P L D 1963 Dacca 782 (PLP)

MURSHED, J.‑

The petitioner, Kshiti Dhar Roy, claims to be one of the duly constituted shebaits of a Debutter estate which comprises of certain rent‑receiving interests in the district of Mymensingh. Along with the petition a document, marked Annexure A, has been filed, which is a duly executed and registered deed by which the said debutter was created and the petitioner was appointed as one of the shebaits to administer the debutter estate.

2. In January 1955, by a notification, being No. 296 L.R., made under section 3(1) of the East Bengal State Acquisition and Tenancy Act, 1950, and published in the Dacca Gazette (Extraordinary) on 17‑1‑55, the rent‑receiving interest of one Gopal DOS Chowdhury was acquired by Government. The said Goal Das Chowdhury thereupon instituted a suit for a declaration that a his rent‑receiving interests had not been legally acquired under the aforesaid notification. While the suit was proceeding, two notifications, being Nos. 4832 L. R. and 4852 L. R., both dated 2‑4‑56, were issued by the Government purporting to acquire all ‑the rent‑receiving interests of all rent‑receivers in the district of Mymensingh. After the publication of the aforesaid two notifica tions a compromise decree was passed in the suit filed by the said Gopal Das Chowdhury and under the terms of the said decree it was expressly provided that the Province of East Pakistan did not acquire any rent‑receiving interest of the said plaintiff. On the basis of the latter two notifications, the Provincial Government claimed that the rent‑receiving interests of the said Gopal Das Chowdhury stood acquired by it. This claim of the Provincial Government was again resisted by the said Gopal Das Chowdhury in another suit for a declaration that, in spite of the aforesaid notifications, dated 2‑4‑56, the Provincial Government did not legally acquire the rent‑receiving interest, as stated above. The second suit was decreed in the Court of first instance in favour of the plaintiff and thereupon an appeal was preferred on behalf of the respondents which was heard and disposed of by an Additional District Judge of Mymensingh. The first appellate Court of first instance had dismissed the suit. The plaintiff then preferred a second appeal to this Court which, in this turn, set aside the judg ment and decree of the appellate Court and passed a decree in favour of the plaintiff namely, that the Provincial Government did not, by the notifications dated 2‑4‑56 legally acquire the afore said rent‑receiving interests inasmuch as the above‑mentioned compromise decree was passed after the publication of the said notifications. While matter stood like this, namely, that the Provincial Government had not acquired the rent‑receiving interests involved in this suit, yet, another notification being No. 7463 L. R. was published by the Government on the 9ih of May 1959 in the following terms: "No. 7463 L. R. 9th May 1959 in exercise of the power con ferred by the subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. 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 tenan cies, except the interest and rights which have already been acquired by, and have already vested in the Provincial Govern ment under the provisions of the said Act and the interests and rights that are held under any wakf, debutter or other religious trust." On the basis of the notification quoted above exempting from its operation "the interest and rights that are held under any wakf, debutter or other religious trust, "the Provincial Government again claimed to have acquired the said rent‑receiving interests and on such basis the Sub‑Divisional Officer of Jamalpur addressed to the Sub‑Divisional Manager (East), Jamalpur, a memorandum which reads as follows; "Government of East Pakistan Office of the Sub‑Divisional Officer, Jamalpur Confidential Department. From M. S. H. Chisty, Esqr., C. S. P. Sub‑Divisional Officer, Jamalpur. No. Con. Dated 3‑2‑

61. To The Sub‑Divisional Manager (East), Jamalpur. The Deputy Commissioner, Mymensingh, desires that posses sion of the Arai Ani Estate of Sherpur should be taken over at once. The Estate stands acquired under Government Notifica tion No. 7463 L. R, of 9th May 1959. You are directed to take necessary action immediately. (Sd.) M. S. H. Chisty, C. S. P. Sub‑Divisional Officer, Jamalpur, 3‑9‑61. "Memo. No. 290/1 Con. dated the 3‑9‑

61. Copy forwarded to the Manager, Arai Ani Estate, Sherpur, for information and allowing the S. D. R. (East), Jamalpur to take possession of the said Estate. (Sd.) M. S. H. Chisty, C. S. P., Sub‑Divisional Officer, Jamalpur 3‑9‑61". There is another memorandum to the same effect, addressed by the Additional Deputy Commissioner (Revenue), Mymensingh, to the Manager, Sherpur Arai Ani Chhota Taraf Estate Sherpur, Mymen singh, which runs thus: "Government of East Pakistan Office of the Deputy Commissioner, Mymensingh. Memo. No. 6028 (2) SA/T/W, dated 3‑9‑

61. From Aslam Iqbal, Esqr., C. S. P. Additional Deputy Commissioner, (Revenue), Mymensingh Receiver, Sherpur Arai Ani Estate. To The Manager, Sherpur Arai Ani Chhota Taraf Estate, Sherpur, Mymensingh. Sub. Making over charge of Sherpur Arai Ani Estates to the local officers of Government Acquired Estate. The Board of Revenue, Government of East Pakistan has informed that properties of Sherpur Arai Ani Estate covered by Suit No. S. A. 812/819/1960 stand acquired and has further directed to take over possession of properties by the Govern ment forthwith. You are, therefore, asked to make over possession of properties of the Estate to the local officers of Government Acquired Estates as soon as the officers of the Government Acquired Estates approach for the same. Proper inventories should be prepared and kept reserved at the time of making over duly signed by both parties. (Sd.) Additional Deputy Commissioner (Revenue) and Receiver, Sherpur Arai Ani Estate, Mymensingh. Memo. No. Dated Copy forwarded to :‑ (1) The Sub‑Divisional Manager, Jamalpur (East)/(West), (2) The Extra Assistant Commissioner (Revenue), Mymen singh (East)/(West), for information and taking necessary action. Additional Deputy Commissioner (Revenue) and Receiver, Sherpur Arai Ani Estate, Mymensingh." The petitioner thereupon filed the present application in this Court challenging the legality of the position taken by the Provincial Government, as stated in the aforesaid memoranda which have been impeached before us, and obtained the present Rule Nisi calling upon the respondents to show cause as to why they should not be directed to cancel, withdraw or rescind the Memo, No. 290/1, dated 3‑9‑61, and Memo. No. 6028 (2)‑SA/T/W, dated 3‑9‑61 purporting to take over, or interfere with, the possession of the petitioner in the Debutter Estate.

3. The petitioner's case appears to be that inasmuch asrthe said notification, being No. 7463 L. R., dated 9‑3‑59, expressly exempts "the interest and rights that are hela under any wakf, debutter or other religious trust" from its operation, the Provincial Government cannot claim to have acquired the rent‑receiving interests involved in this application under the said notification. In the first place, the petitioner has asserted that the rent‑receiving interests involved in the petition constitute a debutter secondly, he has submitted that he is a duly constituted Shebait of the Debutter estate thirdly, his further case is that, in the aforesaid circumstances, the claim of the Government that the said rent -receiving interests have been acquired by it, has no basis.

4. On behalf of the respondents an affidavit‑in‑opposition was filed in which, apart from the results of the legal proceedings or suit as stated above, the various allegations made in the petition have been generally traversed. It is the respondents case that the petitioner has no locus stand to maintain this application and, furthermore, that the said document, marked as Annexure A to the present petition, does not legally constitute a valid debutter inasmuch as it is a lease, pure and simple. It has also been con tended on behalf of the respondents that the attempted creation of a debutter was not a genuine transaction in the sense that it was brought into existence to defraud the Provincial Government of its right and that it was never acted upon. The petitioner in his affidavit‑in‑reply has fully controverted the specific allegations made in the affidavit‑in‑opposition filed on behalf of the respon dents and has also supported his contentions by producing further documents in this Court.

5. At the hearing of this Rule, the first question that was mooted before us is whether the aforesaid document has created a debutter, If it did, it was conceded on behalf of the respondents that the petitioners contention must prevail, provided it was a genuine document which was acted upon. The point for our decision is a simple one, although elaborate arguments were advanced before us by the respective parties in this petition.

6. We have carefully perused Annexure A and the terms thereof. The document is described as a deed of perpetual lease; the grantor is described as a lessor; and the grantee is described as a lessee. But it seems to us that the features of a lease cease there. By this document the grantor has completely divested himself of all proprietory rights in the estates concerned. The income of the property has practically been wholly dedicated to religious and charitable purposes. The said document has also' specifically appointed the Shebaits of the debutter estate. On a1 reference to the terms and conditions of the said document, it appears that the same also expressly mention about the creation of a debutter, and although, ostensibly, it purports to be a lease a sum of Rs. 205 annually being specified to be given to the a grantor as a rental for the lessor, the main feature of the grant is~ that there is no right of re‑entry. There is no right reserved fort the grantor which would enable him to proceed against the estates as such in the capacity of a lessor. A mere trust has been created in which the income of the estate is to be spent in charity, saving only a small fraction of the income, which has to be given annually to the grantor, the said sum being described as "rent" on a proper construction of the entire document and its terms and conditions, the position clearly boils down to this that it is a dedication, pure and simple, to charity and religious purposes and that the grantor has constituted himself a beneficiary to the extent of annual sum of Rs.

205. The grantor, as we have already! noticed, has completely divested himself of all proprietory interest in the estates concerned. All that remained for him was some thing of the nature of a right of a beneficiary under a trust deed, enforceable in such a manner as a beneficiary can enforce a specific benefit given to him under the said deed. In this context we may refer to a decision of the Supreme Court of India in the case of Menakuru Dasratharami Redd and another v. Duddukuru Subba Rao and others (A I R 1957 S C 797). We would like to quote the following obser vations in the judgment that was pronounced in that case, with which we respectfully agree "The principles of Hindu Law applicable to the consideration of questions of dedications of property to charity are well -settled. Dedication to charity need not necessarily be by instru ment or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. On the other hand, in many cases Courts have to deal with grants or gifts showing dedication of property to charity. "Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. "In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the docu ment considered as a whole. The use of the word "trust" or "trustee" is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. "Is the private title over the property intended to be com pletely extinguished? Is the title in regard to the property intended to be completely transferred to the charity? The answer to these questions can be found not by concentrating on the significance of the use of the word "trustee" or "trust" alone but, by gathering the true intent of the document consi dered as a whole, in some cases where documents purport to dedicate property in favour of public charity, provision is for the maintenance of the worshipper who may be a member of the family of the original owner of the property himself and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the income of the property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of the charity. "If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the mainte nance of the worshipper or tire manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to he used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult of complete dedication. "It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole."

7. It is thus clear that, on a well‑established principle of construction of document, the Court has to look to the entire document and construe it as a whole. There is no magic in the specific terms that have been used in the document such as, the d terms "Lessor" or "Lessee" or "Rent" The said terms have also to be interpreted in the light of the provisions to have been made. It is true, as we have stated above, the document des cribes the grantor as the lessor and the grantee as the lessee and an annual amount of Rs. 205 which has been saved for the grantor,) has been described as a rental; but on a construction of the document read as a whole, we think there is no escape from the conclusion that it creates a debutter and there is complete vesting of the debutter 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 debutter. We, therefore, hold that the said document has created the debutter as alleged by the petitioner.

8. It was next contended on behalf of the respondents that the said document does not disclose a genuine transaction. It has been described in the affidavit‑in‑opposition as a sham transaction which was not acted upon. The petitioner has, in his petition, set out how the debutter was created and how the said document was acted upon. It has been stated that various sums of money have been given to charity in accordance with the terms of the aforesaid deed and, furthermore, it was pointed out that the income‑tax returns which were filed, specifically described the afore said estates as debutter. On behalf of the respondents, it is said that the returns could be filed in order to create evidence to show that a debutter has been created. True, it might be so, but the respondents have shown us nothing on which we could treat the aforesaid income‑tax returns to be "a mere paper‑contrivance". There is positive averment in the petition to that effect by the petitioner which is supported by documents. Furthermore, docu ments 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. The petitioner's contentions have been materially corroborated before us on some vital particulars and we have no hesitation in accepting the statements made by the petitioner to the effect that the aforesaid document was a genuine transaction and that it was duly acted upon. On behalf of the respondents certain suspicions were expressed before us, but they failed to point to any concrete and specific piece of evidence upon which we could hold that the creation of a debutter was a fictitious transaction. It is said that in neither of the suits filed on behalf of the grantor of the deed the properties were des cribed as debutter estates. It was not so mentioned because it was unnecessary to do so. Both the suits sought a declaration to the effect that the estates covered by them were not acquired by Government. These were not suits for a mere declaration of title. When the first suit was filed in 1955, the debutter was not created then. In accordance with the recital in the document produced as Annexure A, the debutter was not created before 1956. It is true that it is claimed that such debutter was created at the time when the respondents preferred the appeal before the Additional District Judge of Mymensingh; but there was no occasion for the grantor of the said deed to state that a debutter had since been created. The suit was instituted for proving that the Provin cial Government has not acquired them. A grievance has been made of the fact that in the appeal filed by the grantor to this Court there is no mention of the debutter estate. It has been noticed above that even in the appeal filed before this Court the issue was whether the Government had acquired the said estate as claimed by it. We do not think that the aforesaid circum stances show that the said deed was a fictitious document.

9. The challenge to the genuineness of the transaction creating the said debutter, as advanced by learned Advocate for the respondents, does not itself appear to be genuine, such challenge not being based on concrete facts but on mere suspicion and con jecture. No dispute has been raised which cannot be decided upon the affidavits filed before us and the documents produced in Court to support the statements made in the petition and the affidavit‑in -reply.

10. It will also be further noticed that substantially the claim of the petitioner was challenged in the affidavit‑in‑opposition on a supposition that the document as filed in the petition, namely, Annexture A, was only a copy and not the original. It transpires that, in fact, the original document has been filed.

11. We have fully discussed the matter mooted before us and, for reasons stated above, we accept the statements of the petitioner made in the petition as well as in the affidavit‑in‑reply on this point in preference to those made in the affidavit‑in‑oppo sition in this behalf. We, therefore, hold that by Annexure A, a debutter was created in respect of the estates involved in this petition and that the said document appears to be a genuine one. The respondents have submitted that the grantor, namely, Gopal Das Chowdhury, had forestalled the Provincial Government by creating a debutter with the intention of saving the properties concerned by this application from acquisition by Government. The petitioner's answer to this is that at the time when the docu ment was created the grantor could not and did not know that in the notification of 1959, which came long after the creation of the debutter, properties constituting a debutter would be exempted C from acquisition. Even if the grantor had anticipated that the said properties might be eventually acquired, it was within his rights to give such properties to charity and to religious purposes instead of allowing the same to be acquired by the said Govern ment in future.

12. It was contended on behalf of the respondents that neither the petitioner nor the grantor took any steps to inform the Revenue Authorities that such a debutter had been created. It is claimed that arrears of revenue to the extent of several lakhs have already accrued. We do not think that failure of the peti tioner or the grantor to give such information to the Provincial Government, as stated above, vitiates the transaction or cast any suspicion on the aforesaid deed. The document in question was a registered document. We, however, fail to see how such arrears of revenue could fall due if the Revenue Authorities themselves had acted promptly and efficiently. The learned Advocate on behalf of the respondents sought to explain this by saying that there were orders of injunction issued by Courts against the respon dents. This contention will not bear the test of scrutiny. In accordance with the various injunctions issued in favour of the grantor, the respondents were only restrained from interfering with his possession in the estate concerned; they were never pre vented from realising any revenue or rent due from him or from the said estates to the Provincial Government. Mr. Hamidul Huq Chowdhury, appearing on behalf of the petitioner, stated, on the contrary, that on several occasions revenue and other dues were offered in respect of the estates in question but the same were not accepted by the respondents. By way of explanation, the learned Government Pleader argued that such refusal might have been due to an apprehension that the acceptance of such revenue and dues might have jeopardised the stand that the Government had acquired the estates in the aforesaid suits. We fail to see how he case of the Government in the said suits would have been jeopardised if it had accepted the arrear‑revenue offered in respect of the estates concerned, without prejudice to its contention that the said estates were acquired by the Government. It would thus appear that there is hardly any bona fide dispute with regard to enuineness of the document creating the said debutter. Whatever disputes have been raised in this behalf can be decided on the affidavits before us. We have seen that they do not bear the rest of scrutiny. The respondents have raised an issue as to whether the document and its attendant circumstances amount in law to the creation of a debutter and we have already decided the said issue.

13. It was further contended, on behalf of the respondents, that the present petitioner has no locus stand to make the applica tion. We have already noted that the petitioner has been constituted one of the shebaits under the express terms of the aforesaid deed. In his affidavit‑in‑reply the petitioner has appended a document, marked Annexture G, by which a shebait in Pakistan could act on behalf of the estate. Be that as it may, we fail to see how even one of the several shebaits cannot maintain an application in this Court for the issue of the writ, as prayed for. There is, therefore, no substance in this contention.

14. This disposes of all the points that were raised before us in respect of the present petition. No other point was raised or pressed in this Court.

15. We will now deal with another point which does not arise out of the affidavits filed before us but which the learned Govern ment Pleader wanted to canvass on behalf of the respondents. The learned Government Pleader sought to invite our attention to the provisions of a section 17 (1) of the East Bengal State Acquisition and Tenancy Act 1950 and, furthermore, reference was made to sections 42 and 44 of the said Act. It was claimed that since the filing of this petition there had been a final publication of the Compensation Assessment Roll under section 42 of the said Act and, therefore, the estates involved in this petition vested in the Provincial Government under the provisions of section 44, as stated above. In the first place, such a contention can only be decided on further affidavits to be filed on behalf of the respon dents, which may be controverted by the petitioner. We would have been thereupon called upon to make a further investigation on a point which does not directly arise out of this petition. The petitioner in this application has sought to challenge the validity of the two memoranda, as stated above. He has contended the Provincial Government's claim that the estates covered by this petition were acquired by the said Government by a notification published in 1959. Our decision in the present case will have no effect to an altered jural relationship, if any, between the parties by virtue of the operation of some other provisions of the law. It is entirely unnecessary for us to deal with this question. We, therefore, refrain from giving any decision on it.

16. From what we have stated above, it is clear that the respondents cannot claim that the Provincial Government has acquired the estates in question by virtue of the notifications men tioned above. We do not think that it will be proper for us to prevent the respondents from taking any future action which they may be authorised by law to take. In these circumstances, we direct the respondents to rescind the impugned Memorandum No. 290/1, dated 3‑9‑61, and Memo randum No. 6028 (2)‑SA/ T/W, dated 3‑9‑

61. The Rule is, accordingly, disposed of in terms of the order made above. The petitioner is entitled to the costs of this application which we assess at fifteen Gold Mohurs. SALAHUDDIN AHMED, J.‑

I agree. S. B./A. H. Rule discharged.