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Sri Bhagabat Basudev and anr. Vs. Ajodhya Das and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 62 of 1975
Judge
Reported inAIR1978Ori194; 45(1978)CLT539
ActsHindu Law
AppellantSri Bhagabat Basudev and anr.
RespondentAjodhya Das and anr.
Appellant AdvocateB. Rath and ;P.K. Routray, Advs.
Respondent AdvocateL. Rath, ;A.K. Misra, ;J.K. Rath and ;B.S. Misra, Advs.
DispositionAppeal dismissed
Cases ReferredIn Darshanlal v. Shivji Maharaj
Excerpt:
.....and he is not a prospective sebait or a worshipper, and ho has no locus standi to represent the first plaintiff in the suit. --in the case of a private endowment the members of the family of the founder are the persons interested in protecting the interest of the debutter, and the law is well settled that they can sue to enforce the rights of the deity. it can at best be said, if at all, that plaintiff no. in the plaint it has been admitted that defendants 1 and 2 and nitei dasi belong to baishnab sect and there was good relationship between them and they lived together in the 'muth'.from the plaint it is evident that 'the muth' referred to therein is the place where the family deity has been installed, plaintiff no. 2 has admitted in the plaint that he was mostly staying in his own..........plaint schedule, and for other consequential reliefs.2. admittedly nitei dasi was the owner of the suit properties.3. according to the plaintiffs:--the said nitei dasi endowed the suit properties in favour of plaintiff no. 1, a deity installed by her in her house, and after the said endowment she, as the marfatdar of the deity, was in management of the suit properties and was performing the sebapuja of that deity. subsequently on 11-5-63 she made a gift (ext. 4) of the suit properties in favour of plaintiff no. 2 and appointed him as the marfatdar of the deity. thereafter plaintiff no. 2 possessed the suit properties as the marfatdar of plaintiff no. 1. defendant no. 2, a close associate of nitei dasi, became jealous of plaintiff no. 2, and somehow obtained from nitei dasi some.....
Judgment:

S. Acharya, J.

1. The plaintiffs have preferred this appeal against the confirming decision of the court below. The suit was for declaration of title and confirmation of possession in respect of a house in Puri town described in lot No. 1 of the plaint schedule and some lands situated in village Rebana Nuagan described in lot No. 2 of the plaint schedule, and for other consequential reliefs.

2. Admittedly Nitei Dasi was the owner of the suit properties.

3. According to the plaintiffs:--

The said Nitei Dasi endowed the suit properties in favour of plaintiff No. 1, a deity installed by her in her house, and after the said endowment she, as the Marfatdar of the deity, was in management of the suit properties and was performing the Sebapuja of that deity. Subsequently on 11-5-63 she made a gift (Ext. 4) of the suit properties in favour of plaintiff No. 2 and appointed him as the Marfatdar of the deity. Thereafter plaintiff No. 2 possessed the suit properties as the Marfatdar of plaintiff No. 1. Defendant No. 2, a close associate of Nitei Dasi, became jealous of plaintiff No. 2, and somehow obtained from Nitei Dasi some fraudulent documents, the contents and import of which were not known to Nitei Dasi. After the death of Nitei Dasi, defendant No. 2 on 13-11-65 without notice to the plaintiffs obtained the letters of administration in respect of a will allegedly executed by Nitei Dasi in favour of defendant No. 2 on4-3-65 (Ext. B). Thereafter defendant No. 2 executed an illegal sale deed in respect of the suit properties in favour of defendant No. 1 on 22-9-64 (Ext. A). After making a gift of the suit properties in favour of plaintiff No. 2 Nitei Dasi had absolutely no subsisting interest in the suit properties, and therefore neither the legatee under the will (defendant No. 2) nor the purchaser of the suit properties (defendant No. 1) from defendant No. 2 acquired any right, title or interest in the said properties. The defendants were never in possession of the suit properties but on imaginary and invented allegations defendant No. 1 initiated a proceeding under Section 145 Cr. P. C. and in that case possession was wrongly declared in favour of defendant No. 3. Hence this suit.

4. Defendant No. 1 and defendant No. 2 jointly filed a written statement substantially denying the plaint averments. According to these defendants:--

The suit properties were never the Debutter properties of plaintiff No. 1; Nitei was an illiterate purdanashin lady and taking advantage of her illiteracy plaintiff No. 2 fraudulently obtained from her a deed of gift in his favour; Nitei was not aware of the recitals in the deed of gift and it was not validly executed; the plaintiffs were never in possession of the suit properties; Nitei Dasi having come to know of the fraud played on her cancelled the deed of gift by executing a registered cancellation deed on 25-9-63 (Ext. 1); thereafter she executed the will in favour of defendant No. 2 in respect of the suit properties; after the death of Nitei Dasi defendant No. 2 came to possess the suit properties and obtained the letters of administration on the basis of the will; subsequently defendant No. 2 sold the suit properties to defendant No. 1 for consideration in order to clear up her loans and to meet medical expenses, and delivered possession of the suit properties to defendant No. 1; after Nitei's death defendants 1 and 2 were performing the Sebapuja of the deity; defendant No. 3 who was cultivating the suit lands as a Bhag tenant under Nitei Dasi was allowed by defendant No. 1 to cultivate the same in that capacity; after the vesting of the intermediary interest in the suit properties described in lot No. 1, defendant No. 1 obtained settlement of the same in his own name on fair and equitable rent, and that being so the plaintiffs'suit, so far as it relates to the lands described in lot No. 1, is hit by the provisions of the Orissa Estates Abolition Act

Defendant No. 3 did not file any written statement. Defendant No. 2 died during the pendency of the suit without leaving any legal heir.

5. The trial court dismissed the suit inter alia on the following findings;--

The deed of gift (Ext. 4) was not a genuine and valid document and it had not been acted upon; the plaintiffs had never been in possession of the suit properties; and they had lost all title, if any, in the suit lot No. 3 property as it vested in the State and it was thereafter settled with the defendant No. 1 as per Ext. C under the provisions of the Orissa Estates Abolition Act. It also held that the properties had not been validly dedicated in favour of the first plaintiff; and that the second plaintiff had no locus standi to represent the first plaintiff in this suit.

In the plaintiffs' appeal against the decision of the trial court the appellate court has found as follows:--

Nitei Dasi had validly dedicated the suit properties in favour of the first plaintiff; the deed of gift (Ext. 4) was not genuine and valid and it had not been acted upon; the will (Ext. B) executed by Nitei Dasi in favour of defendant No. 2 (since deceased) conferred on her only the right to manage the suit properties and to perform the Sebapuja of the deity; the sale of the suit properties in favour of defendant No. 1 was invalid as defendant No. 2 had no title over the suit properties enabling her to convey title in the suit properties in favour of defendant No. 1; the settlement as per Ext. C in favour of defendant No. 2 in reality and in law enures to the benefit of plaintiff No. 1 only; and that the second plaintiff has no locus standi to represent the first plaintiff and so he has no right to institute this suit on behalf of plaintiff No. 1.

6. Mr. B. Rath, the learned counsel for the appellants, did not challenge the concurrent findings of the courts below regarding the gift or the deed Ext. 4. He however seriously challenged the finding of the courts below that plaintiff No. 2 had no locus standi to represent the first plaintiff in this suit, and hence the suit was not maintainable.

7. The court below holds that the suit at the instance of plaintiff No. 2 tonot maintainable as the deed of gift (Ext. 4) in favour of plaintiff No. 2 is not genuine or valid and it was not acted upon; and that plaintiff No. 2 is a perfect stranger to the deity (plaintiff No, 1) and he does not come under the category of a member of the family in which the deity has been installed, and he is not a prospective Sebait or a worshipper, and ho has no locus standi to represent the first plaintiff in the suit. Mr. Bath submits that plaintiff No. 2, being admittedly the sister's son (Bhanaja) of the husband of Nitei Dasi, is interested in protecting the deity's interest as its properties are being squandered away by the defendants and persons who are not interested in the Sebapuja of the deity are now possessing its properties.

Admittedly plaintiff No. 1 is the private family deity of Nitei Dasi's husband's family. The court below has found that the suit property was validly dedicated in favour of the family deity by Nitei Dasi. The title in the suit property, therefore, vested in the idol since that time. The idol has to act through a human agency, and a person competent to act for it can institute a suit for and on behalf of the idol. A Sebait of the idol is one of the persons entitled to take proceedings on behalf of the idol. Where, however, the Sebait refuses to act for the idol, or where a suit or a proceeding is to be instituted to challenge the act of the Sebait himself as prejudicial to the interest of the idol, then some other person who is competent to act for the idol can institute a proceeding or suit on behalf of the idol. In the cases of private endowments the members of the family who are primarily interested in its upkeep and maintenance are considered as competent persons entitled to act for and on behalf of the idol.

In the decision reported in AIR 1937 Cal 559 Panchkari Roy v. Amode Lal, B. K. Mukherjea, J. held that:--

'...... in cases of private Debutter orfamily endowment, all members of the family, either male or female, who are entitled to participate in the worship, can be said to be persons interested. But a person who is not a member of the family does not come under that description, however much otherwise he might be interested in the welfare of the idol.'

It has also been held that;--

'None but a member of the family can have a legal right to worship the deity in the case of a family endowment and no such person can sue on behalf of the deity for recovery of the property belonging to it unless the founder has Expressly given such power.'

In B. K. Mukherjea's book on 'Hindu Law of Religious and Charitable Trusts (Tagore's Law Lectures), 3rd Edn. which is accepted as an authority on the subject, it is stated at page 205 thereof that:--

'In the case of a private endowment the members of the family of the founder are the persons interested in protecting the interest of the Debutter, and the law is well settled that they can sue to enforce the rights of the deity.'

In this suit the plaintiff No. 2 has not asserted that he is the Sebait or the prospective Sebait or the worshipper of plaintiff No. 1. He has also not stated that, he is a member of the family of Nitei Dasi. His claim to recover possession of the suit property from the defendants is based on the alleged gift made by Nitei Dasi, which has been declared to be invalid. Faced with the said finding of fact, it is now urged that the suit instituted by plaintiff No. 2 is maintainable as plaintiff No. 2 is the 'Bhanaja' of Nitei Dasi's husband, and as such he is a member of that family and in that capacity he is a worshipper of the idol and is a person interested in it. All 'Bhanajas' (sister's sons) cannot be said to be members of the maternal uncle's family. The term 'family is generally intended to be used in respect of a body of persons who can trace their descent from a common ancestor and who generally live in one house or under one head or management and the females who come to that house by marriage. There is nothing on record to show that plaintiff No. 2 ever lived in one house or under the head or management with the members of the founder's family. There is also nothing on record to show that plaintiff No. 2 ever worshipped or was ever interested in worshipping or looking after the Sebapuja of plaintiff No. 1, the family deity of Nitei Dasi. In the cause title of the plaint, plaintiff No. 2 has not described himself as the Sebait or the worshipper of the deity. As plaintiff No. 2 cannot be said to be a member of the founder's family, he cannot as of right worship the private deity of Nitei Dasi'sfamily. It can at best be said, if at all, that plaintiff No. 2 may have a benevolent interest in the affairs of the idol, but on his said right he cannot institute a suit for or on behalf of the said private deity. In Darshanlal v. Shivji Maharaj, ILR 45 All 215: (AIR 1923 All 120) it has been held that it is not correct to say that any person claiming a benevolent interest in the affairs of the private idol would be permitted to maintain a suit in the name and as the next friend of the idol. Only persons interested in the endowment can take proceedings on behalf of the idol to safeguard the interest of the idol where the Sebait refuses to act for the idol or where his act is challenged as prejudicial to the interest of the idol. As stated above, persons interested in a private idol can only be the Sebaits of the idol or the members of the family in which the deity has been installed. As there is nothing on record on which it can be said that plaintiff No. 2 is a person interested in the idol he is not a competent person to institute a proceeding or suit for and on behalf of the idol.

Moreover, there is no allegation of mismanagement of the deity's affairs or its properties by the defendants. Defendant No. 3 has testified to the fact that after the death of Nitei Dasi Sudebi Dasi (defendant No. 2) was performing the Sebapuja of the deity, and after the latter's death defendant No. 1 has been performing the Sebapuja of the deity. In the plaint it has been admitted that defendants 1 and 2 and Nitei Dasi belong to Baishnab sect and there was good relationship between them and they lived together in the 'Muth'. From the plaint it is evident that 'the Muth' referred to therein is the place where the family deity has been installed, Plaintiff No. 2 has admitted in the plaint that he was mostly staying in his own village and was not always able to look after the well-being of Nitei Dasi. On the above facts and without anything to indicate that the defendants were doing any act prejudicial to the interest of the idol there was no cause of action for this suit. It goes without saying that any competent person entitled to act for and on behalf of the idol, as delineated in the authoritative decisions, can institute a suit as soon as it is found that the idol's interest is any way neglected or affected by the persons who are in charge of looking after it. its affairs and properties.

On the above considerations the plaintiffs' suit cannot be held to be maintainable on the above-mentioned grounds urged by Mr. Rath. The finding of the court below that the plaintiff No. 2 has no locus standi to represent the plaintiff No. 1 in this suit or to institute this suit for and on behalf of that idol is perfectly correct.

8. Defendant No. 1 has preferred a cross-appeal against the findings of the court below that the sale of the suit properties in favour of defendant No. 1 was invalid as defendant No. 2 had no title over the same, and that the settlement as per Ext. C in favour of defendant No. 1 in reality and in law enures to the benefit of plaintiff No. 1 only. The court below on a fair and convincing discussion and consideration of the evidence on record has arrived at the finding that Nitei Dasi validly dedicated the suit properties in favour of plaintiff No. 1. That being so, the right, title and interest in the suit properties for all intents and purposes vested in plaintiff No. 1, the family deity, from that time onwards. That dedication was made in favour of the deity prior to the vesting of the suit lot-1 property in the State under the Orissa Estates Abolition Act and the execution of the will Ext. B in favour of defendant No. 2. Therefore, settlement of any of the suit properties under Sections 6, 7 and 8 of the Orissa Estates Abolition Act could only have been made in favour of the deity. In the will Ext. B it is clearly stated that the said bequest was made for performing the Sebapuja of the deity and for proper management of the properties endowed to the deity. From that will it is quite evident that only the Sebayati right and the right to manage the deity's properties were bequeathed by the said document. Apart from that, Nitei Dasi who made the said will was not legally competent to will away the absolute interest in the suit properties in favour of any other person, as she, by the time of the execution of the will, had already divested herself of her title over the suit properties having made an endowment of the same in favour of her family deity. Defendant No. 1 has also stated that Nitei Dasi and Sudebi Dasi were and defendant No. 1 is performing the Sebapuja of the deity. From the evidence on record it is evident that after the dedication of the said properties in favour of plaintiff No. 1. Nitei Dasi, Sudebi Dasi and defendant No. 1were in possession of the suit properties only on behalf of the deity. Mr. L. Rath appearing for the defendants also stated that the defendants are performing the Sebapuja of the deity and are looking after its properties. In the facts of this case, the settlement made as per Ext. C could have been made under the relevant law only in favour of the deity. As defendant No. 1 is performing the Sebapuja of the deity and for all intents and purposes is acting as the Sebait of the deity, the settlement of any property belonging to the deity made in favour of defendant No. 1 has to be considered as settlement made in favour of the deity and that settlement would enure to its benefit, though it has been made in the name of defendant No. 1. As defendant No. 2 had no title in the suit properties but had only the marfatdari right as bequeathed in her favour by the will Ext. B, she (D. 2) was not legally competent to transfer the title in the suit properties in favour of defendant No. 1. Therefore, by the sale deed Ext. A in favour of defendant No. 1 the title in the suit properties could not be and was not transferred to defendant No. 1. As defendant No. 2 had only the marfatdari right, she could only transfer that right in favour of defendant No. 1. So, though the said sale is not void, it is valid only in respect of the marfatdari right of defendant No. 2 in favour of defendant No. 1 over the suit properties of the deity, plaintiff No. 1, who continues to be the owner of the said properties. Defendant No. 1 can therefore act only as a Marfatdar of the deity in respect of the said properties without having any title to the same.

9. In the result, the appeal standsdismissed and the cross-appeal is partly allowed to the limited extent stated above. Parties to bear their own costs of this appeal and the cross-appeal.


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