1. The plaintiffs who are two in number brought this suit on tha following allegations. One Kirti Chandra Dutta the predecessor-in-interest of the plaintiffs and the defendants, dedicated certain property to a deity, Sri Sri Iswar Brindaban Behari Deb. He appointed himself the she bait and made provision for the succession to the shebaitship. The two plaintiffs and defendant 1 who is the principal defendant each possessed 5/12 share of the shebaiti right and the pro forma defendants possessed the remaining shares. From time immemorial each shebait used to perform the worship of the deity according to his pala or turn; each shebait also used to collect the rent of the debutter property in proportion to his share in the shebaiti interest and used to pay thereout such portion of the Government revenue as corresponded to his share in the shebaiti. Defendant 1 continually defaulted in making arrangements to pay the share of the Government revenue which was payable by him. The plaintiffs, in order to save the estate and to protect their shebaiti interest, have paid the entire revenue as there are no separate accounts in the Collectorate. They accordingly sued defendant 1 for contribution to the extent of the share of the Government revenue payable by him which had already been paid by the plaintiffs. The defendant; denied all the statements in the plaint except that he admitted that he has a 5/12 share in the shebaiti interest. He says that in spite of his having this share the plaintiffs have kept him out of possession of the debutter property and are mismanaging and misappropriating it. He alleges that the plaintiffs had ample funds of the debutter estate out of which to pay the Government revenue and that the suit is not maintainable in the form in which it has been brought. The trial Court gave the plaintiffs a decree. The defendant appealed and his appeal has been dismissed. He now appeals to this Court. On behalf of the appellants two broad contentions were urged; firstly that the suit as framed does not lie and secondly that the judgment of the learned Judge should be set aside as it does not contain any findings regarding the material facts of the case and as it is based on an erroneous conception of the law relating to the rights of shebaits.
2. The first objection taken by learned advocate for the appellant is based on the assumption that this suit is by the idol represented by some only of the shebaits against the other shebaits. It is argued that a suit in this form cannot lie, firstly, because on the facts alleged the idol has no cause of action and secondly, because the idol must sue by the entire body of shebaits or by a next friend duly appointed for that purpose. There can be no doubt that the facts alleged in the plaint do not disclose any cause of action in the idol. Obviously the idol has no interest in the quarrel between the plaintiffs and defendant 1 regarding reimbursement. This is not a case of any complaint being made on behalf of the idol that its estate is being wasted by some of the shebaits, nor is the idol claiming anything against any third party. The present case relates to a dispute between two groups of shebaits. If the suit is by the idol then clearly it should be dismissed for want of a cause of action so far as the idol is concerned. The suit however is really not by the idol at all. The plaintiffs are described as shebaits of the idol, but the idol himself is not made a party and no claim is made on behalf of the idol. It is true that the learned Munsif has described the suit as being a suit for contribution brought by the 'plaintiff deity' against the defendant but this description of the suit is erroneous and not supported by the pleadings. The mis-conception of the learned Munsif is probably due to an entirely confused and wrong view which his judgment shows he entertains regarding the interest which a shebaifc has in debutter property. Be that as it may, this suit is really one by some shebaits against another shebait for the realization of a sum of money paid by the former which ought to have been paid by the latter; it is not a suit by the idol. It cannot therefore be said that the suit should fail on the ground that the plaintiff is the idol and that the plaint discloses no cause of action in the idol or on the ground that this is a suit brought by the idol improperly represented by only some of the shebaits.
3. There is another argument in support of the objection against the frame of the suit. It is said that one set of shebaits cannot sue another set of shebaits as they are in the position of joint trustees. There is no authority so far as I know which lays clown such a broad proposition. I am not concerned with what would be the position of trustees. Shebaits are managers of the debutter property and although their rights and duties to some extent resemble those of trustees it is now well established that they are not trustees in the true legal sense of the term inasmuch as the property of the estate is not vested in them. There is a long string of decisions of the Judicial Committee which lays this down. I need mention only the case in Vidya Varuthi Thirtha v. Balusami Ayyar (1922) 9 A.I.R. P.C. 123 at p. 312. This was also the view expressed recently by Mukherjee, J. in Manindra Deb v. Hanseswari (1936) 63 Cal. 629 at page 276. I can see no reason why, as manager of the estate of the idol, one of the shebaits cannot sue the others for expenses incurred in the course of management if it can be established that there was an obligation in the other managers to share in the pay. iment of these expenses. This suit is really not one by some of the shebaits for the benefit of the deity against the other shebaits. In that ease some difficulty may arise on the ground that the deity cannot be considered as being properly represented by some only of its shebaits as was pointed out by the Judicial Committee in Pramatha nath v. Pradyumna Kumar . Nor is this a suit by some shebaits for the recovery of a fractional share of the rent due under a lease to the deity, such share representing the shebait's share in the shebaiti right as was the case in Baraboni Coal Concern Ltd. v. Gokulananda Mohant Thakur . There the Privy Council held that such a suit would not lie for two reasons, viz. (1) because the terms of the lease forbade this course and (2) because the plaintiffs being interested in the property demised merely as shebaits and not as owners they could not sue for a fractional share of what was due to the deity as a whole. The present suit, however, is of an entirely different character. The deity is not involved in this suit at all. Nothing is claimed for or on behalf of the deity. This suit arises out of an alleged breach of an obligation said to exist between the two groups of shebaits. The plaint in parts is not happily, worded but this is really the nature of the suit. In Baraboni Coal Concern Ltd. v. Gokulananda Mohant Thakur , which was relied on by the learned advocate for the appellants in support of his argument that the suit was not maintainable, the Privy Council did not prohibit a suit like the present one nor did they lay down any principle, which would be offended by the institution of such a suit. I hold therefore that the objection to the frame of the suit cannot be supported.
4. I next take up for consideration the objection that the judgment of the learned Judge is so unsatisfactory that it cannot be upheld. The trial Court held that the dedicated property did not constitute an 'absolute debutter' estate and that the property was only partially dedicated. It held that it was secular property with merely a charge on it for the expenses of 'deb sheba.' In this view the learned Munsif considered that the plaintiffs and defendant 1 were co-sharers of the property and that the plaintiffs on this footing were entitled to be reimbursed for the amount of Government revenue which they had paid in excess of their share. I do not think anyone could quarrel with this view, if the finding that there was only a partial dedication and the other findings of fact are correct. The learned Munsif, however, went on to express the view that even if this property had been absolutely dedicated to the idol the shebaits would have 'some sort of beneficial interest' in the dedicated property and that if one of shebaits paid the Government revenue he would have the same right of contribution against a coshebait as if they were co-sharers in the property. With this view I entirely disagree for reasons which I shall give later. When the matter came up on appeal before the District Judge the parties admitted that the property constituted an absolute debutter and the case was argued on this basis. The appeal was disposed of in a few lines. The judgment is perfunctory and it indicates that the learned Judge has not appreciated the implications which would follow from the finding that the property was an absolute debutter and not secular property charged with the expenses of 'deb-sbeba.' This is what the learned Judge says:
It is now admitted by both parties that the property is absolute debutter. Practically the only point which has been urged before me is that a suit for contribution against a cosbebait does not lie. The co-shebaits are not co. owners but it appears that in this case the co-shebaits were in possession of specific shares in the property for carrying on the shebapuja according to their palas. They have also a beneficial interest in the property in their hands. That being so it was certainly to the plaintiff's interest to make the payment in order to save the property. The payment was not only to the advantage of the defendant but being in possession of the property on behalf of the idol it was his duty to pay the revenue. In view of these circumstances I find that the plaintiffs can claim contribution as an equitable relief. I accordingly uphold the decree of the lower Court and dismiss this appeal with costs. The decrial amount will be realised by the appointment of a receiver so that the corpus of the debutter property may not be affected.
5. This is virtually the whole of the judgment. The fundamental fact to be remembered in the case of an absolute debutter is that the property of the debutter estate belongs absolutely to the idol. The shebait is not the owner of the property and if there are several co-shebaits they are in no sense cosharers in the property. The shebait has not the legal ownership, but only the title of a manager of a religious endowment. This was laid down as far back as 1869 by the Privy Council in Shibessourea Debia v. Mothooranath (1869) 13 M.I.A. 270 at page 273. This view was also laid down by the same high authority in Vidya Varuthi Thirtha v. balusami Ayyar (1922) 9 A.I.R. P.C. 123 at page 311. Dealing with gifts to idols their Lordships say:
When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the light to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him.
6. It is true that there is a remark by Mitter J. in the Pull Bench decision in Monohar Mookherjee v. Bhupendranath Mookherjee (1932) 19 A.I.R. Cal. 791 at p. 68 that the shebait hag 'some sort of beneficial interest in the debutter estate' but this does not mean that the shebait has any right of ownerships in the property or that he can be considered as a cosharer of the property in any sense. The Full Bench was considering the rules of succession to the office of shebait laid down by the founder of a Hindu debutter and it decided that the succession to the office of shebait would be governed by the rule laid down in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 9 Beng. L.R. 377 inasmuch as the shebaiti right was property and as such it could not be made to devolve upon persons in a manner contrary to the Hindu law governing succession to property. In coming to this conclusion the learned Judge discussed the question whether a shebait was a bare trustee or whether he was something more and they held that the shebait was not bare trustee, that the shebait interest was property inasmuch as the shebait derived some benefit from the debutter estate in the shape of bhog or some similar benefit. They nowhere held that the shebait of an absolute debutter had any right of ownership in the property dedicated. That right is completely in the deity. The trial Court relied greatly upon the case in Manindra Deb v. Hanseswari (1936) 63 Cal. 629 where it was said that a shebait had 'possessory title' to the debutter property. Prom this the learned Munsif seemed to have drawn the inference that the shebait was a cosharer of the property. This inference is not justified. In that case the question raised was whether a sale of debutter property for non-payment of revenue was valid. The shebaits had opened separate accounts in the Collectorate in their own names in respect to the touzi of which the deity was the proprietor. One of the touzis created by the separate account was sold for arrears of revenue and purchased by one of the shebaits. The suit was for setting aside the sale and one of the grounds taken was that separate accounts could not be opened regarding debutter property in the names of different groups of shebaits as they were not cosharers. It was held that although the property belonged to the deity, separate accounts could be opened in the name of the shebaits as the object of registering the names of proprietors or managers, etc. under the Land Registration Act is not to make an inquisition into title either In revenue paying or revenue free properties but to keep a proper record of possessory titles in landed properties so as to have a knowledge of the persons who are in actual possession and are responsible or the discharge of their duties.
7. This 'possessory title' of a shebait is merely a right to possess on behalf of the idol; it is not a title which the shebait has by virtue of a right of ownership in the property. It was held in that case that only for the purposes of paying the revenue the shebaits so far as the revenue authorities were concerned were treated as cosharers. It was not held that the shebaits held any right as cosharers in the property itself. In the case of cosharers of property one co-sharer who has paid the entire revenue can certainly claim contribution from another to the extent of the Government revenue payable for his share in the land irrespective of any special contract or arrangement. This right arises out of the fact that the defaulting cosharer is the owner of a part of the property for which the revenue is payable and out of the fact that his share in the property has been saved from sale by the cosharer who paid the entire revenue. 'When however the parties are not cosharers of the property the position is quite different. Coshebaits, as I have said before, are not cosharers of the debutter property. They are cosharers of the shebaiti right. The Government revenue is payable not for the shebaiti right, it is payable for the property which belongs to the idol and not to the shebaits. The revenue is due not from the shebaits but from the idol on whose behalf the shebaits as managers make the payment. The property which is saved from sale by the payment of revenue is not the shebaiti interest in which the shebaits are cosharers but the property of the idol in which they are not cosharers.
8. In these circumstances, unless some special contract or custom is proved, the right to contribution cannot arise. The rights of the parties cannot therefore be ascertained in the summary manner adopted by the learned Judge. A finding that the parties are ensnarers in the shebaiti interest cannot by itself afford sufficient basis for a decree for contribution in proportion to the shares of the parties. The Court will have to ascertain whether there was a special contract between the parties whereby a right to contribution was created or whether there was a valid custom which would give rise to such a right. If there was such a contract or custom the Court will then have to ascertain whether the plaintiff have paid the revenue in accordance with the terms of the contract or custom. It was suggested in the written statement that there were surplus funds in the hands of the plaintiffs out of which the revenue could be paid. If that be correct the plain, tiffs cannot get any reimbursement from the defendant even if there was a custom or contract as suggested above. These matters have not been dealt with by the learned Judge. This appeal will therefore have to be re-heard by him and decided in the light of the observations made above. The learned Judge's discretion to remand the case to the trial Court, if such remand is necessary, is left unfettered. The decree of the learned Judge is set aside and this appeal is allowed. The costs will abide the result.