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Nagendra Nath Mitra Vs. Sree Sree Baldeoji Thakur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 1095 of 1948
Judge
Reported inAIR1952Cal350
ActsCode of Civil Procedure (CPC) , 1908 - Order 4, Rule 1 - Order 6, Rules 14 and 15
AppellantNagendra Nath Mitra
RespondentSree Sree Baldeoji Thakur
Appellant AdvocateS.C. Lahiri and ;Anukul Chandra Dutta, Advs.
Respondent AdvocateSitaram Banerji, ;Amulya Charan Dutta, ;Kamjit Mukherjee and ;Khagendra Nath Ganguli, Advs.
DispositionAppeal dismissed
Cases ReferredJagadindra Nath v. Hemanta Kumari
Excerpt:
- .....as sree sree baldeoji thakur, represented by his next friend shebait sreemat goswami sree sree-krishna raiji maharaj. the plff's. allegation was that the deity baldeoji thakur was located in premises no. 20, banstala street along with other deities; that the shebait of the deity was krishna raiji; that the deft, was permitted to occupy the disputed premises and that the licence has been determined by a notice to quit.3. the defence of the deft, was that there is no deity by the name of baldeoji; that the disputed. premises is held by the deft, as shebait of the deity shiva thakur; that the plaint was not properly signed & verfied & that the suit was not maintainable. on these pleadings, several issues were raised which are to be found on p. 3 of the paper book.4. the trial courts.....
Judgment:

G.N. Das, J.

1. This appeal is on behalf of the deft. & arises out of a suit for ejectment of the deft. from the disputed property namely premises No. 7, Cornfield Road, Ballygunge, on a declaration that the deft, is a licensee in respect thereof & that the license has been terminated by notice. There is a prayer for a permanent injunction restraining the deft, from entering the premises.

2. The plff. in the suit was described as Sree Sree Baldeoji Thakur, represented by his next friend Shebait Sreemat Goswami Sree Sree-Krishna Raiji Maharaj. The plff's. allegation was that the deity Baldeoji Thakur was located in premises No. 20, Banstala Street along with other deities; that the Shebait of the deity was Krishna Raiji; that the deft, was permitted to occupy the disputed premises and that the licence has been determined by a notice to quit.

3. The defence of the deft, was that there is no deity by the name of Baldeoji; that the disputed. premises is held by the deft, as shebait of the deity Shiva Thakur; that the plaint was not properly signed & verfied & that the suit was not maintainable. On these pleadings, several issues were raised which are to be found on p. 3 of the paper book.

4. The trial Courts held that the plff. deity-was in existence & that Sree Krishna Raiji was the then Shebait of the deity Baldeoji; that the deft. was a licensee & that the licence has been validly determined but that the plaint was not a proper plaint. In the result, the suit was dismissed. Against the decision of the trial Court, an appeal was taken by the plff. to the lower appellate Court. A cross-objection was filed on behalf of the deft. In the lower appellate Court, the plff. filed an application for permission to have the plaint signed & verified by the Shebait Sree Krishna Raiji Maharaj. The lower appellate Court,, found that the deity was properly represented by Krishna Raiji Maharaj; that the plaint was properly signed & verified; that the deft, had no title to the disputed property which belonged to the deity Baldeoji & that the deft, was a licensee, the licence having been properly determined. On these findings, the lower appellate Court decreed the suit & made the requisite declarations. Against the decision of the lower appellate Court, the deft, lias preferred this appeal.

5. Mr. Surajit Chandra Lahiri, appearing on behalf of the deft. has raised two contentions.

6. In the first place; he contends that the premises No. 20, Banstala Street does not belong to the deity & that the deity is not entitled to bring the suit. Reliance is placed on certain resumption proceedings which go to show that premises No. 20, Banstala Street was released in favour of a different diety Gopal Jiu. This question, however, is not strictly material in this case. The plaint recites that the deity Baldeoji along with other deities is located in the premises No. 20, Banstala Street. The title to that property is not in question. The title to the disputed premises has been concurrently found by the Courts below to be in the deity Baldeoji, the plff. in the suit. The finding on this point is based on the admissions made by the deft. in a previous suit & on other evidence to which it is not necessary to refer. The first contention therefore must be overruled.

7. The second contention put forward is that the present suit is not the deity's suit. It is submitted that the Shebait Krishna Raiji Maharaj delegated his functions to Sankarsan Das under a power of attorney & Sankarsan Das in his turn delegated his powers to one Goaldas that it is the latter who has signed the plaint & is responsible for the suit. This argument, in my opinion, is based on a misconception of the plaint. In the plaint it is specifically recited that the plff. is the deity Baldeoji represented by the Shebait Krishna Raiji Maharaj. The body of the plaint recites that the disputed premises belongs to the deity Baldeoji & that the present Shebait is Krishna Raiji Maharaj. The only part which Goaldas played is that the plaint was signed & verified by him. The question whether the suit is the deity's suit instituted under the instructions of the She-bait Krishna Raiji Maharaj was not put in issue as will appear from the issues which were framed in the trial Court. The written statement does not specifically raise tills point. The general statement that the suit is not maintainable cannot be said to cover the argument which is now sought to be raised. Mr. Lahiri relies on the finding of the trial Court:

'This, in my opinion, a Shebait cannot do & the plaint as it has been filed is not a proper plaint at all.'

This sentence has got to be read with what follows it.

The learned Munsif proceeds to say:

'The signing & verification of the plaint by Goaldas Mundra who derived his authority not from the Shebait direct but from his constituted attorney Sankarsan Das, cannot be said to be a proper verification & signature.' This sufficiently indicates that what was really agitated in the trial Court was the question whether the right to verify & sign the plaint can be delegated by the Shebait Krishna Raiji to Sankarsan Das & by Sankarsan to another person. The question thus is whether a Shebait can delegate his power to an agent & whether there could be a further delegation of that power by that agent to another person. The power of attorney granted to Sankarsan clearly confers on Sankarsan Das the power to sign & verify plaints & to do various acts mentioned in that document. Para. 8 of the power-of-attorney empowers Sankarsan Das to delegate his powers mentioned in para 3 of the power-of attorney including the power to sign & verify plaints to a sub-agent. It is by virtue of this power that Sankarsan Das delegated the power so conferred on him on the sub-agent Goaldas Mundra. It is, therefore, obvious that in point of fact the power to sign & verify was delegated by the Shebait Krishna Raiji Maharaj to Sankarsan Das who in his turn delegated the power to Goaldas Mundra & the last named person signed the plaint by virtue of such delegated authority. The question still remains whether in law this power to sign or verify plaints can be delegated. The right of a trustee to delegate his powers is compendiously expressed in the maxim 'delegatus non potest delegare.' The limitations on the exercise of such power have been clarified by judicial decisions. In the leading case, in 'Re: Speight; Speight v. Gaunt', (1883) 22 Ch. D 727 at p. 763, it has been laid down that the rule that trustees or agents cannot delegate their powers simply means that:'A man employed to do a thing himself has not the right to get somebody else to do it. But when he is employed to get it done through others he may do so.'

In a later case, viz., Leuroyd v. Whiteley (1887) 12 A. C. 727, it was held that where the act complained of is one where the services of. others have to be availed of in the ordinary course of business the maxim 'delegatus non potest delegare' has no application. The above cases deai with the power of trustees. The rule enunciated above has ben applied to British Indian Cts. by their Lordships of the Judicial Committee in the case of 'K.S. Bonnerji v. Sitanath', 49 I. A. 46, The principles above enunciated were applied by Mukherjea & Bartley, JJ. in the case of 'Gopal Sridhar v. Sashibhusan', 60 Cal. 111, to the case of Shebaits & it was ruled that where the act in. question requires exercise of his own judgment the Shebait cannot delegate the exercise of that judgment to another person. In a recent case, viz.,, the case of 'Official Receiver v. Sm. Jogmaya ' Dassi', 50 C. W. N. 272, this Court has held that a Shebait cannot delegate his authority even to a co-shebait. The position therefore seems to be that a Shebait is not entitled to delegate the duties of his office, though he may appoint a person to carry out his ministerial duties. The signing & verification of a plaint in a suit authorised by the Shebait cannot be said to be a delegation by the Shebait of any act which requires exercise by the agent of his own judgment. The filing of the suit is no doubt an act which requires the exercise of judgment by the Shebait, on the principle enunciated in the case of 'Jagadindra Nath v. Hemanta Kumari', 31. I. A. 203 at p. 210, that the right of suit by a Shebait is an instance of exercise by the Shebait of his right of management of the debut ter estate.

8. In the present case, as I have said, the question whether the suit was authorised by the Shebait was not specifically alleged in the written, statement. No issue was raised on this point. It is, in my opinion, too late in the day to submit in a Court of second appeal that this Court should hold that the suit was not authorised by the She-bait & that it was a 'mala fide' act on the part of Goaldas, the attorney of Sankarsan Das, who in his turn was attorney of the Shebait Sreemat Krishna Raiji Maharaj.

9. Mr. Banerjee appearing for the respondent has drawn my attention to the scanty materials such as there are on the record which show that the suit was in fact authorised by the Shebait. The solicitor's notice speaks of the Solicitor acting: under instructions from the Shebait Krishna Raiji Maharaj. The cross-examination of the plff's. witnesses was never directed to this point. On the face of the plaint, the suit is by the deity represented by the Shebait. I cannot, therefore, hold that the suit is not a suit authorised by the Shebait & that it is not the deity's suit. If it is the deity's suit properly instituted by the Shebait Krishna Maharaj, the fact that the verification & signature of the plaint which are purely ministerial acts, are made by an agent or sub-agent does not render the plaint to be not a proper plaint, as erroneously held by the learned Munsif. The second contention raised by Mr. Lahiri must also be overruled.

10. The result, therefore, is that this appeal fails & must be dismissed with costs.

11. Let the records be sent down as early as possible.

12. Leave to appeal under Cl. 15 of the Letters-Patent asked for is refused.


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