Calcutta High Court (Appellete Side)
Shree Shree Iswar Sitaram Jew & Anr vs Subhodeep Ganguly & Ors on 3 March, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
F.M.A. No. 929 of 2023
with
CAN 1 of 2023
And
CAN 2 of 2024
Shree Shree Iswar Sitaram Jew & Anr.
Vs.
Subhodeep Ganguly & Ors.
For the appellants : Mr. Shaktinath Mukherjee Sr. Adv.,
Mr. Rudrodeb Chaudhury,
Mr. Rahul Karmakar,
Mr. Subhrojyoti Mukhoorji
Ms. Antara Biswas,
Ms. Saolini Bose
For the respondent nos. 1 and 4 : Mr. Arindam Banerjee, Sr. Adv.,
Mr. Pranit Bag,
Mr Raja Baliyal,
Mr. Rajarshi Ganguly,
Mr. Anusko Das,
Mr. Vidhya Bhuban Upadhayay
For the respondent no.2 : Mr. Aniruddha Chatterjee, Sr. Adv
` Mr. Debabata Roy,
Mr. Oishik chatterjee
For the respondent no.3 : Mr. Kushal Chatterjee,
Mr. Ankit Chatterjee
Hearing concluded on : 17.02.2025
Judgment on : 03.03.2025
Sabyasachi Bhattacharyya, J.:-
1. By virtue of a previous order, the appeal was directed to be heard along
with the applications and is now taken up for hearing.
2
2. The present first miscellaneous appeal arises out of an order refusing to
grant ad interim injunction in favour of the plaintiffs/appellants.
3. The genesis of the litigation is a suit bearing Title Suit No. 910 of 2023
filed by the plaintiffs/appellants before the Tenth Court of learned Civil
Judge (Senior Division) at Alipore inter alia for declaration that a deed
of sale dated July 2, 2015 executed by one Ruby Ganguly (since
deceased) in favour of defendants/respondents no.4 is not binding on
the deity, that is, appellant no.1 Shree Shree Iswar Sitaram Jew, for a
decree for refund of the amount of Rs.1,75,00,000-/ received by the
said Ruby Ganguly to the plaintiffs and for permanent injunction
restraining the defendant no. 1 to 4 from giving effect to the impugned
deed of conveyance as well as from transferring the suit property and
also for a decree for cancellation of the impugned deed for conveyance
dated July 2, 2015.
4. In the said suit, an application for temporary and ad interim injunction
was filed restraining the defendants/respondents from giving effect to
the impugned deed and from transferring the suit property on the
strength of the same.
5. Learned senior counsel appearing for the appellants argues that Ruby
executed the sale deed by claiming herself to be the sole Shebait of the
appellant no.1-deity, although there are other shebaits of the deity, on
the basis of misrepresentation of facts.
6. Before effecting the transfer, an order was obtained by Ruby, also
posing to be the sole shebait, from the concerned District Court under
Section 34 of the Indian Trusts Act, 1882. It is submitted that under
3the savings clause of Section 1 of the Trusts Act, public or private
religious or charitable endowments have been kept outside the purview
of the said Act. As such, Section 34 of the Act is not applicable and the
order granting permission to transfer was a nullity, thus vitiating the
transfer itself.
7. Also, the sale was invalid and not binding on the deity, having been
executed by merely one of the shebaits in the absence of the others.
8. The sale, it is further argued, was grossly undervalued, being for a
consideration of Rs.1.75 Crore, whereas the market value of the
property as per the registration value, is to the tune of Rs.97 Crore.
9. Moreover, the learned Trial Judge proceeded on the premise that no
injunction could be granted by operation of the „lis pendens’ principle.
Learned senior counsel cites Sm. Muktakesi Dawn and Others vs.
Haripada Mazumdar and another reported at AIR 1988 CAL 25 to argue
that lis pendens is not a bar for grant of injunction to prevent
unnecessary multiplicity and complications. Learned senior counsel
cites a judgment of the Privy Council reported at (LVII) LW 1
(Bhabatarini Debi vs. Ashalata Debi and Others) to argue that the
endowment, on the death of the founder, should revert back to the
estate of the deceased founder. Learned senior counsel also relies on
the Fifth Edition of the “Hindu Law to Religious and Charitable Trusts”
by Tagore Law Lectures to argue that the remedies for enforcement of a
charitable trust are somewhat different from those which can be availed
of by beneficiaries in a private trust and in English Law, the Crown, as
parens patriae, is a constitutional protector of all property subject to
4charitable trusts, such trusts being essentially matters of public
concern. Thus, it is argued that even a worshipper of a deity can file a
suit in case of mismanagement and/or misappropriation of the
debuttar property vested in the idol.
10. Learned senior counsel next cites Vyalikaval Housebuilding Coop
Society, by its Secretary v. V.Chandrappa and Others reported at (2007)
9 SCC 304 for the proposition that if a transaction is vitiated by mala
fides and fraud, such ground can be set up at any time before any
forum and the delay in preferring the same is condonable.
11. It is thus argued that the suit is very much maintainable at the behest
of the deity, represented by one of the shebaits, who has a right as a
shebait in terms of the genealogical table furnished by the appellants,
which is, in principle, not disputed by the respondent.
12. The decision in Bhabatarini Debi (supra), it may be noted, was rendered
in the context of the present debuttar estate.
13. Learned senior counsel appearing for the respondent no.2 argues that
the cause of action of the suit arose, even as per paragraph 32 of the
plaint, in the year 2019 and as such, the suit is barred by limitation.
Moreover, no ad interim order was sought or obtained at any stage
during pendency of the present appeal and, thus, there is no urgency to
grant injunction at the ad interim stage.
14. Secondly, it is argued that the suit property is not a part of the
Arpannama granted by the original settlor in the year 1922, which
vested certain properties in the deity/appellant no.1 and formed the
5debuttar estate, which is borne out by a comparison of the schedule of
the Arpannama and that of the suit property.
15. Thirdly, since the impugned sale deed was executed and registered in
the year 2015, a challenge to the same in the year 2023 is, in any
event, time-barred since the date of registration should be deemed to
be the date of knowledge of the plaintiffs in respect of the sale.
16. It is further argued that the suit is barred by non-joinder of the other
shebaits, who are also necessary parties to the litigation.
17. Fourthly, the plaintiffs have made an application seeking recall of the
order passed by the learned District Judge under Section 34 of the
Trusts Act and has taken adjournment therein. The said application is
still pending. Thus, the said order still stands and forms the basis of
the impugned transfer. The plaintiffs have also filed a suit in this
Court challenging the defendant‟s shebaitship, which is also sub-
judice.
18. In the present suit, it is argued, no relief of the declaration of the
plaintiff no.2‟s shebaitship has been sought, although disputed, and
as such, the suit is not maintainable.
19. Learned senior counsel appearing for the defendant/respondent no.4,
the transferee by virtue of the impugned sale deed, contends that
there is no urgency even as per the pleadings in paragraph no.27 to
29 of the plaint and, as such, the prayer for ad interim injunction was
rightly refused. Secondly, the suit is bad for non-joinder of the other
shebaits as mentioned in paragraph no.2 in the plaint. Thirdly,
neither the 1922 deed nor any resolution of the other shebaits
6empowering the plaintiff no.2 to represent them has been annexed to
the plaint, as required under Order VII Rule 14 of the Code of Civil
Procedure. Thus, no injunction could be granted on the basis of the
bald averments made in the injunction application or the plaint.
20. It is next submitted that a previous suit of one Raktima, a sister of the
plaintiff no.2 and standing on the same footing as the plaintiff no.2 in
the genealogical table, for similar relief, was dismissed for default. The
plaintiff/appellant no.2 herein was a party thereto and as such bound
by the same. Thus, the present suit is barred in law.
21. Learned senior counsel for the respondents no.4 cites Wander Ltd And
Anr v. Antox India P. Ltd reported at 1990 (Supp) SCC 727 for the
proposition that if any discretion is exercised by the Trial Court
reasonably and in a judicial manner, the Appeal Court cannot
interfere with the same on a different view.
22. Learned senior counsel for the respondent no. 2 cites GPT Health Care
Private Limited v. Soorajmull Nagarmull and Ors. reported at (2017)
SCC OnLine Cal 16490, a Division Bench judgment of this Court, to
argue that delay defeats equity and the prayer for ad interim
injunction was rightly refused by the learned Trial Judge.
23. In reply, learned senior counsel for the appellant submits that
paragraph 25 of the plaint discloses the urgency since the
defendants/respondents have been claiming the suit property to be
secular, which is against the interest of the debuttar estate, and have
been acting in terms of thereof. Even in the affidavit-in-opposition
filed by the respondent no.1 to the application for addition of party
7filed in this appeal, it has been claimed that the debuttar property is
secular. Moreover, it is contended that delay is not fatal if there is
patent mala fide or fraud practised, in support of which learned
counsel reiterates the proposition laid down in Vyalikaval
Housebuilding Coop Society (supra).
24. Upon hearing learned senior counsel for the parties and considering
the legal and factual aspects of the case, it is found that the
adjudication of the present matter hinges on certain questions which
are discussed hereinbelow:
Whether the impugned order is bad in law
25. The Trial Court has refused ad interim injunction primarily on three
bases – first, that the order under Section 34 of the Trusts Act still
stands, secondly, that there is a registered deed of sale pursuant to
the above and thirdly, that the lis pendens transferees would be
bound by the decree passed in the suit and as such, injunction ought
not to be granted.
26. However, all the three reasons are bad in law.
27. The learned Trial Judge did not enter into the specific question raised
by the plaintiffs/appellants as to the order passed under Section 34
being null and void in law. Without even a prima facie adjudication on
such issue, the learned Trial Judge erred in law in relying on the same
as sacrosanct.
28. Insofar as the registered sale deed is concerned, the legal effect of the
same would be utterly dependent on the validity of the order passed
8under Section 34 of the Trusts Act. The principal relief in the suit, as
framed in the plaint, is not that the sale deed is per se invalid for lack
of registration but that it is not binding on the parties, being otherwise
vitiated as no title passed by virtue of the same due to the nullity of
the Section 34 order and since it was executed by one of the shebaits
posing to be the sole shebait, thus, vitiating the execution of the deed
by misrepresentation.
29. The existence of the registered sale deed, thus, could not have been
the sole criterion for refusing ad interim injunction.
30. Thirdly, as held in Sm. Muktakesi Dawn‘s case (supra), the principle of
lis pendens, by itself, is not a fetter to grant of injunction. The Division
Bench of this Court, in the said case, held that it is true that the
doctrine of lis pendens as enunciated in Section 52 of the Transfer of
Property Act takes care of all pendente lite transfers; but it may not
always be good enough to take fullest care of the plaintiff‟s interest
vis-à-vis such a transfer. Although one of the premises there was that
in a suit for specific performance, Section 52 of the Transfer of
Property Act would not protect the interest of the plaintiffs against
bona fide purchasers for value without notice, irrespective of the
same, Section 52 merely provides that lis pendens transferees would
be governed by the outcome of the suit, but does not prevent the
unnecessary multiplicity created due to transfers being effected in the
meantime. Hence, the protection of lis pendens itself is not a valid
ground for refusal to grant ad interim injunction.
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31. Since the learned Trial Judge utterly failed to advert to all the above
relevant enquiries, the said order is vitiated on such count, if not on
others.
Whether the suit is barred by limitation
32. In paragraph 25 of the plaint, the plaintiffs alleged that they learnt in
or around the month of September, 2022 that endeavours were being
made by the defendant no.2, acting through the transferee/defendant
no.4, to deal with the property and to act in furtherance of the illegal
deed of conveyance by seeking to mutate the name of defendant no.2
and thereafter the name of defendant no.4 as the owner of the land. In
the subsequent paragraphs of the plaint, it has been alleged that the
defendant nos.1 to 4 have been attempting to create rights in respect
of the suit property and that the threat is ongoing and the prospect of
alienation is imminent.
33. In paragraph no.32 of the plaint, it has been stated that the plaintiff
no.2 for the first time learnt in May 2019 about the proceedings before
the learned District Judge. However, they derived the knowledge of the
deed of sale only upon obtaining a certified copy of the deed dated
July 2, 2015, which furnished the immediate cause of action for
instituting the suit.
34. Hence, on a plain reading of the plaint and the injunction application,
it cannot be said that the suit is palpably barred by limitation.
35. Moreover, learned senior counsel for the appellant rightly places
reliance on Article 94 of the Schedule of the Limitation Act, 1963 as
the governing provision in respect of the instant suit. Article 94
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provides the limitation for suits to set aside the transfer of immovable
property comprised in a Hindu, Muslim or Buddhist religious or
charitable endowment, made by the manager thereof for a valuable
consideration, the limitation for which is 12 years from the date of
knowledge of the transfer to the plaintiff. In the present case, the suit
has been filed in the year 2023, which is well within such period.
36. The respondent seeks to argue that this is not a transfer made by a
manager. However, the term “manager”, in its generic sense,
contemplates anybody who manages the property on behalf of the
deity, which is synonymous with a shebait. As Ruby (since deceased),
whose heirs are the present respondent nos.2 and 3, posed as the sole
shebait and transferred the property is such capacity, the suit
definitely comes within the purview of Article 94 of the Schedule to the
Limitation Act and, thus, is not barred by limitation.
37. Moreover, it is well-established in law that fraud vitiates all and a
challenge on such ground can be taken before any forum at any point
of time and the bar of limitation is not applicable in such
circumstances. The said proposition was reiterated by the Supreme
Court in Vyalikaval Housebuilding (supra) and has been consistently
reiterated by the Supreme Court all along.
38. In the present case, the allegation is that Ruby sold the property
posing as the sole shebait whereas there are other shebaits to the
property. It is a settled legal position that all shebaits must act
together in the interest of the debuttar property, which first principle
is violated in the present case.
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39. In Bhabatarini Debi‘s case (supra), it was reiterated that on the death
of the son who had survived the founder, the shebaitship should go to
the son‟s heirs and not to the heirs of the father. It transpires from the
genealogical table in this case that Late Sital Chandra Bandopadhyay,
the settlor, left behind Panchanan, Bhabatarini and Sudhangsu
Badani as his heirs. There was a litigation between Ashmantara, the
widow of Panchanan and Bhabatarini in respect of the shebaitship,
where it was held that absolute devolution of the shebaitship was on
Panchanan. Thus, Panchanan‟s heirs were to inherit the property.
Sudhangsu Badani did not leave any heir at his demise.
40. Subsequently, the heirs of Panchanan, namely Ashalata, Kanaklata
and Diptilata were to become shebaits. Diptilata left no issue at the
time of her demise in the year 2010 whereas defendant/respondent
nos. 1 to 3 claim through Kanaklata.
41. Regarding the other branch of successorship through Ashalata, a suit
was filed in 1948 to declare that Ashalata had no right, which
culminated in a consent decree in the year 1951, whereby Ashalata
relinquished her rights and Diptilata and Kanaklata were declared to
be the joint shebaits.
42. There was a subsequent suit in 1952 challenging the consent decree
in which, in the year 1955, it was held that the consent decree was
inconsequential as Ashalata, being married, did not inherit the
shebaitship. Between 2012 and 2017, deeds were executed by certain
heirs of Kanaklata relinquishing their shebaitship on the premise of
which Raktima, a sister of the present appellant no.2, filed a suit in
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the year 2014, the plaint of which was rejected under Order VII Rule
11 of the Code of Civil Procedure.
43. A challenge was preferred against the same in 2019, which was
disposed of by a Division Bench of this Court by a judgement and
order dated March 29, 2019, thereby setting aside the impugned
rejection of plaint and restoring the suit to its board in the Trial Court,
leaving the grounds taken in the application under Order VII Rule 11
open for being canvassed at the time of trial.
44. In the process, two important findings were returned by the Division
Bench. First, that the Trial Court had failed to appreciate that unlike
trusteeship, shebaitship or the office of the shebait is a property that
is capable of being passed on and inherited. Thus, despite Ashalata‟s
failure in the 1950‟s to claim any right in respect of shebaitship, 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 shebaitship
pertaining to the deity. It was also observed by the Division Bench
that the Trial Court failed to take account the fact that upon
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 shebaitship, pertaining to the deity-in-question.
45. Coming back to the genealogy in the present matter, Swapna, the
plaintiff/appellant no. 2 and Raktima, her sister who filed the other
suit, along with others, although heirs of Ashalata, derived rights of
shebaitship through Diptilata, by dint of Diptilata‟s death in intestacy.
Hence, as decided by the Division Bench and also reflected
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tangentially from the judgement of the Privy Council in Bhabatarini
Debi‘s case, the appellant no.2 definitely has a right of shebaitship in
the property along with other heirs of Ashalata through Diptilata and
the respondent nos. 1 to 3.
46. Ruby, the vendor in the impugned deed, was the widow of one
Satrajit, an heir of Kanaklata, and also might have had a right as a
co-shebait at best.
47. Thus, it is clear that Ruby could not have effected the transfer alone
by claiming herself to be the sole shebait, which claim is writ large
throughout the impugned transfer deed.
48. Hence, we are of the prima facie view that fraud vitiated the said deed
and the suit cannot be said to be barred by limitation.
Delay/Urgency
49. It has been consistently pleaded in the plaint and the injunction
application in the Trial Court that there have been continuing
attempts to be mutate the property, first in favour of the respondent
nos. 1 and 3 and thereafter in the name of the
transferee/defendant/respondent no. 4. The property has been
claimed by the respondents as secular at all points of time and thus,
the urgency is a continuing cause in the present case. Hence, the
proposition that delay defeats the relief of injunction cannot be
accepted.
14
Whether the order passed under Section 34 of the Indian Trusts
Act was a nullity
50. The savings clause in Section 1 of the Trusts Act provides that
nothing in the said Act applies, inter alia, to public or private religious
or charitable endowments, thus taking religious and charitable
endowments, either public or private, outside the purview of the said
Act. Hence, even at the threshold, Section 34 of the Act is not
applicable in respect of the suit property, which is a debuttar
property.
51. That apart, Section 34 confers a right on a trustee, without instituting
a suit, to apply by petition to a principal court of original jurisdiction
for its opinion, advice or direction on any present questions regarding
the management or administration of the trust property. Hence, the
scope of the said provision is restricted to management or
administration of the trust property and not to alienation of the
property in favour of third parties, detrimental to the interest of the
estate.
52. Section 34 also provides that the scope of the Section operates to
issues of management or administration only, other than questions of
detail, difficulty or importance, not proper in the opinion of the court
for summary disposal. The question of transfer of property belonging
to the debuttar estate by a single shebait posing to be the sole shebait,
without entering into the question of whether there are other shebaits
and whether the transfer would be congenial to the interest of the
debuttar estate, are questions of detail and difficulty as well as of
15
importance which could not have been adjudicated under Section 34
of the Trusts Act.
53. Thus, in view of Section 1, savings clause as well as the scope of
Section 34 of the Trusts Act, the order permitting the sale of the
property-in-question in favour of third parties was passed de hors
jurisdiction and, being vitiated by inherent lack of jurisdiction, is a
nullity in the eye of law. Hence, the said order could not form a valid
premise of the impugned transfer by way of the sale deed dated July
2, 2015.
Whether the suit property is a part of the debuttar estate
54. The respondents claim that the suit property, not being a part of the
Schedule of 1922 Arpananama, by which the property of the original
settlor Sital was vested in the name of the appellant no.1-idol, cannot
form a part of the debuttar property. However, by a subsequent
admitted deed of 1929, Sital, the original settlor, donated the present
suit property to the deity.
55. Hence, although the suit property might not have been a part of the
original Arpannama of 1922, the settlor, by the subsequent deed of
1929, vested the present property to the debuttar estate, thus
bringing the present suit property within the hotchpot of the debuttar
property belonging to the idol. Hence, such issue is also decided
against the respondents and in favour of the appellant.
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Whether, in view of the existence of a registered sale deed, no ad
interim injunction could be passed
56. The very basis of the sale has been challenged on the ground that a
debuttar property could not be transferred, thereby rendering it
secular, that too at the behest of one of the shebaits without
concurrence of the others. A more serious aspect of the matter is that
Ruby, one of the shebaits, posed to be the sole shebait and transferred
the property, which renders the said sale invalid.
57. Furthermore, the sale was based on the premise of an order passed
under Section 34 of the Trusts Act, which has been held above to be a
nullity, thereby vitiating the sale itself. Such questions were never
gone into by the learned Trial Judge despite having raised by the
appellants. In such context, the mere registration of the sale deed
does not necessarily mean that the same is binding on the other
shebaits or the debuttar estate/idol.
Whether the doctrine of lis pendens is bar to grant of injunction
58. Muktakesi Dawn‘s case has reiterated that the doctrine of lis pendens
as enunciated in Section 52 of the Transfer of Property Act is not a
sufficient protection to the plaintiffs. Not only on the count of lack of
protection against bona fide purchasers for value without notice,
Section 52 merely provides the legal effect of a transfer lis pendens,
which would be to bind such transferees. However, it is not a
sufficient justification for the court to shut its eyes to attempts by the
defendants in a suit and permit further transfers being effected in
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favour of strangers, thereby creating unnecessary multiplicity of
proceedings and complications. There is no component in Section 52
of the Transfer of Property Act or the doctrine of lis pendens to debar
injunction being granted independently by the court under its powers
under the Specific Relief Act as well as the Code of Civil Procedure.
Hence, lis pendens per se is not a bar to grant of injunction.
Whether the previous order passed in Raktima’s appeal operates
as res judicata
59. An order passed in an appeal refusing to reject the plaint cannot
operate as a bar even in a subsequent stage of the same suit, let alone
in some other litigation. Even the Division Bench deciding the appeal
held so, even apart from rendering findings which reiterate the rights
of all the heirs of Ashalata, through Diptilata as co-shebaits of the
debuttar property. Thus, instead of operating as a bar, the said order
strengthens the case of the appellant.
60. Even if the said suit was dismissed for default, the principle of res
judicata would not come in, since a dismissal for default does not
decide the rights and liabilities of any of the parties conclusively.
61. The only bar which could operate in case of a dismissal for default is
under Order IX Rule 9 of the Code of Civil Procedure. However, the
said bar is very restrictive and debars only the plaintiff in the said suit
and none else, including the defendants therein, from filing a fresh
suit on such count even without setting aside the order of dismissal
for default.
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62. Order IX Rule 9 also does not take away the right, title and interest of
the plaintiffs in the property but merely prevents a fresh suit being
filed on the self-same cause of action. Hence, if the plaintiff in a suit
which has been dismissed for default sets up a defence on the basis of
the title pleaded in the plaint in a different suit or asserts such right,
title and interest in a subsequent suit filed on a subsequent and new
cause of action, the bar of Order IX Rule 9 does not operate.
63. Accordingly, the present plaintiffs are not barred in any manner from
filing the present suit by dint of the dismissal of Raktima‟s suit for
default.
Whether the pendency of a recall application in respect of the
order of the learned District Judge under Section 34 of the
Trusts Act debars the present suit/injunction application
64. The pendency of such an application is immaterial, since the suit is
on a much wider scope, challenging the impugned purported sale
deed dated July 2, 2015 not only on the premise that the preceding
order under Section 34 was a nullity but also because the sale deed
itself is vitiated for non-joinder of the other co-shebaits. Also, since
the suit itself challenges the sale deed also on the premise that
Section 34 order was a nullity, the said question of nullity would form
an incidental issue in the present suit. The mere pendency of an
application for recall of the order under Section 34 is immaterial.
65. Also, since prima facie it has been held above that the said order was
a nullity in the eye of law, the subsequent application for recall of the
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same is an independent proceeding and, at the worst, a superfluity of
sorts and as such, is merely academic.
Whether in the absence of any prayer in the plaint for
declaration of shebaitship of the plaintiff/appellant no.2, the
suit is bad
66. It is evident from the findings of the Division Bench in connection with
the precious appeal from Raktima‟s suit, that the plaintiff/appellant
no.2, claiming through Diptilata, although an heir of Ashalata, has a
right of shebaitship at least on a prima facie footing. Since, the
shebaitship of plaintiff no.2 has never been challenged at any point of
time, no cause of action arose for determining the same. The present
suit, filed on the basis of the genealogy of the family, which clearly
shows that plaintiff no.2 is one of the shebaits of the deity (plaintiff
no.1), and in the absence of any challenge to such shebaitship of
plaintiff no.2, there arises no question of any such declaration being
sought specifically. In any event, the same would be an ancillary issue
in the present suit, that too subject to any challenge being raised in
that regard in the written statement of the respondent at all. Hence,
the absence of any prayer for such declaration in the plaint does not
debar the suit in any manner.
Whether the suit is bad for non-joinder of the other shebaits
67. As per the present frame of the suit, the other shebaits are not
necessary parties, since the relief sought, for setting aside a sale of the
20
debuttar property, is in aid of and in the interest of the other shebaits,
acting in such capacity, as well.
68. Also, no relief has been sought against the other shebaits. Rather, the
suit is in defence of the interest of the debuttar estate, which could
enure only to the benefit of the other shebaits and not to their
detriment. Unlike a partition suit, where co-owners are necessary
parties, in respect of a debuttar property, title vests in the idol, which,
being an eternal minor in perpetuity, is dependent on its shebaits to
protect its interest.
69. As rightly argued by the appellant, even a worshipper can file a suit,
let alone a shebait, to protect the interest of the debuttar property on
the principle that the idol, to whom the property belongs, is a
perpetual minor. Hence, the non-joinder of the co-shebaits is also
immaterial in the present context. If the other shebaits claim in the
capacity of shebaits, they cannot have any adverse interest to the
plaintiffs in the present suit. On the other hand, if they claim contrary
to the estate of the debuttar property, they would be acting not as
shebaits but diametrically contradictory to their capacity of shebaits
and thus cannot be viewed as necessary parties to the suit in the
capacity of shebaits.
70. The ratio laid down in GPT Health Care (supra), relied on by the
respondent nos. 2 and 3, was rendered in the facts and circumstances
of the said case. It is trite law that a judgment can only be a precedent
in the perspective of the facts decided therein. The circumstances in
the said case were entirely different than the present, inasmuch as
21
injunction was sought in respect of construction which has
commenced on March 5, 2017 whereas the plaintiff, after becoming
aware of the same in November 2016, filed the challenge
subsequently. In such context, the court held that the plaintiff waited
for more than a week and as such was not entitled to equity.
71. As opposed to construction, however, in the present case, the legality
and binging effect of a deed has been questioned and the injunction
sought is from the same being given effect to, which is a continuing
cause of action. Moreover, there has been recent activity, as alleged,
on the part of the respondents, by way of attempting to mutate the
property as well as asserting that the property is secular, contrary to
the interest of the debuttar estate, which furnishes a continuing
urgency in the case. Thus, the ad interim prayer for injunction could
not be defeated on the ground of lack of urgency.
72. The respondent no.4 has relied on Wander Ltd (supra), for the
proposition that the appeal court ought not to interfere or reassess the
material to reach a conclusion different from the trial court. However,
the essential rider in the said judgment was that the discretion has to
be exercised by the Trial Court reasonably and in a judicial manner,
in which case the Appellate Court could not have taken a different
view.
73. In the present case, the facts are clearly distinguishable, since the
impugned order of the learned Trial Judge is not only unreasonable
and lacks judicial application of mind, the same is devoid of reason
and fails to advert to any of the vital considerations on the questions
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of the various components of prima facie case, balance of convenience
and inconvenience as well as irreparable injury.
74. In the present case, we find that not only a strong prima facie case for
the suit to be heard on merits and multiple triable issues have been
raised by the plaintiffs/appellants, the balance of convenience and
inconvenience lies squarely in favour of the plaintiffs/appellants since
if third party interests are created and/or the impugned deed is given
effect to, the relief sought in the suit may be rendered infructuous
and/or unnecessary and unwarranted multiplicity of proceedings may
arise. On the other hand, if the respondents stay their hands in that
regard, subject to the outcome of the suit, the detriment suffered by
them would not be as serious as that which would be suffered by the
appellants if the ad interim injunction is refused.
75. Thus, irreversible and irreparable injury may arise in the event ad
interim injunction is not granted. Urgency, as discussed above, also
enures in favour of the grant of injunction in the present case.
76. Accordingly, F.M.A. No. 929 of 2023 is allowed on contest without any
order as to costs, thereby setting aside the impugned order dated July
18, 2023 whereby ad interim injunction was refused to the
respondents/appellants. The defendants/respondents are hereby
restrained by an ad interim order of injunction from acting on the
strength of the impugned sale deed dated July 2, 2015 as well as from
transferring, alienating and/or creating any third party interest or
parting with possession in respect of the suit property still disposal of
the injunction application pending in the court below.
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77. The respondents shall file their respective written objections to the
injunction application in the court below, if not already filed, within
three weeks from date, whereupon the learned Trial judge shall
endeavour to dispose of the injunction application itself as
expeditiously as possible in the interest of justice.
78. CAN 1 of 2023 and CAN 2 of 2024 are disposed of accordingly.
79. However, it is made clear that the above observations have been
rendered only in the context of adjudication of the ad interim prayer
for injunction and shall not be treated to be binding at subsequent
stages of the injunction application and the suit.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)
