Whether the learned Judge was justified in granting leave under Clause 12 of the Letters Patent and Section 92 of the Civil P. C.
CALCUTTA HIGH COURT
Tridandeeswami Bhakti Kusum vs Mayapore Sree Chaitanya Math And Ors
CITATION: AIR 1983 Cal 420, 87 CWN 1081
Bench: M Dutt, M K Mukherjee
DATE: 22 April, 1983
JUDGMENT
M. M. Dutt, J.
1. This appeal has been preferred by the defendants Nos. 1 to 6 against the judgment and order dt. December 11, 1979 of the learned trial Judge refusing to revoke the leave under Clause 12 of the Letters Patent and also under Section 92 of the Civil P. C.
2. Mayapur Sree Chaitanya Math, a society registered under the West Bengal Societies Registration Act, 1961 and 10 members of its Governing Body are the plaintiffs. Defendant Nos. 7 to 11 are also the members of the Governing Body of the Society. The case of the plaintiffs is that on March 27, 1918 Sree Chaitanya Math was founded by one Bimala Prosad Dutta, also known as Shrila Bhakti Siddhanta Saraswati. By his will dated May 18, 1923 he dedicated all his properties, moveable and immoveable, to the deities Sree Sree Guru Gouranga Gandharbika and Giridhari Jew installed at Sree Chaitanya Math at Mayapur. He died on January 1, 1937.
3. After the demise of the said Bimala Prosad Dutta, a dispute arose among the shebaits, namely, Kunja Behari Das Bidyabhusan and Paramananda Brahamachari on the one hand and Ananta Vasudeb Brahmachari on the other. It may be staled here that the said Ananta Vasudeb Brahmachari registered a society named, Gaudiya Mission Society, under the Societies Registration Act. The said Kunja Behari Das Bidyabhusan and Parmananda Brahmachari filed a suit in this Court being Suit No. 2159 of 1940 against the said Ananta Vasudeb Brahmachari and Gaudiya Mission Society and others for a declaration that all the Math properties were the debutter properties of the deities of Sree Chaitanya Math, that they were entitled to manage the Math as Shebaits of the deities, and that the Gaudiya Mission Society had no right title or interest in the Math properties. The said suit was eventually compromised between the parties, and a consent decree was passed in accordance with the terms of settlement Under the compromise decree, all the properties belonging to the said deities were divided into two parts. Some of the properties were declared to be the properties of Sree Chaitanya Math and some to be the properties of Gaudiya Mission Society. We are, however, not concerned with the properties allotted to Gaudiya Mission Society.
4. The said Kunja Behari Das Bidyabhusan who was subsequently named as Shrila Bhakli Vilas Tirtha was alleged to have executed a deed of appointment dt. July 7, 1076. By the said deed of appointment, he appointed the defendants Nos. 1 to 6 as shebaits of the said deities, Sree Sree Guru Gouranga Gandharbika and Giridhari Jew, with powers to them to manage the properties of the said deities and to carry on their periodical seva puja and festivals. On the same date, he was alleged to have executed another deed of appointment whereby he nominated the defendants Nos. 1, 2 and 4 as shebaits of the deities Sri Guru, Sri Gour Sundar, Sri Radhy Dayita Kunja Behari Jew, all installed at 70B, Rash Behari Avenue, Calcutta In the said deed of appointment, he claimed to be the absolute owner of the said premises No. 70B, Rash Behari Avenue, Calcutta.
5. It is the plaintiffs’ case that all the properties purported to have been dealt with in the said alleged deeds of appointment formed part of the debutter estate belonging to the deities, namely, Sree Guru Gouranga Gandharbika and Giridhari Jew installed at Mayapur Sree Chaitanya Math. The plaintiffs have also denied the title of the said Kunja Behari Das Bidyabhusan to the said premises No. 70B, Rash Beharj Avenue. Calcutta and have claimed that the said premises also belongs to the said deities of Mayapur Sree Chaitanya Math.
6. So far as the said deeds of appointment dated July 7, 1976 are concerned, it has been alleged by the plaintiffs that each of the said deeds is a forged and fabricated document. Neither of the said two alleged deeds was signed or executed by the said Kunja Behari Das Bidyabhusan and his signatures appearing on the said deeds are not his signatures. Further, it is alleged that the said two deeds have been brought into existence falsely and fraudulently by the defendant or some of them with the wrongful and fraudulent motive and intention to usurp the alleged positions of shebaits and the powers of management, administration, control and custody of the debutter properties including the temples, Maths and residential houses. It is the contention of the plaintiffs that the said deeds of appointment are invalid, ineffective and not binding on the plaintiffs or any of the properties, temples, Maths, lands and buildings belonging to the said Sree Chaitanya Math or its branches. It has been alleged that on November 19, 1978, the defendants Nos. 1 to 6 with 200 persons invaded the said Sree Chaitanya Math at Mayapur with deadly weapons for the purpose of forcibly ousting the plaintiffs Nos. 2 to 11 and the defendants Nos. 7 to 10 who were in control, possession and management of the said Sree Chaitanya Math and all properties, assets and affairs thereof. The plaintiffs claim that the plaintiffs Nos. 2 to 11 and the defendants No. 7 to 11 who are the member of the lawfully constituted Governing Body of the plaintiff No. 1 Mayapur Sree Chaitanya Math, are solely and exclusively entitled to remain in possession, control, management, administration and custody of the plaintiff No. 1 and of all its temples. Maths and other properties and affairs. Accordingly, the plaintiff prayed as follows:
“(a) Leave under Clause 12 of the Letters Patent;
(b) Leave under Section 92 of the Civil P. C.
(c) A declaration that the plaintiffs Nos. 2 to 11 and the defendants Nos. 7 to 11 are the only members of the lawfully constituted Governing Body of the plaintiff No. 1 and as such are solely and exclusively entitled to remain in control, possession custody, management and administration of the plaintiff No. 1 all its Temples, Maths, lands buildings and other properties and affairs including the said Sri Chaitanya Research Institute;
(d) A further declaration, if necessary, that the defendants Nos. 1 to 6 have no right or title or interest ever or in respect of the plaintiff No. 1 or its Temples or Maths or lands or buildings or any other assets or affairs of the said Sri Chaitanya Research Institute and have no right to manage, administer, control or possess the same;
(e) A permanent injunction restraining the defendants Nos. 1 to 6 and their servants and agents from; —
(i) Interfering in any way with the rights, powers and functions of the said Governing Body of the plaintiff No. 1 in connection with the management, control, administration, custody and possession of the plaintiff No. 1 and its Temples. Maths, lands, buildings, properties, assets and affairs including the said Sri Chaitanya Research Institute;
(ii) In any way interfering with the daily Seva Puja and the periodic festivals of the deities Sri Sri Guru Gouranga Gandharbika Jew;
(iii) In any way interfering with daily SEVa Puja and the periodic festivals of the deities Sri Guru Sri Gour Sundar Sri Radha Dayite Kunja Behari Jew located at No. 70B. Rash Behari Avenue, Calcutta 26;
(iv) Selling, letting out, encumbering making any new construction, upon or in any manner dealing with any of the properties assets, lands, buildings and funds of the said Debutter estate including those of Mayapur Sree Chaitanya Math and Sri Chaitanya Research Institute:
(f) A declaration that the alleged Deeds of Appointment dated the 7th July. 1976 alleged to have been executed by Bhakti Vilas Tirtha Maharaj are void, inoperative ineffective and not binding on the plaintiffs including the said Mayapur Sri Chaitanya Math and the said Sri Chaitanya Research Institute;
(g) If necessary, decree directing that the said two Deeds of Appointment be delivered up for cancellation and be cancelled.
(h) An injunction restraining the defendants Nos. 1 to 6 and each of them and their servants and agents from claiming or usurping the office of Shebait or any other right or title or interest by virtue of or under or in terms of the alleged two Deeds of Appointment, both dated the 7th July, 1976;
(i) A further injunction in such other terms and to such other effect as may be deemed necessary in the facts and circumstances of this case;
(j) If necessary a Receiver be appointed;
(k) Costs;
(l) Further or other reliefs.”
7. The suit was filed by the plaintiffs after first obtaining leave under Clause 12 of the Letters Patent and also under Section 92 of the Civil P. C. In their application for the revocation of the leave under Clause 12 of the Letters Patent and under Section 92 of the Civil P. C., it has been contended by the defendants Nos. 1 to 6 that the suit is one for land and immoveable property, and that no part of such land or immoveable property being situated within the ordinary original jurisdiction of this Court, the leave under Clause 12 cannot be granted. With regard to the leave under Section 92 of the Civil P. C., the contention of the defendants is that as no relief in terms of Section 92 has been prayed for in the suit, such leave should not have been granted.
8. We are, therefore, concerned with the question as to whether the learned Judge was justified in granting leave under Clause 12 of the Letters Patent and Section 92 of the Civil P. C. So far as the leave under Section 92 is concerned, it may be stated here that Mr. Dipankar Ghosh, learned counsel appearing on behalf of the plaintiffs concedes that as no relief in terms of Section 92 has been prayed in the smt. it is not a suit under Section 92 and, as such, there was no scope for granting such leave. It is, however, submitted by him that although it is not a suit under Section 92, it cannot be dismissed on that ground inasmuch as this Court has jurisdiction to entertain the suit as an ordinary suit other than a suit under Section 92. We are, therefore, left with the only question as to whether leave under Clause 12 of the Letters Patent was rightly granted or not.
9. Under Clause 12 of the Letters Patent suits have been divided into two classes — (1) suits for land or other immoveable property and (2) other suits. In the case of suits for land or other immoveable properly, the High Court will have jurisdiction to try such suits, if such land or immoveable property is situate wholly within the local limits of the ordinary original jurisdiction of the High Court. Where the land or immoveable property is situate partly within the local limits and partly outside such limits, such suit can be instituted in the High Court only after first obtaining leave of the High Court under Clause 12. In the case of ether suits, such suits can be be instituted in the High Court if the cause-of-action arises wholly within the local limits of the ordinary original jurisdiction of the High Court or the defendant resides or carries on business-or works for gain within such limits. Where, however, the cause of action arises in part only within such limits, the suit can be instituted after first obtaining leave of the Court under Clause 12. Thus leave under Clause 12 is required to be taken in the case of a suit for land or other immoveable property, if a part of of such land or other immoveable property is situate within the local limits of the ordinary original jurisdiction of the High Court and, in the case of other suits, if a part of the cause of action arises within such limits.
10. In the instant case, no part of the land involved in the suit is situate within the ordinary original jurisdiction of this Court. So, if the suit is a suit for land, this Court will have no jurisdiction to entertain and hear the suit. It is, however, contended on behalf of the plaintiffs that it is not a suit for land or other immoveable property, but it is a suit for cancellation of the impugned deeds of appointment.
11. The first question that requires consideration is whether the suit is one for land or simply for the cancellation of the impugned deeds. The question has to be decided on the basis of the averments made in the plaint and the reliefs claimed therein. We have already referred to some of the averments and set out the reliefs claimed by the plaintiffs. It is contended by the learned counsel for the plaintiffs that although, prima facie, it may appear to be a suit for land, really it is a suit for the cancellation of impugned deeds of appointment. It is submitted by him that in deriding whether the suit is a suit for land or for the cancellation of the deeds of appointment, the Court should try to ascertain what the dominant or primary object of the suit is. If the primary object is to establish title to land or for possession or control of land, then it would be a suit for land. If, on the other hand, the Court comes to the conclusion that the primary object is something else, it will not be a suit for land notwithstanding the fact that it may affect title to or possession of land. In support of the above contention, the learned counsel has placed much reliance on a decision of the Federal Court in Moolji Jaitha & Co. v. K. S. & W. Mills Co. Ltd., AIR 1950 FC 83. In that case, the Federal Court had to consider as to what the term ‘suit for land’ in Clause 12 of the Letters Patent did really mean. There was, however, a divergence of opinion between Kania C. J. and Patanjali Sastri J. on the one hand and Mahajan J. and Mookherjee J. on the other (Fajal Ali J. not expressing any opinion) as to whether in the facts and circumstances of that case, the suit was a suit for land. But in spite of such divergence of opinion, it appears that there was a general agreement among all the learned Judges on one point that if the primary object of the suit was to obtain an adjudication on title to land or immoveable property, the suit would be a suit for land. In a Special Bench decision of this Court in Probirendra Mohun Tagore v. State of Bihar, (SB), S. C. Lahiri J. (as he then was) in delivering the judgment of the Special Bench also referred to the said general agreement of the learned Judges of the Federal Court in the case of Moolji Jaitha & Co. (supra).
12. We are now to consider what the primary object of the suit is. The plaintiffs’ claim that the disputed properties as mentioned in the impugned deeds of appointment belong to the plaintiff No. 1 Mayapur Sree Chaitanya Math and the plaintiffs Nos. 2 to 11 and the defendants Nos. 7 to 11 being the members of the Governing Body of the plaintiff No. 1 are alone entitled to remain in control, possession custody, management and administration of the disputed properties. The plaintiffs have also denied the right, title or interest of the defendants Nos. 1 to 6 in respect of the disputed proper-tics. These claims of the plaintiffs will clearly appear from prayers (c) and (d) of the plaint which are once more set out below :
(c) A declaration that the plaintiffs Nos. 2 to 11 and the defendants Nos. 7 to 11 are the only members of the lawfully constituted Governing Body of the Plaintiff No. 1 and as such are solely and exclusively entitled to remain in control, possession, custody, management and administration of the plaintiff No. 1, all its Temples, Maths, lands, buildings and other properties and affairs including the said Sri Chaitanya Institute.
(d) A further declaration, if necessary, that the defendants Nos. 1 to 6 have no right or title or interest over or in respect of the plaintiff No. 1 or its Temples or Maths or lands or buildings or any other assets or affairs of the said Sri Chaitanya Research Institute and have no right to manage, administer, control or possess the same.
13. Apart from prayers (c) and (d), the plaintiffs have prayed for a permanent injunction inter alia restraining the defendants Nos. 1 to 6 from in any way interfering with the rights, powers and functions of the Governing Body of the plaintiff No. 1 in connection with the management, control, administration, custody and possession of the Temples, Maths, lands, buildings, properties and assets of the plaintiff No. 1 including the said Sri Chaitanya Research Institute, being the said premises No. 70B. Rash Behari Avenue, Calcutta.
14. The claims made by the plaintiffs in the suit as contained in the above prayers undoubtedly relate to questions of title, possession, control and management of lands and buildings necessitating an adjudication thereof. It is, however, urged on behalf of the plaintiffs that the above claims or prayers made in the suit are ancillary or consequential to the principal relief or claim as made in prayers (f) and (g) of the plaint relating to the impugned deeds of appointment. In prayer (f), the plaintiffs have inter alia prayed for a declaration as to invalidity of the impugned deeds and, prayer (g), for the setting aside of the same. It is submitted on behalf of the plaintiffs that the primary object of the suit is the cancellation or setting aside of the impugned deeds upon a declaration that the impugned deeds are illegal, inoperative and void, and not the other reliefs as claimed in prayers (c) and (d) of the plaint.
15. In our opinion, the question whether, out of several reliefs in the plaint, the claim for the grant of a particular relief which does not relate to title to, or possession, control or management of land or buildings or other immoveable property, is the primary object of the suit or not, has to be decided by applying the test whether such relief claimed to be the primary object of the suit can be granted to the plaintiffs without the necessity of any adjudication on the question of title to any land or buildings or other immoveable property, or possession, control or management thereof. If the relief stands the test, the suit will not be a suit for land or other immoveable property within the meaning of Clause 12 of the Letter Patent, although the grant of such relief may indirectly affect land or other immoveable property. If, however, by applying the test it is found that such relief cannot be granted without deciding the question of title to, or possession, control or management of land or other immoveable property, the claim for the grant of such relief cannot be the primary object of the suit and, in that case, the suit will be a suit for land or other immoveable property within the meaning of Clause 12 of the Letters Patent.
16. In the instant case, the impugned deeds of appointment purport to affect and/or interfere with the alleged title of the plaintiff No. 1, Mayapur Sree. Chaitanya Math to the Temples, Maths and buildings including the said premises No. 70B, Rash Behari Avenue, Calcutta, and also the alleged right of the members of the Governing Body of the plaintiff No. 1 relating to the management, control, possession and ad-
ministration thereof, as claimed in the plaint. Unless, therefore, the plaintiffs are able to prove the title of the plaintiff No. 1 to the disputed properties and the right of the members of the Governing Body of the plaintiff No. 1 to the management, control, possession, custody and administration of the disputed properties, the plaintiffs will not be entitled to claim the cancellation or setting aside of the impugned deeds. It has been already noticed that in one of the impugned deeds, absolute title to premises No. 70B, Rash Behari Avenue, Calcutta, known as Sri Chaitanya Research Institute, has been claimed by the settler thereof, which the plaintiffs have denied. The plaintiffs have claimed title of the plaintiff No. 1 to the said premises as also to all other disputed properties, namely, temples, maths, buildings etc. There can, therefore, be no doubt that the Court will have to adjudicate on the question of title, possession etc., in respect of the disputed properties. The success of the plaintiffs in getting the impugned deeds set aside will depend upon their proving title of the plaintiff No. 1 to the disputed properties and the right of its Governing Body to manage, control and possess the same. Indeed, if there had been no averment of title of the plaintiff No. 1 to the disputed properties or of the right of management, possession, control etc. of the members of its Governing Body, the plaintiffs would not have any locus standi to claim the setting aside of the impugned deeds. In the circumstances, it is difficult for us to hold that the primary object of the suit is the setting aside of the impugned deeds of appointment, and that the suit is not a suit for land or other immoveable property. Accordingly, disagreeing with the learned Judge, we hold that the suit is a suit for land and all the properties being situate outside the local limits of the ordinary original jurisdiction of this Court, this Court has no jurisdiction to try the suit.
17. It has been urged by Mr. Bhabra, learned counsel for the defendants Nos. 1 to 6 that even assuming that it is not a suit Cor land, still the suit is not maintainable in this Court as no part of the cause of action arose within the ordinary original jurisdiction of this Court. It may be stated here that the impugned deeds were executed outside the said jurisdiction, but were registered in the Calcutta Registration Office, within the said jurisdiction. It is the plaintiffs’ case that as the impugned deeds were registered in Calcutta, a part of the cause of action arose within the ordinary original jurisdiction of this Court. It is also the plaintiffs’ case that a part of the cause of action arose within the said jurisdiction of this Court inasmuch as the impugned deeds alleged to have been executed by the settler thereof in violation of the terms of the compromise decree passed by this Court in the said Suit No. 2159 of 1940. It is, however, contended by the learned counsel for the defendants Nos. 1 to 6 that neither the fact of registration of the impugned deeds in Calcutta, nor the fact of passing of the said compromise decree by this Court could give rise to a part of the cause of action. Further, the learned counsel submits that in view of Section 17(1)(b) of the Registration Act, the impugned deeds whereby certain persons have been nominated or appointed shebaits are not required to be registered and accordingly, the registration of the impugned deeds cannot, in any event, give rise to any cause of action.
18. In view of our finding that the suit is a suit for land, and that no part of the land or buildings having been situate within the ordinary original jurisdiction of this Court, this Court has no jurisdiction to try the suit, we do not think we are called upon to decide as to whether a part of the cause of action has arisen within the said jurisdiction.
19. For the reasons aforesaid, this appeal is allowed. The judgment and order of the learned Judge appealed from are set aside. The leave under Clause 12 of the Letters Patent and also under Section 92 of the Civil P. C. is revoked. Let the plaint be returned to the Advocate on record of the plaintiffs for presentation to the proper Court.
20. In view of the peculiar facts and circumstances of the case, there will be no order for costs.
21. There will be a stay of operation of this judgment except in so far as it directs the return of the plaint to the learned Advocate on record for the plaintiffs for presentation to appropriate Court for a period of two weeks from date.
22. The Registrar, Original Side and the parties to act on a signed copy of the minutes of this portion of the order.
23. I agree.
Monoj Kumar Mukherjee, J.
22 April, 1983
