Case: Satish Chandra Anand Vs. The Union Of India

There is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. The only thing which was urged by Shri. N. C. Chatterjee in support of his contention was that the right to reside in the premises was given to the servants and that according to him detracted from the absolute character of the dedication. This argument however cannot avail the appellants. It was observed by Lord Buckmaster in delivering the judgment of the Privy Council in Gnanendra Nath Das v. Surendra Nath Das ((1920) 24 C.W.N. 1026 at p. 1030.) :"In that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling-house, but the dwelling-house itself is the place specially set apart for the family idols to which specific reference is made in the will, and in their Lordships opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place."11. The first contention of the appellants therefore fails and we hold that the declaration of the premises No. 41 Grey Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then servants, but a right was reserved to Nagendra to join with them as a sevayat on his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz., "Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?" - that he did act as such shebait and that his possession of the premises No. 41-A Grey Street was referable to possession on behalf of the idol. This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner the purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by Rankin C.J. in Surendrakrishna Ray v. Shree Ishwar Bhubaneshwari Thakurani ((1933) 60 Cal. 54 at 77.) :-But, in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they properly claim to divide the property between them. The fact of their possession is in accordance with the idols title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idols right. I am quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idols behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol."12. We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also therefore fails.13. The further contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19, 000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. The petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idols claim to the premises No. 40/2-A Grey Street. The appeal is concerned only with the premises No. 41-A Grey Street.It was contended on behalf of the appellants that the dedication of the premises No. 41 Grey Street made by Dwarka Nath under the terms of his will was a partial dedication, and that his sons Rajendra and Jogendra and his widow Golap Sundari, who were appointed sevayats of the idol were competent to deal with premises No. 41 Grey Street after making the due provision for the idol as they purported to do by the terms of settlement, dated the 24th November, 1910. It was further contended that Nagendra, by virtue of the award dated the 12th October, 1920, claimed to be absolutely entitled to the premises No. 41-A Grey Street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguished the right of the idol to the said premises. The first contention of the appellants is clearly untenable on the very language of the will of Dwarkafirst contention of the appellants therefore fails and we hold that the declaration of the premises No. 41 Grey Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then servants, but a right was reserved to Nagendra to join with them as a sevayat on his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz., "Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?" - that he did act as such shebait and that his possession of the premises No. 41-A Grey Street was referable to possession on behalf of the idol. This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner the purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has beenam quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idols behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for theare in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also thereforefurther contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19, 000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration.