Salil Kr. Hazra, J. - (1.) 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.
(2.) 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.
(3.) 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.;