Skip to content


Bhuban Mohan Koley and ors. Vs. Narendra Nath Konwar and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1932Cal27
AppellantBhuban Mohan Koley and ors.
RespondentNarendra Nath Konwar and ors.
Cases ReferredKokilamri Dasi v. Budranand Goswami
Excerpt:
- .....and defendant 5 to eight annas of the rent from the tenants holding the lands belonging to the idol. defendants 4 and 5 having ceased to perform the sheba of the deity the plaintiffs allege that they are entitled to recover 16 annas rent on behalf of the idcl. defendants 4 and 5 are co-shebaits and they filed a joint written statement contending that they had not lost their right of coshebaitship and the plaintiffs are not entitled to realize more than four annas of the rent and that by a family arrangement defendant 4 used to realize four annas and defendant 5 the remaining eight annas of the rent and that the tenant-defendants had, in collusion with the plaintiffs, withheld paying the rent to defendants 4 and 5. the tenant-defendants alleged in their written statement that.....
Judgment:

1. These two appeals arise out of a suit for rent. The plaintiffs are two of the four shebaits of an idol Damodar Jieu. Their case is that there were four shebaits of the idol, the plaintiffs and defendants 4 and 5. By an arrangement amongst themselves the plaintiffs were entitled to four annas, defendant 4 to four annas and defendant 5 to eight annas of the rent from the tenants holding the lands belonging to the idol. Defendants 4 and 5 having ceased to perform the sheba of the deity the plaintiffs allege that they are entitled to recover 16 annas rent on behalf of the idcl. Defendants 4 and 5 are co-shebaits and they filed a joint written statement contending that they had not lost their right of coshebaitship and the plaintiffs are not entitled to realize more than four annas of the rent and that by a family arrangement defendant 4 used to realize four annas and defendant 5 the remaining eight annas of the rent and that the tenant-defendants had, in collusion with the plaintiffs, withheld paying the rent to defendants 4 and 5. The tenant-defendants alleged in their written statement that defendants 4 and 5 had lost their right of shebaitship on account of their conduct and that they paid the rent for 1328 to the plaintiffs and defendants 4 and 5 and the entire rent for 1329 to 1331 to the plaintiffs. Both the Courts below have found that defendants 4 and 5 by their conduct and certain circumstances have ceased to be shebaits of the idol and the plaintiffs are entitled to recover 16 annas of the rent from the tenant-defendants. As regards the payment by the tenant-defendants both the Courts below disbelieved the plea of payment of defendants 4 a/ad 5 alleged in an application filed during the pendency of the suit as well as the payment of rent previous to the suit by the tenant-defendants to the plaintiffs and defendants 4 and 5.

2. There are two appeals before us arising from the same suit, one by defendant 4 who claims four annas share as shebait and the other by the tenant-defendants.

3. Appeal No, 1092 of 1929 preferred by the shebait defendant 4 was first argued and Dr. Mukherjee took several exceptions to the findings of the Court below. In the first place he argued that the plaintiffs were not entitled to maintain the suit for the entire rent, they having been entitled only to a portion of it. We do not see why the plaintiffs cannot maintain the suit for the 16 annas of the rent if they succeed in making their case as against defendants 4 and 5. Their case is that defendants 4 and 5 have by their conduct and by ceasing to perform the sheba of the idol, no longer occupied the position of shebaits and that the entire rent is due to the plaintiffs who alone carry on the puja of the idol.

4. The second objection is that on the findings coma to by the lower Courts they are not justified in holding that defendants 4 and 5 have lost their right to act as shebaits. The facts found in the case of defendant 4 are that she does not live in the place of the deity but in her paternal house at Narajole far away from that place and has sold away all her properties in the village where the idol is situated, even the house of her husband. She does not perform any sheba or puja of the deity and has made no arrangement for it. As regards defendant 5 it is found that though she is a resident of the village she does not perform sheba or puja of the deity and that she had sold away her interest as shebait to a certain person who failed to establish in a suit the right to act as shebait in her stead.

5. Dr. Mukherji seems to proceed on an assumption which is not justified by law that the shebaits have some sort of vested interest in the debuttar property of which they cannot be divested except by some provisions of the law of transfer. As is well known and the point is now undisputably settled by the decision of their Lordships of the Judicial Committee in Vidya Varuthi v. Balusami Ayyar A.I.R 1922 P.C.l23 that a shebait is a mere manager of an idol and is almost by courtesy called a trustee, though he does not occupy the position of a trustee as understood in the English law except under specific trust. In the present case the deed of dedication is not before us; on the other hand, it is admitted by the defendants that it was only by a family arrangement that the rent was divided amongst the several co-shebaits. At p. 315 of the report their Lordships said:

Neither under the Hindu law nor in the Mahomedan system is any property 'conveyed' to a shebait or a muttawalli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage... The curator, whether called muttawalli or sajjadanashin, or by any other name, is merely a manager. He is certainly not a ' trustee ' as understood in the English system.

6. Now an ordinary shebait being a manager ceases to be a shebait when he ceases to manage the property and carry on the worship of the idol. He has no] right of property transferable or heritable as such. The property belongs to the idol which is a 'juristic person and the suit is brought on behalf of the idol by the persons who do its sheba and manage its property. The present suit is brought by the idol through the plaintiffs who are described as its she-baits. The finding of the Court below therefore that defendants 4 and 5 have ceased to perform the sheba of the idol, is sufficient to enable the Court to hold that they have ceased to be shebaits in the absence of any rule of the trust to the contrary. The plaintiffs as managers of the idol's property are entitled to maintain the suit for rent of the idol's property.

7. In order to judge the plaintiff's right to maintain the suit the Courts below had incidentally to consider the position of defendants 4 and 5 in relation to the dedicated property. Bat in view of the fact that a regularly constituted suit for the determination of the question is now pending they are justified in leaving the question open in the present suit. It is next contended by Dr. Mukherji that the application by defendants 4 and 5 during the pendency of the suit to be transposed from the category of defendant to that of plaintiffs should have been allowed. On that point the learned Subordinate Judge, with whom the learned District Judge has agreed has found that the defendants by their conduct have precluded themselves from joining the plaintiffs in the suit. For this view the Courts below relied upon the decision in Kokilamri Dasi v. Budranand Goswami [1907] 5 C. L.J. 527 where it was observed that all the trustees should ordinarily be co-plaintiffs and only such of them should be made defendants as are unwilling to be joined as plaintiffs or have done some act precluding them from being plaintiffs. Many of the observations made in the judgment in that case relating to the status of the trustees must now be taken to have bean overruled by the decision in Vidya Varuthi's case A.I.R 1922 P.C. 123 but the above view is sound on principle. In the circumstances of this case we cannot say that the Courts below were not justified in holding that the defendants should not be made co-plaintiffs. They have found that the defendants have ceased to do sheba of the idol and therefore have no right to act as shebaits and also that they are in collusion with the tenant-defendants and therefore as plaintiffs would thwart the object of the suit.

8. In the appeal by the tenant-defendants which is Second Appeal No. 869 of 1929, Mr. Mitter has argued two points. He firstly contends that by the petition made on 28th March 1927 the tenant-defendants and the pro forma defendants 4 and 5 stated that the tenant-defendants had paid the amount of rent to the other defendants according to their shares from 1328 to 1333. The learned Additional District Judge has gone thoroughly into the evidence in the matter and held firstly that there was no payment by the tenant-defendants to the plaintiffs or to the other defendants 4 and 5 either before or during the pendency of the suit and secondly, that the allegation by the tenant-defendants and defendants 4 and 5 stating that the former paid the rent to the latter is false and that all these defendants are in collusion with each other in order to defeat the plaintiffs' claim. This is a finding of fact with which we cannot interfere. It cannot be said a matter of law as urged by the learned advocate that when two parties coma to Court and one says that he has made the payment and the other 'says that he has received it the Court has no power to disbelieve the fact. We are not aware of any authority which lays down that when the parties make falsa allegations before the Court the Court has no right to disbelieve it. Mr. Mitter further objects to the observations made by the learned Additional District Judge in his judgment that ha could not believe the payment made by the tenant-defendants to defendants 4 and 5 as it should have been made to all the shebaits jointly. It is argued that there is no such law that payments to some of the shebaits could not be acceptable in law. What the learned Additional District Judge really means is that if the payments were honest and real they would have been made to all the shebaits and not to defendants 4 and 5 alone. These defendants have changed sides during the litigations and their case is not worthy of credit.

9. These are all the points which have bean taken in the two appeals. We dismiss both the appeals with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //