R.K. Das, J.
1. Defendant 1 is the appellant against the reversing judgment of the Additional Subordinate Judge, Cuttack. The appeal arises out of a suit for declaration that the suit-land belongs to the family deity, Radhamohan Jiew and that the plaintiffs and defendants 1 to 7 are the joint Marfatdars of the said deity.
2. The genealogy of the family has been given in the appellate judgment and it is unnecessary to reproduce the same here. It would be sufficient for the purpose of this appeal to state that Achutananda Dhal had four sons. Ananda, Gopi, Purusottam and Brundaban. Balakrushna is the son of Ananda. He took Anukula in adoption from Gopi's line and some years after such adoption, Tarakanta his natural son, was born to him Plaintiffs 1, 2 & 3 are the sons of Tarakanta and defendant 1 the appellant in this appeal is the son of Anukula. Defendants 2, 3 and 4 come from Gopi's branch, defendant 6 represents the branch of Purusotom and defendants 6 and 7 that of Brundaban.
3. The plaintiffs filed the suit on behalf of the deity Radhamohan Jiew for declaration that the suit-properties are the debottary properties of their family deity Radhamohan Jiew installed in village Guhati in Jaipur Sub-Division in the district of Cuttack and that they and defendants 1 to 7 are the joint Marfatdars of the said deity. In the current settlement records with the connivance of the defendants, the name of the deity as also the name of Tarakant, father of the plaintiffs, have been wrongly omitted. They accordingly file the present suit for a declaration that the suit properties are the debottar properties of their family deity Radhamohan Jew and that they and the defendants are the joint Marfatdars and that the current settlement entry is incorrect and that they are entitled to four annas, one pie and half Ganda interest in the suit property. They also prayed for joint possession of the disputed property along with defendants 1 to 7
4. The suit-property consists of six lots. Lots 1 to 5 stand in Mouza Govindpur and lot No. 6 in village Bairuan
5. Defendant 1 was the main contestant in the suit. Defendant 14 is not a member of the family, but in a money-decree against defendants 2 to 4, he purchased the property in a court-sale sometime in 1941 Admittedly he did not purchase the interest of the deity, but only the personal interest of defendants 2 to 4 in lot Nos. 2 and 3 of the disputed property. The case of defendant 1 is that Touzi No. 416 including the Nijchas land appertaining to lot Nos. 1, 2, 3 and 5 was sold in a revenue sale and was purchased by one Nilomani Mohanty. Defendant's father Anukul and his mother Baidehi along with Dibakar, the grand father of defendant 2 purchased the property from Nilamani by a sale-deed dated 30-4-1896 and on 2-5-1914 Dibakar executed a deed of release in favour of Anukul and Baidehi acknowledging their sole interest in respect of the said property Anukul sold a portion of the said property to defendant 6 though there is no sale-deed to support such a transfer. The name of defendant 6 Gajendra has been shown in the D Register
In the current seltlement records, however, the names of Anukul. Baidehi, father and mother of defendant 1 respeclively, Dibakar the grand father of defendant 2 along with Harachand (defendant 4) as also appear Admittedly the names of the deity and Tarachand do not find place in the said settlement entry. This obviously gave rise to the present suit, plaintiffs other case being that he also made contribution towards the consideration for the purchase made by Anukul. Baidehi and Dibakar, from Nilamoni.
6. The trial Court by its judgment dated 24-7-56 found that neither the deity nor Tarakant had any interest in the suit-property and the property belongs to the persons in whose favour it was recorded in the current settlement Khatian and the D. Register. He accordingly dismissed the plaintiffs' suit. As against this dismissal the plaintiffs carried an appeal The Second Additional Subordinate Judge who heard the appeal by his judgment dated 25-4-63 reversed the findings of the trial Court and held that the deity is owner of the property and that the plaintiffs 1 to 3, defendants 1, 5, 6, 7 and defendant 14 (the purchaser of the interest of defendants 2, 3, and 4) are the joint Marfatdars of the plaintiff deity. He accordingly confirmed their joint possession. It is against this appellate judgment the present appeal has been filed on 9-9-68.
7. In course of the service of notice at the second appellate stage, it was discovered from the peon's report dated 29-11 -63 that defendant 4 Harachand Dhal had died in the meanwhile. The appellant by a petition dated 23-12-63 informed the Court that Harachand Dhal (defendant 4 in the trial Court, respondent 4 in the first appellate Court and respondent 6 in this Court) having died on 22-11-61 during the pendency of the appeal in the lower appellate Court and he not having been duly substituted, the appeal abated not only against him, but as a whole. On behalf of the plaintiffs-respondents it was stated that Harachand died not on 22-11-61 as alleged by defendant 1, but on 5-8-63 long after the disposal of the appeal by the lower appellate Court and as such his death had no effect so far as the decree passed by the lower appellate Court is concerned. On the other hand the appellant who filed the appeal after the death of Harachand. not having added his legal representatives in the appeal memo at the time of presentation of the appeal the appeal has become infructuous.
8. To dissolve this controversy between the parties, the Honourable C.J. by an order dated 12-10-65 directed the lower appellate Court for a finding on the question as to whether Harachand had died on 22-11-61 as claimed by defendant 1 or on 5-8-63 as asserted by the plaintiffs and to ascertain the correct date of his death.
9. Before the 4th Additional Subordinate Judge who examined the question, both parties adduced evidence and filed some documents. The Subordinate Judge however rejected the case of both parties. He held that Hara Chand did not die either on 22-11-61 or on 5-8-63. but sometime between 20-1-03 and 26-7-63 and that the exact date of Ms death could not be ascertained from the evidence on record. It is this finding which is now being challenged before me.
10. Learned counsel on both sides agreed that the question as to the actual date of death of Harachand has to be decided before the appeal is heard on merits. It is therefore necessary that the date of death of Harachand (Respondent 6) has to be determined first
(After considering the evidence in Paras II to 18 and holding that Harachand died nut on 5-8-63 but on 22-11-61 during the pendency of the appeal in the lower appellate Court, his Lordship proceeded.)
19. It is not disputed that the legal representatives of Harachand were not duly substituted in the 1st appellate Court. The question is what is the effect of such non-substitution in so far as the appeal in the lower appellate Court is concerned.
20. Mr. Sinha the learned counsel for the plaintiff urged that the appeal being one by the deity, it cannot abate merely on the death of one of its shebaits, and the proper course would be that the Court may allow the appeal to continue under Order 22, Rule 10, C. P. C, against the legal representatives of Harachand or the court may direct the legal representatives to be added as parties under Order 1, Rule 10 of the C. p. C.
21. Mr. Mohapatra, on the other hand contended that even if the deity is a party to the suit the right of suit vests in the Sebaits and such right of the Sebait is a heritable and a personal one, He urged that the plaintiffs own case being that they and defendants 1 to 7 were the joint Sebaits of the deity, and as such, the non-substitution of the legal representatives of one of the Sebaits is fatal to the suit. There is no dispute about the legal position that all the Sebaits constitute but one body in the eye of the law, and as such no individual Sebaits can be said to represent the deity as the deity is represented by the entire body by sebaits acting together. In a case reported in AIR 1945 PC 23. Manmohan Das v. Janki Prasad, the question raised was whether one of the trustees of a deity can act alone for the deity. Their Lordships held that the law of trust in England applied equally to the Sebaits in India. In the case of co-trustees, the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as if it were but one collective trustee and therefore must execute the duties of the office in their joint capacity. If one refuses or be incapable to join, it is not competent for the others to proceed without him. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both, But such sanction or approval must be strictly proved.
22. In Mukherji's Hindu Law of Religious and Charitable Trust. 2nd Edition, p. 233, the learned author has summarised the position thus:
'The position therefore is that ordinarily till the Sebaits must figure as plaintiffs in a suit brought on behalf of the deity. If some of them refuse to join as plaintiffs or had done some acts precluding them from being plaintiffs one or more of the Sebaits can maintain a suit without joining the others as plaintiffs but making them party defendants. When a Debottar property is improperly alienated by one of the Sebaits. the other sebait can certainly bring a suit to set aside the alienation. In such a suit the alienating sebait who had misconducted himself may not be in a position to join as a co-plaintiff, bill he must be a party-defendant.'
Thus, the legal position is clear that in a suit brought by one or more on behalf of a deity, the entire body of Sebaits must be there as parties in a suit whether as plaintiffs or as defendants. It was urged on behalf of the plaintiffs that the deity is the owner of the suit-property and is the real plaintiff and the Sebait only represents the deity in the suit and a suit by a deity will not abate merely on account of the death of the sole or any one of the Sebait. No doubt, a deity is a juristic person and has the power of suing and being sued, but the deity is the owner of the property only in an ideal sense. In a case reported in (1904) 31 Ind App 208 (PC), Maharaja Jagadindra Nath v. Rani Hemanta Kumari, the Privy Council held that although an idol may be regarded as a juridical person capable as such of holding property, specifically where the dedication is of completest character, yet the possession and management of the dedicated property with the right to sue in respect of it are vested in the Sebait and not in the idol. The principle of law enunciated by the aforesaid decision of the Privy Council was followed by this Court in AIR 1952 Orissa 312, Jaganath v. Tirthananda. In the case reported in AIR 1940 PC 116, Masjid Sahidganj v. S. G. P. Committee, it was observed by Sir George Rankin that the procedure of our Courts no doubt allows for a suit in the name of an idol or deity though the right of suit is really in the Sebait. After an elaborate discussion on the subject, the learned author (B. Mukherjee in his Hindu Religion and Charitable Endowments) referred to above, has summarised the position that when the deity is suing through the Sebaits, no matter whether such a suit is brought in the name of the idol or not, all the Sebaits must join as plaintiffs except where circumstances exist which allow an exception to be made in the application of the ordinary rule.
23. The Supreme Court in a case reported in AIR 1961 SC 293, Angur Bala v. Debabrala, has observed that the Sebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the Debottar property. In the conception of the Sebaitship both the elements of office and property, of duties and personal interest, are mixed up and blended together and one of the element cannot be detached from the other. Except when usage or custom of a different nature is proved to exist. Shebaitship like any other species of heritable properly follows the lines of inheritance from the founder That being the position, there cannot be any doubt that the legal representatives of the deceased Harachand had a heritable right to the Sebaitship of the deity and are necessary parties to the appeal as the entire body of Sebaits constitutes one entity and must act together. There cannot be any dispute that as a result of the non-substitution of the legal representatives of Harachand the appeal had abated in respect of some of the respondents. The next question is what will be the legal effect of non-substitution resulting in such partial abatement of the appeal in so far as the other respondents are concerned.
24. In a case reported in (1911) ILR 94 Mad 292, Arayil Kali Amma v. P. M. S. Nambudripad, it was held that where the deceased respondent in respect of whom the appeal abates is a joint trustee with other respondents, the appeal cannot proceed against such other respondents.
25. The question of the legal effect of the abatement of an appeal against one of the respondents has been clearly enunciated in a case reported in AIR 1962 SC 89, State of Punjab v. Nathuram. Their Lordships held that ordinarily the considerations which weigh with the Court in deciding such questions are whether the appeal between the appellant and the respondent other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. Their Lordships said that the test to determine this has been described in diverse forms. Courts will not proceed with the appeal (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent, and therefore, which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent, (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court, and (c) when the decree against the surviving respondents if the appeal succeeds will be ineffective that is to say it could nol be successfully executed. There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent in such a case would make the decree in his favour alone final and this can in no circumstances, have a repercussion on the decision on the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them. The difficulty arises when there is a joint decree Their Lordships observed:
''Here again the consensus of opinion is that if the decree is joint and indivisible the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such a case the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interests to be final and the decree against the other respondents can be suitably dealt with by the appellate Court.'
Their Lordships observed that they do not consider this view to be correct. Specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary the appellate Court cannot in any way modify that decree directly or indirectly, the reason being that in the absence of the legal representatives of the deceased respondent, the Court cannot determine anything between the appellant and the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken. For this purpose the facts of each case have to be examined.
26. The present suit was based on the joint rights of the entire body of the Sebaits in respect of the disputed property. As a result of the dismissal by the trial Court of the plaintiffs' suit which was based upon the rights of the Sebait as a whole including that of Hara-chand, the effect was that there was a joint decree in favour of the entire body of the Sebaits including the deceased. The appeal preferred by the plaintiffs before the lower appellate Court was against the joint decree in favour of Harachand and others. In such a case, the appeal against the other Sebaits or defendants cannot be held to be properly constituted when the appeal against Harachand had abated. To gel rid of the joint decree it was essential for the appellant to implead the joint decree holders in the appeal In the absence of one of such joint-decree-holders, the appeal cannot be said to have been properly framed. Harachand admittedly was a necessary party to the present suit and as such also a necessary party to the appeal in the lower appellate Court. The suit was for declaration of title and confirmation of possession in favour of the deity through Us Sebaits as a body. The decree being a joint decree the appeal has abated as a whole as it cannot proceed against the other respondents alone (See ILR (1962) Cut 17, Kanhu Pradhan v. Bhutulu Pradhan)
27. Mr. Sinha urged that where one of the several respondents having common interest had died even though the appellant had failed to bring his legal representatives on record, the appellate decree will have the same effect as if it had been passed before he died. In support of his contention, he relied upon a decision reported in AIR 1935 Mad 286, Lakshmanan v Chidambaram. That was a case which was based upon Order 22, Rule 4 (4) as amended by Madras High Court. The amended rule says that 'the Court whenever it sees fit may exempt the plaintiff from the necessity to substitute the legal representative of any defendant who has been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the judgment may, in such a case, be pronounced against the said defendant notwithstanding the death of such defendant, and shall have the same force and effect as if it had been pronounced before death took place.'
The corresponding Orissa Amendment of Order 22, Rule 4 (4) is identical to Madras Amendment. By virtue of Rule 11 of Order 22, the amended provision is made applicable to appeals. It was accordingly urged that the Court may exempt the appellant from bringing the legal representatives of the deceased respondent before the hearing of the appeal. In a decision of the Court reported in AIR 1964 Orissa 39, Lakshmi Charan Panda v. Satyabadi Behera, It was however held that the Court's power to dispense with the substitution under Order 22, Rule 4 (4) can be exercised only in case of suits and not appeal and that before the abatement takes place and not after. The words 'Whenever the Court thinks fit' in Rule 4 (4) in the context mean when the Court thinks fit within ninety days from the date of death and before the abatement takes place. Abatement takes place automatically and does not wait for the passing of an order by the Court. Once abatement takes place, the discretion given to the Court to invoke the provisions of Rule 4 (4), cannot be exercised.
The Supreme Court in a case reported in AIR 1964 SC 215, Union of India v. Ram Charan, held that the Court has no inherent power to add the legal representatives of a deceased respondent if the suit has abated on account of the appellant not having taken appropriate steps within time to bring the legal representatives of the deceased party on record.
28. It was next urged that the appeal in the lower appellate Court having been disposed of in ignorance of the death of the respondent Harachand the proper course would be to remand the case to the lower appellate Court to allow the plaintiff-appellant to make necessary substitution and to decide the question of abatement and for final disposal according to law. For this purpose, reliance was placed on a decision reported in AIR 1952 Pat 267, Ram Saran Ahir v. Prithvinath Singh. In view of the aforesaid decisions in AIR 1964 SC 215 and AIR 1964 Orissa 39, the question of remanding the appeal does not arise. Moreover, in a later decision of the same Court reported in AIR 1964 Pat 166, Parsuram Rai v. Diljan Mian, it was held that the first appellate Court should not remand the case to the trial Court for deciding the question of abatement, but should itself finally decide the appeal on merits as also the question of abatement. The learned Judge also look notice of the decision in AIR 1952 Pat 267 and distinguished the same on the ground that in the case before him no application was ever made to set aside the abatement as was done in the previous case. In the instant case also no such application to set aside the abatement was made. If the legal position is that the entire appeal has abated in the lower appellate Court, there is absolutely no necessity to remand the ease to the lower appellate Court for giving any opportunity to the appellant for making necessary substitution. As the appeal itself has abated automatically there is even no necessity for any formal order to be passed to that effect by the lower appellate Court.
29. It was next urged that a suit by a deity cannot abate on account of the death of one of the Sebaits and the proper procedure is to order substitution in place of the deceased Sebait under Order 22, Rule 10, C. P. C. For this reliance was placed on a case reported in AIR 1960 Andh Pra 98 (FB), Ongole Byragi Mutt v. Kannayya. There no question of abatement arose for consideration. That was where some trustees were appointed and one of them appointed as the managing trustee. Me brought a suit against some strangers and the other trustees were impleaded beyond time. The question was whether the suit was barred in view of the joinder of the other trustees after institution of the suit and after the period of limitation wag over. Their Lordships held that it will depend upon the answer to the question whether they were the necessary parties to enable the Court to award the relief in the suit as framed. They observed that the test to be applied in such cases is whether the suit was properly constituted on the date of the plaint so as to enable the Court to adjudicate as between the parties impleaded. A suit is not said to be properly constituted unless all necessary parties are impleaded. 'Necessary parties' mean persons in whose absence no effective decree can at all be passed. This decision is of no assistance to the present case.
On the other hand, the Sebaits being necessary parties, the legal representatives of the deceased Sebait were bound to be impleaded . The position of Sebaits who have heritable right in the office and property cannot be compared with that of the appointed trustees. Reliance was also placed on a decision of the Privy Council reported in AIR 1940 PC 215, Mohammedally v. Safia Bai, and it was urged that it is open to the Judge in his discretion under Order 1, Rule 10 to add as a party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties. The appeal before the Privy Council related to an administrative suit which is, by its very character, a suit of a special type. The decision of the Supreme Court reported in AIR 1964 SC 215 has clearly laid down that if the suit abates on account of the appellant's not having taken steps in time, the Court is not justified in invoking its discretionary powers in aid of the defaulter.
30. The other case relied upon by Mr. Sinna is a case reported in AIR 1954 Nag 212, Gajanan Maharaj Sansthan, Shegaon v. Ram Rao, where the position of the manager of a religious institution was equated to that of a next friend of a minor and the provisions of Order 32 were applied. The Nagpur case does not appear to have taken notice of the decision in (1904) 31 Ind App 206 (PC) which lays down fiat the right of suit of a Juristic person like a deity vests in the Sebaits and not in the idol. With great respect I am not inclined to take the view that the position of a Sebait can be in any way analogous to that of a next friend and that Order 32 has application to fee case.
31. In view of the legal position as discussed above, it must be held that the appeal has wholly abated in the lower appellate Court. In that View of the matter, it is unnecessary to examine the merits of the case.
32. In the result the appeal succeeds onthe preliminary ground and is allowed, withcosts.