HEMANTA KUMAR MUKHERJEE Vs. PRAFULLA KUMAR BHATTACHARJEE

JUDGEMENT

(1.) In this appeal the dispute relates to the validity of a transaction of sale of a pala of the Kalighat temple and the decision depends upon the true meaning and scope of the relative rule, laid down in the case of Mahamaya Devi v. Haridas Haldar. 20 Cal LJ 183: (AIR 1915 Cal 161 (2) ) (A) and its effect on the rights of the parties in the present case in the particular facts hereof. In the two courts below, the parties differed also on the question of the true nature of the disputed transaction, namely, whether it was a mortgage or a sale, but, the courts below having concurrently held that it was a sale, the appellants have not chosen to reiterate their said contention in this Court that it was a mortgage and not a sale The appeal has been argued by their learned Advocate upon the footing that the transaction was a sale and not a mortgage and the only contention that has been pressed before us is that the sale of the pala is not valid, it being outside the sanctioned limits as laid down in the case, cited above.

(2.) The pala in question admittedly belonged to one Narain Das Mukherjee who was a Shebait of the Kalighat deities Sree Sree Kalimata Thakurani. Sree Sree Nakuleswar Mahadev, Sree Sree Shyam Roy and several others. By the disputed transaction, which is dated 17th Baisakh, 1347 B. S. Naraindas sold the pala to the defendant for Rs. 700/-. The plaintiffs, who are the sons of Naraindas instituted the present suit on April 2, 1951, for a declaration that they -- and not the attendant, -- were the owners of the above pala, notwithstanding the above transaction which, according to the plaintiffs, was a mortgage and not a sale, and, in any event, was fraudulent and collusive and, even if it was a sale, not so vitiated, it was invalid in law and did not pass any title to the defendant as the latter was not a competent person to whom the pala could be sold in law. The defence asserted that the disputed transaction was a sale, not vitiated by any defect whatsoever, and that it was perfectly valid in law and fully effective to pass title to the defendant.

(3.) In the plaint, the competency of the defendant was challenged on the ground that he was not a shebait of the Kalighat deities and belonged to the same gotra as the said deities' shebaits which made it impossible for him to marry a daughter of the said shebaits and as such he was outside the group of persons to whom a pala of the Kalighat temple could be validly transferred in law. This was denied in the written statement where the defendant set up validity of the disputed sale in his favour and claimed title under it.