya, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Kaberi Ghosh (Dey)
For Respondents/Defendant: Asit Kr. Chowdhury
1. The appeal is directed against a judgment and order dated 21st November, 2017 in
Title Suit No. 1238 of 2003 passed by the learned Judge, IVth Bench of the City Civil
Court at Calcutta.
2 . The appellants filed the suit for declaration and injunction. The appellants
contended that Haridasi Dasi since deceased, was the absolute owner of land
measuring 4 bighas at Gobardanga and premises No. 83, Balaram Dey Street (now
W.C. Bonerjee Street), Calcutta - 700 006 who by a settlement deed dated 7th June,
1919 created a trust of the said property as well as other movable properties for the
Seva Puja of her Family Deity Sree Sree Madhusudan Jew and in that deed said
Haridasi Dasi and her son Prabodh Chandra Rakshit have been described as 'Trustees'
of the said trust. In terms of the deed of settlement Haridasi Dasi and Probodh
Chandra Rakshit became the first trustees and Sebait of the Deity and on the death of
either of them the surviving trustee would be the sole trustee and sebait. The said
deed also provides that on the death of Probodh his widow shall be the next trustee
and on her death, the surviving son or sons of Probodh Chandra would be the next
Sebait and trustee. On his death the office of Trustee and Sebait would successively
devolve upon their respective heirs. The appellants contended that the duties of the
trustees and Sebaits for the time being are collecting rent from tenants of the trust
properties and maintaining the said properties. The trustees would have to bear the
cost of Seva Puja and they were debarred from selling or otherwise encumbering the
trust properties. Probodh Chandra Rakshit pre-deceased Haridasi Dasi leaving behind
him his son Kali Prasad Rakshit and one daughter namely Binapani Rakshit. Said
Haridasi Dasi took her grandson Kali Prasad Rakshit to act as her co-trustee and
Sebait which would appear from the Municipal records. After the death of Haridasi
Dasi Kaliprasad continued to act as the sole trustee and sebait. Kaliprasad died issue
less on 25th September, 1975 leaving behind his widow Sefalika Rakshit as his only
legal heiress who succeeded to the office of Trustee and Sebait as per the terms of
the original deed of trust. The appellants alleged that by a deed dated 9th October,
1991 Sefalika Rakshit appointed Keya Dey as the trustee and Sebait to succeed her
describing the later as her foster daughter as the new trustee and sebait.
3 . The appellants before the Trial Court had contended that they are cognates of
Kaliprasad Rakshit being the widow, sons and daughters respectively of Sachi Dulal
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Rakshit since deceased, the son of Smt. Binapani Rakshit who was the sister of
Kaliprasad Rakshit. The plaintiffs being the surviving cognates of Kaliprasad are
entitled to succeed to the office of the trustee of sebait under the Deed of Settlement
dated 7th June, 1919 which was executed by Haridasi Dasi.
4 . The appellants contended that the defendant has taken over as the trustee the
valuable articles and ornaments of the deity Sri Sree Madhusudan Jew. On such
consideration, the plaintiffs filed a suit praying for a decree of declaration that the
deed of appointment of new trustee dated 9th October, 1991 executed by Smt.
Sefalika Rakshit is illegal and void ab initio. The suit was contested by the defendant
by filing a written statement denying all the material allegation contained in the
plaint. The defendant contended that Haridasi Dasi executed the deed on 7th June,
1919 by which the suit property was declared as a property of the trust. Sachi Dulal
Rakshit nephew of Kaliprasad was involved in number of criminal cases and his wife
Sibani Rakshit and their children seldom visited the house of the old lady Sefalika
Rakshit during her lifetime. Sefalika at her old age in order to perform the Seva Puja
regularly, entrusted this defendant as Sebait and trustee by executing a deed dated
9th October, 1991 since this defendant had been with the executant from her
childhood. The defendant contended that the priest Sasanka Sekhar Banerjee had
been with Sefalika for Seva Puja of the deity and also for nursing and treatment
during her illness. The plot of land at Gobardanga might have been disposed of by
Sefalika when this defendant was a little girl and the trust deed created in favour of
the defendant is for the Seva Puja of the deity at the premises No. 29, W.C. Bonerjee
Street, Kolkata.
5. One of the issues before the learned Trial Judge on the basis of the pleadings was
whether the deed of appointment of the new trustee dated 9th October, 1991
executed by Smt. Sefalika Rakshit is illegal and void ab initio.
6. The learned Trial Judge proceeded on the basis that the deed executed by Sefalika
Rakshit in favour of the present defendant has been acted upon after the execution of
the same in the year 1991 which is well within the knowledge of the plaintiffs but
they did not file the suit within a period of 3 years from the date of notice or
executed as per provision of Article 59 of the Limitation Act. The learned Trial Judge
has observed that on the consideration of the oral and documentary evidence as well
as from the admission of the plaintiffs the said deed was acted upon therefore the
relief claimed in the suit was denied.
7 . The only question needs to be decided in the appeal is whether the finding with
regard to the Issue Nos. 3 and 4 have been properly decided by the learned Trial
Judge. We injunct the defendant from alienating and/or transferring the property
situated at Gobardanga if not alienated by this time and premises No. 83, Balaram
Dey Street (now W.C. Bonerjee Street), Calcutta - 700 006 without the leave of this
Court. In fact, the said property has been dedicated to the deity for Seva Puja.
8 . The Receiver already appointed has furnished accounts to the parties. The
respondent shall furnish quarterly statement of accounts to the plaintiffs/appellants
with regard to the income and expenditure of the property in question till the disposal
of the suit.
9. CAN 4627 of 2019 is disposed of.
10. We expedite the hearing of the appeal.
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11. Let the Lower Court Records of this case be called for immediately by Special
Messenger at the costs of the appellant. Such costs are to be deposited within one
week from date.
12. The appellants are directed to put in the requisites, namely, postal costs, written
up notice forms and correct postal addresses for service of notice of appeal upon the
respondent within a period of one week from date.
13. Upon deposit of such requisites, the office is directed to take steps for effecting
service of notice of appeal upon the respondent forthwith.
14. In default of putting in the requisites within the aforesaid time, put up for final
orders.
15. The appellants shall prepare and file requisite number of informal paper books,
printed, typewritten or cyclostyled, as the case may be, out of court, within four
weeks from the date of service of notice of appeal.
16. All formalities regarding preparation of paper books are dispensed with, but the
learned Advocate for the appellants is directed to incorporate all the relevant
documents in the informal paper books.
17. Mr. Asit Kr. Chowdhury, learned Counsel appearing on behalf of the respondent
waives service of notice of appeal upon the respondent.
18. Let the appeal appear in the list after eight weeks.
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