JUDGMENT
Bhaskar Bhattacharya, J.
1. These two appeals were heard analogously as these are preferred against a common judgment dated 27th February, 2004 passed by the Additional District Judge, 3rd Court, Barasat, District – North 24-Parganas by which two different suits being Title Suit No. 1 of 1998 and Title Suit No. 2 of 1998 were decreed.
2. Title Suit No. 1 of 1998 was originally numbered as Title Suit No. 1 of 1991 and was filed in the Court of District Judge, Alipore by six persons as plaintiffs against four named defendants. Out of the four defendants, the defendant Nos. 1 and 2, namely, Abhijit Roy Chowdhury and Subhajit Roy Chowdhury were described as Sebaits while the present appellants, the purchaser from the parents of the defendant Nos. 1 and 2, was made defendant No.3 and the defendant No. 4 was a director of the defendant No. 3. The said suit was filed under Section 92 of the Code of Civil Procedure thereby praying for declaration that the premises Nos. 121 and 121/1. Kashi Nath Dutta Road, Calcutta, constituted Debutter estate created by one Ganapati Chakraborty, since deceased, and for removal of the defendant Nos. 1 and 2 from Sebaitship of the deities. By the said suit a prayer of constitution of a Board of Trustees was made after removal of the defendant Nos. 1 and 2 with a prayer of mandatory injunction directing the defendant Nos. 1 and 2 to render true and faithful accounts. By the said suit, injunction was prayed for restraining the defendant Nos. 1 and 2 from selling and dealing with or disposing of or transferring any of the Debutter properties with a prayer for sanctioning the scheme for management of the Debutter property.
3. Title Suit No. 2 of 1998 was originally numbered as Title Suit No. 372 of 1992 filed in the 3th Court of Munsif, Sealdah challenging the sale of the part of the Debutter properties in favour of the present appellant by the then joint Sebaits on the allegation that such sale was not for the legal necessity of the deity and was not even permissible and was vitiated by fraud.
4. The said suit was ultimately transferred to the Court of the District Judge, North 24-Parganas for analogous hearing with the other suit mentioned above.
5. It may be mentioned here that during the pendency of the suit filed under Section 92 of the Code, an interim order was passed thereby framing an interim scheme for administration of Debutter estate and for conducting Seba Puja and the said interim order was continuing till the disposal of the two suits heard analogously.
6. The case made out by the plaintiffs in the Title Suit No. 1 of 1998 may be summed up thus:
a) On and about 8th November, 1939 one Ganapati Chakraborty, since deceased, being a wealthy and pious Hindu residing at the then 121, Kashi Nath Dutta Road, the suit property, executed a Will by which one Smt. Harimati Dasi was appointed the executrix along with one Nripendra Kumar Bose. By the said Will, the said testator made provision for maintenance and Seva Puja of four different Hindu deities, all duly installed by him and located at the suit premises.
b) By virtue of the said Will, it was provided that the said premises consisting of three temples, attached cook-shed for Bhog, a Courtyard to the south of the temple, a shop to the side abutting the road in the southern portion of the aforesaid premises and a two-storied residential building standing on the northern side of the aforesaid premises and two cottahs of land to the contiguous west of the temples were the subject-matter of the Will.
c) By the said Will, the Trust that was created was for public purpose of religious nature. One Smt. Harimati Dasi, by the said Will, was appointed Sebait of the Debutter estate dedicated to the deities and the plaintiff No. 1 was appointed as Paricharika of the said deity for her lifetime for a sum of Rs. 5/- payable to her every month and a particular room on the northern portion of the premises was allotted for her use and occupation during her lifetime.
d) By the said Will, it was specifically provided that Harimati Dasi after the death of the testator would become Sebait during her lifetime with liberty to appoint the next Sebait. The probate of the Will left by the Ganapati Chakraborty was duly obtained. Subsequently, by her Will dated 23rd January, 1961, the said Harimati Dasi cancelled earlier two Wills made by her relating to disposition of the Sebaiti right in respect of Debutter property after her death. By the said Will, she appointed Sri Bhupendra Nath Roy Chowdhury and his wife, viz. Smt. Bithika Roy Chowdhury as joint Sebaits. In the said Will of Harimati Dasi, it was stated that those two joint Sebaits would be entitled to nominate the next Sebait. The Will dated 23rd January, 1961 was probated and Bhupendra Nath Roy Chowdhury and his wife, viz. Smt. Bithika Roy Chowdhury got probate of the Will and started functioning as joint Sebaits of the Debutter estate In the Will of Harimati Dasi, it was further provided that Bhupendra Nath Roy Chowdhury and his wife, the next Sebaits, would have exclusive right to do all acts required for the proper maintenance and for the performance of the worship and Seva Puja and administration of the property of the said Debutter estate and they would be able to collect all rents payable in respect of the said Debutter estate and grant receipts. It was further provided that Bhupendra Nath Roy Chowdhury and his wife would be entitled to alienate or transfer any property being part of the said Debutter estate in case of legal necessity only and income from Debutter estate would be appropriated for maintenance.
e) During the lifetime of Bhupendra Nath Roy Chowdhury and his wife, they duly collected rent, income and profits of the said Debutter estate but applied no part thereof for the maintenance and in fact, Bhupendra Nath Roy Chowdhury and his wife maladministered the said Debutter estate during their lifetime after misappropriating huge amount of money and wrongfully and illegally transferred and alienated a substantial parts of the said Debutter estate without any legal necessity.
f) Both Bhupendra Nath Roy Chowdhury and his wife having died in recent past in course of two years from the date of institution of the suit, the suit was filed against the defendant Nos. 1 and 2, their sons and sole heirs and legal representatives.
g) During the lifetime of Bhupendra Nath Roy Chowdhury and his wife, they entered into an agreement in writing with the plaintiff Nos. 4 and 5 who are lawful tenants of the said Debutter estate and the said agreement provided that the plaintiff Nos. 4 and 5 as such tenants of Debutter property would have no objection to the erection of pillars on and over their ceilings for the purpose of making it in the form of concrete.
h) At all material time, the plaintiff Nos. 2 and 3 were lawful tenants in respect of suits premises under the Debutter property and defendant No. 1 had mutated his name in several bank accounts which had been maintained by the said Bhupendra Nath Roy Chowdhury and his wife.
i) Defendant No. 3 is a company and defendant No. 4 being the Director of defendant No. 3 repeatedly were making wrongful representation to the plaintiffs that they had already purchased land and thereby they were claiming adversely to the interest of the Debutter estate. Hence, the suit for framing a scheme of management in terms of Section 92 of the Code of Civil Procedure after removing defendant Nos. 1 and 2 from Sebaitship.
7. In the other suit, which was heard along with the said suit under Section 92 of the Code of Civil Procedure, twelve persons claiming to be interested in the worship of the deity prayed for declaration that the Debutter in question was a public Debutter created by Ganapati Chakraborty and for setting aside the sale of part of the property in favour of the present appellants.
8. Both the suits were contested by the present appellants by filing written statement thereby denying material allegations made in the plaints and the defence taken by the present appellants may be summed up thus:
a) The suit was not maintainable and was barred by the law of res judicata and was also defective for non-joinder of necessary parties. The Trust created by the Will of Ganapati Chakraborty was not at all of public nature but was a private Debutter and as such, the suit was not maintainable. Moreover, some non-interested parties to the Trust filed the suit.
b) The appellants purchased the property from the then Sebaits, namely, Bhupendra Nath Roy Chowdhury and his wife after taking leave of the learned District Judge in Miscellaneous Case No. 179 of 1988 and as such, they had acquired title to the property.
9. At the time of hearing of the two suits four persons deposed on behalf of the plaintiffs while two persons figured as witnesses of the present appellants.
10. The learned Trial Judge by the judgment and decree impugned herein decreed the suit by declaring that the Debutter created by Ganapati Chakraborty was a public Debutter and removed the defendant Nos. 1 and 2 from Sebaitship and further framed a scheme of management in terms of the interim order passed by the learned District Judge. Sale by Bhupendra Nath Roy Chowdhury and his wife, the previous joint Sebaits in favour of the present appellants were declared as null and void and the present appellants were directed to hand over possession of the property in the favour of the Trustees created by the scheme.
11. Being dissatisfied, the appellant has come up with the present two appeals.
12. Mr. Banerjee, the learned Senior Advocate appearing on behalf of the appellants, at the very outset has drawn attention of this Court to the Will executed by Ganapati Chakraborty and also the subsequent Will executed by Harimati Dasi and has contended that a conjoint reading of the two Wills will make it abundantly clear that the Debutter property involved in the suit was purely a private Debutter and as such, the suit under Section 92 of the Code was not at all maintainable. Mr. Banerjee further contends that his client having purchased the property from the last named Sebaits nominated by Harimati Dasi, had become lawful owner of the property as learned District Judge was satisfied that the sale was necessary for maintenance of the Debutter property.
13. Mr. Banerjee further contends that no material has been placed before the Court showing that at any point of time either during lifetime of Harimati Dasi or even till the sale of the property by Bhupendra Nath Roy Chowdhury and his wife in favour of his client, there was any participation of the public in the management of the Debutter, Mr. Banerjee contends that on their own showing, the plaintiffs are tenants of Debutter appointed under the then Sebaits and as such, at their instance the suit was not at all maintainable. Mr. Banerjee further contends that the Paricharika engaged by the original testator having died during the pendency of the suit and her right as Paricharika being a life interest specifically mentioned in the Will of the founder, after her death, no person really interested in the Debutter was substituted and as such, the surviving plaintiffs have no locus standi to proceed with either of the suits.
14. Mr. Banerjee further contends that his client had purchased the property in the year 1989 and the suit was filed for more than three years after the execution of the sale deed. According to Mr. Banerjee, even if it is assumed for the sake of argument that by virtue of sale deed executed by the then Sebaits with the sanction of the learned District Judge his client did not acquire any title, the plaintiffs had no locus standi to maintain the suits. Mr. Banerjee, thus, prays for dismissal of the two suits and consequently, prays for setting aside the judgment and decree passed by learned Trial Judge,
15. Mr. P.K. Das, the learned Senior Advocate appearing on behalf of the respondents, has vehemently opposed all the aforesaid contentions raised by Mr. Banerjee. According to Mr. Das, it appears from the materials-on-record that the local public used to participate in the functions of the Debutter and it further appears even from the Will executed by the founder that he really created an absolute Debutter and such being the position, the learned Trial Judge rightly concluded that a public Debutter was created and for mismanagement of the property the existing Sebaits were rightly removed. Mr. Das further contends that the last named joint Sebaits appointed by Harimati Dasi by practising fraud upon Court obtained the so-called sanction and by virtue of sale deed executed by them the present appellants could not acquire any title to the property. Mr. Das contends that in a case of this public nature, Section 10 of the Limitation Act helps his client to maintain a suit even after the expiry of three years from the date of execution of the sale deed in favour of the appellants.
16. Mr. Das further contends that in the Will of Harimati Dasi, although Bhupendra Nath Roy Chowdhury and his wife were named as last Sebaits and there was no averment made in the plaint that they nominated their sons, namely, the defendant Nos. 1 and 2 as the next Sebaits, according to Hindu law, the Sebaitship being a property was inherited by the defendant Nos. 1 and 2 and as such, the suit was very much maintainable against the defendant Nos. 1 and 2. Mr. Das further contends that it is now settled law that even worshippers can represent the deity if the Sebait acts adversely to the interest of the deity and in such a case, the present plaintiffs being the worshippers of the deity, though they are tenants of the Debutter estate, can maintain a suit for the relief claimed in these two suits.
17. Mr. Das further contends that considering the materials-on-record the learned Trial Judge having found that the dedication was a public Debutter, this Court should not upset such finding of fact which is otherwise reasonable. He, thus, prays for dismissal of the appeal.
18. Immediately after the conclusion of hearing of this appeal, Mr. Das after taking instruction from his junior submitted that a few minutes earlier an application had been filed in connection with this appeal for taking some additional evidence in support of the contention that the property was public Debutter property. Although the copy of the application was not served upon the respondents in course of hearing, we took up the said application and after consideration of the same we dismissed the application as the ingredients of Order 41 Rule 27 of the Code of Civil Procedure were not present justifying admission of the documents as additional evidence mentioned therein.
19. Therefore, the first question that arises for determination in this appeal is whether the Debutter created by Ganapati Chakraborty was a private Debutter or a public one.
20. We have gone through the Will executed by Ganapati Chakraborty, the creator of the Debutter estate. It appears from the said document that the Debutter was created earlier during his lifetime and he, as the first Sebait, from his own money, was continuing with the Seva Puja. It was mentioned in the Will that he had no child and for a long time Smt. Harimati Dasi was maintained by him and he treated a girl named Panchubala as adopted daughter and he gave her marriage with one Sri Satya Charan Mukherjee. Ganapati Chakraborty further admitted that for the purpose of purchase of the land and construction of the building a sum of about Rs. 5,000/- was spent by Harimati Dasi. By the said Will he appointed Harimati Dasi as the next Sebait during her lifetime and permitted her to nominate the next Sebait. It was further pointed out that if Harimati Dasi did not nominate the next Sebait, the other executor, namely, Nripendra Kumar Bose would be the next Sebait after Harimati. The Will further provided that in the event Harimati Dasi did not nominate the next Sebait, after Sri Bose, his heirs would inherit the Sebaitship. It was further stated that for the purpose of maintenance and running of the Debutter, the executors were entitled to sell 2 cottahs of land or the Government promissory notes standing in his name.
21. From the aforesaid Will it is clear that the founder had no intention at all to create any public Debutter estate. It was clear that it was his own creation and he nominated Smt. Harimati Dasi as next Sebait with right to nominate and Panchubala Debi was given only life estate for acting as Paricharika on payment of Rs. 5/- and to stay in one of the rooms. The provision in the Will is that heirs of Nripendra Kumar Bose will be the subsequent Sebaita in the event Harimati Dasi did not nominate any Sebait. The aforesaid term shows that the intention of Ganapati Chakraborty was never to create any public Debutter and there was no indication of conferring any right to the public. In other words, the public had no role to play in the functioning of the estate.
22. If we go through the Will of Harimati Dasi executed in the year 1961 it will appear that she was dissatisfied with the lifestyle of Panchubala, nevertheless, it never indicated that at any point of time she ever received any donation from any public in the matter of management of Debutter. She appointed joint Sebaits, namely, Bhupendra Nath Roy Chowdhury and his wife, Smt. Bithika Roy Chowdhury, with power to nominate the next Sebait. It was provided that once jointly they had nominated the next Sebait, after the death of one of them, the survivor alone would not be entitled to revoke the nomination. Therefore, it is clear that absolute Sebaui right was not conferred upon Bhupendra Nath Roy Chowdhury and his wife and such Sebaiti right was limited during their lifetime with power of nomination. The said Will also does not indicate anything that the Debutter was at that point of time continuing from the donation of any public or that the public had any right in the worshipping of the deity. It is needless to mention that Harimati Dasi never had any intention that after the death of Bhupendra Nath Roy Chowdhury and his wife, the Sebaiti right will be inherited by their children.
23. From the aforesaid materials, one thing is clear that after the death of Bhupendra Nath Roy Chowdhury and his wife there was no named Sebait appointed by the existing Sebaits in accordance with the direction given by Harimati Dasi. It is now settled law that if there is no named Sebait or appointed Sebait in accordance with the desire of the founder, the Sebaiti right will revert back to the heirs of the founder as if the founder died on the date of death of the last recognised named Sebait. See: Ganesh Chandra v. Lal Bahari AIR 1936 PC 316 followed in Anath Bandhu v. Krishna Lal .
24. Therefore, in this case, the moment Bithika Roy Chowdhury died after the death of her husband, the Sebaiti right of the deities created by Ganapati Chakraborty would revert back to his heirs as if Ganapati Chakraborty had died on the date of death of Bithika Roy Chowdhury. There is no dispute that none of them had been made parties to the suit. Although, Mr. Das tried to convince us that Ganapati Chakraborty had no heir as he was bachelor, we are not at all impressed by such submission because even if a person dies as bachelor having no children, the property will devolve upon his heirs mentioned in the Hindu Succession Act. In the case before us, it is admitted that Bithika died long after the coming into operation of the Hindu Succession Act. There is no averment made either in the plaint or in the evidence that Ganapati Chakraborty had even no heirs according to the Hindu Succession Act, 1956. If there is really no heir of Ganapati, Section 29 of the aforesaid Act will come into operation. Therefore, we are convinced that in the absence of the existing Sebaits of deity who inherited the Sebaiti right as heirs of Ganapati after the death of Bithika Roy Chowdhury, the last named Sebait, no effective decree could be passed. See: Profulla Chorone Requitte and Ors. v. Satya Chorone Requitte of the judgement.
25. Similarly, once it is held that the Debutter was a private Debutter, the suit under Section 92 of the Code of Civil Procedure was not maintainable.
26. Mr. Das at this stage vehemently contended that even if originally a private Debutter was created, in course of time, the same may assume the status of a public Debutter and in support of such contention, he has relied upon the following decisions:
1. Marua Dei alias Maku Dei and Ors. v. Muralidhar Nanda and Ors. ;
2. Deoki Nandan v. Murlidhar and Ors. ;
3. Sarat Chandra Bhattacharjee v. Rabindra Nath Ghosh and Ors. ;
4. Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas (dead) and Ors. ;
5. Teki Venkata Ratnak and Ors. v. Dy. Commissioner, Endowments and Ors. reported in 2001(7) SCC 106.
27. In the case of Marua Dei alias Maku Dei (supra), it appeared that the land on which the temple stood was recorded in favour of “Samadhi Gossain” and not in favour of any private individual or the family and the land was described as rent-free which was a piece of strong evidence to prove that land was dedicated for public benefit. In the case before us, no evidence has been adduced showing that in municipal record, the property stands in the name of public. On the other hand, the fact that the defendants after purchasing the property from Sebait made construction in a municipal area itself indicates that it was never recorded as public Debutter. In the said case of Supreme Court, the successor-in-interest of the founder though made party stayed away from the witness-box for avoiding the question of investment of public money for construction. In the case before us, none of the four witnesses has ever asserted that any money was ever collected from the public prior to the date of institution of the suit. Although Mr. Das tried to impress upon us that during the pendency of the suit the learned Trial Judge framed a scheme of management by which the public had been given the right of worship, we are of the view that taking benefit of interim order passed in a suit, the respondents cannot contend that it has become a public property by virtue of such interim order. The finding recorded by the learned District Judge at the time of passing interim order which was affirmed by this Court in a miscellaneous appeal preferred against such order is not binding upon the Court at the time of trial when evidence would be adduced. Therefore, Mr. Das cannot rely upon the interim order passed in this suit permitting worship of the deity by public. Thus, the decision in the case of Marua Dei alias Maku Dei (supra), cannot have any application to the fact of the present case.
28. In the case of Deoki Nandan (supra), upon which strong reliance has been placed by Mr. Das, it was held that the scope of dedication is a mixed question of law and fact and the decision must depend upon the appreciation of such question. In the said decision, it was held that the distinction between the private and public trust is that whereas in the former, the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof. According to the Supreme Court, in the case of the former, the beneficiaries are persons who are ascertained or capable of being ascertained, whereas in the case of the latter, they constitute a body which is incapable of ascertainment. Supreme Court further held that a religious endowment must, therefore, be held to be private or public according to the answer whether the beneficiaries thereunder are specific persons or the general public or sections thereof.
29. In the case before us, we have already pointed out that so long Bhupendra Nath Roy Chowdhury and his wife, Bithika Roy Chowdhury acted as Sebaits in terms of Will of Harimati Dasi, there was no indication that public had any role to play in the matter of Seva Puja. There is no evidence adduced on behalf of the plaintiffs showing donation of any public for the Seva Puja. In the Will, named persons are Sebaits with right to nominate the next one and they have right to transfer a specific portion of the property, if necessary.
30. Therefore, even if we apply the principle laid down in the Deoki Nandan (supra), it would appear that it is pure private Debutter.
31. In the case of Sarat Chandra Bhattacharjee (supra), it appears from paragraphs 17 to 21 of the judgment that in the said case the Court came to the conclusion that the disputed temple was built with public money contributed by local Hindus, that its extensions were made by members of the local Hindu public with their own funds, that its repairs were carried out by local Hindu contractors who charged no remuneration for their services and the necessary costs for such repairs were provided by the local Hindu gentry, that the Hindu public had all along free access to the temple and had Darshan of the Thakur and offered pujas, that the local municipality treated the disputed Kalibari as a place of public worship and exempted it from assessment on that footing, that various Bigrahas of the local people used to be kept in the temple and that the annual Kali Puja and pujas of other Bigrahas, located in the temple, were performed on appropriate and ceremonial occasions with public subscriptions and under public management and even the daily pujas used to be carried on with public offerings, that the Thakur’s ornaments and the utensils for Bhog and other purposes were all supplied by the local Hindus, that devotees used to place marble tablets in the temple in memory of their deceased relations and at the request of the local people, the municipality provided a light near the main gate of the temple.
32. In the case before us, no such fact has been proved by the plaintiffs and it appears that all along the property was maintained by Ganapati Chakraborty and Harimati Dasi and after her death, by Bhupendra Nath Roy Chowdhury and Bithika Roy Chowdhury. Therefore, the principle laid down in the case of Sarat Chandra (supra) has no application to the fact of the present case.
33. In the case Goswami Shri Mahalaxmi Vahuji (supra), it was found from evidence that the temple of Gokulanthji and the properties attached thereto were the part of the trust created by followers of Vallabh cult residing in Nadiad. The Goswami Maharaj was not a mere manager, but had an important place as he was the Maha Prabhu and Vallabh devotees worshiped their deity through him. In that case, the income from temple properties had to be primarily used for the expenses of the sevas and utsavas in the temple, the upkeep, renovation and improvements of the temple premises and in such a case, it was found to be a public trust. In the case before us, even the plaintiffs claimed to be tenants under Bhupendra Nath Roy Chowdhury and his wife, Smt. Bithika Roy Chowdhury and they paid rent to them and there is no material showing donation by any public for performance of Seva Puja. In our view, mere fact that in a private Debutter some of the neighbours were visiting the deity to pay homage, such fact does not convert the said property to one of public Debutter.
34. In the case of Teki Venkata Ratnam (supra), it was held that the private temple in course of time depending on various facts and developments may gradually acquire the nature of public temple. In that case even though District Court in 1940 had declared a particular temple as a private temple, a dispute having subsequently arisen whether it continued to be a private temple or it had become a public temple and a notice having been issued by the Deputy Commissioner under Section 87 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, it was held that the authority had the right to make enquiry about the character of the temple. The fact that the property which was initially a private Debutter in course of time may assume the character of public Debutter is not in dispute; but in this case, we have already pointed out that till the institution of the suit, the public had no right in the matter of Seva Puja and even in 1989, the last named Sebaits by taking permission from the learned District Judge sold the property to the present appellant as they felt difficulty in managing the Seva Puja from the income of the Debutter.
35. We, therefore, find that in this case simply on the basis of evidence given by four persons that some local public used to have “Darshan” of the deities, it cannot be concluded that in course of time, the private Debutter had assumed the role of a public Debutter when no material has been produced showing exertion of the right of Seva Puja by the public or donation of any amount by the public over the property. It is now settled law that Sebaitship is a right like any property and during the lifetime of Bhupendra Nath Roy Chowdhury and his wife nobody disputed their title, as such Sebait. After their death, we have already pointed out such right devolved upon the heirs of Ganapati Chakraborty but those persons have not been made party. Therefore, no material had been placed before us showing that their title had since been extinguished by the overt act of the public on the date of institution of the suit in the year 1993 whereas the last named Sebait died two years prior to the institution of the suit. We have already held that the plaintiffs cannot take benefit of the interim order passed in this suit.
36. Be that as it may, in the absence of the real existing Sebaits i.e. the heirs of Ganapati Chakraborty, the suit itself is not maintainable and we cannot decide whether their rights have been eradicated by the acts of the public and in this case it is well-established that till the date of institution of the suit, even the rights of those heirs have not at all been destroyed and at the same time the present plaintiffs cannot dispute the title of the appellants who obtained the property by virtue of deed executed by the then Sebaits after taking permission from the learned District Judge.
37. We are, therefore, of the view the learned Trial Judge totally misread the materials-on-record in arriving at the conclusion that the Ganapati Chakraborty made a public Debutter. As would appear from the averments made in the Will itself, such finding is a perverse finding of fact. We have further held that even upto the death of last Sebait there was no interference from any public disputing the character of private Debutler. Therefore, the suit under Section 92 of the Code of Civil Procedure was not maintainable as the disputed Debutter was a purely private Debutter. Similarly, the other suit for declaration that the title of the appellant by virtue of purchase from Bhupendra Nath Roy Chowdhury and his wife Smt. Bithika Roy Chowdhury was void is equally not maintainable as the plaintiffs had no locus standi to dispute such transaction.
38. The last submission of Mr. Das that we should in the fact of the present case apply the doctrine of Cy-pres is equally devoid of any substance once we hold that the Debutter in question was a private one. The essential ingredients of application of the said doctrine is that there must be a trust evidencing clear charitable intention and if such intention is apparent, it will not be permitted to fail, because the mode, if specified, cannot be executed; in such a case, the law will substitute another mode of Cy-pres, that is, as near as possible to the mode specified by the donor. In the case before us, there being no intention of the donor to create a charitable trust, the submission of Mr. Das is misconceived.
39. We, thus, set aside the judgment and decree passed in both the suits and allow the appeals. We accordingly dismiss both the suits out of which these two appeals arise.
40. The appeals are, thus, allowed with costs which we assess at Rs. 5,000/- for each of the appeals payable by the respondents to the appellants.
Pravendu Narayan Sinha, J.
I agree.