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Bidhu Sekhar Banerjee Vs. Kuladaprasad Deghoria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal245,(1919)ILR46Cal877
AppellantBidhu Sekhar Banerjee
RespondentKuladaprasad Deghoria
Cases ReferredJodhi Rai v. Basdeo Prasad
Excerpt:
parties - shebait, suit against--deity, if always a necessary party--co-shebaits, if and when all of them necessary parties in a suit under order xxi, rule 63, civil procedure code--parties, addition of--limitation--civil procedure code (act v of 1908), order vii, rule 9, sub-rule (2). - .....by the judgment-debtor as her shebait. on the 6th march, 1916, the plaintiff instituted the present suit against the present defendant. it seems to be abundantly clear on the plaint that this plaint was filed against the present defendant, because as the shebait of the goddess he preferred a claim and succeeded in obtaining an order upholding the claim of the goddess. that seems to me to be obviously so because any proceedings as between the plaintiff who was the decree-holder and the defendant in his personal capacity as judgment-debtor would be barred under the provisions of section 47 of the civil procedure code and i think, both from the allegations in the plaint and from all the circumstances, that the plaintiff instituted these proceedings against the defendant as.....
Judgment:

Fletcher, J.

1. This is an appeal preferred by the plaintiff against the decision of the learned officiating Subordinate Judge of Burdwan, dated the 19th September, 1917. The suit was brought by the plaintiff to set aside an order allowing a claim preferred under Order XXI, Rule 58 of the Code of Civil Procedure. The plaintiff was a decree-holder who had obtained a decree on the 21st November, 1911. That decree, was upheld on appeal and. after that, execution proceedings were instituted and the property of the judgment-debtor was attached. Then the present defendant, who was the judgment-debtor, put in a claim on behalf of a Hindu deity of the name of Kalyaneshwari Debi, alleging that the property that had been attached was not his but was the property of the goddess. On the 20th March, 1915, the proceedings in the claim case terminated, the Judge, upholding the claim of the deity which had been preferred and only preferred by the judgment-debtor as her shebait. On the 6th March, 1916, the plaintiff instituted the present suit against the present defendant. It seems to be abundantly clear on the plaint that this plaint was filed against the present defendant, because as the shebait of the goddess he preferred a claim and succeeded in obtaining an order upholding the claim of the goddess. That seems to me to be obviously so because any proceedings as between the plaintiff who was the decree-holder and the defendant in his personal capacity as judgment-debtor would be barred under the provisions of Section 47 of the Civil Procedure Code and I think, both from the allegations in the plaint and from all the circumstances, that the plaintiff instituted these proceedings against the defendant as representing this Hindu deity. The learned Judge of the Court below on the merits was wholly in favour of the plaintiff. But the plaintiff's suit failed for this reason. The learned Judge held that the idol was a necessary party to the suit and, as the application to add the idol as a party was made after the expiration of one year from the disposal of the claim case, therefore, the suit as against the idol was barred by limitation. In my opinion, the authorities show quite clearly that the idol is not a necessary party to such a suit. The right to sue is vested in the shebait; and, if the right to sue is vested in the shebait, it is not necessary that the idol should be there as a party. The suit can be properly maintained in the name of the shebait. If authority is wanted for this proposition, the decision of the Privy Council in Jagadindra Nath Roy v. Hemanta Kumari Debi (1904) I.L.R. 32 Calc. 129; L.R. 31 I.A. 203 may be cited.

2. The next point was that, as the defendant was sued in a representative capacity, the plaint was defective and that the defect would not be cured without the addition to the name of the defendant the fact that he was being sued on behalf of the idol. Order VII, Rule 9, Sub-rule (2) of the Civil Procedure Code states that where the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the plaint shall contain such statement as will show in what capacity the plaintiff or the defendant sues or issued. The decisions of this Court are quite clear on this point. It is not necessary to state in the cause title of the plaint the representative capacity in which the plaintiff or the defendant sues or is sued, although no doubt that is a convenient place to make such a statement. In support of that, I may refer to the decision in Kuarmoni Singha Mandhata v. Wasif Ali Meerza (1915) 19 C.W.N. 1193 and also to the decision in Dinabandhu Nandi v. Chamiraddi Miji (1916) 34 Ind. Cas. 548. If it is not necessary to state that in the cause title; it seems to be quite clear in this case that the plaint does-show that the defendant was being sued as the shebait of the idol. In any case, the defendant being before the Court, the failure to make such a statement would hot be a defect of party but would merely be a matter which the Court might amend by adding a statement to the plaint that the defendant was being sued in this particular capacity, it would not be adding a new party; it would be merely rectifying a simple omission to state that the defendant was being sued as the shebait of the deity. That it would be a mere omission is sufficiently shown by a Full Bench decision of the Allahabad High Court in the case of Jodhi Rai v. Basdeo Prasad (1911) I.L.R. 33 All. 735, 737.

3. Then it was said that the suit was, defective for want of other parties; that is, that the defendant had co-shebaits who were not made parties to the suit. There is a very short answer to that and it is this: The present defendant on behalf of the idol preferred; the claim case as has already been stated. In that proceeding he succeeded. But it was not suggested by him there that there were other co-shebails who were necessary parties to the proceeding. As between the present plaintiff and the defendant as such shebait, the proceedings in the claim case are conclusive, subject only to the suit mentioned in Order XXI, Rule 63 of the Civil Procedure Code. That being so, the only persons litigating this matter are the parties before the Court in the claim case. The other co-shebaits will not be affected either by the claim case or the present suit. In my opinion, it is quite clear that the co-shebaits are not necessary parties in this case, which is to vacate the order made at the instance of the defendant in the claim case. That disposes of the points on which the learned Subordinate Judge has decided the case against the plaintiff, except one point, on which the learned Judge came to the conclusion that the property was, in fact, secular property subject only to a charge for maintaining the worship of the Hindu goddess Kalyaneshwari Debi. Now, the defendant in attempting to support the judgment of the learned Judge has argued that the conclusion arrived at by the learned Judge that this property is secular property subject only to a charge for the maintenance of the worship of the deity is wrong. The case seems to me, to stand in. this way. As to plot No. 1, the plaintiff cannot go into that point because that was adjudicated on in the previous claim case and, this suit having been instituted more than one year after the adjudication in the previous claim case, the matter with regard to plot No. 1 is barred by limitation. The other plots all seem to me to stand or fall together. It is quite true that the sanads are not in identical terms and the words vary and perhaps are stronger in some cases than in others. But having gone through the sanads I came to the conclusion that the language used in these ancient documents is in every case ambiguous. Whether the grantor intended to make an out-and-out grant in favour of the shebait, subject only to the maintenance of the worship of the deity or whether the grant was made wholly for the benefit of the idol seems to be a matter on which there is a good deal to say. But the subsequent conduct of the parties in this case is not open to doubt. There is a series of transactions extending over a considerable period where these properties have been dealt with by the present defendant as his own properties. Mortgages have-been made to satisfy personal decrees, mortgages have been made for meeting the family expenses of the shebaits and for other purposes which clearly could not be matters, which were to benefit the idol. In addition to this, these mortgages are usufructuary in form. At any rate, during the terms for which the usufructuary mortgages were in existence, the properties would be absolutely withdrawn from the services of idol, if the properties had been dedicated out and out for her benefit. I see no reason to disagree with the conclusion arrived at by the learned Subordinate Judge that these properties were not, in fact, dedicated out and out for the benefit of the idol, but were granted to the shebaits subject only to a charge for maintaining the worship of the thakur. In the result, the present appeal must be allowed except as regards plot No. 1 mentioned in the, schedule annexed to the plaint and the order in the claim case, dated the 20th March, 1915, set aside. The judgment and decree of the learned 'Subordinate Judge will be varied, and in lieu of the judgment, dismissing the whole suit, there will be a declaration that a three annas share of the property described in the schedule annexed to the plaint other than plot No. 1 does not form the absolute debutter property of the deity Kalyaneshwari Debi, but is subject to a charge only for the maintenance of her worship, The appeal is allowed with costs of this Court and of the Court below.

Cuming, J.

4. I agree.


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