TMI Blog2008 (5) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... olved herein. 4. Indisputably, it belonged to Badal Das and Balaram Das. They, by reason of a registered deed of sale dated 3.5.1954 transferred their right, title and interest in favour of one Amar Chandra Dhara. He purchased the said property as a sebait of a deity Sri Sri Durgamata Thakurani. The said Amar Chandra Dhara in turn sold 2.31 acres of land in favour of the appellant No.2 and the remaining 22 cents of land in favour of the appellant No.1 by two deeds of sale 14.5.1963. 5. Second Appellant instituted a suit being Title Suit No.130 of 1964 in the court of Munsif, Dubrajpur against the said Amar Chandra Dhara for a declaration that the suit property was not a debottar one. It was decreed ex parte in his favour. Amar Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and substance a Benami transaction although the Benami Transactions Prohibition Act had no application in relation thereto. It was urged that from a perusal of the deed of sale dated 3.5.1954, it would appear that the dedication was not complete and, thus, it was open to the said Amar Chandra Dhara to alienate the property, particularly when it was alienable in terms of the deed of sale itself. 9. Mr. Abhijit Sengupta, learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment. 10. The deed of sale was executed in favour of Sri Sri Durgamata Thakurani through its sebait. There is nothing in the said deed of sale to show that Amar Chandra Dhara intended to purchase the said property f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the High Court of Judicature at Fort William in Bengal which decision is reported in [1869 (XI) WLR 13]. The question which arose for consideration before the Calcutta High Court and the Privy Council was as to whether the idol was set up for the benefit of public worship. In the facts of the said case, the answer to the said question was rendered in the negative, stating : But the question is whether there is any evidence of an endowment properly so called. Now what is the evidence of an endowment? This was clearly not an endowment for the benefit of the public. The idol was not set up for the benefit of the public worship. There are no priests appointed, no Brahmins who have any legal interest whatever in the fund. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself held that the question was one of fact. 13. In this case, the appellants did not adduce any evidence as to how the property has been dealt with. There is nothing on record to show that the endowment was merely nominal. Whether the conduct of the parties was consistent with the setting up of a genuine trust or not is not known. In this case, apparently, the records of rights clearly showed that it 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 was a collusive one. Neither the deity was impleaded as a party therein nor the State of West Bengal was. On what basis the entry in the record of rights was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eity vests in an ideal sense in the deity itself as a juristic person and in the second place, the personality of the idol being linked up with the natural personality of the shebait, being the manager or being the Dharamkarta and who is entrusted with the custody of the idol and who is responsible otherwise for preservation of the property of the idol. The Deva Pratistha Tatwa of Raghunandan and Matsya and Devi Puranas though may not be uniform in their description as to how pratistha or consecration of image does take place but it is customary that the image is first carried to the snan mandap and thereafter the founder utters the sankalpa mantra and upon completion thereof the image is given a bath with holy water, ghee, dahi, honey and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of fact was arrived at by the court of first appeal that the deity was in existence. The plea of the appellant that the deity was not in existence was clearly negatived. Appellants did not examine the said Amar Chandra Dhara. If the appellant raised a contention that the transaction was `Benami' in character, it was for them to prove the same. 18. Furthermore, the questions which have been raised before us have not been raised before the High Court. No substantial question of law, as propounded before us, 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. 19. In view of the finding of fact arrived at by the learned Court of First App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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