P L D 1964 Supreme Court 636 (PLP)

HAMOODUR RAHMAN, J.

‑This appeal, by special leave, is against the judgment of a Division Bench of the High Court allowing a writ petition and directing the Province of East Pakistan to rescind two Memoranda, being Nos. 290/1 and 6028 (2)‑SA/T/W, both dated the 3rd September 1961. The said writ petition was filed by the respondent No. 1 herein claiming to be one of the Shebaits of the debuttar estate of deity Sri Sri Gopal Jieu situated in the district of Mymensingh. This debuttar estate was the said to have been created by one Gopal Das Chowdhury for purely charitable and religious purposes from out of his .own extensive properties situated at SherpurAn the District of Mymensingh and known as the Arai Ani Bara Taraf Estate, Sherpur. This estate was sought to be acquired by the Government of East Bengal under the East Bengal State Acquisition and Tenancy Act, ' 1950; by a Notifi cation No. 296‑LR of the 5th January 1955. The notification purported to acquire all the rent-receiving interests as also the khas lands of the said Gopal Das Chowdhury, but the latter resisted the acquisition by filing a suit being O. C. Suit No. 67 of 1955, on the 3rd of August 1955, in the Court of a Subordi nate Judge at Mymensingh, for a declaration that the notification was void and ineffective and that his estate had not been legally acquired by the said notification. During the pendency of that suit the East Bengal State Acquisition and Tenancy Act of 1950 was amended and power was given to the Government to acquire estates of rent‑receiver districtwise by notifications issued districtwise. In pursuance of this amendment the Provincial Government on the 2nd of April 1956, issued two Notifications Nos. 4832‑LR and 4852‑LR for the acquisition of the rent‑receiving interests and khas lands respectively of all rent receivers within the District of Mymensingh. After the issue of these notifications the suit of 1955 was compromised upon the term that the Notification of the 5th of January 1955, will be treated as of no legal con sequence (presumably because of the two subsequent Notifications of 1956) but the plaintiff in the said suit, namely, Gopal Das Chowdhury, would bear the legal costs of the Province of East Pakistan amounting to Rs. 93‑7‑

0. Notwithstanding this compromise decree, the Government persisted in its claim that the estate of the said Gopal Das Chowdhury stood acquired under the two notifications of the 2nd of April 1956; hence in 1957 the said Gopal Das Chowdhury filed another suit being Suit No. 20 of 1957 in the Court of a Munsif at Mymensingh challenging the validity of the Government's claim. This suit was decreed by the trial Court but the Government preferred an appeal against the said decree in the Court of the District Judge. During the pendency of this appeal and whilst the dispute relating to the validity of the acquisition was still sub judice, Gopal Das Chowdhury on the 26th of June 1958, executed a registered deed through his constituted attorney one Profulla Chandra Chakraborty, which, on the face of it, purported to create a permanent lease in respect of a large number of the said properties comprised in the Arai Ani Bara Taraf Estate in favour of the deity Sri Sri Gopal Jieu. Though this document is described by the executant himself as a "document of lease" in several places in the body of the document itself and not only reserves an annual rent of Rs. 205 payable to the lessor "for possession and enjoyment of the lease‑hold properties" but also provides in the habendum clause that "the lessor Doth Hereby demise and lease unto the aforesaid deity Sree Sree Gopal Jieu all that Estates, Taluks, Tenures, Tenancies, Sairat Mahals, tenaments and hereditaments and messuages", it is claimed that in effect this was a document of dedication by which the debuttar estate was created. Since the main question in this appeal will be whether this document created a valid debuttar or not it is necessary to set out in some detail material portions of this document. It has to be noted that this document itself recites that:‑ "Whereas the lessor by a religious ceremony duly and properly performed, according to the Hindu Sastras, dedicated the properties set out in schedule below for the `Seba Puja' of the Deity Sree Sree Gopal Jieu consecrated and installed at Sherpur Town about a century ago and also for other religious and charitable purposes, the ceremony of endowment and dedication having been held on the auspicious day of `Jhulan Purnima' in 1363 B. S., which fell on 5th day of Bhadra 1363 B. S., corresponding to 21st day of August 1956, with a promise to execute a formal document of lease hereafter in favour of the Deity. Whereas about 40 years ago from now the Lessor had been appointed Shebait of the aforesaid Diety Sree Sree Gopal Jieu with power to appoint and nominate his successor or successors and had been duly performing the duties of the Shebait of the Deity from the date of his appointment uptil the aforesaid date of `Jhulan Purnima' of 1363 B. S. Whereas on that auspicious day of the `Jhulan Purnima' of 1363 B. S., after the religious ceremony of `Sankalpa' and `Samarpan' was over, the Lessor on account of the infirmities of old age, feeling himself unable to carry on the duties and responsibility of the Shebaitship, any longer, had renounced the Shebaitship, and by the exercise of the aforesaid power of appointment of his successors, vested in him, had duly constituted, appointed and nominated . . . . . . as the Shebaits of the :aforesaid Deity Sree Sree GopalJieu for His Seva NIP, and also management of the newly created Debuttar p,opertic, aforesaid, as well as the properties. Whereas the lessor, in consideration of the religious and charitable purposes and other causes of like nature had created a debuttar in respect of the properties mentioned in Schedule below, but no formal document having been executed so far, a controversy has arisen and may arise in future as to the specification, area and extent of the properties, which were the subject‑matter of the dedication. Whereas the Lessor has now, in consequences, been advised in fulfilment of the dedication and in pursuance of the agree ment already made, and for the settlement of all controversies, to execute a Deed of Perpetual Lease in favour of the deity in respect of the properties set out specifically and more in details in Schedule below." If these recitals represented the true state of affairs, then it would appear that the deity had been consecrated and installed about a century ago; that the said Gopal Das Chowdhury had been appointed the Shebait of the said deity some 40 years ago and that he actually had made the dedication of the properties mentioned in the deed on the 21st of August 1956, when he had also promised to execute a formal document of lease in favour of the deity. It was in performance of that promise, therefore, that he on the 26th of June 1958, executed the document itself. The main purpose of execution of the deed, as stated in it, appears to be to clear up a controversy that had arisen, or that may arise in future, as to specification, area and extent of the properties which formed the subject‑matter of his dedication. According to these recitals, therefore, Gopal Das Chowdhury had ceased to be an owner of the properties mentioned in the Schedule to this document from the date of dedication, namely, the 21st of August 1956, but it is curious that notwithstanding this the Suit No. 20 of 1957 was filed by Gopal Das Chowdhury in his personal capacity as the owner of the properties and the creation of the alleged debuttar was not even referred to either in the plaint or in the evidence adduced in that case. Even in the appellate stage when the deed of lease had also been executed on the 26th of June 1958, no mention was made of this document nor was the creation of the debuttar disclosed. If the interest of Gopal Das Chowdhury had devolved on the deity, then it became a necessary party to the litigation and should have, as such, been brought on the record. We shall have occasion to refer to these facts again later when considering the question as to whether the validity and genuineness of this debuttar could have been properly adjudi cated upon in a writ proceeding, but to complete the recital of the facts of this case it may be mentioned here that the Additional District Judge of Mymensingh on the 28th of July 1960, reversed the decree of the Munsif in the suit of 1957, but on second appeal the High Court again restored the decree of the trial Court in 1961. Leave was also granted to the Government to file a Letters Patent Appeal but the Government did not do so again, presumably because, during the pendency of the appeal on the 9th of May 1959, another notification had been issued for the acquisition of all rent‑receiving interests in the Province in the following terms: No. 7463‑L.R. 9th May 1959. In exercise of the power conferred by subsection (1) of section 3, Act 1950 (East Bengal Act XXVIII of 1951), it is hereby notified for the information of all concerned that the Governor is pleased to acquire, with immediate effect, all interests of all rent‑receivers in their respective estates, taluks, tenures, holdings and tenancies situated anywhere in East Pakistan except in the District of Chittagong Hill Tracts, including their interests in all sub‑soil and rights to minerals in such estates, taluks tenures, holdings and tenancies, except the interest and rights which have already been acquired by and have already vested in, the Provincial Government under the provisions of the said Act and the interest and rights that are held under any wakf, debuttar or other religious trust. In pursuance of this notification the district officers issued the two Memoranda of the 3rd of September 1961, which were challenged in the writ petition. These purported to direct the appropriate local officers to take over possession of the Arai Ani Bara Taraf Estate, as it stood acquired by the notification of the 9th of May 1959. The main ground upon which, inter alia the insuance of writ was sought was that the estate in question being a debuttar estate was not affected by the notification of the 9th of May 1959, and as the earlier notifications had been declared by the High Court in second appeal to be invalid and ineffective, the properties concerned could not be treated as acquired, or taken over possession of, by the Government. The Government resisted the writ petition and challenged the debuttar sought to be set up as also the locus standi of the petitioner to file the writ petition. The affidavit in opposition, which was verified by the Additional Deputy Commissioner of Mymensingh himself, in no uncertain terms, set up the case that the debuttar set up was a baseless and fictitious transaction and was nothing more than a mere paper contrivance to defeat the acquisition of the estate which was then the subject‑matter of dispute in a pending litigation, namely, the Suit No. 20 of 1957. The authority of the attorney Profulla Chandra Chakraborty was also questioned, as no power of attorney had been produced or filed either with the document of lease or with the writ petition. In any event, it was contended that "the legality or otherwise of this alleged deed of lease, which strikes at the very foundation of the claim, is a matter to be investigated in a regular proceeding in a Civil Court and as such the petitioner cannot invoke the aid of special writ juris diction of the Hon'ble High Court". The genuineness of the debuttar was questioned, as its existence had not only not been disclosed at any earlier stage, although litigation was going on with regard to the acquisition of these very properties, but in other proceedings for the realisation of taxes due from Gopal Das Chowdhury in respect of these properties they were being actually described as having been acquired by Government. Copies of certain petitions filed on behalf of Gopal Das Chowdhury before the Certificate Officer of Mymen sing and the Agricultural Income‑tax Officer containing such admissions were also annexed to the Government's affidavit. In answer to the contention that the said Profulla Chandra Chakraborty was not a validly constituted attorney of the said Gopal Das Chowdliury, a copy of a power of Attorney executed on the 19th of June 1958, at Calcutta in the office of the Deputy High Commissioner for Pakistan in India was filed and it was re‑iterated that the debuttar had been validly created. The other charges were also denied and it was said that on the 4th of June 1959, a notice under section 80 had been served on the Government itself on behalf of the deity Sree Sree Gopal Jieu, wherein the execution of the deed of the 26th of June 1958, had been mentioned and it had been asserted that the properties being debuttar properties could not be acquired by the notifi cation of the 9th of May 1959. The admissions relied upon by Government were said to have been made in connection with properties which had not been given to the deity. At the hearing of the writ petition in the High Court it was conceded on behalf of the Provincial Government that if a valid debuttar had been created in respect of the properties mentioned in the deed (Annexure A), then those properties would not be affected by the notification of the 9th of May 1959. The main controversy in the High Court, therefore, centred round the validity of the debuttar itself. It was firstly contended on behalf of the Government that the whole transaction was a sham and colourable transaction and a contrivance to defeat the acquisition. Alternatively, it was urged that even if the transaction was a genuine transaction, the document set up did not create a debuttar at all. In any event, it was said that the questions raised involved investigation into complicated questions of fact, and as this would necessitate the taking of evidence, these should be left to be decided in a suit. The High Court rejected this contention and took the view that no dispute had been raised in the case which could not be decided upon the affidavits filed before it and the documents produced in Court to support the statements in those affidavits. It appears that apart from the documents filed along with the affidavits some further documents were also produced before the Court for its inspection and these were also taken into consideration, although the same were neither marked as exhibits nor tested by cross‑examination. It does not appear that the Government were given any opportunity to cross- examine on the basis of those documents. From the observation of the High Court in the judgment, which is as follows:‑ "Furthermore, documents were brought before this Court which would substantiate the petitioner's claim that various sums of money from time to time have been given to charity in accordance with the directions given in the aforesaid deed," it would appear that these documents were produced to prove that the dedication had actually been acted upon. It is accor dingly complained that this amounted, in effect, to the taking of evidence without complying with the usual procedure of having the documents first properly proved and then giving the other contesting party opportunity to cross-examine and adduce evidence in rebuttal. These documents are not on the record. It is, therefore, not possible to say what exactly these documents disclosed or how they came to be produced in Court and who, if any one, at all, proved them. Upon these and the statements in the affidavits, however, the High Court found no difficulty in coming to the conclusion that the challenge to the genuineness of the transaction creating the said debuttar was itself not genuine. Furthermore, that the document read as a whole led to the clear conclusion that it created a debuttar and effected "a complete vesting of the debuttar estate in the Shebait and that the sum allowed to be given to the grantor, partakes the character of a benefit given to a beneficiary under a trust or debuttar". Apart from the above another point of law was also raised, in the course of arguments, on behalf of the Government to the effect that whatever might have been the consequence of the previous notifications, the legal position at the time of the hearing of the writ petition was that the estate, whether debuttar or not, vested in the Provincial Government by reason of the provisions of section 44 of the State Acquisition and Tenancy Act, 1950, as the compensation assessment roll had been finally published under section 42 of the said Act. The High Court, however, refused to go into this question, as, according to it, it could only be decided on further affidavits and further investigation into facts but made it clear that its decision upon the other questions in the case would not affect any altered jural relationship between the parties by virtue of the operation of some other provisions of law. The petition was, accordingly, allowed with costs and a writ of mandamus was, issued as stated earlier in this judgment. Leave was granted in this case to the Government to consider the above questions as also a new question raised for the first time in the petition for special leave, namely, as to whether the dedication was itself invalid by reason of the provisions of sections 9 and 75‑A of the East Bengal State Acquisition and Tenancy Act. Learned counsel appearing in support of this appeal has assailed the correctness of each and every one of the findings arrived at by the High Court except the one relating to the locus standi of the petitioner in the writ petition. There can be no manner of doubt that a Shebait can maintain such an application even in his own name as his shebaitship itself would give him a legal right which lie could seek to preserve in an appropriate case by asking for the cancellation of the orders affecting that right. It is pointed out to us that in construing the document the High Court has failed to notice material portions thereof which negatived the conclusion that this was the document that created the debuttar. There is a clear recital in the document that the dedication and endowment had already been made oil the auspicious day of "Jhulan Purnima" in 1363 B. S. which fell on the 5th day of Bhadra 1363 B. S., corresponding to 21st day of August 1951." There is also another recital to the effect that although the lessor had in consideration of the religious and charitable purposes and other causes of the like nature created a debuttar in respect of the properties mentioned in the Schedule to the document, no formal document had been executed so far and, because a controversy had arisen and others were likely to arise in future as to the specification, area and extent of the dedication, the document in question was being executed. In the face of these recitals it is difficult to appreciate how the High Court upon a reading of this document of the 26th of June 1958, could come to the conclusion that this was the document which, in fact, created the debuttar and divested the owner of all his rights in these properties. Again, the document itself says that it is a document of lease executed in fulfilment of a promise made at the time of dedication to execute such a formal document. It contains a habendum clause which is in [lie form commonly used for creating a demise of an estate and not for the out and out transfer of ownership rights. It reserves an yearly rent payable to the lessor for possession and enjoyment of "he leasehold properties. It also provides that in the event of the demised premises being acquired by Government or any other public body "the compensation payable in the lessor's right shall be payable to the lessor, and such portion of the said compensation money as shall be payable in respect of the lessee's right shall be payable to the lessee." These provisions clearly militate against the inference that the lessor was completely divesting himself of his rights in these properties and surrendering them in favour of the deity. If indeed this had been the true intention, then why was the compensation payable in respect of the lessor's right being still made payable to the lessor. If he had retained no further interest in the properties for himself, then that compensation should also have gone to the deity. The nature of the properties mentioned in the Schedule also does not show that perpetual subordinate tenancy interests could not be created in or carved out of those proprietary or Zamindary interests and then gifted to the deity. It may, on the other hand, be urged that since the lease was being granted without limit of time, it was in effect a transfer, although described as a lease. But if the possibility of the creation of a debuttar estate consisting of leasehold interests is not excluded upon the terms of the document, it may equally well be possible that the document only gave effect to the earlier oral dedication of leasehold interests in those properties while the rent‑receiving Zamindari interest still continued to remain vested in the dedicator himself. Such an interpretation would be more consistent with the provision in the deed for the accumulation of the income of the properties and for the expenditure thereof on `Seva Puja' and other religious and charitable purposes. The document on its face does not purport to be the document creating the dedication or endowment which is said therein to have been made orally on the 21st of August 1956. D The question then is whether this oral dedication has been proved. Under the Hindu Law no particular form or mode of creating a dedication is prescribed but if such a dedication is not evidenced by a document of dedication it must, as pointed out by the High Court itself, by quoting from a judgment of the Supreme Court of India in the case of Menakuru Dasaratharami Reddi and another v. Duddukuru Shubba Rao and others (A I R 1957 SC 797) be established "by cogent and satisfactory evidence of conduct o the parties and user of the property which show the extinction of the private secular character of the property and its complet dedication to charity." What is necessary to be established is that not only was there a clear and unequivocal intention to dedicate but also that such intention was in fact carried into effect. This latter can only be proved by the conduct of the dedicator both at the time of and subsequent to the dedication a also by the manner of the user of the property after the dedication. In the present case the High Court thought that the deed of the 26th of June 1958, itself created the dedication but as we have shown above this view cannot be supported. The dedication was not created by any formal document but as recited in the deed of lease itself by religious ceremonies performed on the 21st day of August 1956. The question then arises as to whether that dedication of the 21st of August 1956, has been established in this case by any cogent evidence at all? There is in the affidavits and the documents only the averment that "Sankalpa and Samarpan" ceremonies had been performed but no other details have been furnished. It is not disclosed as to which priest, if any, officiated at those ceremonies or what words of dedication, if any, were used by the said Gopal Das Chowdhury. Gopal Das Chowdhury has since 1947 been residing at New Alipur in Calcutta but there is no evidence to show as to whether he came to Pakistan for' this purpose or the above ceremonies and the "Jhulan Purnima" ceremony were held in Calcutta. There should also have been proper proof of the user of the property after the alleged dedication. The High Court says that some documents were produced before it to show that certain moneys were spent for religious purposes. In the absence of those documents it is not possible to ascertain now as to what was the nature of those ceremonies for which the payments were made or how often those ceremonies were performed or who performed them. The documents were not filed along with any affidavit but were merely produced in Court for the inspection of the Court. We do not also known if inspection thereof was given to the other side as well, but certainly there is on the record nothing to show how those documents were made admissible. The said documents were from their nature not public documents, and, as such, we are unable to appreciate under what provision of law the High Court allowed such informal production of private documents by a private party in a proceeding for a writ of mandamus, particularly, when in the affidavit in opposition filed by the Government the whole transaction was being challenged as a sham paper transaction and the petitioner in the writ petition was being called upon to strictly prove all the documents upon which he was relying. The procedure adopted by the High Court cannot be approved of, for, it is contrary to the procedure of taking evidence provided by the Evidence Act. It would have been a different matter if the documents had been shown to the other side and had been admitted by them. The rules of evidence whether in a suit or a writ proceeding are the same. Ordinarily evidence has to be adduced viva‑voce but where, as in a writ proceeding, a summary procedure is adopted parties are permitted to give evidence by affidavit. Similarly where documentary evidence is required the document must be proved in one of the ways mentioned in the Evidence Act unless the document is admitted by the adversary. The documents pro duced in Court could thus have been looked into by the High Court only if they had been admitted by the respondents in the writ petition. Not only did they not do so but they failed to put the petitioner therein to strict proof of even the documents filed along with his affidavits. Strictly speaking in the absence of such formal proof even those documents were not admissible in evidence. Again, so far as the question of the genuineness of the transaction was concerned, we are unable to agree with the High Court that the question was of such a simple nature that it could have been decided upon the affidavits filed in the case. In our view, this aspect of the case bristles with contro versies. From the very outset there is a dispute as regards the date of creation of the debuttar but the evidence on this point is extremely vague. Whilst in the writ petition and the demand of justice sent to Government the case of the petitioner is that the dedication was created by the deed of the 26th of June 1958, the deed itself recites that the dedication was made on the 21st of August 1956, and makes it clear that no formal deed was made at the time of dedication. This position is confirmed also by the deed of the 13th of March 1960, whereby the mode of future appointment, removal and succession of Shebaits was laid down. This latter reiterates that:‑ "Whereas on that auspicious day of `Jhulan Purnima' of 1363 B. S., after the religious ceremony of `Sankalpa' and `Samarpan' was over, the Settler had appointed five persons namely, (1) his sons Sri Gopendra Kumar Chowdhury, (2) his grandson Sri Pronab Kumar Chowdhury, (3) Sri Gopal Lall Seal, (4) Sri Gourdas Kar, (5) Sri Kshitidhar Roy as Shebaits of the aforesaid Deity Sri Sri Gopal Jieu for his `Seba Puja' and also management of the Debuttar properties." The dedication, therefore, was not by the document of the 26th of June 1958, and the High Court was clearly in error in thinking that the debuttar was created by this deed. Such a conclusion is incapable of being arrived at upon a fair reading of the document as a whole. There is one other circumstance, which has totally escape the notice of the High Court. The High Court has failed to notice that the alleged deed relied upon as having created the debuttar was executed on the 26th of June 1958, at a time when an appeal was pending in the Court of the District Judge against the decree of the Munsif in Suit No. 20 of 1957, and if i effected a transference of title from Gopal Das to the deity then it was necessary for the plaintiff in that suit not only to disclose the debuttar but also to bring the deity on the record as a necessary party. The question whether the deed executed. during the pendency of the litigation was hit by the doctrine of lis pendens also deserved consideration. Again, if the dedication was actually created at the time of the "Jhulan Purnima" on the 21st of August 1956, then Gopal Das Chowdhury no longer had any right to sue in respect of these properties. The properties vested in the deity and the deity or the Shebaits as the next friend of the deity should have brought the Suit No. 20 of 1957. Lastly if the dedication was not by deed the High Court could not possibly have decided this question without proof of the conduct of the dedicator and the manner of the user of the property after the alleged dedication. If this evidence was necessary, then it should have relegated the parties to a proper suit for having this question, which was by no means a simple question, decided. The contention of the Government that the decision of this question was not appropriate in a proceeding for a writ was, therefore, not without force. The principle is now well settled that a proceeding in the writ jurisdiction is more in the nature of a summary proceeding in which examination of disputed questions of fact of a complicated nature is not as a genera rule undertaken nor investigations of title to property made. It provides a means of obtaining a speedy decision in a case where a clear disregard of a statutory obligation or duty has resulted in the infringement or denial of a legal right about the existence of which there is not any reasonable dispute or con troversy. "The office of mandamus", as observed by Ferris in the treatise on the Law of Extraordinary Legal Remedies a page 229, "is to execute, not adjudicate." The proceeding by way of a writ of mandamus is, therefore, not appropriate where the right itself must first be determined after an elaborate investigation into facts. In cases where this is necessary the parties should be relegated to the ordinary procedure by a suit. Apart from these there were other legal questions also which arose in this case and needed proper investigation. One of them was raised before the High Court but the High Court did not consider it proper to go into it, as further investigation into new facts would have been necessary. Similarly another question of law has been raised before us for the first time that if the dedication to the deity amounts to an out and out transfer, then that transfer is hit by the provisions of section 9 of the State Acquisition and Tenancy Act. On the other hand, if the document of the 26th of June 1958, merely created a tenancy interest in favour of the deity, then it was hit by section 75‑A of the said Act. We do not, however, wish to express any opinion on these legal questions having regard to the order that we propose to make in this case. In our view, the controversies that arose in this case were not suitable for decision upon affidavits in the writ jurisdiction. The contro versies were several and; by no means, of a simple nature. They clearly necessitated the taking of elaborate evidence on various complicated questions of fact. In our view, the High Court had misread and misconstrued the document of the 26th of June and erroneously treated it as creating the dedication. In the circumstances, we are of the view that this appeal must succeed. We, accordingly, allow this appeal, set aside the judgment of the High Court and recall the writ issued by it. If the respondent ‑ No. 1 or the deity or Gopal Das Chowdhury still wish to challenge the validity of the acquisition, they should file a suit for the said purpose in a competent Civil Court within a period of three months from the date of the announce ment of this judgment. In the event of such a suit being filed the costs of this appeal will abide the result of the suit, but if no suit is filed the appellant will be entitled to the costs of this appeal and the same will be paid by the respondent No. 1 herein. The receiver appointed by this Court will continue in possession until he is replaced by another appointed by the Civil Court or discharged by it in the event of the suit being filed. In the event of no such suit being filed within the period mentioned above, the receiver will make over possession of the properties to the Government and will stand discharged subject to the filing and passing of his accounts. The receiver will render accounts to the principal Civil Court of the District in which the properties are situated. A. H. Appeal allowed.