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Judgment
Hazra, J.—On July 26, 1973, Mr. A. N. Chatterjee, Solicitor, took out a notice of motion on behalf of one Nabin Chandra Sett (I shall shortly call him Nabin), instituted in the above administration suit in which an application was made by Nabin for an order that:
(a) Injunction do issue restraining Bhaba Saran Sett, Satya Saran Sett, Hari Saran Sett, Shib Saran Sett, Ram Saran Sett, Kartick Saran Sett, Anil Saran Sett and all other parties to the suit No. 1145 of 1928 from giving any effect or further effect to or from acting in reliance upon or furtherance of the purported deed of lease dated December 14, 1972, or from granting any lease of premises No. 18/1, Maharshi Debendra Nath Road and 1/1, Sir Hariram Goenka Street, Calcutta;
(b) Injunction restraining Bhaba Saran Sett, Satya Saran Sett, Hari Saran Sett, Shib Saran Sett, Ram Saran Sett, Kartick Saran Sett, Anil Saran Sett and all other sebdits of the Plaintiff deities Sri Sri Gobinda Roy Jew and Sri Sri Lakshminarayan Jew and Sri Sri Rameswar Jew from accepting any rent or any amount of money or premium from Hari Shankar Sharma under the purported deed of lease dated December 14, 1972, or otherwise on account of or in respect of the premises No. 18/1, Maharshi Debendra Nath Road and 1/1, Sir Hariram Goenka Street, Calcutta;
(c) Injunction do issue restraining Bhaba Saran Sett and all other sebaits from removal of deities from their temple;
(d) Injunction do issue restraining the Registrar of Assurances, Calcutta, from proceeding in the Enquiry Case No. 1 of 1973 till disposal of this petition;
(e) Bhaba Saran Sett be discharged from acting any further as manager of the Plaintiff deities and Subhas Chandra Sett be appointed as manager in his place and stead;
(f) Mathura Nath Sett, Sm. Sabitri, Sm. Sankari and Sm. Gouri be added as party and their names be brought on record in the said suit;
(g) Bhaba Saran Sett be restrained from acting any further as manager of the Plaintiff deities;
(h) The said purported deed of lease dated December 14, 1972, being No. 1458P of 1973, the subject-matter of the Enquiry Case No. 1 of 1973 before the Ld. Registrar of Assurances, Calcutta, be cancelled;
(i) Ad interim order in terms of prayers (a), (b), (c), (d) and (g);
(j) Such further order or orders be passed and directions be given as to this Hon''ble Court may deem fit and proper.
The notice of motion was made returnable on August 13, 1973. The petition of Nabin was moved ex parte on the returnable day before A.K. Sarkar J. and ad interim order in terms of prayers (a) and (c) of the notice of motion was passed by the learned Judge. The motion was addressed to the three Plaintiffs deities Sri Sri Gobinda Roy Jew, Sri Sri Lakshminarayan Jew and Sri Sri Rameswar Jew represented by their next friend and to the other parties and heirs or heiresses and legal representatives of the deceased defendants in the said suit and their respective Attorneys. The three deities are the ancestral deities established by the Setts of Calcutta who were illustrious and ancient families of North Calcutta. I was told when this application was opened before me that the name ''Gobinda Roy Jew'' was associated with the name of mauza and village ''Gobindapur'', one of the constituent part of Calcutta during the regime of the East India Company. Before I deal with the petition of Nabin I will set out certain facts and events relating to the old administration suit which is still pending in this Court. The three deities, namely Sri Sri Gobinda Roy Jew residing at No. 18/1, Darmahata Street, Calcutta, Sri Sri Lakshminarayan Jew residing at No. 38, Moira Hata Street, Calcutta and Sri Sri Rameswar Jew residing at the temple at Baishnab Charan Street, Calcutta, filed the suit on June 1, 1928, by their next friend and sebait Satish Chandra Sett against Manmatha Nath Sett and others. The prayers in the plaint, inter alia, are for administration of the estate of the ancestor Sujendra Mohan Sett, deceased, under the direction of this Hon''ble Court; for an enquiry as to what the entire estate of Sujendra Mohan Sett consisted of at the time of his death and at the time of filing of the suit, for declaration of the shares of the parties, for partition of the properties by metes and bounds, for possession of the shares allotted to the Plaintiffs for accounts and for a decree for the amount found to be due for removal of the Defendants from their position of the sebaits for appointment of new sebaits for framing of a scheme for appointment of Receiver and for injunction.
On March 17, 1931, a decree by consent was passed whereby the Assistant Referee was directed to enquire and report as to how the turn of worship of the Plaintiffs deities should be divided amongst the parties and to frame a scheme of management of the debattar properties. By the said consent decree it was declared that the Plaintiff Satish Chandra Sett was entitled during his life-time to participate in the worship of the deities and to exercise and enjoy all the rights and privileges of a sebait. On November 27, 1931, the Assistant Referee of this Court made his report. In his report he provided for the turn of worship amongst the parties, framed a scheme for deb-seba and suggested the appointment of the Official Receiver as the Receiver of the debattar properties. On April 11, 1932, a decree was passed whereby the report of the Assistant Referee was confirmed with the modification that Sri Sri Lakshminarayan would also be located at the Thakurbari of Sri Sri Gobinda Roy Jew at 18/1, Maharshi Debendra Nath Road, Calcutta and no separate temple would be constructed. A table of descent of the family of Sujendra Mohan Sett, who died on August 17, 1895, will show the relationship of the parties. I will set out here the genealogical table which is annexed to the petition of Nabin.
* * *
The two deities Sri Sri Gobinda Roy Jew and Sri Sri Lakshminarayan Jew have at all material times been located at premises No. 18/1, Darmahata Street, Calcutta, now known as Maharshi Debendra Nath Road. There are several deaths amongst all the descendants of Sujendra Mohan Sett. The deaths of Hiralal, Manmatha Nath and Thakurdas were recorded and the names of the heirs and legal representatives of the deceased Defendants were brought in the records. On April 12, 1949, on the application made by Sm. Sushila Sundari Sett for recording the death of Manmatha Nath and the death of her husband Thakurdas an order was made by S.R. Dasgupta J. appointing Mr. H.C. Majumdar, Barrister-at-Law, as Special Referee to frame a scheme for management of the debattar properties in this suit, as in the opinion of the learned Judge the Official Receiver cannot act for all times to come. On August 23, 1949, the Special Referee Mr. H.C. Majumdar made his report whereby Balai Chand Sett and Bhaba Sarart Sett were appointed managers of the two joint estates of the debattar properties for a term of 20 years. On February 13, 1950, an order was passed by S.R. Dasgupta J. on the application of Ramanuj Sett whereby the report of Mr. H.C. Majumdar was discharged and a scheme for management of the debattar estate was framed wherein it was, inter alia, provided that the eldest male member of each branch would be appointed manager for five years upon his furnishing security for Rs. 12,000 to the satisfaction of the Registrar within one month before entering his appearance in office as such manager by executing a security in favour of the Registrar. On March 9, 1950, Ramanuj Sett as the eldest male member of the branch of Anukul Chandra Sett became the first manager for five years after furnishing security for Rs. 12,000. On February 13, 1955, the office of manager devolved on the branch of Manmatha Nath Sett in terms of the scheme as framed by the order dated February 13, 1950, but as none took the office of manager from Ramanuj Sett he continued to act as manager until his death. On September 21, 1957, Ramanuj Sett died leaving several heirs including Nabin Sett, the Petitioner before me. On February 13, 1958, an application was made by Sushil Kumar Sett and Balai Chand Sett for appointment of Bhaba Saran Sett as manager without his being required to furnish any security and not in terms of the order dated February 13, 1950. On March 24, 1958, on the said application of Sushil Kumar Sett and Balai Chand Sett an order was passed by R.S. Bachawat J., as he then was, by which Ramesh Chandra Sett was appointed as manager in place and in lieu of Sushil Kumar Sett to act till February 13, 1960, upon his furnishing security in terms of the order dated February 13, 1950. Ramesh Chandra Sett furnished the said security and acted as manager. On September 20, 1959, Satish died leaving him surviving his widow Sm. Puspa Bala Sett. It is stated in the petition before me that he also died leaving Mathura Nath Sett as his only son, but this statement of Nabin is denied and disputed by Bhaba Saran and another sebait Sushil. On February 13, 1960, the office of the manager devolved on the branch of Lal Mohan Sett and Amal Kumar Sett, the eldest son of Thakurdas Sett, in the branch of Lal Mohan Sett, became entitled to the office of manager by furnishing security with the Registrar. On September 1, 1960, an application was made by Amal Kumar Sett as heir arid legaL representative of Thakurdas Sett, inter alia, for an order--(a) the death of Satish Chandra Sett be recorded, (b) a next friend of the Plaintiff deity be appointed in place and stead of Satish Chandra Sett deceased, (c) Sm. Puspa Bala Sett widow and Mathura Nath Sett claiming to be the son of Satish Chandra Sett, as this Court might deem fit and proper be brought on the record. On December 12, 1960, an affidavit was filed by Sm. Puspa Bala Sett in the said application of Amal Kumar Sett that Mathura Nath Sett is the only son of Satish Chandra Sett by his second wife who predeceased her husband. On January 11, 1961, an order was passed by G.K. Mitter J. (as his Lordship then was) on the said application whereby the death of Satish Chandra Sett was recorded and the Registrar of the Court was directed to find out who was the proper person to be appointed as the next friend. On January 17, 1961, the order dated January 11, 1961, was mentioned before G.K. Mitter J. and the learned Judge was pleased to modify the said order dated January 11, 1961, as follows:
That the said order dated 11.1.1961 shall be without prejudice to the rights and contentions of Mathura Nath Sett and Puspa Bala Sett.
On August 13, 1961, G.K. Mitter J. passed the following order :
Sm. Puspa Bala Sett be brought on the record as one of the Defendants and added as a party to the suit and reference. The rest of the prayers are to be dealt with by the Registrar.
On February 3, 1962, Pannalal Sett died leaving him surviving Sm. Parbati Bala Basak as his only sister and heiress and legal representative. On April 18, 1962, by an application Bhaba Saran Sett stated that Mathura Nath Sett claimed to be the son of Satish Chandra Sett by Kamala Bala Sett, the predeceased second wife of Satish Chandra Sett. On August 17, 1962, Amal Kumar Sett furnished security by executing Bond in favour of the Registrar and took up the office of managership and continued to act as such till the next manager Bhaba Saran Sett, son of Hiralal Sett, took up the office of manager from June 5, 1969, though the turn of managership of Amal Kumar Sett devolved on February 13, 1960 and expired on February 12, 1965. The period of managership of the branch of Lai Mohan Sett expired on February 12, 1965. On February 13, 1965, the office of manager devolved on the branch of Hiralal Sett. Bhaba Saran being the eldest son of Hiralal belongs to the branch of Hiralal Sett. On September 1, 1965, Sushila Sundari Sett, widow of Thakurdas Sett deceased, died leaving her surviving four sons, namely Amal Kumar Sett, Bimal Kumar Sett, Kamal Kumar Sett and three daughters Sabitri Basak, Sankari Basak and Gouri Basak as heirs, heiresses and legal representatives. This part of the case made by Nabin is disputed by Bhaba Saran Sett and Sushil Kumar Sett. On March 13, 1969, an order was made by S.C. Ghose J. directing, inter alia, that the death of Sm. Puspa Bala Sett be recorded and Mr. G.C. De, Advocate, be appointed as the next friend of the Plaintiffs deities in place and stead of Sm. Puspa Bala Sett. On August 27, 1968, Bhaba Saran Sett, eldest male member of the branch of Hiralal, took out a notice issued by the Registrar-in-Insolvency for furnishing security for entering into the office of manager. On June 5, 1969, Bhaba Saran Sett furnished the security bond and started acting as manager of the deities. It is stated in the petition of Nabin that the period of manager ship of the branch of Hiralal Sett, namely the managership of Bhaba Saran, expired on February 12, 1970. But Bhaba Saran denied the statement of Nabin. According to Bhaba Saran, he resumed his duties as a manager with effect from June 5, 1969 and he was entitled to continue as such manager till June 4, 1974, in terms of the order dated February 13, 1950. Nabin, in his petition affirmed on July 26, 1973, states :
On or about July 17, 1972, Bhaba Saran Sett told me (Nabin) that he (Bhaba Saran) had already prepared a deed of lease in respect of the premises No. 1/1 Sir Hariram Goenka Street, Calcutta and 18/1, Maharshi Debendra Road, Calcutta, whereby it was intended to demise the said two properties in favour of one Hari Shankar Sharma for a term of 71 years at a monthly rent of Rs. 1,000 which would be increased gradually and for a premium of Rs. 75,000.
Nabin further states that Bhaba Saran Sett explained to him that under the said deed of lease, the lessee would demolish the existing structure and erect a new building thereon and further that the Plaintiffs deities would be removed to a suitable place. Bhaba Saran represented to him that he had already made arrangement for purchasing a plot of land measuring about 3 cottahs on Ashutosh Mukherjee Road, Calcutta, at a cost of Rs. 45,000 wherein a temple could be constructed at a cost of Rs. 25,000 approximately. Nabin pointed out to Bhaba Saran that no lease of the said two properties could be granted without taking sanction of the Hon''ble High Court at Calcutta. Further case of Nabin in his petition is that Bhaba Saran Sett did not hand over to him a copy of the said deed of lease. Nabin states that he secured a certified copy of the said deed of lease from his elder brother on or about July 19, 1973. From the copy of the said deed of lease it appears that Nabin''s name has been mentioned as sebait of the deities and as one of the lessors. From the copy of the deed of lease it further appeared to Nabin that some of the sebaits had already signed the deed of lease and admitted execution in a commission appointed for registration of the said deed of lease. Upon coming to know the terms and conditions of the said deed of lease, Nabin pointed out that the same was not beneficial to the deities. Nabin further pointed out that the deities should not be removed from the said premises and in view of the order of the High Court the deity could not be removed to any other place. The Petitioner further pointed out that the rent reserved under the said deed of lease was exorbitantly low. From the deed of lease it also appeared to Nabin that no leave of the Hon''ble High Court had been taken for granting any such lease. Nabin pointed out that without taking any sanction of the Hon''ble Court no lease could be executed. Nabin, in the circumstances, refused to execute the said deed of lease. According to Nabin, upon being told that his tenure of office as manager had expired Bhaba Saran Sett threatened that most of the sebaits of the deities had already signed the said deed of lease and the deed of lease would be enforced even if Nabin would not sign the same. Nabin states that on July 19, 1973, he appeared before the learned Registrar of Assurances, Calcutta, on an information received from his brother that an enquiry case was pending against him. Nabin appeared before the Registrar of Assurances and prayed for time for filing objection to the registration of the said purported deed of lease under the above enquiry case. But the Registrar of Assurances rejected his prayer. The case of Nabin is that the deed of lease has not been signed by all persons mentioned as lessors in the said deed of lease and the said deed of lease has not yet come into effect. The case of Nabin is that the proposed lessee has not yet taken possession of the said premises and the said lease has not yet been implemented. All the sebaits of the deity have not yet executed the said lease. Further case of Nabin is that the proposed lease is void and illegal and detrimental to the interest of the deities. Nabin relies inter alia on the following facts:
(a) No leave of the Hon''ble High Court of Calcutta has been taken by Bhaba Saran Sett who is purporting to act as manager of the deities to grant such lease. The other sebaits have not also taken leave of the Hon�ble High Court to grant any such lease. The purported deed of lease without any sanction of the Hon''ble High Court at Calcutta or any proper Court of law is illegal and void.
(b) The proposed deed of lease is contrary to the terms of the order dated April 11, 1932, passed in suit No. 1145 of 1928 inasmuch as under the said proposed lease deities are intended to be removed from the said premises in which the deities are located.
(c) The sebait of the deities Bhaba Saran Sett has got no power to grant a lease for such a long period without the leave of the Hon''ble High Court at Calcutta or any competent Court and no such leave has been obtained. Bhaba Saran had ceased to be entitled to act as manager of the deities on February 12, 1970.
(d) Rent reserved under the said deed of lease is exorbitantly low and totally unreasonable. The letting out value of the said two properties should be not less than Rs. 3,500 per month and the appropriate amount of premium receivable for a long building lease for 71 years would not be below Rs. 1,00,000.
(e) There is sufficient space in the said premises to provide for erection of a suitable temple for the Plaintiffs deities in a portion of the said premises. Even after construction of such temple the remaining portion of the said premises can be let out at a rent much higher than the rent fixed under the said purported deed of lease.
(f) The deed of lease contains false statement that the deities do not have sufficient funds.
(g) All sebaits of the Plaintiffs deities have not joined in the purported deed of lease, namely Mathura, son of Satish Chandra Sett deceased and Sm. Sabitri, Sm. Sankari and Sm. Gouri, daughters of Thakurdas Sett deceased. In the absence of all the sebaits no valid lease can be granted by some of the sebaits.
It is stated by Nabin in his petition that Bhaba Saran and his group are trying to remove the Plaintiffs deities from No. 18/1, Maharshi Debendra Nath Road in breach of order of this Hon''ble High Court and for the purpose of making over vacant possession to the proposed lessee. Nabin resisted such wrongful attempt on the part of Bhaba Saran and his group even as late as on July 24, 1973. Nabin states that unless restrained by this Hon''ble Court the deities will be forcibly and illegally removed from the said premises. It is stated in the petition that the persons shown as lessors in the deed of lease have not executed the same nor have they presented the document for registration thereof. One of the proposed lessors, namely Kumari Papia Sett, is a minor and she is described as a minor in the deed of lease. No guardian of Kumari Papia Sett has been appointed by any competent Court of law nor any leave has been obtained from any competent Court of law to execute the deed of lease on her behalf. On the above grounds Nabin has made this petition and wants an order of injunction from this Court restraining Bhaba Saran and others from granting the lease dated December 14, 1971. He also prayed that Mathura Nath Sett, Sm. Sabitri, Sm. Sankari and Sm. Gouri be added as party and their names be brought on record.
Bhaba Saran Sett has filed an affidavit on August 27, 1973. Bhaba Saran states that the deed of lease has been executed by all the sebaits including the Petitioner, but the registration of the same could not be completed because Nabin along with some members in his group are refusing to appear before the Registrar of Assurances for admission of the execution of the lease by them. It is also stated that the said lessee has taken possession of the said premises with knowledge and/or consent of all the sebaits including the Petitioner. The case of Bhaba Saran is that all the sebaits including the deponent and the Petitioner as such sebaits did not obtain the leave of this Hon''ble Court before granting the said lease because it was agreed upon after consulting their respective lawyers that in the decree there is no bar in leasing out the said properties nor any leave of this Hon''ble Court was necessary. Bhaba Saran states that it was further agreed on proper legal advice that when all the sebaits were parties to and/or executed the said deed of lease, only the said decree of this. Court dated April 11, 1932, had to be adjusted and/or modified and for the purpose necessary application would be made to this Hon''ble Court. Bhaba Saran states that long before the said deed of lease was prepared the idea of leasing out the said premises at Nos. 1/1, Sir Hariram Goenka Street, Calcutta and 18/1, Maharshi Debendra Nath Road, Calcutta, was mooted at the instance of all the sebaits of the Plaintiffs deities including the Petitioner of the branch of the said Sujendra Mohan Sett and all the sebaits belonging to the branch of Purnagendra Sett (deceased) who are not parties to the suit but having half share or moiety in the said properties. The terms and conditions including the rate of the rental and premium money and the manner in which the said premium to be spent as contained in the said deed of lease was consented to and/or agreed upon by each of the said sebaits including the Petitioner. In fact, the said deed of lease was prepared by Sri M.K. Palit, Solicitor, who all along had been acting as the Attorney for the Petitioner and his brothers and the said Sri M.K. Palit is one of the attesting witnesses to the said deed of lease. It is stated that the Petitioner along with the other sebaits of the Plaintiffs deities duly executed and/or signed the said deed of lease and the Petitioner has duly derived benefit under the said lease. It is submitted by Bhaba Saran that the Petitioner is estopped from denying and/or disputing the terms and conditions and/or execution of the said deed of lease. The Petitioner has knowingly participated in the agreement of the said lease and/or executed the said deed of lease and was in pari delicto if there be any, Bhaba Saran in his affidavit denied that Sm. Sabitri, Sm. Sankari and Sm. Gouri, daughters of Thakurdas Sett, were sebaits. It is stated that at the time of substitution of legal heirs and representatives on the death of said Thakurdas Sett his said daughters were excluded and/or not brought on record under the order of this Hon''ble Court. Bhaba Saran has also stated that Mathura Nath Sett is not the son of Satish Chandra Sett deceased and he is not one of the sebaits. It appears from the affidavit of Bhaba Saran Sett that the premium of Rs. 75,000 has been received and a new premises at 124 Ashutosh Mukherjee Road has been purchased.
Affidavit-in-opposition has also been affirmed on August 23, 1973, by another sebait Sushil Kumar Sett who is supporting Bhaba Saran. Sushil has stated that the question of necessity and/or benefit of the debattar estate was duly and fully considered not only by the sebaits belonging to the branch of Sujendra Mohan Sett but also by the sebaits belonging to the branch of Purnagendra Mohan Sett (brother of Sujendra Mohan Sett) who are entitled to a moiety or half part of the share of the said debattar. The lease has been signed and executed by all the persons named in the document of lease as lessors and the lessee and upon completion of such execution the said lease was submitted and admitted for registration. In the said lease the deities Sri Sri Gobinda Roy Jew, Sri Sri Lakshminarayan Jew and Sri Sri Rameshwar Jew were mentioned as some of the lessors and the lease has been duly executed and registered on behalf of the said deities by Bhaba Sarah, one of the sebaits as manager, that is, as the duly authorised representative constituted for the purpose of managing the affairs of the deities. The lessee has taken possession of the demised premises and has started work and operation to give effect to the lease. It is stated that the condition of the building of premises No. 18/1 Maharshi Debendra Nath Road, where the deities are at present residing and are now located, may collapse and fall down at any moment and may cause and inflict physical injury and damage to the deities. It is stated that the facts of receipt of payment of the premium amount and the purchase of premises No. 124 Ashutosh Mukherjee Road and erection of the new building thereon out of the said amount are fully known to the Petitioner who is now pretending ignorance. Sushil has further stated that the said lease has been granted to make adequate and befitting arrangement for seba of the said deities which are old ancestral deities of lessors who belong to an illustrious and ancient family of North Calcutta. The lease has been granted for the purpose of averting catastrophe and ruination of the debattar estate as also of the safety of the image of the deities as also for the distinct benefit of the said debattar estate. Mathura Sett has filed an affidavit-in-reply on August 29, 1973. He has stated that he is the son of Satish Chandra Sett by his second wife Sm. Kamala Bala Sett who predeceased his father, Sm. Puspa Bala Sett is his step-mother, being the first wife of the said Late Satish Chandra Sett. He has stated that the name of Kamala Bala Sett, his mother, should have been stated in the genealogical table which is annexed to the petition. In paras. 4, 6 and 7 of the affidavit he has stated several facts to show that he is the son of Satish Chandra Sett since deceased. His case is that on the death of his father his name should be brought on the records as he has become a sebait of the deities in place of his father and/or in place of his mother. He also states that in fact he has performed deb-seba during his pala between Baisakh 1379 and Chaitra 1379 B.S. corresponding to April 1972 to April 1973. He is absolutely ignorant about the purported lease in respect of premises No. 1/1 Sir Hari Ram Goenka Street, Calcutta and 18/1 Maharshi Debendra Nath Road, Calcutta.
Nabin has filed an affidavit-in-reply on September 6, 1973. He has stated that Hari Shankar Sharma is only a benamdar of Bhaba Saran Sett and Amar Nath Sett. Nabin states that if the lease is granted then the name, fame and reputation of the ancient Sett family of Burrabazar area would be destroyed for good and the deities Sri Sri Gobinda Roy Jew and Sri Sri Lakshminarayan Jew would be removed from their present position where they are located for the last 200 years. He also denies that the lessee has taken possession. The lessee Sri Hari Shankar Sharma, neither a party to the suit nor a party to the notice of motion taken out on behalf of Nabin, wanted to interfere in this proceeding and with the leave of the Court has filed an affidavit on June 6, 1974.
In the affidavit the lessee Hari Shankar Sharma states that he has duly made over a sum of Rs. 75,000 to the sebaits of the deities to the said Bhaba Saran Seth and Amar Nath Seth for purchase of a land at 124 Ashutosh Mukherjee Road, Calcutta and for construction of the Thakurbari for the deities. His case is that he has let out and/or extended for the purpose of obtaining lease in respect of the said premises without objection from and/or with the knowledge and consent of all the sebaits. At the time of the registration of the said lease in the office of the Registrar of Assurances Nabin and a few of the sebaits refused to execute the said lease unless they paid to them individually premium or selami at an exorbitant rate. It is also stated by him that he obtained possession of the said premises save and except the portion in which the deities are located as early as in January 1973. But, before the structures standing thereon could be demolished pursuant to and in part performance of the said agreement contained and/or set out in the said deed of lease the Petitioner has obtained injunction from this Court. He has stated that: out of the sum of Rs. 75,000 a plot of land at 124 Ashutosh Mukherjee Road was purchased and the construction of Thakurbari had been started in or about January 1973. He also states that Thakurbari is now complete. According to him, all the sebaits of the deities have acted in terms of and/or in effect to the terms and conditions contained in the deed of lease and are now sebaits.
On June 10, 1974, Nabin had filed a reply to the above affidavit of the lessee. It is stated that a great fraud is sought to be perpetrated by Bhaba Saran Sett and his associates on the one hand and the deponent Hari Shankar Sharma on the other not only on the sebaits of the Plaintiffs deities but also on the Plaintiffs deities themselves.
The prayers of Nabin in his petition may be divided into three categories. First, prayers (a) to (d) and (h) relate to the lease dated December 14, 1972. Nabin wants an order of injunction restraining the Respondents from giving effect or further effect to the lease. He also wants that the lease dated December 14, 1972, should be cancelled. Second, prayers (e) and (g), where Nabin is asking for discharge of Bhaba Saran and for injunction restraining him from acting any further as manager of the Plaintiffs deities. Thirdly, prayer (f) where Nabin is praying that Sri Mathura Nath Sett, Sm. Sabitri Debi, Sm. Sankari Debi and Sm. Gouri Debi be added as parties.
I shall deal with prayers (a) to (d) and (h) of the notice of motion first. With regard to these prayers Mr. Chandan Banerjee, Learned Counsel appearing for Nabin, has argued as follows:
(1) There was a lis pending in this Court in respect of the debattar properties. During the pendency of the lis the properties of the deities could not be leased out for a period of 71 years without permission of the Court.
(2) All the sebaits have not joined as lessors. Lease could not be granted by some of the sebaits. Even the majority of sebaits cannot grant a lease.
(3) The lease is not merely a lease of a portion of debattar property but lease of the entirety of the two immovable properties of the deities where the two deities reside and lease entails removal of the deities from their abode.
(4) The removal of the deities cannot be done because the order dated April 11, 1932, in the administration suit provides the two deities should reside at 18/1 Maharshi Debendra Nath Road. By the lease which is sought to be granted the decree and order of this Court dated April 11, 1932, is violated. Thus the lease has been entered and cannot be given without the sanction of the Court and without modifying the order dated April 11, 1932.
Mr. Banerjee has referred to (i) B.K. Mukherjee on the Hindu Law of Religious and Charitable Trusts (3rd ed., pp. 197 and 198), (ii) the case of Sree Sree Iswar Lakshi Durga Har Tatneswar and Others Vs. Surendra Nath Sarkar and Others and (iii) the decision of Pramatha v. Pradyumna L.R. 52 I.A. 245.
Mr. Hirak Mitter appearing for Sushil has submitted as follows : (i) No restriction was imposed dh the power of the manager Bhaba Saran by this Court. (ii) As to the question of removal of a deity it is not necessary to obtain any order of the Court. Whether it should be removed or not depends on the exigency of the situation and the wishes of the sebaits. Mr. Hirak Mitter also referred to the Privy Council decision in the case of Pramatha v. Pradyumna L.R. 52 I.A. 245 and submitted that Privy Council in that case has observed that if it is thought that a family idol should change its location, the will of the idol itself expressed through his guardian must be given effect to. According to Mr. Hirak Mitter in the instant case, all the sebaits including the guardian of the deities have agreed for removal of the deities and so it is not necessary to obtain the sanction of the Court. The sebaits have power to bind the estate of the deities and the sebaits have exercised that power. Mr. Hirak Mitter has also invited my attention to my decision in the case of Sri Sri Iswar Jagannath Deb Jew and Others Vs. Fatick Chand Seal and Others, where I held following the judgment of Ameer Ali J. in the case of Sree Sree Iswar Narain Jew Vs. Henry E. Soler that the High Court has no jurisdiction to grant leave to a sebait to sell or mortgage debattar property for legal necessity. In that case Ameer Ali J. held that leasing out debattar property for 99 years by the Receiver would mean giving a certificate by Court to the Receiver for legal necessity. But, according to Mr. Hirak Mitter, the question whether the debattar property should be leased out or not is a question to be decided by the sebaits. This does not call for an order for giving the lease from the Court because the sebaits have expressed their intention to sign the lease. So, no leave of the Court is necessary.
In course of argument Mr. Banerjee on behalf of Nabin has pointed out to me that there are differences between the original lease which has been brought to this Court from the Registration office and the lease which is annexed to the petition of Bhaba Saran which has been made during the pendency of the application by Nabin. In the lease which has been annexed to the petition of Bhaba Saran the names of Sm. Sabitri Debi, Sm. Sankari Debi and Sm. Gouri Debi have been put in as lessors, but the lease dated December 14, 1972, which has been brought from the office of the Registrar their names did not appear. It is also stated in the lease brought from the office of the Registrar.
Likewise the said Sri Bhaba Saran Sett as the manager in Suit No. 1145 of 1928 of the Calcutta High Court as representing the branch of the said Sujendra Mohan Sett deceased simultaneously with the execution of these presents shall make over possession to the lessee of the said premises No. 1/1 Sir Hariram Goenka Street in Calcutta aforesaid in the same condition in which the same is at present lying. In the petition of Bhaba Saran it is stated that--
Likewise the said Sri Bhaba Saran Sett as representing the branch of the said Sujendra Mohan Sett deceased shall make over possession to the lessee of the said premises No. 1/1 Sir Hariram Goenka Street in Calcutta aforesaid in the same condition in which the said premises is at present lying.
Thus, in the lease which has come from the office of the Registrar the words "simultaneously with the execution of these presents shall make over" are new additions which are not in the lease which Bhaba Saran has annexed to his petition affirmed on January 4, 1974. It appears that the lease dated December 14, 1972, originally in type shows as blank day of July 1972. The month of July has been struck out in ink and the word ''December'' has been put in. In any event there are differences in the leases. In the lease which is annexed to the petition there is a schedule which contains two parts, namely, pt. I and pt. II. In the lease which has come from the office of the Registrar there is a schedule which contains three parts, namely pt. I, pt. II and pt. III. I need not go into the details in this matter. But there is no doubt in my mind that there is some difference. It has also been argued by Mr. Banerjee that one of the sebaits is a minor girl Papia. The guardian of the minor cannot enter into a personal covenant nor can grant the lease without previous permission of the Court u/s 8 of the Hindu Minority and Guardians Act, 1956. It seems to me that there is great force in the submission of Mr. Banerjee on the points he has taken. After Mr. Banerjee has stressed on this point Mr. R.P. Sinha, the Learned Counsel for Bhaba Saran on April 15, 1974, wanted to file a supplementary affidavit which is affirmed on August 7, 1974, to show that the three sebaits Sabitri, Sankari and Gouri had concurred to the granting of the lease and had agreed to the grant of the lease of the properties belonging to the Plaintiffs deities to the lessee. Mr. Banerjee on behalf of Nabin seriously objected to such affidavit being filed at that stage and submitted that the affidavit had been procured by Bhaba Saran. In view of the objection, I was not inclined at that stage to allow Mr. Sinha to file the affidavit. Mr. Banerjee had also in course of his argument submitted that the position of Bhaba Saran was really that of a Receiver under Rule 40 of the Code of Civil Procedure. He invited my notice to two cases on this point : (i) Ramaswami Naidu and Others Vs. Ayyalu Naidu, and (ii) a decision of the Division Bench of the Calcutta High Court in the case of Binjraj Marwari and Ors. v. Das Mookerjee and Company and Ors. AIR 1926 Cal. 659. He submitted that there was no provision for appointing a manager under the Code. When the manager is appointed it is really another name for appointment of a Receiver under Rule 40 of the CPC and therefore, according to Mr. Banerjee, Bhaba Saran could not have entered into the lease for 71 years in the capacity as a manager of the debattar properties without obtaining previous leave of the Court for granting such lease as manager.
The learned Advocate-General Mr. Gouri Mitter, appearing with Mr. R.P. Sinha, adopted the argument of Mr. Hirak Mitter. Mr. Advocate-General in course of his argument submitted that Sabitri, Sankari and Gouri have consented to the lease and he wanted that the affidavit of Bhaba Saran Sett affirmed on August 7, 1974, should be kept in the records of this Court. According to the AdvocateGeneral, all the sebaits have either consented to the lease or have concurred in giving the lease to Hari Shankar Sharma. The learned Advocate-General also submitted that under compelling circumstances due to legal necessity as the property is in a very dilapidated condition, the sebaits have decided to lease out the property and they have also decided to remove the deities. According to the Advocate-General, all the sebaits have done it. They all agreed to grant the lease to Hari Shankar Sharma. All of them have signed except Sm. Sabitri Debi, Sm. Sankari Debi and Sm. Gouri Debi. But they have also concurred and it will appear from the further affidavit of Bhaba Saran affirmed on August 7, 1974. As the Advocate-General wanted to keep the same on the records of this Court I allowed him to do so. I also allowed Nabin to file an affidavit-in opposition to the affidavit which Bhaba Saran wanted to file at this stage. Accordingly, Nabin has also affirmed another affidavit on August 27, 1974, in opposition to the affidavit of Bhaba Saran affirmed on August 7, 1974. In the affidavit of Bhaba Saran affirmed on August 7, 1974, Bhaba Saran states that on or about August 3, 1974, he received a letter dated August 2, 1974, signed by Sm. Sabitri, Sm. Sankari and Sm. Gouri by the pen of Sm. Sankari through one Amar Nath Sett and one R.K. Roy, the purohit of the deities, wherein Sm. Sabitri, Sm. Sankari and Sm. Gouri, inter alia, consented to and/or agreed to grant the said lease and/or construction of the said new Thakurbari or temple. He has also annexed a letter by Sm. Sabitri Sm. Sankari and Sm. Gouri by the pen of Sankari Basak. Nabin in his affidavit affirmed on August 27, 1974, denies and disputes the statements contained in the said affidavit of Bhaba Saran. Nabin says that the said letter has been procured by Bhaba Saran and in his affidavit he has stated the circumstances under which and by whom the said letter was procured. He says that the letter dated August 3, 1974, annexed to the affidavit is not the same letter which bears the signature of Sm. Sabitri, Sm. Sankari and Sm. Gouri. The letter so signed has been subsequently interpolated by Bhaba Saran.
It seems to me that serious and complicated questions of fact and law have been raised on several points, inter alia, as to whether all the sebaits have signed the lease or whether all the sebaits have concurred for granting the lease and for removal of the deities from the recent abode to the new abode.
The conduct of Bhaba Saran on the facts placed before me cannot be approved by this Court. It seems to me that he has proceeded with the matter in undue haste and hurry and he is taking unusual interest in the matter. After all he is one of the sebaits of the three deities and he has been appointed as a manager for five years under the order of this Court in the administration suit on furnishing security of Rs. 12,000. He has taken upon himself the burden of executing a lease for 71 years. A sum of Rs. 75,000 was taken by him and another person representing the branch of Purnagendra Mohan Sett. Premises No. 124 Ashutosh Mukherjee Road has been purchased in the names of two deities and a temple for the three deities has been constructed. The two deities have been located for a very long time at premises No. 18/1 Maharshi Debendra Nath Road. The hearing and effect of the order dated April 11, 1932, is that so far as Lakshminarayan Jew is concerned no separate temple should be constructed. Bhaba Saran as manager did not bring to the notice of this Court that he wanted leave of this Court to do so. Here the questions arise whether there was very urgent need or legal necessity for the same or whether all the sebaits joined in the lease or concurred in granting the lease on the terms on which the lease had been granted to Hari Shankar Sharma. It is clear that there were some material discrepancies in the lease which has been brought to this Court from the office of the Registrar and the lease which is annexed to the petition of Bhaba Saran made during the pendency of the application of Nabin, for leave of the Court, for removal of the deity and for varying the order dated April 11, 1932. Question may also arise whether the will of the deity for removal to a new place of abode has been duly and properly obtained. It does not appear to me that there was any meeting called by Bhaba Saran or by any of the sebaits where these points were discussed or a consensus of opinion was arrived at a meeting of the sebaits before entering into the lease. Another disputed question of facts is whether the lessee has taken the possession of the same. Who has given such possession and at what point of time? Has Bhaba Saran given possession to the lessee before the lease is duly registered? The lease which sought to be registered did not contain the names of Sm. Sabitri, Sm. Sankari and Sm. Gouri. These are all serious and complicated questions and cannot be decided in this application. It seems to me that there is great substance in some of the points taken by Mr. Chandan Banerjee on behalf of Nabin in this application.
The principle of law on the point has been stated by the great Judge and Jurist B.K. Mukherjee in Hindu Law of Religious and Charitable Trusts (p. 197) where the following passage occurs :
When there are more sebaits than one, they constitute one body in the eyes of law and all of them must act together. The management may be for practical purposes in the hands of one of the sebaits who is called the managing sebait or the sebaits themselves may exercise their right of management by turns, but in neither case it is competent for one of the sebaits to do anything in relation to the debattar estate without the concurrence either express or implied of his co-sebaits.
At p. 198 the learned author of the same book continues to say as follows:
This is of course subject to any express direction given by the grantor. The Judicial Committee in a very recent case quoted a passage from Lewin''s Law of Trusts which in their opinion applied equally to sebaits in India. The passage runs as follows:
In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee and therefore, must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuses or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction for approval must be strictly proved.
Thus the act of a majority of sebaits cannot bind the dissenting minority, nor the debattar estate.
...
As all the sebaits form one body in the eyes of law, the deity is represented by all of them acting together and no one sebait can be said to represent the deity in part or to possess interest as such sebait in any particular portion of the idol''s property. Consequently, when one of the sebaits purported to alienate the debattar property to the extent of the share which he had as sebait in respect of the same, the alienation was held to be void.
At p. 219 of the same book the learned author says:
A sebait cannot delegate his authority even to a co-sebait. As has been said in the previous chapter, it is permissible to sebait for separate management; but they cannot while retaining their office abdicate altogether their duties and functions and delegate their authority including that of sale, gift or mortgage to a co-sebait. These arrangements amongst the sebaits can authorise the doing of routine administration work but cannot authorise an alienation of the debattar property without the concurrence of all the sebaits.
In the case of Sri Sri Lakshmi Durga Har Tatneswar and Ors. v. Surendra Nath Sarkar Supra the following passage occurs:
We think, however, that on the second point raised by Mr. Gupta, he is entitled to succeed. Assuming that there was legal necessity to support the leases, the question arises whether it is possible to hold, as the Courts below seem to have done, that three out of four sebaits could grant a lease in respect of the twelve annas share of the debattar properties. In the judgment of the Courts below, it is assumed that Hari Pada and Jugal Kishore, as two out of the four sebails, had eight annas share in the debattar properties and Nayan Manjuri, wife of Narayan Pada, had another four annas share in the same. The combined effect of the two leases therefore was the lessees acquired a leasehold interest, to the extent of twelve annas share, in the idol''s properties.
The head-note of the report Supra runs as follows:
the sebaits of a deity, when more than one, form one body in the eye of law. The deity is represented by all of them acting together and no one sebait can be said to represent the idol in part or to possess any specific interest in any share of the idol''s property. Consequently, an alienation of the debattar property by one of such sebaits to the extent of his share is invalid.
In view of the above matter, it seems to me that although there is great substance in the points taken by Mr. Chandan Banerjee on behalf of Nabin, but these points involved decision of serious and complicated questions of fact. Further, Nabin has stated in his affidavit-in reply that there is elements of fraud in the transaction. So, these questions cannot be decided in this application. There are not only serious and complicated questions of fact but there are also important questions of law which are to be applied on facts to be found on evidence in properly constituted suits. Therefore, it seems to me that on this application I cannot grant the prayers for injunction made by Nabin. It is also not possible to cancel the lease in this application. This also requires a decision on question of fact in a properly constituted suit for such a relief. Further, interest of third party is involved in this matter. The third party is not a party either to the administration suit and he has not been made a party to the application to the notice of motion but he has appeared before me. Mr. J. Mitter appearing for the third party has submitted that : (i) The scope of the petition is outside the scope of this suit, (ii) No relief can be granted in this suit regarding the lease and therefore, no injunction could be granted regarding the lease in an application made in this suit, (iii) The rights of a third party is involved who is not a party to this suit. Mr. Mitter has relied on the decision of the Madras High Court in the case of K.P.M. Aboobucker Vs. K. Kunhamoo and Others, and submitted that no interim relief can be granted unless such interim relief comes within the scope of the suit. Mr. Banerjee has submitted that this Court should give interim relief under the inherent jurisdiction u/s 151 of the CPC and relied on the case of Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . He also referred to other two cases of Supreme Court, namely, Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, and the decision of the Supreme Court in the case of Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, . I have no doubt in my mind that the prayers of Nabin for injunction restraining the other sebait from giving effect or further effect to the lease dated December 14, 1972, or restraining the sebaits from removal of the deities from the temple are outside the scope of the administration suit which is pending in this Court. The prayers in the administration suit relate to the administration of the property of the debattar estate. The descendants of the other branches of the sons of Sujendra Mohan have their respective rights for being appointed as manager in terms of the order of this Court. I agree with principle of law laid down in the decision of the Madras High Court in the case of K.P.M. Aboobucker Vs. K. Kunhamoo and Others, that interim relief by way of injunction could not be granted unless such injunction is within the scope of the original suit. P. Raja Gopalan, Officiating C.J., has observed as follows:
An interim relief is granted to a person on the footing that that person is prima facie entitled to the right, on which is based the claim for the main relief as well as the interim relief. That relief is granted as an interim measure till the disposal of the suit in which is to be investigated the validity of the claim of right that has been put forward.
If no such claim has been put forward in the suit, it means that there can be no occasion for investigation of such a claim in the suit, there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit, but which will leave the parties in the same position in which they were before the institution of the suit in the course of which the interim relief was sought and obtained.
The headnote of the decision Supra runs as follows:
An interim relief is granted to a person on the footing that that person is prima facie entitled to the right on which is based the claim for the main relief as well as the interim relief. That relief is granted as an interim measure till the disposal of the suit in which is to be investigated the validity of the claim of right that has been put forward. If no such claim has been put forward in the suit, it means that there can be no occasion for investigation of such a claim in the suit, there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit, but which will leave the parties in the same position in which they were before the institution of the suit in the course of which the interim relief was sought and obtained.
I agree with the view of the law as laid down by the Madras High Court in that case. It seems to me that the scope for injunction as prayed for in the petition is outside the scope of this suit and so it cannot be granted in an application made in this suit. As the matter is outside the scope of the suit I cannot grant the reliefs for injunction in this application. But the parties must agitate their rights in proper forum and in a properly constituted suit. There are very many disputed questions of fact which arise for consideration in respect of the lease which cannot be decided without oral evidence. Complicated questions of fact and law arise relating to the grant of lease dated December 14, 1972. I cannot decide those questions in this application, particularly when the interest of a third party has been involved who has spent money for taking the lease and the money has been received by some of the sebaits. It is true that under certain circumstances the Court has inherent power to grant injunction. The principle of law on this point has been laid down by the Supreme Court in Monohar Lal Chopra v. Rai Bahadur Sett Supra. Inherent jurisdiction of the Court to make order ex debito justiciae is undoubtedly affirmed by Section 151 of the Code of Civil Procedure, but the jurisdiction cannot be exercised so to nullify the provisions of the Code. Inherent powers have to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. But I cannot exercise such power in the instant case which involves many disputed questions of fact which cannot be decided without trial on evidence. Nabin has made serious allegations. Nabin, however, is himself a signatory to the lease.
The learned Advocate-General has raised points of estoppel. He has submitted that Nabin who has himself signed the lease cannot make this application. The learned Advocate-General has drawn my attention to Halsbury''s vol. 15, Art. 402 (p. 214) and submitted that Nabin has entered into a solemn engagement by deed under his hand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted. Nabin of course in his reply stated the circumstances under which he put his signature to the lease. These are again serious questions of fact which cannot be decided on this application.
I shall now deal with the other prayers of the petition. With the prayer (f) the question is whether Mathura, Sm. Sabitri, Sm. Sankari and Sm. Gouri be added as parties and their names be brought in the record of the suit. With regard to this prayer it is not disputed before me that Sm. Sabitri, Sm. Sankari and Sm. Gouri are sebaits and as a matter of fact, it is admitted that they are sebaits and they should be brought in the record. The only dispute is with regard to Mathura. If Mathura is the son of Satish, then again Mathura''s name has to be brought in the record. The question is whether Mathura is the son of Satish. This question requires to be decided on this application, because the legal representatives of the deceased Satish Sett have to be brought on record. Order 22, Rule 5 of the CPC says so.
Mathura in his affidavit has stated that he is 32 years old. He was born subsequent to the preliminary decree in the administration suit which was passed on March 17, 1931. He has stated that he is the son of Kamala Bala Sett who pre-deceased his father late Satish Chandra Sett. He also says that Sm. Puspa Bala Sett, since deceased, is his step-mother being the first wife of his father late Satish Chandra Sett. It is necessary to set out here the relevant portion of the preliminary decree dated March 17, 1931. In the said consent decree it was declared, inter alia, as follows:
Satish Chandra Sett is entitled during his life-time to participate in the worship of the Plaintiffs deities and to exercise and enjoy the rights and privileges of a sebait notwithstanding the kobala dated 30th April, 1914, executed by the said Satish Chandra Sett in favour of the Defendant Manmatha Nath Sett and Hira-lal Sett which kobala is hereby confirmed in all other respects. That after the death of the said Satish Chandra Sett his wife Sm. Puspa Bala Dassi shall be sebait in the place and stead of the said Satish Chandra Sett and after her death, if there be no male issue of the said Satish Chandra Sett surviving the turn of worship of the said Satish Chandra Sett and his wife, would belong to the Defendants Manmatha Nath Sett and Hiralal Sett or their heirs in equal shares per stirpes.
Satish died long ago leaving the registered will. It is stated in the affidavit of Mathura that his father Satish died on December 20, 1959, leaving a registered will dated May 20, 1952. By the said will his father appointed his step-mother Puspa Bala Sett and his cousin Sri Bejoy Kumar Sett as the executrix and executor there of and by the said will, ail the properties of his father were bequeathed to him and the said Bejoy Kumar Sett in equal shares. The probate of the will was granted by this Court and in the will it is slated by Satish Chandra Sett : "I have a son named Mathura by my pre-deceased second wife." Satish died on December 20, 1959. Mathura was then 17 years old. The probate of the will was granted on January 22, 1962. Mathura is a legatee under the will of Satish. Satish admits him as a son and makes him a legatee under his will. The step-mother of Mathura, Sm. Puspa Bala Sett, is the executrix of that will. She has also admitted that Mathura is the son of Satish. The order dated January 11, 1961, passed by this Court, is without prejudice to the rights and contentions of Mathura and Puspa Bala. This is clear from the order of this Court dated January 11, 1961.
Mr. Auddy, the learned Advocate for Mathura, has placed before me several affidavits made by Puspa Bala Sett in several proceedings in this administration suit. In her affidavit dated December 12, 1960, Puspa Bala Sett stated,
(a) Sri Mathura Nath Sett, the only son of my husband, is the son of his second wife Sm. Kamala Bala Sett who predeceased my husband, (b) Some 22 (23) years ago my husband was married to the said Kamala Bala Sett at Mathura where we were at that time living. Then within a year thereafter the said Mathura Nath Sett was born of the said second wife who died soon after he was born.
She also stated in her affidavit as follows:
The said Bhaba Saran Sett is one of the heirs of the said Hiralal Sett and has affirmed an affidavit on behalf of all the heirs of the said Hiralal Sett. In para. 2 of his affidavit he has made false statements with the sole intention of claiming a right which he cannot claim otherwise. I say that the genealogical table annexed to the petition of Amal Kumar Sett is correct save and except that the name of Kamala Bala Dassi should be added as the second wife of my deceased husband and Mathura Nath Sett should be shown as the son of Satish Chandra Sett by his said second wife.
There is another affidavit of Puspa Bala Sett affirmed on June 2, 1962, filed in the proceedings in this administration suit. Puspa Bala Sett in the said affidavit has stated as follows:
I say further that in the genealogical table Mathura Nath Sett should be described as the son and not as ''claims to be the son'' of late Satish Chandra Sett.
On September 19, 1961, Sm. Puspa Bala Sett filed a counter-statement of facts in which it is stated by her--
In the genealogical table Mathura Nath Sett should be described as the son and not as ''claims to be the son of late Satish Chandra Sett''.
There is also another affidavit affirmed by Sm. Puspa Bala Sett on August 30, 1961, in which she also reiterates that Mathura is the son of Satish.
Another affidavit of Puspa Bala Sett was affirmed on May 12, 1960, Where Sm. Puspa Bala Sett stated:
I am the widow of Satish Chandra Sett, one of the sebaits, who until his death was the next friend of the above-named deities. I am childless. Sri Mathura Nath Sett, the only son of my husband, is the son of his second wife Sm. Kamala Bala Sett who predeceased my husband.
Mr. Auddy in this connection invited my attention to several cases. He has cited (a) Kedar Nath v. Mathu Mal ILR 40 Cal. 551 (563) and (b) The Andhra Bank Ltd. Vs. R. Srinivasan and Others, . In the case of Kedar Nath v. Mathu Mal ILR Cal. 551 (563), the question at issue in the suit was, has the relationship of the Plaintiff been proved? This is denied. One Bisal Lal, the former owner of the property, was twice married. By his first wife the allegation is that he had a daughter who was the mother of the Plaintiff Mathu Mal. The oral evidence upon the point is meagre and conflicting. Under these circumstances the Chief Court looked for assistance to any deeds or documents under the hand of the second wife of the Plaintiff''s grand-father. That second wife executed a will. In that will this lady, who of all people was the person to make a statement of fact with regard to her husband''s history, his relationship and his succession, at two different parts of the documents declares that she has no issue nor any near relative. Lord Shaw delivering the judgment of the Privy Council observed as follows:
In this situation their Lordships are of opinion that, in the most solemn form, this lady had declared facts which must have been within the scope of her own knowledge; and if her version of the facts be sound, there can, in their Lordship''s view, be no doubt that the judgment appealed from is correct.
In the instant case also the will was executed by the father Satish Chandra Sett. He had special knowledge in the matter. He has stated Mathura as his son. The step-mother has also special knowledge in the matter. She has categorically stated on several occasions in affidavits that Mathura is the son of Satish by his another wife and she is the step-mother of Mathura. She acknowledged, accepted and proclaimed Mathura as her step-son being the son of Satish.
I, therefore, cannot accept the affidavit evidence of Bhaba Saran on this point. I indicated to the parties whether they want the issue to be tried on evidence, but none of the parties wanted that this issue should be tried on evidence. Therefore, I have to decide this matter on affidavit evidence. I prefer the affidavit evidence of father and step-mother of Mathura.
It is also necessary to quote here the observation of the Supreme Court in the case of Andhra Bank Ltd. v. Srinivasan and Ors. Supra (239) on which Mr. Auddy relied. The Supreme Court in that case held as follows:
Person who in law represents the estate of a deceased person is his legal representative. Estate does not mean the whole of the estate. Even a legatee who obtains only a part of the estate of the deceased under a will can be said to represent his estate and therefore a legal representative u/s 2 and Sub-section (11).
In that decision the Supreme Court observed:
The whole object of widening the scope of the expression ''legal representative'' which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview.
In view of the judgment of the Supreme Court it seems that legatee is also a legal representative of the deceased. In any event, I have no doubt in my mind that Mathura is the son of Satish by his second wife. He is also a legatee under the will of Satish.
Preliminary decree in this suit was passed long ago. There is an order dated February 1950, by which the eldest male member of which branch would be appointed manager for five years upon furnishing security of Rs. 12,000 to the satisfaction of the Registrar. Satish Chandra Sett who instituted this suit as next friend was admittedly a sebait of the deity. Mathura is his son and a legatee under his will. Therefore, Mathura should be added as a party to this suit as prayed for in the petition along with Sm. Sabitri, Sm. Sankari and Sm. Gouri who are the daughters of Thakurdas Gobardhan since deceased should also be made parties.
Mr. R.P. Sinha, the learned junior to the Advocate-General, has placed before me a written note of argument that Mathura cannot be brought on the record as the application is barred by limitation. He has relied on Article 137 of the Limitation Act of 1963. I cannot accept Mr. Sinha''s submission. Death of a party after preliminary decree does not cause abatement of the suit. Satish was a sebait of the deity. The sebaiti right is the right to an office. Sebatti right includes right as custodian of the idol as a manager of the property which includes the rights of an office. Under the order dated February 13, 1950, each branch has a right to be a manager. After the preliminary decree in the records of the suit sons of Satish must be brought on the record. So the order of this Court can give effect to the orders passed in the administration suit in order to continue the proceedings and such rights are not within Article 137 of the Limitation Act. The right to apply to be added as party after the death of Puspa Bala arises from day to day. In my view, Article 137 of the Limitation Act does not apply. The case which Mr. Sinha relied in support of his contention is the case of Mannem Venkataramayya Vs. M. Munnemma and Others, . The head-note of the report is as follows:
Where there are several legal representatives of a deceased Defendant, it is sufficient if all the legal representatives known after due diligent enquiry are joined within the period of limitation. Where some of the legal representatives have been brought on record on an application made within limitation, the subsequent application for bringing the other persons on record as legal representatives is not governed by the 90 days'' rule but is governed by the limitation of three years, as provided for under Article 181 of the Limitation Act....
In my view, the principles laid down in the Andhra Pradesh case do not apply under the facts of this case. In my view, Mathura should be brought on the record.
I shall now deal with prayers (e) and (g). Even according to Bhaba Saran his period of managership for five years has expired on June 4, 1974. Therefore, it is not necessary to pass any order of discharge. As the period of his managership has expired, it is not necessary also to pass an order of injunction restraining him to act any further as manager. In view of the above matter, I shall pass the following order in this application:
(a) There will be no order with regard to prayers (a), (b), (c) and (d) and (h) of the petition. But I am making it clear that this order is without prejudice to the rights and contentions of the parties and also without prejudice to the rights and contentions of the lessor Hari Shankar Sharma, in any suit or proceedings which may be instituted by any of the parties to establish their respective rights in the matter.
(b) With regard to prayer (e) no order is necessary as Bhaba Saran himself has stated that his period of managership has expired.
(c) There will be no order with regard to prayer (g).
(d) There will be order in terms of prayer (f) of the petition. Mathura Nath Sett, Sm. Sabitri, Sm. Sankari and Sm. Gouri should be added as parties and their names be brought on the record in this administration suit.
Each party to pay and bear its own costs in this application.
Operation of the order be stayed for eight weeks.