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Bhimasena Mahapatra and anr. Vs. Ramesh Chandra Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Family
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 305 of 1974
Judge
Reported inAIR1978Ori159; 45(1978)CLT482
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Order 31, Rule 2
AppellantBhimasena Mahapatra and anr.
RespondentRamesh Chandra Mohapatra and ors.
Appellant AdvocateR.C. Patnaik and ;A.K. Padhi, Advs.
Respondent AdvocateP.V. Ramdas and ;P.K. Misra, Advs.
DispositionAppeal allowed
Cases Referred(Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi
Excerpt:
.....india v smt gita banik, 1996 (2) glt 246, are not good law]. - peary mohan mookerjee, air 1920 cal 210 their lordships held that on the analogy of the well settled principle of english law the view may be maintained that it is open to the founder or his heirs to sue for the removal of the old trustee, the appointment of a new one and for the proper administration of the trust and its properties. in the case of a private endowment the members of the family of the founder are persons interested in protecting the interests of the debutter, and the law is well settled that they can sue to enforce the rights of the deity. 3 was not taking proper interest in the worship of the deity or that he had failed to carry out the directions of the author of the trust or that he was embezzling the..........authorities stating therein that defendant no. 3 had been entrusted with the management of the deity's properties and requesting that the record-of-rights might be prepared accordingly. in pursuance of this, record-of-rights was prepared describing defendant no. 3 as ths marfatdar of the deity (vide ext. a). the plaintiffs' contention was that defendant no. 2 was managing the properties of the deity from 1927 to 1944 and defendant no. 3 has been managing the same since 1944. it was further contended that lokanath acharya, the general power-of-attorney holder of the plaintiffs, demanded accounts from defendants 2 and 3, but they never cared to show the accounts. the plaintiffs prayed for directing defendant no. 2 to render accounts for the period from 1927 to 1944 and defendant no. 3.....
Judgment:

P.K. Mohanti, J.

1. This second appeal has been preferred by defendants 3 and 4 against a preliminary decree for accounts.

2. The plaintiffs 1 to 3, who are brothers, brought the suit for accounts of the properties of their family deity Shri Radhakrishna (defendant No, 4). It was alleged that late Somanath Paramguru was the paternal great grand-father of the plaintiffs and that he had executed a Will on 22-10-1927 whereby, among other dispositions, he had dedicated the suit lands, about 15 acres in extent, in favour of the aforesaid family deity. Somanath died in 1927 leaving behind him his two widows, viz., Janaki and Subarni, brother's widow Champa and pre-deceased son's widow Jamuna. In the Will he gave authority to each one of them, excepting Subarni, to take a son in adoption and in pursuance thereof Champa adopted Bhimasen (defendant No. 3) and Jamuna adopted Debaraj, After the death of Debaraj, Jamuna adopted Satyanarayan, the father of the plaintiffs, Satyanarayan died in 1953. Under the Will Janaki was appointed as the executrix and she was conferred with power of management over the lands bequeathed in favour of the family deity. One Hari Panda was appointed as the Archak of the deity with the condition that if he neglected to perform his duties he would be liable to be removed and substituted by another appointee, Defendant No. 1 Krishna Panda is the son of the said Hari Panda. Janaki did not put Hari Panda in possession of the lands at any time and the lands continued to remain in her khas possession. In 1929 Janaki by a general power-of-attorney (Ext. C) entrusted defendant No. 2 Ananta Misra, the son-in-law of Somanath Paramguru and the natural father of defendant No. 3 with the management of the entire family properties. During the settlement operation in 1948 she made an application (Ext. D) to the settlement authorities stating therein that defendant No. 3 had been entrusted with the management of the deity's properties and requesting that the record-of-rights might be prepared accordingly. In pursuance of this, record-of-rights was prepared describing defendant No. 3 as ths Marfatdar of the deity (vide Ext. A). The plaintiffs' contention was that defendant No. 2 was managing the properties of the deity from 1927 to 1944 and defendant No. 3 has been managing the same since 1944. It was further contended that Lokanath Acharya, the general power-of-attorney holder of the plaintiffs, demanded accounts from defendants 2 and 3, but they never cared to show the accounts. The plaintiffs prayed for directing defendant No. 2 to render accounts for the period from 1927 to 1944 and defendant No. 3 from 1944 onwards,

3. Defendants 2 and 3 filed a joint written statement contending that the plaintiffs' father Satyanarayan was not the adopted son of Jamuna: that defendant No, 2 by virtue of the power of attorney was managing the other family properties only and not the deity's properties and therefore he was not liable to render accounts; that the plaintiffs have no right to demand accounts from defendant No. 3 because the sole trusteeship had been transferred to him by Janaki; that the suit for accounts for more than three years was barred by limitation and that the suit was barred by res judicata and was hit by Order 2, Rule 2, C, P. C.

4. The trial court passed a preliminary decree for accounts against defendants 2 and 3. On appeal, the learned Additional District Judge came to the finding that defendant No. 2 had no liability to render accounts, He, however, held that defendant No, 3 was entrusted with management of the properties of the deity from 1946 and as such he was liable to render accounts from 1946 onwards,

5. Although several grounds were taken in the memorandum of appeal, at the time of hearing Mr. R. C. Patnaik, the learned counsel appearing on behalf of the appellants confined his argument to the following points:

(1) The plaintiffs have no locus standi to demand accounts in respect of the properties of the deity.

(2) In the absence of any allegation about negligence of duty, mismanagement or misappropriation, the suit for rendition of accounts is not maintainable.

6. Point No. 1 :-- The plaintiff's right to maintain the suit was challenged on the ground that their father Satyanarayan was not adopted as a son by Jamuna. In a previous suit for partition between the parties, it was held that Satyanarayan was the duly adopted son of Narasingha, the husband of Jamuna. Though the adoption of Satyanarayan was challenged in the suit, it was conceded before the appellate court.

It is next contended that there is an absolute dedication of the properties to the deity and the members of the family Including the plaintiffs are not entitled to any beneficial interest and as such the plaintiffs have no right to demand accounts. The plaintiffs are the descendants of the founder of the trust. The Idol was installed and the trust was created for the spiritual benefit of the family. As members of the family the plaintiffs have right to worship the deity.They have also the right to see that the deity which is the object of worship Is properly maintained and preserved. They are therefore entitled to see that the dedicated properties are properly managed and are not diverted to other purposes and the entire income of the properties is spent according to the directions of the founder. In the Will (Ext. 3) the testator authorised his wife Janaki to appoint, in the event of her inability to personally manage, some one else to act on her behalf. He, however, did not prescribe the line of succession after the death of Janaki. So, on the death of Janaki in 1955 the right to manage the affairs of the deity reverted to the heirs of the founder and devolved upon the plaintiffs. Defendant No. 3 is a mere Archak appointed by Janaki! to perform the shebapuja of the deity and utilise the usufructs of the dedicated properties in accordance with the directions of the founder contained in the Will. He is responsible for the due application of the deity's income and is bound to render accounts of his management. He is bound to maintain regular accounts of the income and the expenses. The heirs of the founder are the persons primarily interested in the upkeep and maintenance of the family deity and the dedicated properties. They are, therefore, entitled to sue for accounts when allegations of misconduct and mismanagement are made against the person in management,

7. The general principle enunciated in Sir Hari Singh Gour's Hindu Code, 4th Edition, Section 284 at page 878 is as follows :--

'A suit is maintainable by a person interested in an endowment in respect of a civil right concerning it.'

The commentary on this principle under the heading 'Right of suit' contained in para. 2141, page 880 is to the following effect:--

'In the case of an endowment, whether public or private, law has prescribed a minimum safeguard that no one can sue unless he is at least 'interested' in the endowment.'

Discussing the question as to what is the nature of interest necessary to accept one to sustain a suit it is stated in para. 2142 at page 881 that:--

'The 'interest' required may be neither direct nor measurable in money, since it will suffice if it is such as the civil law would consider as sufficient. In so holding the Privy Council considered the fad that the mere fact that the plaintiff was the descendant of the founder of a public charity, though in the female line was sufficient to entitle her to sue for the removal of a trustee who had been improperly appointed to manage it ... ... ...

It is not easy to define the interest that would qualify a person to maintain a suit, since the interest one possesses must differ according to the object and nature of the endowment and his own relation thereto. But the touchstone of his right is his 'interest' in the endowment. If the endowment is a private one, the founder, and his descendants, his heirs, members of the sect or order to which the endowment belongs, and even the worshipper possesses sufficient qualifying interest to start the suit.'

8. In A. Ghosh's Commentary on the Law of Endowments, Second Edition, 1938 at page 828 the law on the point is stated as follows :--

'In case of private endowments any person who Ss interested in the worship of a certain idol can alone maintain a suit for declaration that certain properties are the debutter properties of his ancestral idol. Any person, interested in the endowment may sue to set aside an improper alienation of its property by the manager. An improper alienation made by the manager being in breach of trust and in excess of his power may be set aside by suit instituted by any one interested in the endowment.'

9. In the Treatise on Hindu Law, Seventh Edition by Golapchandra Sarkar at page 894 it is stated as follows :--

'The founder or his heirs may invoke the assistance of the court for proper administration of the debutter property. One of the heirs may even maintain such a suit.'

10. It is urged by Mr. Patnaik, appearing in support of the appeal that as the plaintiffs have no present interest in the debutter estate they are not competent to maintain the suit. I am unable to accede to this contention. The authorities are clear on the point that in certain events, for instance, where the line originally indicated by the founder fails, the founder or his heir has the right to nominate the sebayet or have vested in him the sebayetship, and this principle is applicable equally to private and public trusts. In the case of Manohar Mookerjee v. Peary Mohan Mookerjee, AIR 1920 Cal 210 their Lordships held that on the analogy of the well settled principle of English law the view may be maintained that it is open to the founder or his heirs to sue for the removal of the old trustee, the appointment of a new one and for the proper administration of the trust and its properties. Similar view has been expressed in the case of Giris Chandra Sew v. Upendro Nath Giridas, AIR 1931 Cal 776. 11. It is urged on behalf of the appellants that a suit of the present nature could only be instituted by the idol and no one else. In my opinion, acceptance of such a view would create difficulties in the way of the preservation of the interest of the idol itself. An idol is a juridical person and is incapable of acting in a court of law. It can act only through its manager or sebayet. In a case where charges of misappropriation and mismanagement are levelled against the manager himself, it is not expected that he would bring a suit for his own removal or for rendition of accounts by himself. In such a case the suit can be instituted by the heirs of the founder or any person interested. In this connection the following observations of the Supreme Court in the case of Bishwanath v. Sri Thakur Radha Ballabhji, AIR 1967 SC 1044 are apposite and may aptly be read here (at p. 1047):

'The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying suoh a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that wroshippers may file a suit praying for possession of a property on behalf of an endowment.'

In Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust by Bijan Kumar Mukherjea, Second Edition at page 240 it is observed as follows :--

'When a Shebait declines to bring a suit or by his conduct places himself in such a position that he could not be expected to bring a suit, the question arises what other persons can file a suit to protect the interests of the deity. The answer to this question depends on whether the endowment is private or public. In the case of a private endowment the members of the family of the founder are persons interested in protecting the interests of the Debutter, and the law is well settled that they can sue to enforce the rights of the deity.'

12. In view of my foregoing discussions and in the light of the principles laid down by high authorities I hold that the plaintiffs are entitled to maintain a suit for rendition of accounts.

13. Point No. 2:-- Now the question arises whether the plaintiffs have any cause of action to bring the suit. There was absolutely no allegation of mismanagement or misappropriation of trust funds in the plaint. There was no allegation that defendant No. 3 was not taking proper interest in the worship of the deity or that he had failed to carry out the directions of the author of the trust or that he was embezzling the trust funds or that he was converting the trust fund to his personal use. Thus no charge of misconduct or mismanagement was levelled against defendant No. 3. As was pointed out by Bose, J. in AIR 1946 Nag 21 (Banwarilal v. Rajkishore Guru) if there is any breach of trust, allegation to that effect would have to be made and then the courts would try a case of breach of trust, and in such a case, might, if certain facts are established, direct an accounting. The learned counsel appearing on behalf of the respondents relied on AIR 1967 SC 781 (Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi) for the proposition that rendition of accounts can be demanded from the trustee in respect of his management without alleging against him any act of negligence or wilful default. That was a case brought by the trustees in management of a temple for rendition of accounts by the ex-trustees. In the plaint the new trustees alleged that the defendants were guilty of acts of misfeasance, malfeasance and non-feasance and also of gross negligence. The ex-trustees admittedly did not give an account of their management though they put the plaintiffs in possession of the properties and that too after adopting a course of obstructive attitude. In those circumstances their Lordships observed that no trustee can get a discharge unless he renders accounts of his management and that this liability is irrespective of any question of negligence or wilful default. The facts of the present case are entirely different. The decision is, therefore, of no assistance to the plaintiffs-respondents. I would, accordingly, hold that the decree for accounting passed by the courts below cannot be sustained in law.

14. In the result, the appeal is allowed, the decision of the courts below being reversed. The parties are however left to bear their own costs throughout.


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