1. The circumstances leading to this litigation are not in controversy. The plaintiff, Thakur Sri Radharamna Swami, was admittedly the family idol of Ranganath Deb Goawami, defendant 2 in this case. The father of defendant 2 executed a 'kebala' dated 21st November 1909 transferring hisshebayati right, the in am lands endowed for the service of the deity and the plaintiff idol itself to the Guru of the defendant 1 the then Mahant of Gangamatha Math, at Puri, and put him in possession of the plaintiff deity. The Government of Madras resumed the in am grant on 4th November 1921 as it had been alienated, and the purpose of the grant had failed. Defendant 2 thereupon applied to the Government of Madras for handing over the net assessment of the village to him so that the seba puja of the deity may be continued. On objection being taken by Defendant 1, the alliance, the parties were referred to establish their rights in a civil Court and the collections from the village were directed to be kept in the Treasury as deposit pending the final adjudication of their title. Defendant 2 thereupon filed a suit, T.S. No 98 of 1926, on or about 14tb. April 1926 against defendant 1 'for a decalration that the plaintiff Thakur had not been removed from the said Goawami Math to the said Gangamatha Math as was falsely stated in the above-mentioned 'Kebala' dated 21st November 1909.' This suit was finally decided against defendant 2 on 27th September 1928, whereupon the Board of Revenue regranted the in am village of Jaggilipadaro to defendant 1. Defendant 1 has thus been in custody of the plaintiff idol and the in am village of Jaggilipadaro which constitutes the endowment of the deity, as well as the shebayati right of defendant 2, from 1909. The present suit was raised by one of the zamindars of Takkali in the district of Vizagapatam as the 'next friend' of the plaintiff Thakur for a-declaration that 'the retention of the plaintiff Thakur at the said Gan. gamatha Math by the said Madhab Das, and, after his death, by the defendant Radhakrushna Das, has been wrongful and is 'a continuing wrong and prayed for a decree directing the defendant Radhakrushna Das to restore the plaintiff Thakur to its original place of consecration, namely, the said Goswami Math.
2. The plaintiff's case is that the ancestors of defendant 2, Ranganath Deb Goswami, were formerly the Gurus of the Raj family of Athgado, residing in a house in Pun town known as the 'Goswami Math'. In or about the year 1789, the then Raja of Athgado had the plaintiff Thakur installed and consecrated as the Thakur of the Goswami family in a temple at the said Goswami Math with a view to ensuring the performance of its seba according to Vedic rites by the Goswamis in perpetual succession. In the same year, it is alleged, after the said consecration the Raja of Athgado made an endowment in favour of the plaintiff-Thakur of certain lands in village Jaggilipadaro in Athgado Taluk with a view to providing for the daily offerings to and the service of the plaintiff Thakur. The plaintiff avers that the retention of the Thakur at the said Gangamatha Math is wholly wrong ful, being contrary to the wishes and purpose of the founder, is sacrilegious and is a continuing wrong, that the plaintiff is entitled to be restored to the pagoda at Goswami Math, and to be worshipped there from day to day in its own way, according to the customary mode of worship of the said Goswami Math.
3. The present 'next friend' of the plaintiff-Thakur claims to be the successor of the original founder of the endowment and as such is interested in the location of the plaintiff Thakur at the proper place according to the purpose of the endowment, and asserts that it is the will of the plaintiff Thakur to return to the pagoda at the Goswami Math and to be worshipped there according to the customary mode of the institution. The cause of action for the suit is stated to have arisen on or about the 21st November 1909, when the father of defendant 2 purported to transfer the idol, and is alleged to be arising from day to day thereafter. Defendant 1 in his written statement denied that the plaintiff Thakur had been installed or consecrated by any Raja of Athgado or that the purpose of the endowment was that the plaintiff Thakur should always remain in the Goswami Math. It is his case that defendant 2 transferred the inam lands of village Jaggilipadaro to the then Mahant of Gangamatha Math and delivered the plaintiff Thakur as it was his family idol and capable of being removed. Since then the defendant's Guru, Madhab Das, located it in a separate temple in his Math and was performing its seba puja and janni jatra and meeting the expenses from the income of the lands in the village of Jaggilipadaro, and after his death, defendant 1 has been performing its seba puja and janni jatra. It is further alleged that the residential house of defendant 2 and his ancestors (who were married men) and in which they lived with their family and children is popularly known as the 'Goswami Math' and that the plaintiff Thakur was located in a room allotted for its puja along with other idols. The father of defendant 2 was legally competent to transfer the lands for legal necessity and delivered the plaintiff Thakur so that its seba puja may be continued. Defendant l's case therefore is that since 1909, his Guru, and after his death, defendant 1 are in possession of the plaintiff Thakur in their own right for a much longer period than the statutory period of 12 years and, at any rate,, he has acquired a right by adverse possession to the custody of the plaintiff Thakur. Defendant 2 admits the allegations of the plaintiff in toto and says that he is willing and prepared to carry on the seva puja and worship of the plaintiff-deity according to strict Vedic rites, in conformity with the intention of the founder and the purpose of the institution in case the plaintiff Thakur is restored to its proper place of consecration and worship.
4. Several issues were framed by the trial Court, but those which arise far determination in this appeal are issues 2, 4, 7 and 8, namely the following:
(1) Did any ancestor of the 'next friend' get the plaintiff installed and conseorated in Goswami Math and or make an endowment mentioned in para. 3 of the plaint:
(2) Is the suit barred by limitation;
(3) Is the retention of the plaintiff-idol wrongful, as alleged in para. 9 of the plaint;
(4) Is the suit bad under Section 42, Specific Belief Act.
5. The learned Munsif who tried the suit held, in an exhaustive judgment, that the Thakur was the family idol of Goswami and that some ancestors of defendant 2 founded the deity and its worship and that the 'next friend', the Raja of Takkali, was not competent to bring the suit as his connection with the Athgado family had ceased and that the proper person to represent the will of the Thakur was the shebayat, and that the removal of the Thakur and the transfer of the shebayati right is not illegal and cannot now be questioned by the 'next friend' of the Thakur. He held that the retention of the plaintiff-idol was not wrongful and that, in any case, the suit was barred by limitation. He accordingly dismissed the suit.
6. On appeal to the court of the subordinate Judge, the judgment of the learned Munsif was reversed on the ground that the removal of the plaintiff-Thakur to the Gangamatha Math was a continuing wrong and that there could be no adverse possession over the idol and that the plaintiff was competent to maintain the suit and the plaintiff's suit was decreed as prayed for.
7. Defendant 1, the Mahant of Gangamatha Math, therefore appeals. The principal contentions urged on his behalf are: that the plaintiff's 'next friend' has no interest of any kind in the idol or in the properties endowed and is not competent to file a suit as a disinterested next friend of the plaintiff-Thakur; that this is a collusive suit instigated by defendant 2 and has been brought to benefit him rather than the plaintiff idol. Secondly, that the suit is barred by limitation as there has been a complete ouster of the plaintiff's rights and defendant 1 has acquired by prescription the right to retain the idol and the endowment connected with it. And thirdly, that the idol should not be separated from the properties and the sebayati right. This suit being exclusively for the removal of the idol to the 'Goswami Math' will result in its being dissociated from the endowed properties which have been re-granted to defendant 1 after resumption by the Government of Madras. In order to appreciate the validity of the first ground taken by the appellant it is necessary to refer to Ex. 1 which is a certified copy of the In am Register and the only document filed on behalf of the plaintiff. The inam purported to be a devadayam grant 'for the daily offerings of the deity' and was to continue 'so long as the service is performed.' It recites that it was granted by one Brundaban Harischandra Deb in 1789 to Sri Radharamanaswami. The manager for the time being was one Brundaban Chandra Deb Goswami. The Inam Commissioner ordered that the inam should continue so long as the service is performed and the pagoda lasts, and Title Deed No. 2465 was issued on 17th November 1862. It does not appear from this register that the grantor was a Raja of Athgado estate or that he had installed the plaintiff Thakur at Puri previous to the grant. The plaintiff's contention that one of his ancestors installed the deity at the Goswami Math and later made a grant of the village is not borne out by the entries in the Inam Register. Nor does the evidence that he heard it from his grand-mother about the installation and subsequent grant carry conviction. It has also been pointed out that the Athgado estate was sold by auction for arrears of tribute on 15th February 1854. The estate was at first declared to have been bought in by Government on the ground that the Kballikote Zamindar who. was actually the highest bidder had not complied with the terms of the sale and paid in the prescribed deposit. Against this decision of Mr. Prendergast's, the then Collector, the Khallikota Raja appealed to Government and Government ordered that the amount of his bid be accepted and the taluk made over to him. 'The old sanad was, as is usual, cancelled'. See Ganjam. District Manual, p. 17. In para. 2 of the plaint it is alleged that an ancestor of the present next, friend' had the plaintiff Thakur installed and consecrated as the Thakur of the Goswami family by the then ancestor of the defendant in a temple of pagoda at the said Goswami Math with a view to ensuring the performance of its seba according to Vedio rites by the Goswami of the-said Math in perpetual succession. The argument on behalf of the respondent has proceeded on the same footing that the plaintiff Thakun was the family idol of defendant 2. Nonetheless elaborate arguments were adduced both in the-lower appellate Court and in this Court on the right of the 'next friend', as the donor of the-deity and of the properties attached to the endowment, to control the management and regulate the worship of the plaintiff Thakur. The case was further developed during arguments that the worship of the plaintiff-Thakur was not being performed by the appellant in accordance with the peculiar form of worship prevailing in the Goswami Math. The specific case for the respondent is that before the daily worship is commenced at the Goswami Math there should be a sankalpa invoking the blessings of the deity for the benefit of the Athgado Zamindar, and that this was the customary mode of worship which, was not being followed by the appellant. This, however, was not the case put forward in the plaint. The only charge made against defendant 1 is contained in para. 9 of the complaint which is as follows:
It is submitted that the retention of the plaintiff: (plaint) Thalsur at the site of the Gangamatha Math is wholly wrong, being utterly contrary to the wishes of the founder and the purpose of the foundation, is a sacrilegious act, and is a continuing wrong. The plaintiff is entitled to be restored to the pagoda at the Goswami Math, to be worshipped there from day to day in its own way according to the customary mode of worship of the said Goswami Math.8. After considering the evidence his Lord-ship proceeded:] Having regard to the pleading and the state of the evidence regarding the existence of the alleged custom, I am unable to agree with the finding of the learned Subordinate Judge that there is a failure in the performance of the customary mode of worship in the appellant's math and that it therefore constitutes a continuing wrong. It is not clear if the donor retained any interest or made the' grant subject to any condition regarding Sankalpa or otherwise. Properties are usually endowed by Hindus for the performance of Pujas in a temple or for the performance of certain festivals in the temple or for the performance of Archanas to the deity in the name of the donor. In the first class of cases, the endowment is utilised for conducting the necessary and vital part of worship and of the ritual in the temple. Ordinarily, the Puja is not performed in the name of-the donor and consequently supplemental grants are made for the purpose of the service being more efficiently performed. In the second class of cases where the grants are made for the purpose of Utsavas it is usual for others to supplement the funds either by making permanent grants of land or money or by yearly contributions towards the celebration of the festival, In the third class of cases where the grants are made for performing Archanas in the name of the donor, either daily or on stated occasions, if the funds are not sufficient to meet the expenses, others will not come forward to supplement the resources. The Archana is intended solely for the benefit of the grantor: See A.I.R. 1915 Mad. 1003, Ambalavana Pandarascmnadhi v. Sree Mmakshi Sundareswara Devasthanam. In the present case the grant having been made according to Ex. 1 for the daily offerings to the deity was an absolute and unconditional grant and was not one for Archana or for invoking blessings to the grantor. The 'Kebala' which the father of defendant 2 executed in favour of the appellant's Guru makes no mention of any special form of worship associated with the deity. It recites:
As you are a Hindu belonging to our sect of Brahmin-Vaishnavas and as it is expected that you can properly perform the Seva Puja of the said Thabur you and your successors should perform duly the Seva Puja of the said Thakur.On the same day the vendor passed a receipt in which be says:
Out of the consideration I keep with you Rs. 10,000 for clearing the dues of the mortgages in respect of the aforesaid property and having made over the deity; Radhamohan, mentioned in the 'Kebala'.It is, therefore, clear, as the Sub-Judge remarked in his judgment in the appeal preferred by defendant 2 in 1928.
that the Thakur was heavily indebted and the only property that was dedicated for its upkeep had been mortgaged by the plaintiff's father by an usufructuary mortgage for Rs. 10,000 and therefore he thought it most expedient to alienate the property and deliver the Thabur so that the rites and ceremonies attached to it might be properly performed. Such alienation cannot be assailed on any legal ground and it was evidently for an adequate consideration.It is therefore clear that the so-called customary mode of worship peculiar to the Goswami Math is a pure myth and has not been substantiated.
9. Another contention on behalf of the plaintiff-deity which found favour with the learned Subordinate Judge is that the alience being a Sanyasi is incapable of conducting worship according to 'Vedic rites and, therefore, the plaintiff is entitled to insist on the due performance of its Puja by defendant 2 who is a married man. I am unable to appreciate this reasoning because there is no warrant for holding that the Mahant of Gangamatha Math is a Sanyasi. The Mahant does not describe himself as a Sanyasi, nor is there any evidence that he or his Guru was initiated into the Sanyasi order. There has been an unfortunate confusion in the lower Courts between an 'ascetic' and a 'Sanyasi.' The only difference that I can find between defendants 1 and 2 is that the former is a perpetual Brahmachari or Virakta of the Vaishnab sect while the latter is a Gruhi or married man. Both worship deities, both perform the annual ceremonies of their Gurus or ancestors, and also perform other Vaidio Karmas. Sanyasi should have no Gods or temple. Their only vocation is the contemplation of the absolute truth and not the worship of any God. A Brahmachari or student, according to Golap Chandra Sarkar is of two descriptions, namely, Upakarvana or ordinary student and Naishtika or life long student. The former became a house-holder in due course, while the latter was a student for life, devoted to the study of science and theology, felt no inclination for marriage, did not like to become a house-holder, and chose to life, as a perpetual student, the austere life of celibacy. There are persons belonging to certain religious sects of modern origin such as the Vaishnabs that do in some respect resemble lifelong students and itinerant ascetics. They are connected with the well-known Maths or Mahants.... Most of the Vaishnabite Maths of Bengal, Bihar and Orissa were founded by Bengalee Brahmins and Kayasthas who were the disciples and followers of Chaitanya and they were not merely founded by celibates but by house-holders. The three Peabhus who are the chief spiritual preceptors or masters of this order are Obaitanya, who is believed to be the incarnation of Lord Krishna, Adwaitanand and Nityanand. Adwaitanand's descendants residing at Santipur are now chief spiritual preceptors along with the male and female descendants of Nityananda. Besides these three Prabhus, the Vaishnabs of this order acknowledge six Goaains as their original and chief teachers and founders, in some instances of the families now existing, to whom as well as to the Gokulashta Gosains, hereditary veneration is due. These six are Rupa, Sanatan, Jeeva, Raghunath Bhat, Baghunath Das, and Gopal Bhat. They appear to have settled at Brundaban and Mathura. The post of spiritual Guide is not confined only to the Brahmins: some of the well-known Gosains' belong to the Vaidya caste. Chaitanya, the founder of these cults, nominated Adwaitacharya or Adwaitanand and Nityanand to preside over the Bengal Vaishnabs, and Bupa and Sanatan over those of Mathura: See Wilson's works, vol. I. It is said that defendant 1 claims descent through Gadadhar Prabhu and defendant 2 through Nityanand Prabhu who were both followers of Lord Chaitanya. A reference to Chaityanya Charitamruta and Baishnab Abidhana shows that Gadadhar who was also known as Pandit Prabhu Gadadhar Pandit and Godai, was the disoiple of Pandarik Bidyanidhi who was himself a disciple of Advaitanand. Gadadhar came to Orissa along with Sri Chaitanya and lived the life of a perpetual Brahmachari till his death in 1533. Gangamudri was an Oriya lady and was a disciple of Gadadhar's branch. Gadadhar was a great scholar and wrote commentaries on the Gita. Besides he was a life-long associate of Lord Chaitanya and is regarded by the Vaishnabs as one of the Pancha Tatva. The appellant's Math is obviously named after Gangamudri, who was a Vaishnab herself and is known as the Gangamatha Math. The learned Munsif has correctly observed that the only difference between Gadadhar and Nityanand is that the former did not lead a married life and thus was an ascetic while the latter led a family life, but their cult was the same. This is borne out by the 'Kebala' of the year 1909, in which the father of defendant 2 asserted that the Mahant belonged to the sect of Brahmin Vaishnav to which sect the transferor also belonged.
10. Apart from the competency of defendant 1 to perform the worship of the plaintiff. Thakur it is asserted that the daily service is not being properly performed.
11. According to the plaintiff's case there should be a Sankalpa as a necessary preliminary to the daily service of the deity. This was not the case set out in the plaint nor spoken to by the plaintiff's 'next friend' as I have already observed. Nor is this insistence warranted by Hindu texts. The daily rites of worship are as follows according to the Hindu texts:
The worshipper is directed to awake early in the morning and to purify himself. He is then to sweep the temple with a piece of cloth or with a broom made of specified materials. In the Yogini Tantra the devotee is promised spiritual bliss for a thousand years for every particle of dust raised by the sweepings. After sweeping comes the process of smearing (Upalepana). This according to the same authority, lias to be done with earth or cowding. The next step is to remove the Nirmalya or the remains of the previous day's offerings of flowers. After this the devotee should present the deity with an offering of flowers of Arghya or respectful oblation of rice, durva grass, flowers, etc., with water; of Pady or washing the feet as also of other articles necessary for washing the mouth and so on. A deity in short is conceived as a living being and is treated in the same way as a master of the house would be treated by his humble servant. The daily routine of life is gone through: the living image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, offering of food, and retirement to rest.' See Saraswathi's Hindu Law.It is, therefore, preposterous to suggest that the daily worship of the deity-should be prefaced with a sankalpa for the benefit of the donor. A gift of land to a deity is extolled in 4th Shastras as 'productive of the greatest religious merit.' In the Mahabharat it is said that 'the donor of land shines in Heaven so long as the land, which is the subject of gift, lasts,' In the Varahapurna the bestower of a piece of land to Vishnu is promised fortune and prosperity for seven births, and it is also mentioned there that he who dedicates the field or the house for the enjoyment of Vishnu is released from all sins. A gift of land to an idol has, therefore, always been a favourite form of endowment with the Hindus and it is abhorrent to the Hindu notion of piety and religious merit to think that a dedication was made to the plaintiff Thakur for inviting blessings to the donor. If the grant had been made to the Gosain for performing a particular service such as the invoking of daily blessings, the case would be different. In this case, the grant being Devottar and having been made for the service of the deity, defendant 2, who is its manager, is under no obligation to perform sankalpa every day before offering 'bhog' to the deity.
12. The plaintiff's 'next friend' has failed to prove that there has been a departure in the customary mode of worship of the plaintiff-deity in the Gangamatha Math and that there has been in consequence a 'continuing wrong' against the plaintiff-idol. The contention on behalf of the appellant that the plaintiff's 'next friend' has no interest in the suit or in the location of the plaintiff Thakur and that the present suit is merely a device to get back the Thakur to defendant 2's house with a view ultimately to claiming the properties attached to the endowment, is not without force. But since the suit is instituted professedly for the benefit of the plaintiff-Thakur I have to examine the alleged rights of the Thakur to revert to its original place of installation and also to determine whether it is the will of the Thakur to be so removed. If it is in the interest of the Thakur that he should be removed to defendant 2's house, it does not matter whether the 'next friend' is wholly disinterested in having brought this suit.
13. The second and the most important point raised on behalf of the appellant is the question of limitation. The appellant's case, in brief, is that an idol belonging to a family is transferable and an alienation is recognised by law. Alternatively, if the transfer is void adverse possession would run, from the date of transfer of possession of the idol, not only against the endowed properties but also against the idol itself. There is no doubt that, as a general rule according to Hindu law, property given for the maintenance of religious worship is inalienable. This was decided in an early Vyavastha given in volume 2 of MacNaughton's ' Precedents of HinduLaw' p. 305, citing the text from the S.M. T. Bhagawat:
He who seizes the subsistence of the gods or of priests, whether given by himself or another, is born a reptile in ordure for a million of million years.See also 45 C.W.N. 665, Sri Sri Ishwar Lakshi Durga v. Surendra Nath Sarhar and A.I.R. 1943 Gal. 613 Surendra Narayan Sarbadhikari v. Bholanath Roy Choudhuri. But the manager of an '.endowment has the same powers as a guardian of an infant to incur loans for necessary purposes and such loans will bind the idol's estate. If this were not so, the estate of the idol might be destroyed or wasted and its worship discontinued for want of necessary funds to preserve and maintain them. Where the temple is a public temple, the dedication may be such that the family itself could not put an end to it, but in the case of a family idol the consensus of the whole family might give the estate another direction 4 I.A. 52 Eunwar Darganath v. Ramchunder. See also Tulsidas v. Sidahinath reported in 20 Cri.L.J. 315 (n) where it was held that properties at one time devottar may by common consent of the whole family cease to be so and become secular property and 21 M.L.J. 588 Appu Pathar v. Sree Kurumba 7 C.L.R. 278, Doorga v. Sheo Proshad and 27 Mad. 435 Vidyapurna v. Vidyanidhi. Reliance has been placed on the judgment of Banerji J. in Khetter Chunder v. Haridas reported in 17 Cal. 557. In this case, a family idol belonging to a Ghosh family had been made over to the grandfather of the plaintiff by a deed of gift as the owner of the idol could not carry on the worship out of the proceeds arising out of the devottar lands. It was argued that the deed of gift was invalid as it purported to give away an idol which could not be the subject of transfer, and Banerji J. lent the weight of his authority to the statement that there is no absolute prohibition against the gift of an idol. An idol is not mentioned as an unfit subject, of gift by Hindu lawyers in their enumeration of what are and what are not fit subjects of gift--See Colebrook's Digest Book 2, Chap. 4-but on the contrary the gift of an idol under certain circumstances is considered a laudable act. It was also held that the deed of gift was really an arrangement with a view to carry on the worship of the idol regularly from generation to generation and that it was for the benefit of the idol.- It was further held that such an arrangement is valid in law and binding upon succeeding sebayats. As was observed by the Judicial Committee in Prosunno Eumari Debya v. Gulabahand 14 Beng. L.R. 450 and later confirmed in 4 I.A. 52. Eunwar Durganath v. Ramchunder, it is only in an ideal sense that property can be said to belong to an idol, and the possession and management of it must in the nature of things be entrusted to some person as the sebayat or manager. It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its properties, at least to as great a degree m the manager of an infant heir. Another point raised in the case was that the effect of the arrangement was to convert an endowment for the. spiritual benefit of the family of the original founder into one for the benefit of the family of the plaintiff. Banerji J. repelled this contention in these words:
We do not think that that was so. Having regard to the terms of the deed of 1254 and to the fact that the idol with its endowed property was made over to the plaintiff's predecessors, we think that according to Hindu notions the worship of the idol would still be for the benefit of the original founder's family from a spiritual point of view.In Rajeshwnr Mulliek v. Gopeshwar Mulliok reported in 35 Cal. 226 the right to alienate the office of the sebayat by will was negatived on the ground that the office of a sebayat endured only for his life and his will comes into operation only after his death, but the right of alienation was clearly recognized. In 6 Bom. 298. Mancha Ram v Pran Shanker, the fact that the alienation was to a person in the line of succession and capable of performing the worship of the idol was regarded as a justification for the alienation. The test, as Mitra J. put it in Rajeshwar Mullick v. Gopeshwar Mullick 35 Cal. 226 is 'the dear benefit of the Thakur. In 36 Cal. 975 Nirod Mohini v. Shibadas an alienation by an arpannama in favour of the maternal uncle of the sebait was upheld as he seemed to have more interest in the worship of the idol than any one else, In Sreenath Devivasikhamani v. Karutha reported in 21 M.L.J. 129 the debts of the Pandarasannidhi 'incurred for the purpose of certain festivals celebrated in the Math were held to be for a necessary purpose. It is therefore clear that a sebayat can borrow for legal necessity and for necessaries of the deity and bind the estate of the'' deity. The alienation in the case before us has been upheld by the previous judgment of the year 1928 to have been for legal necessity. It is not clear from the 'kebala' whether the transfer of the idol to defendant 1, was by way of gift as all the endowed properties belonging to the deity were sold, or whether a ,price was fixed for the image itself. In the eye of I law idols are property, as was held in Subbaraya Gurukkal v. Chellappa Mudali in 4 Mad. 315. A distinction has been made by the Calcutta High Court that being a juridical person, the idol is not movable property though it is property for which a suit is governed by Article 120, Limitation Act See 38 Cal. 284 Bali Panda v. Jadumani. Whether the idol can be regarded as movable or immovable property is not necessary to be determined but the right to be worshipped at a particular place or by a person may be regarded as intangible property. In A.I.R. 1915 Cal. 161 Mahamaya Devi v. Hari Das Haldar the right of sebayatship in the Kalighat Temple was mortgaged and it was argued that the office of seba. yat being extra eommercium inasmuch as it is a religious office stamped with a trust, is inalienable. Mookerji J. observed that the plaintiff being a mortgagee not of immovable but of intangible property was entitled to foreclose his mortgagor quite as much as a mortgagee of chattels. In 16 I.A. 137. Goswami Giridhariji v. Ramlallji, the image of Dauji Thakur had been transferred from its original place of consecration to a new temple. Their Lordships of the Judicial Committee observed:
If the fact was that the Thakur Dauji had been in the custody of and his worship been regulated by another sebayat than the plaintiff for a sufficient time, the plaintiff might be barred. There has been no possession of the temple adverse to the Thakur Dauji, and no possession of the Thakur adverse to the plaintiff.A Thakur can be the subject of possession and adverse possession. The transfer of an idol under some circumstances cannot, therefore, be regarded as being opposed to law and may be upheld.
14. The appellant's contention is that if the alienation in 1909 is valid, as I have held it to be, limitation would commence to run from the date of alienation. If conversely the alienation is void possession of the appellant would become adverse from the date of his possession under the sale deed. The plaintiff-respondent's case on this point is that the deity being a juristic person has a will of its own which can be expressed through his sebayat and has a right to remain at the place where he is installed. This argument is founded upon the observation of the Judicial Committee in Dauji Thakur's case cited above, in which their Lordships observe: 'The Dauji must elect whether to change his habitation or to change his sebayat.' A very much similar observation was made in the later case, Pran Nath Mullick v. Pradyumna Kumar Mullick in Lord shaw, delivering the judgment of the Board, observed:
The true view of this is that the will of the idol in regard to location must be respected. If, in the course of a proper and unassailable demonstration of the worship of the idol by the sebayat it be thought that a family idol should change its location, the will of the idol it self expressed through his guardian must be given effect to. This is in accordande with what would appear-to be the sound principle of the possession and it is further in accord with the authority of the subject...a fortiori it is open to an idol acting through his guardian, the sebayat, to conduct its worship in its own way at its own place, always on the assumption that the acts of the sebayat expressing its will are not inconsistent with the reverent and proper conduct of its worship by those members of the family who are the servants and pay homage to it.Mr. Sen Gupta, earned Counsel for the plaintiff-Thakur, also referred us to Balipanda v. Jadumani reported in 88 Cal. 284 in which a suit by the Thakurs themselves to be removed from the custody of the defendants, to the Custody of the plaintiffs other than themselves. Relying on these two oases, Mr. Sen Gupta further develops his point and urges that the right of the Thakur to remove itself is a continuing right as the Thakur is an infant and that Section 23, Limitation Act, will govern the case. In support of his contention reference has been made to Hukumchand v. Maharaja Bahadur . Brojmdra Kishore v. Bharat Chandra A.I.R. 1916 Cal. 751 and Sarat Chandra Mukherji v. Jstirode Chandra A.I.R. 1985 Cal. 405. The plaintiff's right according to him is a continuing right; consequently the retention of the plaintiff Thakur by the defendant is a continuing wrong, and a fresh cause of action is said to arise de die in diem. He has relied upon the analogous cases of damges for false imprisonment, restitution of conjugal rights, and acts of trespass. This argument, in my opinion, involves certain assumptions which are unsustainable. An idol is no doubt in the position of an infant as it can act only through a sebayat or a manager. But no authority has been cited to us for the proposition that he is to be regarded as a perpetual infant, so that transactions by or against him will not be governed by the Limitation Act. The second assumption made by Mr. Sen Gupta is that a continuing wrong is the antithesis of a continuing right. As this is the substantial argument on behalf of the plaintiff-respondent, I propose to deal with it in some detail.
15. The doctrine that an idol is a perpetual minor is an extravagant doctrine as it is open to the sebayat, or any person interested in an endowment, to bring a suit to recover the idol's property for devottar purposes see 37 I.A. 147. Damodar Das v. Lakhan Das. In this case, the two chelas of a deceased Mahant divided the properties by ikrarnama and the junior chela took possession under the ikrarnama of the properties situate at Bibi Sarai in Jajpur, while the senior chela remained in possession of the properties of the deity at Bhadrak as Mahant of the Math. The Judicial Committee held that from the date of the ikrarnama possession of the junior chela by virtue of the terms of the ikrarnama was adverse to the right of the idol and of the senior chela as representing that idol, and that, therefore, the suit was barred by limitation. See also : AIR1933Cal295 . Surendra Krishna v. Bhubaneswari Thakurani. An idol can also acquire rights by adverse possession just as much as there can be adverse possession against the idol. See Anand Chandra v. Brojalal A.I.R. 1923 Cal. 142. Where property is vested in the juridical person an act of alienation by the sebayat is a direct challenge to the title of the idol and a suit by the idol or the manager of the idol on behalf of the idol for recovery of possession must be brought within 12 years from the date of alienation A.I.R. 1922 Pat. 243 Mahant Ramrup Gir v. Lal Ghand Marwari; Ghidambara Natha Thambiran v. Nallasiva Mudaliar reported in A.I.R. 1918 Mad. 464. Pandurang Balaji v. Dnyanu reported in 36 Bom. 135 and 37 Cal. 885 Damodar Das v. Lakhan Das. An idol, therefore, is as' much subject to the law of limitation as a natural person and cannot claim exemption on the ground that he is a perpetual infant. Nor is a Hindu deity to be regarded as a minor for all purposes. In I.L.B. (1937) 1 Cal. 84, Anantakrishna v. Prayag Das it was held that the rule under Section 68, Contract Act, that a person who supplies necessaries to a minor is entitled to be reimbursed from the minor's estate does not apply to the case of a temple. Ameer Ali J. sounded a note of warning against carrying the analogy of a deity to a minor being carried too far and observed:
Their practical incidents differ. For instance, in the case of a minor he is being protected and his property saved so that he can enjoy it to the full upon attaining majority. In the ease of a deity no such thing can happen, he is a major, he is born major, there is no future time at which he can become major and then enjoy the property. He is not incapable, he is under no inherent disability; on the other hand, he is all powerful.An idol cannot, therefore, claim exemption from the law of limitation: see : AIR1933Cal295 . Surendrakrishna Roy v. Ishree Sree Bhubneswari Thakurani later confirmed in Bhubaneswari Thakurani v. Brojanath Dey. Mr. Sen Gupta's argument that the plaintiff's right to be located at its temple in the Goswami Math is a continuing right on account of the incapacity of the idol to act on its own behalf, must fail.
16. The next point in his argument is that the appellant's act is a wrong to the deity and every day of his retention of the deity is a continuing wrong. Section 23, Limitation Act, pro. vides that:
in the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.
If the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance thereof in cases in which damage is not of the essence of the action, as in trespass, a fresh cause of action arises de die in diem--Clark and Lindsell on Torts.
Where the wrongful act produces a state of affairs, every moment's continuance of which is a new tort, a fresh action for the continuance lies in which recovery can be had for damages caused by the continuance of the tort to the date of the writ. And it may be added where the wrong consists in the omission of a legal duty, if the duty is to continue to do something, the omission constitutes a continuing wrong during the time it lasts, as in Bai Sari v. Sankla Hirachand 16 Bom. 714 and Binda v. Kaunsilia 13 ALL. 126 Where the wrong consists in an act or omission it must not be fleeting or evanescent like a slander uttered, but such as to produce a change in the condition of things which is a continual source of injury. There is a real distinction between continuance of a legal injury and continuance of the injurious effects of a legal injury. Thus, in the case of a bodily injury there is no continuing wrong as the injury ceases though the injurious effect may persist. In other words there must not be a single wrongful act from which injurious consequences follow, but a state of affairs every moment's continuance of which is a new tort. The commonest examples of continuing wrongs are found in interference with water supply and obstructions to rights of way and of light and air. Where adverse possession is claimed on the strength of the erection of a wall there is no continuing wrong within Section 23. The effect may continue but this does not extend the time of limitation--See Rustomji's Law of Limitation, Vol. I, where all the cases are summarised. Where, therefore, trespass amounts to a complete ouster the wrong is not a continuing one and successive actions will not lie on the principle of interest reipublica ut sit finis litium. As Mr. Mayne in his work on Damages puts it:
A fair rule in such oases would be to give the plaintiff such, damages as would compensate him for the losses sustained up to the time of verdict, and to pay him for putting the land in its original state ' Where a man suffers in respect of one and the same right, whether of the person, property, or reputation, as the case may be, then if the act is not a continuing act but one over the consequences of which, when done, the doer has no further control, the cause of action is one and after recovery in an action for damage first accruing, no further action can be brought. In a case of trespass, the cause of action accrues when the trespass is committed. When the properties of the deity and the idol itself were taken possession of, the act which causes an encroachment of the plaintiff's right was at once complete and there is no continuance of damage or wrong within the meaning of the statute. The effect of the damage may continue but this does not extend the time of limitation. In Harrington v. Corporation of Derby (1905) 1 Ch. 205. Buckley J., observed:
The words continuance of injury or damage do not mean or refer to damage inflicted once and for all which continues unrepaired but to a new damage recurring day by day in respect of an act done, it may be once and for all at some prior time, or repeated, it may be, from day to day.
The test in applying Section 23 is not whether the right is a continuing right but whether the wrong is a continuing wrong: See A.I.R. 1930 Bom. 61 Krishnajee v Annajee 20 Cal. 906 Chukkenlal Roy v. Lolit Mohan Roy 26 Mad. 410. Raja of Venkatagiri v Isakkapah Subbtoh A.I.R. 1928 Pat. 475. Md Fahimul Haque v. Jagat Ballab Ghosh. Where the act or the wrong is complete, Section 23 is inapplicable: Ashutosh v. Corporation of Calcutta reported in A.I.R. 1919 Cal. 807. Complete usurpation of possession and occupation and consequent dispossession of the owner of the land is a wrong which is complete from the moment of dispossession. It is not a continuing trespass of the character contemplated in Section 23: A.I.R. 1939 Nag. 145 Evangelical German Mission v. Ramsahaigir. In Kusneshwar J ha v. Umakant Jha reported in. A.I.R. 1942 Pat. 188 it was laid down that there was no perpetual right of suit under Section 23 whether a wrong be continued or not when the trespass itself gives rise to rights extinguishing any right of suit. When the wrong amounts to dispossession, of the plaintiff then even although it may be a continuing wrong the plaintiff cannot recover possession after 12 years because under Section 28, Limitation Act, he himself has got no right left which he can enforce. The real question is not whether the wrong is continuing or not, but whether the wrong amounts to a complete ouster of the plaintiff that is to his dispossession. In view of these decisions it must be held that the plaintiff's cause of action arose when the transfer was effected in 1909. Whether Article 48B or 49 or 120 is applicable or whether the residuary Article 144 applies to the present suit, the cause of action for that suit arose in 1909 and the plaintiff's suit is barred by limitation.
17. Reliance was also placed by Mr. Sen Gupta on two Privy Council decisions reported in Pran Nath Mullick v. Pradyumna Kumar Mulick and Hukumchand v. Maharaja Bahadur Singh. In the first of these cases, there was no question of limitation and Mr. Sen Gupta relies on the passage in which their Lordships observed that Hindu family idols are not property in the crude sense and that such ideas appear to be in violation of the sanctity attached to the idol whose legal entity and rights as such the law of India has long recognised. The argument before the Board was that a family idol was no better than a mere moveable chattel. Their Lordships held that such an argument is neither in accord with the true conception of the authorities nor with principle. Referring, however, to the decision of Banerji J., in Khetter Chunder v. Haridas 17 Cal. 557, their Lordships held that the transfer of the idol was justified as the interests of the worshippers of the idol were concerned. In the judgment of the High Court in the same case reported in Pradyumna Kumar v. Pramatha Nath. A.I.R. 1923 Cal. 708 Richardson J., laid down the true rule when his Lordship said:
What is probably true is that for certain purposes at any rate the office of manager or sebayat of the deity may be regarded as property and the office will carry with it all such rights as properly pertain there, including the right to the custody of the image. In a loose way, therefore, the gift or transfer of the office may perhaps be spoken of as a gift or transfer of the image of the deity.In the other Privy Council decision where the Swetambari sect of Jains placed 'Charans' in three of the shrines, the Digambaris, the rival sect, refused to worship and Section 23 Limitation Act, was held to be applicable. It should, however, be observed that there was no interference with the sight of the Digambaris to worship. The proposed gate way was no obstruction to the Digambaris' right of access to the hill. There was therefore no custer--Digambaris' right of access or of worship. Cases of continuing nuisance such as those reportei in Rajrup Koer v. Abdul Hussain 6 Cal. 394 and in Sarat Chandra v. Nirode Chandra : AIR1935Cal405 are not case of ouster or dispossession of the right or property of the person complaining and can therefore have no application to the facts of this case.
18. Lastly, a reference was made to the Sahidgunj case, Masjid Shuhid Ganj v. Shtromani Gurdwara Parbandhak Committee Amritsar reported in 67 I.A 251 where the question was whether a mosque had a locus standi in judicio; and the very argument that is advanced in this case was repelled by their Lordships of the Judicial Committee), the argument being that in view of the 'infancy of the plaintiffs the Limitation Act does not prevent their suing to enforce their individual right to go upon the property. The case cannot, therefore, be of any assistance to the plaintiff.
19. I have, therefore, no hesitation in holding that if this suit were to be regarded as one to enforce the right of the deity to be located at the Goswami Math. it would be barred by limitation, either under Article 120. Balvpanda v Jadumant 88 Cal. 284 or under Article 144. If, on the other lhand, it is to be regarded as a suit by a worship, per, not based on any right to the property in 'the idol or to an office, against its custodians to locate it in a particular temple instead of in another, there being no allegation that the plaintiff is prevented from worshipping the idol at the latter temple, the suit is not cognizable by the civil Court: See 32 Cal 1072 Loke Nath Mtsra v. Dasrath. Tewari
20. The last point urged on behalf of the appellant is that he has acquired the sebayati right by virtue of the transfer of 1909 and the will of the deity regarding its habitation can only be conveyed through the appellant. This argument, to my mind, is more fanciful than legally sound. The will of the Thakur must be determined in the light of what is in the best interests of the idol. Where rival sebayets claim to represent the will of the deity in conflicting ways, the duty of determining what should be the will of the I Thakur must ultimately devolve upon the Court. We have given our anxious consideration to what would be the most suitable arrangement in the circumstances of the present case. All the endowed properties have become vested in the appellant by reason of the re-grant made by the Government of Madras and any change of location of the deity must necessarily result in the separation of the endowed properties from the deity. Defendant 2 is no doubt willing, and indeed anxious, to have the custody of the Thakur restored to his temple. But we consider that he is the least desirable person to be placed in charge of the deity, having regard to the fact that his father, as the sebayat, brought about the alienations and finally the transfer of the idol itself. Defendant 2 himself supported a suit, falsely alleging that the idol was still in the temple in the year 1928. In the present suit also he has made statements which are hardly consistent with truth. We cannot, therefore, countenance any desire on the part of the Thakur to be restored to the Goswami Math and to be left in the custody of defendant 2 for will it be in the best interest of the Thakur to dissociate it from the endowment. This itself would be a ground, apart from other considerations of limitation and adverse possession, for rejecting the plaintiff's claim: See 7 Cal. L.R. 278, Durga v. Sutv Prasad.
21. In the result we hold that the plaintiff's suit is barred by limitation and must fail. The second appeal is allowed and the judgment and decree of the learned Munsif is restored, with costs throughout. Counsel's fee in this Court will be Rs. 250. The costs will be borne by the plaintiff's 'next friend' the Zamindar of Tekkali.