LexSITARAM AGARWAL & ANR. versus SUBARATA CHANDRA & DAMKRISHNA DHARA & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 7 S.C.R. 954
A
SITARAM AGARWAL & ANR.
V.
SUBARATA CHANDRA & DAMKRISHNA OHARA & ORS.
(Civil Appeal No. 3319 of 2008)
B
MAY 6, 2008
(S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.)
Hindu Law:
Charitable endowment - Debutter property - Sale of by
c Shebait - Effect of - Property purchased by Shebait in name
of deity - Record of rights showing property to have been
mutated in the name of deity - Sale of by Shebait - HELD:
~
Finding of fact arrived by first appellate court that suit property
was a debutter one, and the same having been affirmed by
D High Court there is no reasons to take a different view- Burden
to prove that 'lame of deity was written in the sale dPed by
mistake and transaction was 'benami' in character was on the
'
party claiming it - Questions raised before Supreme Court
were not raised before High Court - Evidence - Burden of
E proof - Constitution of India, 1950 - Article 136.
The suit property was purchased by the father of the
respondents as a Shebait of the deity. He sold the said
property to appellant nos. 1 and 2 under two separate
F
deeds of sale. Appellant No. 2 filed Suit No. 130 of 1964
against the said Shebait for a declaration that the suit
property was not a debutter one. The suit was decreed ex
parte as the Shebait did not contest. The respondents,
J
who were sons and daughters of the Sheba it, filed another
suit contending that the suit property was a debutter
G property and the Shebait could not have executed the sale
deed. The suit was dismissed by the trial court holding
that the property was purchased by the said vendor from
his own funds and since he was alive, the plaintiffs had
"'
no locus standi to file the suit. The first appellate court,
H
954
SITARAM AGARWAL & ANR v SUBARATA CHANDRA
955
& DAMKRISHNA OHARA & ORS
··'
however, held the property as debutter and the vendor A
-:....
as merely a Shebait. The second appeal of the vendees
having been dismissed, they filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1 The deed of sale was executed in favour B
of the deity through its Shebait. There is nothing in~the
said deed of sale to show that the Shebait intended to
purchase the said property for his own benefit. The very
fact that the deed of sale was executed not only in the
name of deity but in the presence of other villagers clearly. c
goes to show the intention of the said purchaser. The
records of rights clearly showed that the suit property
was mutated in the name of the deity. The very fact that
the purchasers thought it necessary to file a suit as against
-
their vendor is itself a pointer to show· that the said suit D
was a collusive one. Neither the deitY was impleaded
-
as a party therein nor the s'tate Gove-rnment. [para-10 and
13] {958-D,E, 960-E:,F]
Maharanee Brojosoondery Debea v Ranee Luchmee
Koonwaree & Ors. 187~ (XX) Weekly Reporter 95 -
E
distingLJ'fshed.
S. Shanmugam Pillai & Ors. v. K. Shanmugam Pillai &
Ors: (1973) 2 SCC 312 - referred to.
Ram ..mnkijee Deities·& Ors. v. State· of Biha·r and Ors.
F
(1999) 5 sec 50 - held inapplicable.
1.2 No evidence. has been adduced to show as to
whether the income of the said property was substantially
intended to be used for the purpose of charity or for the
personal benefit of the Shebait. The positive case of the G
appellants only was that name of the·deity was written in
the deed of sale by-mistake. The onus was on them to
>
prove the same. A finding of fact was arrived at by the
:t.1
court of first appeal that the deity was in existence. The
plea of the appellant that the deity was not in existence H
956
SUPREME COURT REPORTS
[2008] 7 S.C.R
A was clearly negatived. Appellants did not examine the
.. ,
Shebait. If the appellant raised a contention that the
~'
transaction was 'benami' in character, it was for them to
prove the same. [para 17] [962-D,E,F]
B
1.3 Furthermore, the questions which have been
raised before this Court hava not been raised before the
High Court. No substantial question of law, as propounded
before this Court had been formulated in the Memo of
Appeal. Even no substantial question of law in precise
terms has been taken in the Special Leave Petition. In view
c of the finding of fact arrived at by the first appellate court
which has been affirmed by the High Court, there is no
reason to take a different view. There is no merit in the
appeal. [para 18 and 19] [962-G, 963-A]
D
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