Safiya Malik

A division bench of the Calcutta High Court heard an appeal concerning an injunction related to the transfer of a debuttar property and issued an ad interim order restraining further alienation of the property. The appeal arose from a suit seeking to declare a sale deed executed on July 2, 2015, as not binding on the deity and to prevent further transfer of the property. The plaintiffs contended that the property was wrongfully transferred by Ruby Ganguly, acting as the sole shebait, without the consent of other co-shebaits.

The appellants argued that an order permitting the sale was obtained through misrepresentation. Ruby Ganguly secured approval under Section 34 of the Indian Trusts Act, 1882, which does not apply to religious endowments. The appellants also stated that the sale consideration of Rs. 1.75 crore was significantly lower than the estimated market value of Rs. 97 crore.

The respondents raised multiple objections. They contended that the suit was barred by limitation since the plaintiffs had knowledge of the transaction in 2019 but filed the suit in 2023. They also asserted that the suit property was not included in the original Arpannama of 1922 and could not be considered debuttar property. Additionally, they argued that the plaintiffs failed to include other co-shebaits as necessary parties.

The court examined the applicability of Section 34 of the Indian Trusts Act. It observed, “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.” It was held that the order permitting the sale under Section 34 was without jurisdiction and legally void.

Regarding the validity of the sale, the court stated, “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.”

On the issue of limitation, the court referred to Article 94 of the Limitation Act, 1963, which allows twelve years from the date of knowledge of the transfer for initiating legal action against the sale of religious endowment property. The court noted, “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.” Based on this, it was held that the suit was not time-barred.

The respondents argued that the suit was not maintainable due to non-joinder of necessary parties. The court addressed the issue by stating, “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 debuttar property, is in aid of and in the interest of the other shebaits, acting in such capacity, as well.” It was also stated that even a worshipper has the right to file a suit to protect debuttar property.

The respondents contended that the suit property was not part of the original Arpannama of 1922. The court considered this argument and observed, “By a subsequent admitted deed of 1929, Sital, the original settlor, donated the present suit property to the deity. 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.”

The respondents further relied on the doctrine of lis pendens to argue against the grant of injunction. The court referred to Sm. Muktakesi Dawn and Others vs. Haripada Mazumdar and another and noted, “The principle of lis pendens, by itself, is not a fetter to grant of injunction.” It was stated that while lis pendens ensures that any transfer during the pendency of a suit would be subject to the final decision, it does not prevent the court from granting an injunction to avoid unnecessary complications.

Addressing the argument that a previous suit dismissed for default operated as a bar, the court stated, “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.” It was held that the dismissal of a suit for default does not have a conclusive effect on the rights of the parties.

The court also considered whether the pending recall application against the order under Section 34 affected the present suit. It was stated, “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.”

The issue of whether the absence of a prayer for declaration of shebaitship of plaintiff no.2 affected the suit was also discussed. The court observed, “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, 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.”

Concluding the matter, the court granted an ad interim injunction and set aside the trial court’s order. It was stated, “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 till disposal of the injunction application pending in the court below.” The court directed the trial court to dispose of the injunction application at the earliest and instructed the respondents to file written objections within three weeks.

Case Title: Shree Shree Iswar Sitaram Jew & Anr. Vs. Subhodeep Ganguly & Ors.
Case Number: F.M.A. No. 929 of 2023 with CAN 1 of 2023 and CAN 2 of 2024
Bench: Justice Sabyasachi Bhattacharyya and Justice Uday Kumar

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