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Mahadoba Devasthan Vs. Mahadba Romaji Bidkar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 434 of 1948
Judge
Reported inAIR1953Bom38; (1952)54BOMLR645; ILR1953Bom1071
ActsHindu Law; Limitation Act, 1877 - Sections 6 and 7
AppellantMahadoba Devasthan
RespondentMahadba Romaji Bidkar and ors.
Appellant AdvocateS.H. Lulla and ;R.N. Bhalerao, Advs.
Respondent AdvocateY.V. Chandrachud, Adv.
Excerpt:
shebait - right of idol as juridical person to file suit in respect of property held by idol-suit filed in name of idol represented by shebait-whether idol proper plaintiff in suit-shebait party to unauthorised alienation of idol's property-suit challenging such alienation-shebait whether can file such suit as next friend of idol. ;the principal in the case of an image or idol is not an entity capable of acting on its own, with the result that it has of necessity got to act through its manager or an accredited agent, who under the circumstances is the only person capable of performing these functions in the name of the idol. the shebait is in possession and management of the property belonging to the image or idol, and having such possession and management vested in him, it is only an..........properties alleged to belong to the plaintiff for two declarations, one that the sale-deeds of the suit lands were void and the lands were of the ownership of shree mahadoba devasthan, and two, that the plaintiff was entitled to recover possession oi s. nos. 240a, 242, 243 and 344 from the government and recover possession of s. no. 245 from the defendants and costs of the suit. the defences which were taken up were that keshav waman waghule was not the vahivatdar, defendant 3 being the vahivatdar of shree mahadoba devasthan, that the suit properties vere not the devasthan properties, that the alienations were valid and binding on the plaintiff and that the suit was barred by limitation, the defendants having been in adverse possession o the properties for more than the prescriptive.....
Judgment:

Bhagwati, J.

[1] This is a first appeal from the decision of the learned Joint Civil Judge (S.D.) at Poona who dismissed the plaintiff's suit. The plaintiff is the Shree Mahadoba Devasthan, Mouje Theur, Kasbe Poona, by its vahivatdar Keshav Waman Waghule, and the suit was filed by the plaintiff thus described against the original defendant 3 who was the then vahivatdar and the father of Keshav Waman Waghule and defendants 1 and 2 who were alienees of certain properties alleged to belong to the plaintiff for two declarations, one that the sale-deeds of the suit lands were void and the lands were of the ownership of Shree Mahadoba Devasthan, and two, that the plaintiff was entitled to recover possession oi S. Nos. 240A, 242, 243 and 344 from the Government and recover possession of s. nO. 245 from the defendants and costs of the suit. The defences which were taken up were that Keshav Waman Waghule was not the vahivatdar, defendant 3 being the vahivatdar of Shree Mahadoba Devasthan, that the suit properties Vere not the Devasthan properties, that the alienations were valid and binding on the plaintiff and that the suit was barred by limitation, the defendants having been in adverse possession o the properties for more than the prescriptive period. The learned trial Judge held the existence of the Shree Mahadoba Devaathan and the grant of the suit properties to the said Devasthan proved. He also held proved that Ganoji bin Rakhamoji, the ancestor of original defendant 3, was a trustee and his trusteeship was hereditary. He, however, came to the conclusion that Keshav Waman Waghule was not entitled to bring the suit on behalf of Shree Maha-doba Devasthau. He, therefore, dismissed the plaintiff's suit without .recording his findings in regard to issues Nos. 5, 6, 8, 9 and 10. This appeal haa been filed by the plaintiff against that decision of the learned trial Judge.

[2] The main question which has been agitated by Mr. Lulla for the plaintiff is that even if the lower Court came to the conclusion that Keshav Waman Waghule was not the vahivatdar of the Shree Mahadoba Davasthan, the order of dismissal was not justified because the plaintiff was Shree Mahadoba Devasthan to whom the suit properties belonged, and 'the mere fact of the suit having been filed in the name of Shree Madadoba Devasthan by Keshav Waman Waghule describing himself as its vahivatdar did not vitiate the suit. Shree Mahadoba Devasthan is a description o the institution whore the imago of Shree Mahadoba has been installed and is worshipped. The image of Shree Mahadoba is, as has been held by the Privy Council, a juridical person and capable of holding property and also capable of suing or boing sued. The contention, however, which was urged by the defendants and which found favour with the learned trial Judge was that even though the image of Shree Mahadoba was a juridical person the whole management of the properties belonging to the image could be and was carried on by its shebait or its vahivatdar and the right tp sue for the protection of the properties belonging to tho image of Shree Mahadoba was vested in the shebait and not in the image or the idol. Reliance was placed in support of this contention on the observations o their Lordships of the Privy Council in Jagadindra Nath v. Hemanta Kumari Debi, 32 cal. 129 p. c. where Sir Arthur Wilson observed (p. 141) :

'But assuming the religions dedications to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebait. And this carries with it tho right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, aot in the idol, And in the present ease the right to sue accrued to the plaintiS when he was under age. The case therefore falls within the clear language of Section 7, Limitation Act...'

These observations were particularly relied on for the purpose of shewing that the suit for sotting aside the alienations complained of could not be filed in the name of Shree Mahadoba Devasthhan at all but could only be filed in the name of the shebait for the time being who was Waman Chimnaji Waghule, original defendant 3. These observations of their Lordships of the Privy Council were, however, made .in a suit which was a suit for recovering possession of the property belonging to tho idol against the persons who had dispossessed the idol of the same. The shebait of the idol was then a minor. The idol was no doubt a juridical person and capable of suing or being sued, but even there the suit could be brought in the name of the idol by the shebait and the shebait was a minor with the result that their Lordships o the Privy Council held that the right of possession and management of the dedicated property having belonged to the shebait whatever suits were necessary for the protection of the property couid also be brought by the shebait. There is no doubt that the words 'not in tho idol' are a part of tho sentence which was used by their Lordships : 'Every such right is vested in the shebait, not in the idol.' Their Lordships of the Privy Council were, however, concerned with a case where even if the idol being a juridical person capable of holding the property could have filed the suit for recovering possession of the property of which it was dispossessed, that suit could only have been filed though in tho name of the idol by its shebait and the shebait being a minor, they had got to consider what the position would be if the shebait was the person who could and should have filed the suit in the name of the idol for recovering possession of the property. We are of tho opinion that their Lordships had not their attention t'ocussed on this aspect of tho question, namely, whether a suit could have been filed in the name of the idol by the shebait apart from the shebait vindicating his right of possession and management of the dedicated property and filing a suit for the protection o the same. This dictum of their Lordships of the Privy Council was considered by a Division Bench of the Calcutta High Court in the case of Jyoti Prosad v. Jahor Lal, : AIR1945Cal268 . In the course of the judgment Biswas J. observed as follows (p. 277) :

'On the first point, the appellants' sheet anchor is the dictum of Sir Arthur Wilson in tho Privy Council case in Jagadindra Nath Soy v. Hemanta Kumari Debi, 81 Ind. App. 203, that the right of suit is vested in the shebait, and not in the idol, but as has been explained in various decisions this does not and cannot mean that a Hindu idol is incapable of suiug. The powor of suing (as also being sued) undoubtedly resides in the idol, though ex necessitate ret the powor must be exercised by and through a sentient being representing tho idol. As was pointed out by Pal J. In. Tarit Bhusan v. Sri Iswaar Sridhar Salagram Shila Thakur, I. L. K. (1941) 2 Cal. 477 where this question is discussed, the suit in Jagadindra Nath Eoy v. Hemanta Kumari Debi, 31 Ind. App. 203, was not by the idol represented by its shebait but by the shebait himself as such to enforce the proprietary right of the idol in certain properties. The High Court had dismissed the suit as barred by limitation on the ground that as the interest was admitted to be in the idol, there was noth ng to prevent ii suit being brought on behalf of the idol by the plaintiff's mother during his minority, but the Judicial Committee reversed the decision, holding that as the possession and management of the dedicated property belonged to the shebait. and this carried with it the right to bring whatever suits were necessary for the protection of the property, the right tp sue accrued to tha plaintiff, and as he was a minor at the time, he could bring the suit within three years after he attained majority under Section 7 of Act 15 of 1877 (corresponding to Section 6 of the present Limitation Act). It is in this connec- tion that Sir Arthur Wilson made the observation on which the appellants rely.'

The learned Judge then proceeded to quote the observations of Lord Shaw in Pramatha Nath Mullick v. Pradkyumna Kumar Mullick, 52 Ind. App, 245 where their Lordships of the Privy Council dwelling on the nature of a Hindu idol expressly recognised it as a juristic entity and observed that it has a juridical status with the power of suing and being sued; and also the observations of the Judicial Committee in Radha Benode Mandal v. Gopal Jiu Thakur, 54 Ind. App. 238, where a clear distinction waa drawn between a suit in which the idol itself was the plaintiff and the suit in which the plaintiffs wore ahebaits of the idol. The learned Judge then observed (p. 277) :

'It ia quite true that a Hindu idol is A juridical parson capable of holding legal rights only in an ideal sense, and it may also be, as was indicated by Sir George Kaukin in he Privy Council decision in Masjid Shahid Ganj v. Shiromani Gurudwira. Parbandhak Committee, Amritsar, 67 Ind. App. 251, that the prooedure of our Courts only allows for a suit in the name of rm idol, but never theless the position remains incontestable that a Hin lu idol may be a competent plaintil! iu a suit in reapsjt of property held or claimed by it, and that this is a right quite distinct from that which belongs to its shebait or shebaits to sue on its behalf.'

[3] Normally speaking, a manager or an agent would not be competent to file a suit in his own name in regard to the affairs of his principal and euch a suit even if brought by the manager would lave to be in the name of the principal. The prin-cipal in the case of an image or idol is not an entity capable of acting on its own, with the result hat it has of necessity got to act through its manager or an accredited agent, who under the circumstances is the only person capable of per-orming these functions in the name of the idol, The shebait is in possession and management of he property belonging to the image or idol, and laving such possession and management vested n him, it is only an extension of the principle of responsibility from the image or idol to the manager, or to use the other words, from the prin-ipal to the agent to vest the right of protection of the property which is incidental to the right of possession and management thereof by way of filing a suit in connection with the same, in the sbebait. The extension of the right in tho shebait lowever does not mean that the right which the image or the idol as a juridical person has by virtue of its holding the property to file a suit in regard thereto is by any process eliminated. Both these rights can exist simultaneously, so that if the suit is filed in the name of the image or idol, the image or the idol would be a proper plaintiff, though, as observed before, of necessity it would have to be represented in the suit by its manager or shebait. If the manager or the shebait on the other hand chooses in vindication of his right to sue for the protection of the properties to file a suit in his own name, he may just as well do so. But that would be no bar to the right of the image or the idol to file such a suit if it had chosen to do so. Of course these rights either by the image or the idol or by the manager or by the shebait could be exercised only by the one or the other and not by both; so that if the cause of action was prosecuted to judgment, it would be merged in a decree properly passed in favour of the plaintiff and the defendant could not be proceeded against any more in respect of that very cause of action. We are, therefore, of the opinion that the suit waa properly filed in the name of Shri Mahadoba Devastlian the image or idol by its vahivatdar Ke-shav Waman Waghule. It was, however, urged by Mr. Chandracaud that Keshav Waman Waghule was not in fact the vahivatdar. The vahivatdar-for the time being was his father Waman Chim-naji Waghule, original defendant 3. Normally speaking again this would be the correct position and we have the analogy of suits filed on behalf of the minors and lunatics by their next friends. Where there is a testamentary guardian or a certificated guardian, nobody except such guardian could be the next friend of a minor plaintiff. But if the interests of that guardian were adverse to those of tho minor, he certainly could not be appointed the nest friend for the purpose of the suit. Applying that analogy so far it is possible to do so in the circumstances of the present case, no Court would appoint the manager or tho shebaitj who was himself a party to an unauthorised alie-nation as the nest friend of the image oc the idol where the alienation was being challenged. The next friend would, of necessity, be some person other than the manager or tho shebait of the image or tho idol, and what better person could ever be found than the person next in order of succession of the shebaitehip? in the case before us, Waman Cbinmaji Waghule was the person who was alleged to have unauthorisediy alienated some of the suit properties. He could certainty not be appointed the next friend of the plaintiff for the purpose of instituting and prosecuting this suit. Keshav Waman Waghule, tho son of original defendant 3, waa the next vahivatdar after Waman Chimnaji Waghule. It waa therefore in the fitness of things that he acted as the next friend of tha plaintiff in the matter of the institution and prosecution of this suit.

[41 This is a commonsense point of Tiew. If any authority was, however, needed in support of it, it is to be found in a decision of our appeal Court in Kazi Sassan v. Sagun Balkrishna, 2 1 2 Bom. 170. In that case, the plaintiffs sued to recover possession of certain lands alleging that they had been granted in wakf to their ancestor and his lineal descendants to defray the expenses for, or connected with the service of certain mo9-que. Their father and cousina who were impleaded as defendant 3 and defendants 4 and 6 respectively were mutwalis in charge of the said properties and were alleged to have illegally alienated some of these lands and also ceased to ren-dor any service to the mosque, whereupon the plaintiffs alleged that they had been acting as mutwalis in their stead. The plaintiffs, therefore, claimed to be entitled as such to the management and enjoyment of the lands in dispute. It was contended inter alia on behalf of the defendants that the plaintiffs could not sue in the life-time of their father, defendant 3 he not having transferred his rights to them. And the Court held

'that the plaintiffs were entitled to sue to have the alienation ma la by their father an cousins se-, aside and the wakf property restored to the service of the mosque. They were not merely beneficiaries, hut members of the family of the mutwallis, and were the persons on whom, on the death of the existing mutwillis, the office of the mutwalli would fall by descent, if, indeed, it had not already fallen upon them, as alleged in the plaint, by abandonment and resignation . ..'

This case is authority for the proposition that in the absence of the manager or the shebait himself Doing in a position to file a suit as the next friend of the image or the idol, it would be competent to another person even the beneficiary apart from his being the next in succession to the office of the manager or the shebait to file a suit in the name of the image or the idol acting as its next friend. We are, therefore, of the opinion that the suit was properly filed and the learned Judge below was wrong in dismissing the suit on this ground as he did.

[5] Mr. Chandrachud, however, urged before us that the order of dismissal could be maintained by him on the ground that the properties which were the subject-matter of the suit were not in fact Devasthan properties but were properties which had been given to the Waghules impressed with a charge for the worship of the imago or the idol of Shree Mahadoba. He made a distinction between a complete dedication and a partial dedication. Even though in the case of complete dedication the properties would really vest in the Devasthan or the idol and the Devasthan or the idol would be entitled to maintain the suit, he urged that in the case of a partial dedication the properties belonged to the grantees and the grantees were entitled to alienate the same, though in the hands of the grantees or their alienees the properties would retain the character of partially dedicated properties and would be subject to a charge for the worship of the idol or the image. He relied upon the relevant passages in Mayne's Hindu Law, p. 922, s. 792, and Mulla's Hindu Law, p. 493, and s. 408 and p. 494, s. 408A. He also relied upon the observations of the Privy Council in Jagadindra Nath v. Hemanta Kumari Debi, 31 Ind. App. 203:

'There is no doubt that an idol may be regarded a a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. And probably this is the true legal view wfcen the dedication is of the completest hind known to the law. But there may be religious dedications of a less complete character. The cases of Sonatun Bysack v. Sm. Jaggutsoondree Dossee, 8 Ind. App. 66. and Ashutosh Dutt v. Doorga Churn Chatterjee, 6 Ind. App. 188, are instances of less complete dedications, in which, notwithstanding a religione dedication, property descends (and descends beneficially) to heirs, subject to a trust or charge for the purposes of religion. Their Lordships desire to speak with caution, but it seems possible that there may be other cases of partial or qualified dedication not quite so simple as those to which reference has been made.'

Belying upon these observations he drew our attention to the terms of the grant EX. 81 in the suit. This was a grant of certain lands comprising in the aggregate 2 chawars and measuring in all 240 bighas, for the worship, Nuivedya and expenses of the festival of God Shree Mahadoba-Devasthan at Monjo Theur, Kasba Poona. The lands were granted with two-fold Sardcshmukhi rights both in Swaraj and Mogalai and 1/3rd Inarn together Kulbab and Kulkani (customary rights and rales), with the existing taxes and those that would bo levied in future together with water, trees, timber, stone and treasure-trove excluding the rights of hakdars to the grantee Ganoji bin Bakhmaji Sali Waghule for the expenses of the Puja of Shree and Naivedya and festival by creating a new grant or agreement from the govern-ment and the grantee was enjoined that he should get the 2 chuwars of land transferred to his Dumala and he, his sons and grandsons should go on spending the akur of the aforesaid lands for the expenses in connection with the worship, Naivedya and festival of the Shri. The grantee was thus to get transferred all those lands and the altar of the lands was to be devoted by him for the expenses of the puja, Naivedya and festivals, it was urged by Mr. Chandrachud that this was an absolute grant of the said lands to Ganoji bin Bakhaniaji Waghule, that the lands were impressed with a charge to the extent of the akar or the assessment thereof for performing the worship, Naivedya and the festival of the Shri and there was, therefore, a partial dedication of the said lands in favour of Shree Mahadoba Devaathan. The word 'Akar' is defined in Molesworth's dictionary inter alia as 'a roughly framed statement or estimate (of expenses, profits, produce, revenue)'. It also moans assessment but does not necessarily mean that. What connotation to give to this word 'Akar' would depend upon the context in which, this word is used. We are of the opinion that having regard to the context in which it has been used in this grant, EX. 81, it only means the produce or the income and not merely the assessment of these lands. The express purpose of the grant of these lands was to provide for the performance of the worship, Naiverlya and the expenses of the festivals of the God Shree Mahadoba at Mouje Theur, Kasba Poona. These lands were sot apart after the orders were sent to the subordinate officers by Ba. Ba. Madhavrao Pandit Prime Minister and they were granted to Ganoji bin Rakhamaji Waghule who wa3 described as the devotee of Shree Mahadoba God foe the purpose of performing worship, Naivedya and the festivals of Shri. Ganoji bin Rakhamaji'Waghule had been carrying on the worship, Naivedya and the festival of the Shri and he, his sons and grandsons were granted these lands so that they may from generation to generation continue to perform the Puja, Naivedya and the festival of Shri. If anything can be culled out of the terms of the grant, it is this that there was not the remotest idea of these lands being capable of alienation by the grantee or his successors in the interest. The intention of the grantor was that these lands should continue in the family of Waghule from generation to generation so that the worship, Naivedya and the festival of the Shri be performed properly. 'No doubt the intention was that the Waghules should perform this puja, Naivedya and the festival and that the shebaitship of Shree Mahadoba should continue in the family of the Waghules. That was in effect the creation of a hereditary shebaitship in the Waghule family, but it is a far cry from that to say that the Waghules were constituted the absolute owners of these lands which were the subject-matter of the grant. Nothing was farther from the imagination of the grantor than this alienability which has been urged upon us by Mr. Channdrachud.

[6] The question in such cases which fells to be decided by the Court is in the words of Telang J., at p. 634 in the case of Shri Ganesh Dharnidkar Maharajdev v. Keshavaraw Govind Kulgavkar, 15 Bom. 625 :

' . . . on the true construction of that document, the grant may fairly be taken to have been made primarily as A giant to the religious foundation, and not to the particular individuals named lor their own benefit.'

Looking to the terms of the grant, EX. 81, from this point of view it is abundantly clear that the grant was primarily a grant on the religious foundation, that is, Shree Mahadoba and not to Ganoji bin Rakhamji Waghule for his own benefit or for the benefit of his sons, grandsons and so on. This contention of Mr. Chandrachud, therefore, cannot he sustained.

[7] in view of the above, we are of the opinion that the learned Judge below was wrong in dismissing the plaintiff's suit as he did. The appeal must, therefore, be allowed and the suit remanded to the Court below for disposal according to law.

[8] While remanding the suit, however, we are asked by Mr. Chandrachud to reserve to his client the right to contend that s. nOS. 244 and 245 have not been identified with any of the lands which formed the subject-matter of the grant, EX. 81. No issue was specifically raised in this behalf in the Court below, though on the evidence recorded before him, the learned trial Judge appears to have conic to the conclusion that these two s. nOS. 244 and 345 were sufficiently identified. While remanding the case, therefore, we do reserve liberty to both the parties to adduce such further evidence as theymay be advised on the issues which the learnedJudge has not decided, namely, issues Noa. 5, 6, 8,9 and 10. It would be open also to the defendantsto raise a specific issue in regard to the identity ofthe properties s. nOS. 244 and 245, both the partiesbeing at liberty to adduce such evidence in thatbehalf as they may be advised. The respondentswill pay the appellant's costs of this appeal. Thecosts of the lower Court will be costs in the suit.Suit remanded.


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