B. K. Uukharjea - (1.) THIS appeal is on behalf of the plaintiffs and is directed against the judgment and decree of a division bench of the Calcutta High court dated 19/06/1950, reversing, on appeal, those of the Subordinate Judge, Third court, 24-Parganas, passed in Title Suit No. 53 of 1944.
(2.) THE facts material for our present purpose are not in dispute and the controversy between the parties practically centres round one short point, namely, whether or not the plaintiffs' suit is barred by limitation. THE trial court decided this point in favour of the plaintiffs, while the High court has taken a contrary view in appeal. The subject-matter of dispute is one-third share of shebaiti right in respect of a private debutter dedicated to an idol known by the name of Dakshineshwar Jew and situated at a village called Dhop Dhopi within the district of 24-Parganas in West Bengal. The deity is an ancient one and its reputed founder and first shebait was one Udhab Chandra Pandit. It is not disputed that by successive devolutions the rights of the shebait came to vest in one Iswar Chandra Chakroborti, who was the common ancestor of the parties to this suit. The following genealogical table will make clear the relationship of the several persons who figure as parties. to the present litigation as between themselves and also to their common ancestor. JUDGEMENT_125_AIR(SC)_1953Image1.jpg Iswar died leaving six sons as his heirs and they were Ashutosh, Govinda, Gopal, Sadananda, Trailokhya and Haran. These six sons when they divided the properties of their father, divided the shebaiti right also which devolved upon them in six equal shares, and this division was by the method known as palas or turns of worship, which means that to each one of the sons was allotted the right of worshipping the deity for 5 days every month and during these days he alone was to discharge the functions of the shebait and receive the emoluments attached to the office. Gradually, a custom grew up in the family according to which these palas could be bought and sold or otherwise alienated amongst the members of the shebait's family. Govinda, who was the father of the plaintiffs and who got 5, days' pala every month in his share, sold his interest in the shebaiti to Haran, a brother of his, and the result was that Haran acquired 10 days' pala every mouth or one-third share in the entire shebaiti right. Haran died without any issue leaving him surviving, his widow Rajlakshmi as his sole heir under the Hindu law and Rajlakshmi continued to hold this one- third share of shebaiti right along with other properties of the deceased. On 17/06/1920, Rajlakshmi granted an ijara lease of her shebaiti right for a term of two years to one Satish Chandra Dey. On 1st of April, 1921, Satish sold this leasehold interest in respect to the palas to one Ram Rakhal Ghose. Previous to that, on 6th of August, 1920, Ram Rakhal had himself taken a lease from Rajlakshmi of her shebaiti right for a period of 5 years, this lease to commence at the close of the previous lease in favour of Satish. Ram Rakhal admittedly got possession of the office of shebait and began to exercise his rights as such on and from the 1st of April, 1921. By a deed of conveyance dated the 7th of November, 1921, Rajlakshmi made an out and out sale of her shebaiti right in favour of Ram Rakhal and twenty days after this purchase, that is to say, on 27/11/1921, Ram Rakhal in his turn sold this interest to Nagendra and Surendra, two of the sons of Trailokhya. Surendra died some time afterwards and on 20th of June, 1925, his widow Tarakali sold her husband's share in the shebaiti right to Nagendra, her husband's brother. Thus Nagendra in addition to what he had inherited from his own father came to hold the entirety of a third share in the shebaiti right, represented by 10 days' pala every mouth, which was previously hold by Haran. Rajlakshmi died on 22/12/1943, and the two plaintiffs, who are the two surviving sons of Govinda, filed the suit out of which this appeal arises for recovery of possession of this one-third shebaiti right of Haran on the allegation that they were the next heirs of Haran at the time of Rajlakshmi's death. 127 Nagendra had died in the meantime and the first and the principal defendant in the suit is his daughter Palani Bala, who is a minor and is represented by her husband as guardian. The second defendant is the receiver, who has been placed in charge of the properties of Palani Bala in a guardianship proceeding pending before the District Judge of 24 Parganas. The defendants 3 and 4 are the surviving descendants of Iswar who hold the remaining interest in the shebaiti right. The case of the plaintiffs, in substance, is that the one third share of the shebaiti right, which was held by Haran during his lifetime, devolved upon his widow Rajlakshmi who had only the restricted rights of a Hindu widow in respect to the same. On the death of the widow, the interest vested in the plaintiffs. who were the nearest heirs of Haran at the time of Rajlakshmi's death. They, accordingly, prayed for-being put in possession of this one-third share of the shebaiti right represented, as stated aforesaid, by 10 days pala every month after evicting the defendant No. 1 therefrom. There was a claim also for mesne profits from the date of the widow's death. In the plaint a description has been given of the temple, its appurtenant lands and also of the structures standing thereupon, but there is no prayer for possession in respect of these properties.
(3.) THE suit was resisted on behalf of defendant No. 1 and the main contention raised was that as the sale of her shebaiti right by Rajlakshmi, the widow of Haran, was a void transaction which did not create any right in the transferee, the possession of Ram Rakhal and after him his vendees, who were the predecessors of defendant No. 1 , was adverse against all the shebaits, and the defendant No. 1 consequently acquired an -indefeasible title to this third share in the shebaiti right by adverse possession and the plaintiffs' suit was barred by limitation. Several other contentions were raised but they are not material for our present purpose. The trial Judge by his judgment dated the 22/12/1948, overruled the pleas 'taken by the defendant and gave the plaintiffs a decree. On the question of limitation, the Subordinate Judge held that although article 141 of the Indian Limitation Act was not attracted to this cage, yet the plaintiffs' suit was not barred by limitation. Two reasons have been assigned for this view. It has been said in the first place that Nagendra purported to purchase only the life interest of Rajlakshmi; consequently his position as purchaser was in recognition of the interest of the reversionary heirs of Haran. It is said further that as Rajlakshmi and Nagendra were both co-shebaits of the deity, the possession of the latter could not have been adverse to the former, they being in the position of co-sharers in law and nothing like ouster being alleged or proved in this case. Against this judgment, the defendants 1 and 2 took an appeal to the Calcutta High court and the appeal was heard by a division bench consisting of Das and Guha JJ. The learned Judges while affirming all the other findings arrived at by the trial judge disagreed with the latter on the question of limitation. It was held by the High court that the proper article to apply in this case was article 124 of the Limitation Act, and as the defendant No. 1 and her predecessors had been in possession of the hereditary office of the shebait adversely to the plaintiff for more than 12 years prior to the institution of the suit, the plaintiffs' claim was barred by limitation. In this view, the judgment of the trial court was reversed and the plaintiffs' suit dismissed. ;