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Sree Sree Sreedhar Jew Vs. Kanta Mohan Mullick and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1947Cal213
AppellantSree Sree Sreedhar Jew
RespondentKanta Mohan Mullick and ors.
Cases Referred and Ketokey Charan Banerjee v. Sm. Sarat Kumari Debi
- gentle, j.1. a wealthy man named motilal seal was the member of a family governed by the dayabhaga school of hindu law. he died in 1854 leaving 5 sons of whom kanailal was the youngest and who inherited 1/5th of his father's estate. this portion was more than considerable and has increased in value since motilal's death. kanailal died in 1884 leaving one son, gopal lall, and two married daughters, sukumari and hemkumari. gopal died in 1902, intestate and childless, leaving two widows kumudini and noyan manjuri, the latter being a lunatic; they died in 1917 and 1937 respectively. defendant 2 is the only son of hemkumari and a cousin of the remaining four defendants who are the sons of sukumari; thus, all the defendants are grandsons of kanailal. hemkumari and sukumari died some years ago......

Gentle, J.

1. A wealthy man named Motilal Seal was the member of a family governed by the Dayabhaga School of Hindu Law. He died in 1854 leaving 5 sons of whom Kanailal was the youngest and who inherited 1/5th of his father's estate. This portion was more than considerable and has increased in value since Motilal's death. Kanailal died in 1884 leaving one son, Gopal Lall, and two married daughters, Sukumari and Hemkumari. Gopal died in 1902, intestate and childless, leaving two widows Kumudini and Noyan Manjuri, the latter being a lunatic; they died in 1917 and 1937 respectively. Defendant 2 is the only son of Hemkumari and a cousin of the remaining four defendants who are the sons of Sukumari; thus, all the defendants are grandsons of Kanailal. Hemkumari and Sukumari died some years ago. The defendants succeeded to Kanailal's estate, which includes a large family house, No. 60 Colootollah Street, Calcutta. It is common ground that the defendants are the shebaits of the plaintiff deities and the suit is concerned with rights, if any of the deities with respect to the house.

2. The plaintiffs are the deities of the family and, it is common ground, they have been located in the house since the year 1848. In the plaint it is alleged that portions of the house have been set apart for their use, being, (a) a room or a 'thakur ghar' (on the first floor) for their ordinary location and daily worship; (b) certain other portions; (c) two portions (on the ground floor) for the performance of annual festivals and ceremonies of 'Dolejatra' and 'Durgotsab,' which are called the dolebari and durgabari respectively, and to which portions the thakurs are removed on those occasions; the whole of the above portions are referred to as the 'thakurbari.' The date and by whom the deities were installed in the house has not transpired; it was stated that Motilal founded them, but it is not in dispute that they were worshipped, and the various religious ceremonies were carried out, in the house, by Motilal, Kanailal, and Gopal, and by Kumudini (the senior widow of Gopal) until the dates of their deaths. Since Noyan Manjuri was a lunatic and did not reside in the house, it may be, she did not actually participate in the worship and ceremonies. Since the death of Kumudini in 1917, the defendants and their families have been the sole occupants of the house where they have carried out the worship and festivals. Since they are Sudras by caste, they have performed the ceremonies by a Brahmin priest.

3. Upon the death of Noyan Manjuri in 1937, defendant 2 instituted, against defendants 1, 3, 4 and 5 Suit No. 366 of 1937 for partition of the family properties, including the house. On 22-11-1938, a preliminary decree was passed by which, inter alia, a Commissioner of Partition was appointed to divide the properties and to set apart a suitable portion of the house for the location and residence of the thakurs and for their festivals. In his return the commissioner has divided the house into six portions, one portion being allotted to each of the five defendants and the remaining portion to the thakurs.

4. The division of the house by the Commissioner and his allocation of the divided portions, so far as is material, is the following : (a) The thakurghar and some other rooms (alleged to belong to the thakurs or to which they are entitled to the sole use) and the dolebari (including the chadni and adjacent rooms or covered places) are included in the portions respectively allotted to defendants 1, 2, 3 and 4. (b) The thakurs have the whole of the Durgabari and some small parts of, what is alleged to be, the thakurbari together with other parts of the house which at present do not form part of the alleged thakurbari.

5. The division by the Commissioner was affected after a considerable number of meetings between the Commissioner, the defendants, as parties to the partition suit, and their legal advisers; all the defendants finally agreed to the division, as it is made, at a meeting held on 13-5-1944. The Commissioner's return is dated 30-6-1944 and was filed in Court on 11-7-1944; on 25-7-1944 defendant 3 filed exceptions to the return; On 30-11-1944 Das J., dismissed the exceptions, confirmed the return and passed a decree in accordance with it. It has to be noted that the thakurs were not parties to the partition suit.

6. About three months after all the defendants, as parties to the partition suit, had agreed to the division of the house, the present suit was instituted on 21-8-1944 in which several claims are made; those which have not been abandoned and are pressed are : (a) a declaration that the thakurs are entitled to be located and to have their worship and religious festivals and ceremonies conducted in the thakurbari; (b) an injunction restraining the defendants, their servants and agents from removing the thakurs therefrom.

7. The suit was instituted by Rani Moni Dassi, as next friend of the thakurs; she is the wife of defendant 3 and has not been appointed by the Court as next friend. Defendants 1 and 2 deny and contest the claims made in the suit. In their written statement, defendants 3, 4 and 5 allege that the thakurs have acquired title to the thakurbari which at all material times was regarded as trust property belonging to them and they, substantially, admit all the allegations in the plaint. Throughout the proceedings these defendants have supported the claims by the plaintiffs.

8. Shortly the plaintiffs' case is that the thakurs are entitled to the use of right to, and benefit of, the whole of the thakurbari, including the thakurghar, dolebari and durgabari and other parts of the house which the plaint alleges forms the thakurbari and which is coloured yellow in the plan of the house annexed to the plaint; they are entitled to be and to remain located in the thakurghar; they cannot be moved to any other part of the house; the division of the thakurghar, dolebari and other parts of the thakurbari amongst the defendants is in derogation of their rights; and the suit in which this has been effected is one in which they were not parties and they are not bound by the division.

9. In several documents, orders and decrees which have been exhibited reference is made only to plaintiff 1 thakur but the rights of both thakurs are alleged to be identical and, therefore, it is convenient to treat all evidence, oral and documentary, as being referable to both of them. Since the whole of the Durgabari is included in the portion allotted to the thakurs reference to it has not been made; the evidence and contentions relate to the thakurghar and the dolebari.

10. During the course of the trial considerable argument was directed to the question of alleged dedication or partial dedication of the thakurbari but Mr. S.N. Banerjee, for the plaintiff thakurs, eventually relied solely upon a deed of trust dated 21-2-1848 by which, he contended, Motilal had conveyed to trustees the family house upon trust) inter alia, for use by the thakurs of the thakurghar for their location and of the dolebari for the celebration of the annual dolejatra. He also relied in support of this contention upon the several other documents to which I have previously referred, and which hereafter will be discussed.

11. The matters which arise for decision upon the issues are whether? (a) There was a trust in the thakurs' favour by the deed of 21-2-1848; (b) Rani Moni Dassi is entitled to act as the thakurs' next friend; (c) the suit is maintainable by reason of being instituted by Rani Moni Dassi as next friend.

12. It is first convenient to refer to the oral evidence. Professor Asoke Nath Sastri of Calcutta University was called as a witness for defendant l. He is a Premchand Roychand scholar and his special subject is Vedanta; he is also the family priest of the Mohonlal Mitra family. Part of his testimony related to the dedication of a house, or a part of a house, to a deity and, he said, from the religious or scriptural aspect, the solemn ceremony, which he described and which includes the sankalpa and Samarpana, is required. Since reliance is not placed upon a dedication, reference is not required to that part of Professor Sastri's evidence. He also said that, with respect to movable deities, the plaintiffs being such deities, the Sastras do not prohibit them being shifted from one location to another. He added, he had visited the family house, had seen the room to which it is proposed the thakurs should be removed and there is no objection to such removal from the scriptural and sastric points of view. He inspected the chandni and other rooms of the dolebari, and expressed the opinion they had been defiled and need new consecration, even assuming there had been a consecration. The reasons for this opinion will appear when I deal with the evidence of the next witness.

13. Bepin Behary Chatterjee, was called on behalf of the plaintiff thakurs. He said he is 51 years of age and works as a priest. The substance of his evidence-in-chief is as follows: He has performed the worship of the thakurs for 40 years and, during the last 20 years, has daily performed the chandipath ceremony by reciting the Slokas from the Chandi in the Dalan, just outside the door of the thakurghar. The object of such recitation is an invocation to the supreme primordial force and for the purpose of having peace and happiness and to ward off evil. He has performed the Doljatra in the mansion for 40 years, and during this annual celebration, in the spring season, the thakurs are taken to the Dolbari where they remain for two days. No repairs have been carried out to the Dolbari since the death of Kumudini (who died in 1917) but it is white washed on the eve of the Dol festival.

14. In cross-examination, B.B. Chatterjee added to the evidence which he gave in examination-in-chief and made a number of admissions. He said the thakurs have been removed to other parts of the house on many occasions: after the death of the wife of defendant 1 they were taken to the room whore she died and the Sastayan ceremony was performed whilst they were there; they have also been taken to the rooms in which other members of the family died; when repairs were carried out to the thakurghar, and when it is washed, they are removed to another room where they remain for some days and where the daily pujas are performed, including the chandipath and surjapuja ceremonies. The witness admitted that the room to which it is proposed to remove the thakurs is better and larger than the present thakurghar. In regard to the Dolbari he admitted that : during 363 days in the year, when the chandni is not used for the Dol festival, cows and horses belonging to the defendants and their families are kept in it; defendant 3 used one room as bedroom and parlour for about a year (at first he said for a few days); a kid has been kept in another room; and in a third room a number of dogs are kennelled which belong to defendant 3 and his son.

15. From the foregoing oral evidence I find as a fact that : the thakurs have been located for the past 40 years in the room in the first floor, (which is allotted to defendant 3 by the Commissioner of Partition); they are movable thakurs and there is no religious objection to their removal from the room where they are now located; the room to which it is contemplated removing them is better and more commodious than the present thakurghar; they have been temporarily removed to other rooms on many occasions, and their daily worship has been performed in some of these rooms; except for two days in the year when the dolejatra is celebrated, the dolebari is put to the uses-stated by B.B. Chatterjee.

16. One further part of this witness's evidence requires reference. In reply to a question from whom he first learnt of the present suit, he said Rani Moni Dassi went to him weeping and lamenting and enquired if the thakurs would not give peace, the matter regarding them had been settled but trouble was again arising. Apparently she referred to the agreement relating to the division of the family house and the institution of the present suit in which she is the next friend. Chatterjee further said, defendant 3 told him he (witness) had been asked to go to the plaintiffs' attorneys to give evidence, defendant 3-subsequently connected to Rani Moni Dassi - had brought a suit in respect of the thakurs.

17. Prom this testimony, which I accept, it is clear that defendant 3 was engaged in obtaining evidence and witnesses to testify for the plaintiffs. Defendants 3, 4 and'5 and Rani Moni Dassi, have not gone into the witness-box, although it was alleged by Mr. N.C. Chatterjee, for defendant 1 and whose observations were adopted by Mr. A.K. Sen, for defendant 2, that the present suit is not a bona fide proceeding but in substance and in fact, is a suit by defendants 3, 4 and 5 against the other two defendants, the thakurs' names being used for that purpose and whose interest -are not the real subject-matter of the suit.

18. The relevant provision of the trust deed dated 21st February 1848 can now conveniently be stated. They are as follows : Motilal conveyed to trustees a large number of immovable properties including 'all that upper roomed brick built messuage, tenement, family dwelling house and Thacoorbari adjoining thereto' (No. 60 Colootollah St.) to have and to hold them to the uses upon the trusts and for the several interests and purposes therein expressed and declared and the trustees should demise and lease all or any part of the several properties

except only the said family dwelling house and thakurbaree adjoining thereto at Colootollah which shall be reserved and kept and used for the residence of the wife and family of the said Motilal Seal

and the rents and profits thereby derived in trust to pay, discharge and defray the several costs charges and expenses therein enumerated and 'for the expenses of keeping up the worship of the family idol and the usual and established expense for poojahs' provided that if any son or grandson and great grandson should remove from the family house they should not carry with them any of the jewels furniture glass wares 'nor shall they carry with them or be entitled to remove for any time the household God called Sreedhar' (plaintiff 1). In Schedule A of the deed provision is made for payment out of the income of the sums of Rs. 1000 for Durga Puja and Rs. 500 for Dolejatra annually at the family house. The above are short relevant abstracts from a very long and elaborate deed of trust.

19. The plaintiffs place reliance upon the inclusion of the words 'Tacoorbari' and 'thakurbaree' with the family house, being one of the properties, conveyed to the trustees; the direction to pay the expenses of the worship of the family idol the prohibition against taking the thakur from the house; and the provision in the schedule for the annual expenses of the two festivals in the family house. It was contended by Mr. Banerjee, that the above provisions in the deed created a trust in favour of the thakurs of the thakurghar and of the Durgabari and Dolbari. In subsequent years some of the trusts, or part of them, created by the deed, have been held to fail for reasons which are not relevant in this suit but this does not affect the question whether the above mentioned alleged trust was created.

20. Before the meaning and effect of the trust deed are examined, it is convenient to refer to the other documents upon which the plaintiffs rely as supporting the alleged trust.

20a. Motilal died in 1854; Kanailal, his fifth son, died in 1883 at which time he was the owner of and was occupying the dwelling house. It is not material, in the present suit, how this was accomplished. Kanailal's will dated 10th July 1883, states that the trust funds were in the hands of a receiver and it directed that, out of his private estate, his executors and heirs should have power to spend annually Rs. 6000 on the Durga Puja and Rs. 1500 on the Doljatra over and above the amounts received from the trust estate.

21. Kanailal's only son, Gopal, died in 1902 intestate and childless. Kumudini, his senior widow, applied for grant of letters of administration of his estate. The Suit No. 4 of 1902 was marked as a contentious cause in which Kumudini was the plaintiff and Noyan Manjuri, the junior widow, and one other were the defendants. An administrator pendente lite was appointed who was directed by order, dated 28-7-1903, inter alia, to pay to Kumudini Rs. 1500 per annum for the Doljatra festival and a like sum for the Durga Puja and to pay Rs. 50 monthly for the daily sheba of the family thakur. By another order in the same suit, dated 26-8-1904, the administrator was directed to pay each year to Kumudini Rs. 6000 for the Durga Puja and to put her in possession of the Pujar Dalan Court Yard and rooms used on that occasion.

22. In 1908, suit No. 9 of 1902 was withdrawn as Noyan Manjuri, through her next friend, instituted Suit No, 427 of 1907 against Kumudini for partition of Kanailal's estate. On 29-1-1908 a preliminary decree was passed by consent by which provision was made for the widows and properties were set apart for performance of the religious ceremonies of the thakurs. On 5-4-1913, by an order made in that suit, the receiver was directed to frame a scheme for provision of the debsheba and other purposes. The receiver reported that Rs. 9000 per annum was required; Kumudini put in objections on the ground that this sum was insufficient and filed an affidavit, affirmed on 7-4-1914, by Pundit Ramsebak Banerjee, who described himself as a Brahmin Pandit long associated as such with the family of Motilal. In para. 4 the affidavit states that, according to the custom of the family, the worship of plaintiff 1 deity had always been performed and had to be performed at the family residence 'No. 60, Colootolla Street. On 2-9-1915 a final decree was passed in the suit by which, inter alia, the receiver was directed to deliver possession to Kumudini of properties specified in Schedule 'C' of the decree as being those set apart for the performance of the trusts contained in Kanailal's will.

23. On 28-11-1917 the present defendants 3 and 4 instituted Suit. No. 1223 of 1917 against Nayan Manjuri and the present defendants 1, 2 and 5 claiming a declaration that the present defendants were entitled to all the properties of the estate. On 28-1-1919 a consent decree was passed. One of the terms of settlement provides that the thakur (plaintiff l) should remain in the family dwelling house. In other interlocutory proceedings in the suit, defendant 2 affirmed, in an affidavit dated 5-3-1918, that there were thakurs established in the family dwelling house. Defendant 5, in an affidavit affirmed on 6-3.1918 stated that since Kumudini's death the present defendants had been causing the debsheba of the thakurs to be performed and they alone were entitled so to do. In a later affidavit, affirmed on 21-3-1927, defendant 5 stated that the family idols and thakurs of the family of Motilal were located in the house and in which there was a separate building known as Dolbari, specially built by Motilal, for the performance of the Doljatra ceremony and in which it used to be performed every year.

24. The above are the several documents upon which Mr. Banerjee relied as supporting his contention that the thakurs are the beneficiaries of a trust created by the deed of 1848.

25. The statements in the affidavits of defendants 2 and 5 are relied upon as admissions. So far as location of the thakurs is concerned none goes further than stating, what is common ground, namely, that they are established in the house and the defendants are performing their debsheba. It is not stated in any of these affidavits that the thakurs are located in any specified part of the house.

26. Particular reliance is placed upon the statement in the second affidavit of defendant 5 that a separate building, known as Dolebari, was specially built by Motilal for performance of the Dolejatra ceremony. The trust deed makes no reference to the Dolebari; it provides only that, out of the income, an annual sum of Rs. 500, should be used to defray the expenses of the Dolejatra at the family house. This statement, at the highest, is hearsay; the source of the information is not given; no documents have been forthcoming to support it; and the defendant has not been called as a witness to bear out the statement in his affidavit. I am unable to accept the contention that this statement is an admission binding upon all the defendants and in the absence of defendant 5 from the witness box I do not accept it as reliable or correct. The use to which the Dolebari has been put during the past 30 years, or thereabouts, as a stable, cowshed, kennell, etc., shews it was not a sacred part of the house to which special reverence was required. Its use, upon two days in each year, as a place in which the dolejatra is celebrated reflects only that it is of a convenient size and has other requirements for that purpose.

27. The other documents upon which reliance is placed, Kanailal's will, affidavit of Pandit R. Banerjee, orders and decrees, make provision for payment of the expenses of the various religious ceremonies in the house but none makes reference to any part of the house in which a festival or ritual is to be performed except that the order dated 26-8-1904 required the administrator pendente lite to put Kumudini in possession of the Durga Dalan Court for the Durga Puja to be performed there. The affidavit of Pundit Banerjee goes no further than stating that the worship had always been performed in the house. If the thakurs, as beneficiaries, are entitled under the trust deed to the sole use and benefit of the thakurghar it could have been so stated.

28. In my view none of the documents carry the matter beyond the undisputed fact that the thakurs are located in the family house where their worship has to be performed and the religious festivals are celebrated.

29. Before returning to consider the provisions in the trust deed of 21-2-1848, reference can be made to the authorities. In Gangji Reddi v. Tammi Reddi , it was held that when the profits of a usufructuary mortgage were not all applied to charity but merely were treated as the purse from which the expenses of the charity were met, there was no dedication to a charity. In Anath Nathday v. A.B. Mackintosh ('72) 8 Beng. L.R. 60 two brothers agreed in writing that for 20 years after the death of the survivor of them their executors should perform puja at their dwelling house out of the income from specified property; it was held, in such case, there was no dedication of the house and, at page 71, Macpherson J., observed:

There is a great difference between setting apart property to provide an income for religious purposes and merely saying that the ceremonies which are to be paid for out of that income shall be performed m the family dwelling house.

30. By the deed of trust, Motilal conveyed a number of immoveable properties, including No. 60, Colootollah Street, to trustees; all these properties, except the family house, were to be let on leases and the rents and profits thereby derived were to be used to defray the several costs charges and expenses, therein specified, including the worship of the thakur and the annual celebration of the Dolejatra. The rents and profits of the leases formed a fund out of which the expenses of the worship and festivals were to be paid. The provision, that the expenses of the festivals at the family house should be paid out of the income of the trust estate, did not have the effect of dedicating any part of the house as a Dolebari, or of creating a trust of the part of the house in which the dolejatra might be performed. The deed contemplates the festival being performed in the house but the part in which the ceremony should take place is not even prescribed and no mention is made of such part or of a dolebari in any place in the deed. The same observations apply to the worship of the thakur; there is no reference to a thakurghar nor to any part of the house in which the thakur was located. The house is described as 'family dwelling house and Tacoorbari adjoining thereto' at two places in the deed, which house is not to be let on lease but is to be reserved kept and used for the residence of the family. 'Adjoining' means contiguous with, neighbouring, next in order. The alleged thakurbari is in the middle of family house, according to the plan annexed to the plaint. The provision that, if any son, grandson or great grandson should remove from the family house, he should not carry with him or be entitled to remove the household God, is in the same part of the deed and should be read with a similar prohibition with respect to jewels, furniture and glassware. This is a prohibition against removal from the house, and not from one part of the house to another. It is no part of the plaintiffs case that any part of the house had been dedicated to the thakur before the deed was executed; other provisions in the deed shew this was not so as it states that Motilal had a good, sure, perfect, absolute and undefeasible estate of inheritance in fee simple in possession of and in all and every the messuages, lands, tenements, hereditaments and premises in the deed mentioned. No part of the family house belonged to the thakur prior to the date of the deed and I can find nothing in it by which the thakurbari or any part of it, including the thakurghar, was conveyed in trust for the thakur.

31. In my opinion, the thakurs are installed in the family, house where they are entitled to remain and from where they must not be removed but, although they have been located or kept in the present thakurghar for many years, this room is only placed at their disposal and they have no right to insist upon remaining there and can be removed to another suitable part of the house. Further, the thakurs have no rights in respect of the dolebari and, it would follow, the durgabari.

32. As above mentioned, criticism was made by Mr. N.C. Chatterjee, on behalf of defendant 1, that the suit is not brought bona fide on behalf of the thakurs but, in substance and in fact, is a suit by defendants 3, 4 and 5, who have supported the plaintiffs case throughout the proceedings against defendants 1 and 2. Learned counsel, in support of his criticism, referred to defendant 3 being actively engaged in obtaining evidence for the plaintiff. A thakur has legal rights which are enforceable by suit and, if the present suit is properly constituted, it cannot be dismissed because the plaintiffs' claims are supported by some of the defendants, one of whom has helped in the preparation of the plaintiffs' case.

33. A Hindu idol has a judicial status and the capacity to own property but this is only in an ideal sense : Prosonno Kumari Debya v. Golab Chand Baboo ('75) 2 I.A. 145. It has the power of suing and being sued and its interests are attended to by the person who has the deity in his charge and who is in law its manager : Pramatha Nath v. Pradyumna Kumar . The possession and management of a Thakur's property belong to the sebait together with the right to bring whatever suits are necessary for protection of the property, which right is vested in the sebait and not in the idol : Jagadindra Nath v. Hemanta Kumari ('05) 31 I.A. 203. The procedure of Indian Courts allows for a suit in the name of the idol or deity though the right of suit is in the sebait : Masjid Shahid Ganj v. Shiromani Gnrdwara Parbandhak Committee .

34. It emerges from the foregoing authorities, decided by the Judicial Committee, that whilst a Thakur can sue or be sued, the right of suit is vested in the sebait or sebaits, if more than one, and not in the idol and, in spite of being so vested, the procedure of the Courts allows a suit to be brought in the name of the Thakur.

35. Since the right of suit is vested in the sebait it must follow that, ordinarily, he alone can institute a suit in the thakur's name. When there are a number of sebaits this right is not theirs severally but they must act jointly. Usually all the sebaits should join as co-plaintiffs in a suit brought on behalf of a deity, 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 : vide Nirmal Kumar v. Jyoti Prasad : AIR1941Cal562 and the authorities therein cited; this principle must be the same whether the suit is in the name of the idol or in the names of the sebaits. In special circumstance, one or some of the sebaits can institute a suit and, in such instance, the other sebaits must be made defendants.

36. In these circumstances it appears, since all the defendants are the sebaits of the plaintiff thakurs and defendants 3, 4 and 5 are asserting rights of the thakurs in a thakurghar and dolebari at No. 60, Colootollah Street, which defendants 1 and 2 are disputing, that the proper course would have been for the first group of defendants to have instituted a suit in the name of the thakurs against the second group as defendants. Instead of this being done, the suit was instituted with the wife of defendant 3 as next friend of the thakurs and all the sebaits being made defendants; this has occasioned Mr. Chatterjee's critical observations as to the nature of the suit. If, however, the suit is properly constituted the Thakur's rights can be adjudicated in spite of the procedure having been adopted which has been criticised.

37. In considering whether the suit is duly constituted, two factors have to be borne in mind, (a) Rani Moni Dassi is a worshipper of the thakurs and (b) she has not been appointed by the Court as next friend but the suit was instituted without such appointment having been sought or made. Objection to the maintainability of the suit is made on the ground that in the absence of appointment by the Court, a person cannot institute a suit in the name of a thakur, except a sebait, no matter what interest that person may have in the thakur or its property.

38. The question of the institution of a suit in the name of a thakur by a next friend, who is not appointed by the Court, has arisen in two recent decisions in this Court. In Annapurna Debi v. Shiva Sundari Dasi : AIR1945Cal376 , Sen J. held that such suit is not bad; the learned Judge appears to have been of opinion that the rules relating to a suit by a minor can be invoked and followed in a suit by a thakur. The other case is Tarit Bhusan Roy v. Sree Iswar Sridkar Saligram Sila Thakur : AIR1942Cal99 , in which Nasim Ali and Pal JJ. sitting as an appellate Bench both expressed an opinion contrary to that of Sen J. Mr. S.N. Banerjee, for the plaintiffs, argued that the above opinion was not required for the decision in Tarit Bhusan Ray's case but, even if it is not obiter, this decision is not binding upon me and, also, I am not obliged to follow the decision of Sen J. Both must receive my respectful consideration but I am at liberty to prefer whichever one of these authorities I think should be followed.

39. It is not in dispute that, ordinarily, a shebait should institute a suit in the name of a thakur. It is also not in dispute that a worshipper in his own name as plaintiff, has a right of suit in respect of the thakur and its debutter property. This was decided in Giris Chandra v. Upendra Nath : AIR1931Cal776 in which the interest claimed was for the benefit of the idol. In Panehkari Roy v. Amode Lal : AIR1937Cal559 Mukherjee J., observed that, when the sebait himself is negligent or alienates debutter property in breach of trust, any member of the family may maintain a suit on behalf of the deities to recover the property and, as authority for this statement, Giris Chandra Saw's case was quoted. These observations were made in a suit brought by a member of the family and not by a thakur and the question considered was whether such person could sue in his own name and right, it was not whether he could represent the deity in a suit. It is in no sense a decision that a member of a family, who is not sebait, can institute a suit as next friend of a thakur. In Kalimata Debi v. Nagendra Nath : AIR1927Cal244 Chotmer J., held that in the absence of the sebait declining to sue, a suit was bad which had been instituted in the name of a thakur with a worshipper as next friend. A deity can be represented in legal proceedings by a person, other than a sebait, when the Court appoints a neft friend for this purpose as was directed by the Judicial Committee in Pramatha Nath v. Pradyumna Kumar which procedure was directed to be followed in Kanhaiya Lal v. Hamid Ali and, in Sharat Chandra v. Dwarkanath : AIR1931Cal558 Lort-Williams, J., appointed a disinterested person to act as next friend of a thakur.

40. The correctness of the procedure, which has been followed in this suit, is asserted on the ground that Order 32, Civil P.C., is applicable. The relevant portions of the order are the following : Every suit by a minor shall be instituted in his name by a person called the next friend (Rule 1); on being satisfied a defendant is a minor the Court shall appoint a proper person to be guardian for the suit for the minor (Rule 3(1)); any person of sound mind who has attained majority may act as next friend or guardian (Rule 4); the provisions in Rs. 1 to 14, so far as applicable, shall extend to persons of unsound mind (Rule 15).

41. A minor can institute a suit by a next friend and defend a suit by a guardian ad litem because there are rules which so provide; in the absence of these rules, there would be no procedure for a next friend or a guardian to act on his behalf; the rules apply to a person of unsound mind because there is an express provision for their application; there is not a similar provision with respect to a thakur. The only reason supporting the contention, that the effect of the rules should be applicable to a thakur, is expediency. Expediency was, apparently, an insufficient reason with respect to a person of unsound mind; if it had sufficed there would have been no need for Rule 15.

42. Whilst there are similarities in the status of a minor and of a thakur, e.g., they are both incapable of managing their property and protecting their interests, there are also dissimilarities, e.g., the Contract Act denies a contractual capacity to a minor but does not extend that incapacity to a thakur. In Surendra Krishna v. Ishwar Bhubaneshwari : AIR1933Cal295 , Rankin C.J., observed at p. 73:

The doctrine that an idol is a perpetual minor is, in my judgment, an extravagant doctrine, contrary to the decision of the Judicial Committee in such cases as Damodardas v. Lakhandas ('10) 37 I.A. 147;

at p. 77 he said 'I am not prepared to hold, as a matter of construction of the Limitation Act, that an idol is a perpetual minor'. From these observations it must follow that, since a thakur is not a perpetual minor, it is not a minor at all. I can see no justification to apply that part of the Code, which relates solely to a minor, to an entity who is not a minor unless, as in the case of a person of unsound mind, there is a provision for it to be done. That being the position, there is no method of procedure by which Rani Moni Dassi, who is not a sebait and has not been appointed by the Court as next friend of the thakurs, can represent them in the suit. Without correct representation their suit is not properly constituted.

43. There is, in my opinion, an additional reason against a person who is not a sebait, and who is not appointed by the Court to do so, representing a thakur as next friend. I have previously pointed out that, although a thakur can sue, the right of suit is vested in the sebait. No person, upon his own initiative, can exercise a right which is vested in another person. In this respect the position of a thakur is different to that of a minor whose right of suing is not vested in some other person. That being the position, a worshipper, or any other individual, cannot exercise the right of suit which is vested in the sebait and consequently a suit in the name of a Thakur cannot be instituted by such person at his own will and pleasure. When a sebait fails or refuses to exercise his right of suit then, in a proper case, the Court can appoint any person, interested or disinterested in the thakur or its property, to represent the thakur as next friend and to institute a suit in its name.

44. With respect, I prefer the opinion expressed in Tarit Bhusan Roy v. Sree Iswar Sridkar Saligram Sila Thakur : AIR1942Cal99 to that in. For the reasons given, I have come to the conclusion that the suit is not properly instituted and is not maintainable as framed.

45. It is of interest to observe that in Pramatha Nath v. Pradyumna Kumar which was a suit by one sebait against other sebaits of a household deity who was not a party to the suit, the Judicial Committee expressed the opinion that it would be in the interests of all concerned that the idol should appear by a disinterested next friend appointed by the Court and humbly advised His Majesty that the case should be remitted to the High Court to be dealt with in accordance with its report. The idol could not be joined as a plaintiff to the suit and in order to appear it would have to be made a defendant. The direction that it should appear by a next friend appointed by the Court is an indication that an idol should always be so represented even when it is a defendant, whereas a minor defendant is represented by a guardian ad litem.

46. The suit fails and is dismissed. I am satisfied that defendants 3, 4 and 5 in substance and in fact are the plaintiffs and have used the name of defendant 3's wife Rani Moni Dassi merely as machinery to institute the proceedings most likely with a hope that in the event of the suit being unsuccessful, they would be able to avoid the ordinary liability as to costs which follow such an event.

47. That being my conclusion, I shall follow the principles which were indicated in Jointee Chunder Sen v. Anundo Lal Das ('70) 14 W.R. (O.C.) 1, Juggut Chunder Roy v. Roop Chand Shaw ('81) 6 Cal. 811 and Ketokey Charan Banerjee v. Sm. Sarat Kumari Debi 5 A.I.R. 1918 Cal. 598. There will be an order in favour of defendant 1 with certificate for two counsel and in favour of defendant 2 for costs to be paid by defendants 3, 4 and 5.

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