1. This appeal is directed against the judgment and decree dated June 19, 1963 passed by Mullick, J. in Title Suit No. 79 of 1952 of the 8th Court of the Subordinate Judge, Alipore, which, on transfer to this Court was registered as Extraordinary Suit No. 6 of 1957. The said suit was instituted by the respondent No. 1, the Official Receiver, challenging the alienation of certain debottar properties.
2. By a Deed executed on January 18, 1806, one Raja Pitambar Mitra established and consecrated the deity Sri Sri Iswar Bakleo Jew Thakur, and by another Deed dated May 17, 1824, his wife Sm. Nandarani Dasi established and consecrated the deity Sri Sri Gopal Jew Thakur. The debettar estate consisted of a large number of valuable properties, both land and premises, in and around Calcutta. The alienations challenged in the suit were by way of long leases granted by 3 persons consisting the committee of management under a scheme framed by this Court in an administration suit being, suit No. 1528 of 1926. The scheme was framed in the said suit and a preliminary decree was passed on March 30, 1934, and the final decree was passed on January 28, 1939, confirming the report of the Official Referee dated March 7, 1938.
3. On December 4, 1950 a second suit for administration of the same debuttar estate was instituted in this Court, being Suit No. 4575 of 1950, by one Ashaiata Majumdar, one of the shebaits of the aforesaid deities, as a next friend of the said deities All the other shebaits were impleaded as defendants in that suit. Allegations have been made in the plaint in that suit that the debottar estate was not being administered in accordance with the scheme framed in Suit No. 1528 of 1926, that out of 5 members constituting the managing committee, one died and one resigned, and no steps were taken to fill up the vacancy as provided in the scheme, that the remaining members of the managing committee were administering the debottar estate illegally and contrary to the scheme, that the said 3 members granted long leases of the debuttar properties and were otherwise guilty of various acts of mismanagement and dereliction of duty and that the scheme had become infructuous and it had inherent defects. On these allegations it was prayed that a new scheme be framed, that the surviving members of the managing committee elected in 1943 be removed from the management and that the debuttar estate be administered by the Court. In the said suit the Official Receiver was appointed Receiver in respect of the entire debuttar properties by an order dated December 30, 1950. By another order dated December 20, 1951 leave was granted to the Official Receiver to institute suit or suits in the Court of competent jurisdiction to set aside or avoid the leases granted by the said 3 members of the managing committee in favour of Hem Chandra Naskar and Jogendra Nath Naskar. Pursuant to the leave granted the suit out of which this appeal arises was instituted by the Official Receiver as a Receiver appointed in the suit No. 4575 of 1950 for a declaration that the 3 leases dated May 3, 1946, November 29. 1946 and December 26, 1946 in favour of Hem Chandra Naskar and Jogendra Nath Naskar or either of them are void and not binding on the debuttar estate. There is also a prayer for cancellation of the said leases. The properties cove red by the said 3 leases are outside the original jurisdiction of this Court. The suit was instituted in the court of the Subordinate Judge at Alipore on 1st May. 1952. Subsequently by an order of this Court under clause 13 of the Letters Patent the suit was transferred to this Court. Pursuant to the leave granted on April 28, 1952 another suit was instituted by the Official Receiver being suit No. 1654 of 1952 for cancellation of another lease in favour of the same lessees and for a declaration that the same was not binding on the debuttar estate. Most of the properties covered by the said lease are situated within the original jurisdiction of this Court. The defendants impleaded in both the suit are the deities in respect of whose estate the Official Receiver was appointed as Receiver, the two lessees, Hem Chandra Naskar and Jogendra Nath Naskar, and the 3 members of the managing committee who granted the leases, namely, Khagendra Lala Mitra, Sachindra Lala Mitra and Abani Ghosh. During the pendency of the suit Hem Chandra Naskar and Sachirdra Lala Mitra died. It is alleged that after the death of Rajendra Lala Mitra who during his lifetime was acting with the consent of the other shebaits as the person in management of the debuttar estate dispute arose amongst the descendants of Raja Pitambar Mitra which ultimately led to the institution of the suit No. 1528 of 1926. It is alleged that after the death of Subodh Lala Mitra and the resignation of Jogendra Lala Mitra, two members of the managing committee elected in December, 1943 the remaining 3 members were guilty of violation of the provision of the scheme in not filling up the vacancy and they unlawfully purported to continue to act as the managing committee. It is further alleged that the disputed leases were granted fraudulently without any legal necessity in brench of the scheme at an abnormally low rent. The grantors obtained a selami on the said 3 leases amounting to Rs. 10,000/-, Rs. 5,000/- and Rs. 5,000/- respectively. The 3 members and the lessees have been charged with collusion and conspiracy to deprive the debuttar estate. The capacity and the authority of the grantors who granted the, leases has also been challenged. It is pleaded that the leases were void ab initio as the grantors had no authority to grant leases on behalf of the defendant deities. The grants were made in direct contravention of the scheme framed by this Court. It is alleged that no general meeting was called and the procedure prescribed in the scheme had not been observed for obtaining the approval and sanction of the shebaits to grant the leases. The lessees were alleged to have obtained the leases with full knowledge of the breach of trust and the want of authority on the part of the grantors and also with full knowledge of the illegality of the transaction.
4. A voluntary statement was filed on behalf of the defendant deities supporting the plaintiff's case. Two written statements were filed, one on behalf of the lessees Hem Chandra Naskar and Jogendra Chandra Naskar, and another on behalf of Khagendra Lala Mitra in which the plaintiff's claim was disputed and all allegations of fraud, conspiracy and collusion were denied. The defendants asserted that the grant of the leases was made in accordance with the scheme after obtaining of the approval of the shebaits at a general meeting duly convened and held for that purpose. It was stated that the vacancy caused by the death of Subodh Lala Mitra and the resignation of Jogendra Lala Mitra could not be filled up for reasons beyond the control of the members of the committee and that the remaining 3 members were competent to function without the vacancy being filled up. On behalf of the lessees it has been further asserted that they were bona fide transferees for value without notice of the defect in the title of grantors, if any, and as such their title as lessees is fully protected in law. The lessees were alleged to be for the benefit of the debuttar estate. The Receiver's competency to file the suit and his locus standi has also been disputed. It is contended that the suit is bad for non-joinder and mis-joinder of parties and of causes of action. The suit is said to be barred by limitation and finally, it is pleaded that the suit is false and mala fide and has been instituted at the instance of the previous lessee Sri Sankarsen Ltd. and or Rohinindra Lala Mitra and Mrigendra Lala Mitra, two of the shebaits with a view to harass the defendants Khagendra Lala Mitra because of personal animosity.
5. A large volume of evidence bothoral and documentary was tendered on behalfof the parties. The learned Judge in the, trialcourt found that the leases granted by the3 members of the managing committee ofshebaits were in violation of the scheme framed by this Court, and as such the leases wereinvalid. On the question of fraud, collusion and conspiracy between the said 3 members and the lessees the, learned Judge heldthat the pleading with regard to fraud andcollusion lacked sufficient particulars, andtherefore, he did not allow the plaintiff toagitate that question. The learned Judge further found that there was no legal necessityjustifying the alienation of the debuttar estateand further that the lessee did not make bonafide enquiry about the existence of legal necessity and he accordingly held that the leaseswere not binding upon the debottar estate. Onthese findings the learned Judge decreed thesuit.
6. One of the lessees namely, Hem Chandra Naskar having died in the meantime the other lessee Sri Jogendra Nath Naskar has filed the present appeal against the decision of the trial Court.
7. Mr. Sankardas Banerjee, learned Counsel appearing in support of the appeal has, in the first place; contended that in the facts and circumstances of the present case it was perfectly competent for the 3 members of the managing committee to grant leases and such alienation of debuttar property was not contrary to the scheme framed by this Court. In order to appreciate the argument advanced by Mr. Banerjee it would be convenient to refer to the provisions of the scheme. Clause (2) of the scheme provides: 'A committee shall be formed consisting of 5 shebaits for the purpose of management of the debuttar estate.' Clause (3) provides that the committee shall be formed by election by ballot by the shebaits, each shebait having one vote. Out of 5 members to be elected 3 shall be elected from the 3 branches of Janmejoy, Haralal and Gopimohan, and the other 2 shall be elected as representatives of the general body. Clause (4) in its various sub-clauses makes provisions with regard to the mode of formation of committee and its tenure. It provides, inter alia, that the existing committee for the time being under the signature of the managing shebait shall at least two calendar months prior to the expiry of the term of office issue notices to all the shebaits intimating that anyone desirous of seeking election for any one of the seats on the committee must write to the managing shebait intimating his intention to do so. Upon receipt of letters from the shebaits in reply to such notices the managing shebait shall place the same before the committee. Then the date of election has to be fixed by the managing committee and the notice intimating the date of election has to be served upon all the shebaits. It is provided that if there be no candidate for election from a particular branch that seat will be treated as a general seat along with the other two general seats. Rules have been laid down for election of the chairman, method of voting, qualification of a voter, opening of the ballot box and declaration of the result. By clause (5) the first committee was constituted consisting of the following members:
Sri Pulin Krishna Mitra,
Sri Subodh Lala Mitra,
Sri Robindra Lala Mitra
Sri Khettar Lal Mitra, and
Sri Satya Prosad Dutta. Clause (6) provides for vacancies in the committee and is in the following terms :
'6 (1) If a member of the committee during its tenure is unable to attend six successive meetings (sic) illness, or is convicted of an offence involving moral turpitude or commits misfeasance or misconduct in the performance of worship or in the management of the properties of the Thakur, or becomes an apostate or a lunatic or an insolvent, or if he or she dies, the other members of the committee shall upon notice in writing to the member of the Committee in respect of whose seat the election is to take place (except in the case of his or her death) and to all other shebaits, within a fortnight of the happening of such event, convene an extraordinary general meeting of the shebaits for the purpose of removing of the said member, (except in the case of his or her death) and/or for electing a member in his or her place and the aforesaid rules as to eligibility of the candidate and the procedure to be followed at the meeting for general and special seat will be applicable to such extraordinary general meeting convened for the purpose' aforesaid.
(2) If any dispute arises as to any of the above reasons for the vacancy, the decision of the majority of the shebaits at the general meeting so convened shall be final.
(3) Upon the happening of the event as aforesaid, not earlier than six months prior to the expiration of the term of office of the particular committee, the shebaits at the general meeting so convened as aforesaid for the purpose of electing a member of the committee, shall, if they so consider fit by a majority of votes of those present at the meeting, be entitled to declare that the vacancy need not be filled up for the remaining period of the term of office of the particular committee.'
Clause (7) enumerates the powers of the committee. It provides that the committee will be in charge of all movable and immovable properties of the debuttar estate, it shall take steps for improvement of the estate, it shall not be entitled to borrow money for any purpose except upon a resolution passed by a majority of the votes of shebaits present at such general meeting to be convened by the committee by requisition in writing. The amount to be spent for the puja has been mentioned in the schedule annexed thereto and marked 'X'. But if the income increases or decreases then with the consent and approval of the majority of the shebaits which is to be ascertained at a general meeting of the shebaits to be called by the committee, the committee shall be entitled to reduce or increase the puja expenses as the case may be. Clause (8) provides for the appointment of a managing shebait by election from amongst the members of the committee. He is to be guided in all respects by the direction of the committee and subject to such guidance do everything in connection with the management and performance of the puja. The managing shebait is responsible for realisation of rent and profits of the properties and keeping of accounts. Clause (9) makes provisions for appointment of staff for carrying out the work of the debuttar estate and it provides that 'if the committee wants to increase or decrease the salaries of the staff the committee shall be able to do so with the consent and approval of the majority of the shebaits to be ascertained at a general meeting of the shebaits' Clause (14) provides that a genera] meeting of the shebaits shall be called at the commencement of every budget year and a summary of the account of the realisations made and expenses incurred in the preceding budget year shall be placed before that meeting. It further provides that the committee 'shall also place a budget showing how the committee propose to spend the income during the current year and such direction as may be given by 'a majority of the shebaits present at the meeting so convened shall be observed and carried out by the committee and the managing shebait.' Clause (15) provides that 'if any dispute arises as to the validity or authenticity of the proxy the decision of the majority of the shebaits present at the meeting shall be final .......,.......' Clause (16) provides that notices of general or extraordinary general meeting shall be signed by the managing shebait under direction of the committee. There shall be kept in the office a book in which the Shebaits shall enter their respective addresses. All notices to Shebait shall be sent to such addresses a are respectively entered by them in the book as aforesaid. If any shebait fails to enter his address in the book to be so kept as aforesaid, and in consequence of such failure the notice of meeting is not sent to his correct address, the shebait in default shall not be entitled to raise any objection. Sub-clause (b) of Clause 17 which is very important reads as follows :
'17 (b) The committee shall not be entitled to sell or mortgage of the properties of Thakur, nor shall they be entitled to grant a lease of any of the properties for a term exceeding three years at a time. If the committee wants to grant a lease for a term exceeding three years, the committee shall be empowered to do so with the sanction and consent of the majority of the Shebaits to be ascertained in a general meeting of the Shebaits held specially for the purpose.' Clause (19) provides that the Shebaits who are at present occupying portion of the buildings of the Thakur or the compound adjoining the Thakurbati may continue in occupation of the said portions 'provided however that the Shebaits by a 3/4th majority of votes of those present at a General or Extraordinary general meeting of the Shebaits may take such action in regard thereto as they may consider to be beneficial to the interest of the Thakurs'. Lastly, Clause (21) provides that the scheme is liable to alteration without recourse to a suit by means of a resolution of the general body of the Shebaits passed in that behalf and an order obtained from this Court on application made in this suit by such Shebait or Shebait as may be authorised in that behalf by such resolution.
8. The question which requires consideration, therefore, is whether the managing committee consisting only of 3 members is competent to grant long leases exceeding 3 years in view of the provisions contained in the aforesaid scheme. Under the Hindu Law an alienation of debuttar property can only be made on the ground of legal necessity and it can be made by all the Shebaits acting jointly. It is well settled that the Shebaits can-not delegate their authority to any other person or a particular shebait or some Shebaits. But the position becomes different when the debut tar estate is operating under a scheme framed by the Court. In such a case the provisions of Hindu Law regarding the rights of the Shebaits acting jointly is modified to the extent as provided for in the scheme. In the present case, therefore, an alienation of the debuttas property could he made by the members of the managing committee of Shebaits provided it was done- in terms of the scheme. It was contended by Mr. Banerjee, learned Counsel on behalf of the appellant that the managing committee consisting of 3 members was competent to function inasmuch as is Title Suit No. 63 of 1946 filed for a declaration that the scheme framed in Title Suit No. 1528 of 192 was not working smoothly and for framing of a new scheme, an order of injunction was passed restraining all the Shebaits from interfering with the possession of the debuttai estate by the present managing committee. The said order was made absolute by Order No. 70 dated 10th December, 1948 as would appear from Exhibit 07(a). It was also contended that under clause 6 (3) of the scheme read with clause 4 (14) of the scheme the managing committee of 3 members was competent to act as there was a quorum. It was said that the leases were granted by the managing committee after approval of the majority of the Shebaits at the extraordinary general meeting held on February 24, 1946 and February 27, 1946. It was further contended that there was no express prohibition in the scheme itself that the managing committee consisting of 3 members cannot function because of 2 vacancies remaining unfilled up Mr. Banerjee referred to the evidence of several witnesses for the plaintiff and submitted that it would be evident from the deposition of the said witnesses that the practice was that the priest Sri Dwijapada Bhattacharyya, was given a copy of the notice convening the meeting. Sri Dwijapada Bhattacharyya went round to the Shebaits and informed them about the proposed, meeting. It was submitted that the shebaits never took exception to this practice. Mr. Banerjee referred to Exhibit Q. (1) which is the proceeding of the extraordinary general meeting held on the 14th July, 1946 in support of his contention that the priest informed about the meeting, that he personally took the notice to the Shebaits but they refused to sign. Mr. Banerjee commented on the fact that the priest Dwijapada Bhattacharyya who was the most material witness in this regard was net examined by the plaintiff.
9. The first question to be considered, therefore, is whether the committee of 3 members could grant the disputed leases. An examination of the scheme, particularly the provisions of the different sub-clauses of clause 4 and also clause 6 of the scheme would show that it was intended that there should be 5 members in the committee except when the circumstances make it impossible to have 5 members. The scheme makes it imperative for the vacancy to be filled up with the the least possible delay. It provides that questions arising in course of election of a new member must be decided at the meeting called for the purpose of filling up the vacancy. It was therefore the duty of the committee to call a general meeting within 15 days of the vacancy for the purpose of filling up the vacancy as provided in Clause 6 (1). In the present case the first elected committee of 5 members came into existence on December 5, 1943 and it had a life of 3 years. The term of the first elected committee would have expired on December 4, 1946. In the meantime Subodh died on March 3, 1945 (See Ext. M) and Jogendra resigned on August 24, 1945 (See Ext. D). It is admitted that no extraordinary general meeting for the purpose of filling up the respective vacancy was called as provided in clause 6 (1) of the scheme, and the vacancies were not filled up. In answer to Q. 479 Khagendra admitted that the vacancies were not filled up. He tried to put forward an explanation for not filling up the vacancy but the explanation sought to be put forward by him is hardly acceptable. In his cross-examination Khagendra has made contradictory statements and has not been able to give any satisfactory explanation as to why the vacancies were not filled up. In answer to Q. 43 Khagendra stated that Sushil was repeatedly asked to attend the meeting but he did not do so. This statement is falsified by Exhibit 'P' which is a minute of the adjourned general meeting held on 25th March, 1945 which shows that Sushil Mitra joined the meeting on that day. Moreover, Sushil himself filed a petition of objection in the Sealdah Suit in which he categorically denied the case of the appellant. Ext. 'P' shows that the general body of Shebaits at a general meeting passed a resolution to the effect that an Extraordinary general meeting should be called to fill up the vacancy but no such extraordinary general meeting was called, and without an extraordinary general meeting being called Khagen's evidence to the effect that no one was willing to join the managing committee cannot be accepted. On a proper construction of the scheme it must, therefore, be held that only a committee of 5 members is competent to act. This would be quite clear from clauses 2, 3 and 17 (b) of the scheme. Even at the cost of representation of 3 different branches of the Shebaits the scheme contemplates to have a committee of 5 members. It provides in clause 6 (3) that if there is a vacancy within 6 months of the expiry of the term of the committee the continuance of the remaining members for filling up the vacancy is subject to the direction of the general body and is not automatic. Further the scheme lays stress on filling up the vacancy within the shortest possible time, and all disputes in that behalf must be resolved at the meeting itself. It is clear, therefore, that the scheme does not contemplate a gap unless the circumstances are such that it is absolutely unavoidable. Learned standing Counsel appearing on behalf of the plaintiff respondent contended that even under such circumstances if the committee continues with the vacancy remaining unfilled up its function must be confined to routine business and it cannot take any action under clause 17 (b) of the scheme which affects the debuttar estate permanently. It was further contended that the injunction order passed in the Alipore Suit and Sealdah Suit would not confer any authority on the committee if otherwise the committee had no authority to act under the terms of the scheme. In the view we have taken this contention advanced on behalf of the respondent must be accepted.
10. On the question whether any meeting was held to obtain the sanction of the lease by the majority of the Shebaits as contemplated in clause 17 (b) of the scheme it is to be noticed that the minutes of the 3 meetings covering the 3 leases are the meetings dated February 24, 1946 (Ext. 0005), February 25, 1946 (Ext. 0006) and February 27, 1946 (Ext. Oil (A)) respectively. The leases recite the meetings of the shebaits where consent of the majority of the Shebaits in support of the leases is supposed to have been taken. The first lease, Ext. R, dated May 5, 1946 recites the minutes of the meeting dated 24th February, 1946. The second lease, Ext. T, dated 29-11-1946 recites the minutes of the meeting dated 27th February, 1946. These minutes are in loose sheets of paper. Originally the date 24th February was typed out and it is subsequently erased and changed to 27th. The pleadings of the defendant on this point are to be found in paragraph 18 of the written statement filed on behalf of the appellant and paragraph 13 of the written statement filed on behalf of Khagendra. The defendant's case, therefore, is that all the 3 leases are covered by the minutes dated 24th February, 1946 and 27th February, 1946. In suit No. 1654 of l952 out of which appeal No. 222 of 1963 arises, and which is heard analogously with this appeal, the defendants in their written statement have referred to resolution in the meetings of the general body of the Shebaits on four different dates viz. 9-7-1944, 24-2-1946 9-11-1947 and 7-12-1947. The minutes of the meeting dated 9th July, 1944 have nothing to do with the grant of sanction of any of the leases. The minutes of the meeting dated 9-11-1947 and 7th December, 1947 are referred to in the 4th lease. Therefore, only minutes referred to in the written statement of the defendant in suit No. 1654 of 1952 are the minutes of the meeting dated 24th February, 1946. It is significant to note that no other dates covering the 3 leases in question have been mentioned. In Suit No. 48 of 1948 filed in the Munsif's court at Sealdah, Khagendra in his written statement referred to the minutes dated 24th February, 1946, 27th February, 1946 and 7th December, 1947. The original minutes were not annexed to the written statement of Khagendra and Abani (See Ext. 011 (b)). From these facts it is clear that none of the defendants in their pleadings had relied on the minutes of 25th February, 1946 at any time. But in the application filed before the District Judge of 24 Paraganas for permission to lease out the debuttar property the minutes of 25th February, were annexed (See Ext. N2). It is curious to note that the minutes of the meeting dated 27th February, 1946 were not originally disclosed. Khagendra in his evidence has stated about the minutes dated 24-2-1916 25-2-1946, 16-11-1947 and 7-12-1947. He is definite that there are 3 meetings covering all the 4 leases. Hence there are only 2 meetings covering the 3 leases in the present appeal. In answer to Q. 741 Khagendra in his evidence stated that he was not definite with regard to the dates of the meetings but said that 3 meetings were held. In the next question when he was specifically asked about the meeting of 25th February, 1946 with reference to paragraph 13 of his written statement he had to admit that it was not mentioned in his written statement. The first lease, Ext. R and the third lease, Ext. W recite the minutes dated 24th February, 1946. The Second lease, Ext. T recites the meeting dated 27th February, 1946. Khagendra, therefore in his evidence contradicted the recital in the second lease. Counsel for the appellant invited Khagendra to say that the recital in the second lease is a mistake and the correct date should be 25th February, 1946 (Sec Qs. 345-350). It thus appears that Khagendra tried to make out a case which is not the case in any of the pleadings either of the appellant 6r of Khagendra himself. Moreover, Khagendra does not lead any evidence to prove that there was any meeting by which the general body of Shebaits granted any authority to the 3 transferor Shebaita to execute the second and the third leases. It is significant to note that the minutes at the meeting dated 25th February, 1946 substantially covered the same ground as the minutes of the meeting dated 24th February, 1946 and yet it contains no reference to the minutes of the earlier meeting namely 24th February, 1946. It is also significant to note that in the application for permission filed before the District Judge, 24 Parganas, the meeting of 24th February, 1946 is nowhere mentioned. In answer to Q. 597 onwards Khagendra had to admit that the meeting of 24th February, 1946 was not mentioned but his explanation was that his lawyer knew everything before whom all facts were placed. Before us an application was filed on behalf of the appellant under Order 41, Rule 27 Code of Civil Procedure for reception of additional evidence of a Deed of Rectification said to have been executed on February 28. 1948 by Khagendra Lala Mitra, Sachindra Lal Mitra and Abani Kumar Ghose in favour of the Naskars. It is stated in the said application that in the recital contained in the lease dated 26th February, 1946 the date of the meeting wherein the majority of the Shebaits are alleged to have agreed to grant the lease had been mentioned as 24th day of February through mistake, in place of 27th day of February which is the correct date. A true copy of the said Deed of Rectification has been annexed to the application for reception of additional evidence. This application was not pressed before us and the certified copy of the said Deed of Rectification was not tendered in evidence and it was not marked as an exhibit in the appeal. In these circumstances we cannot take any notice of the aforesaid application. The application is accordingly dismissed without however, any order as to costs.
11. According to the evidence of Chintaharan Bhattacharyya, the manager of the Naskar estate, meetings were held on 24th February. 1946 and 27th February, 1946. He however says that the date 24th in the third lease. Ext. W, is a mistake and it should be 27th. The minutes of the meeting of the 27th came into evidence for the first time on production of the records of Suit No. 48 of 1948 filed in the Sealdah Court. Exhibit 001 (b) is the written statement of Khagendra in that Suit. In that written statement the original minutes of the meetings dated 24-2-46 and 27-2-46 were annexed. Chintaharan Bhattacharya, manager of the Naskar estate tried to prove the signature of Sachindra in the original minutes annexed to the written statement in the said suit. The original minutes of the meeting of the 24th are still part of the records of that case. Chintaharan Bhattacharya admitted that all these minutes annexed to the said written statements were the originals. On the other hand Khagendra has stated that the original minutes of the meetings dated 24th February, 1946, 25th February, 1946 and 7th December, 1947 were with him and his attorney. Chintaharan Bhattacharya is the only person who has given evidence with regard to the minutes of the meeting dated 27th February, 1946. On behalf of the Naskars it was not suggested to any of the plaintiff's witnesses or Khagendra or Abani that there was a meeting on 27th February, 1946. Admittedly neither the Naskar nor their manager Chintaharan Bhattacharya was present in any of these meetings. In these circumstances the minutes of the meeting dated 27th February, 1946 cannot be said to have been proved. Chintaharan's evidence is that he obtained certified copies of the minutes annexed to the written statement of Khagendra in Suit No. 48 of 1948 and that rough copies of the minutes of the meetings dated 24th February, 1946 and 27th February, 1946 were given to him by Khagendra. It is difficult to believe that if the appellant had copies of these minutes the same should not be suggested to any of the witnesses for the plaintiff. It appears from the evidence that Khetra was present in the meeting. According to the evidence of Khagendra the usual practice was that the seniormost member would preside over the meeting as Chairman. But the disputed meeting shows that although khetra was present he was not the chairman in those meetings. There is no explanation as to why the usual practice was deviated from in these meetings. The serial number of the minutes of these meetings show that the meeting held on 9th July, 1944, Ext 01, is the 4th extraordinary general meeting. Serial No. of the meeting held on 24th February, 1946, Ext. 0005, is the 6th extraordinary general meeting. When Khagendra was asked about the 5th extraordinary general meeting his answer to Q. 492 was that he could not say which was the 5th extraordinary general meeting. When the minutes of the meeting dated 27th February, 1946 were produced by Chintaharan it appeared that it was the 5th extraordinary general meeting In answer to Questions 491-499 Chintaharan frankly stated that he had no explanation and he stated that he did not check these things. It is also significant that only the impugned minutes contain the seal of the Shebaits. This is very unusual. There are also serious discrepancies in the evidence of Khagendra, Abani and Chintaharan with regard to the persons on behalf of the Shebaits who carried on negotiation with Chintaharan. Some say it was Khagendra who did everything. Others say that Sachindra did everything. It appears that the Naskara were insisting upon sanction of the leases from the court. Exhibit 012 (a) which is a letter dated 18th February, 1946 written by Hem Chandra Naskar and Jogendra Nath Naskar to Khagendra Lal Mitra and others mentions that a lease may be granted after obtaining the valid permission from the court. When sanction was refused by Alipore Court the lawyer Sanat Babu is said to have advised that no sanction is necessary and the first lease was executed. This conduct of the appellant is not consistent with the conduct 'of a person taking a lease bona fide after making due enquiry. Exhibit HH2 is an affidavit filed by Sachindra stating that the meetings were never held. Similarly Ext. RR1 is the petition of objection filed by Sushil. Chintaharan in his evidence has stated that he was satisfied only from the minutes that the majority of the Shebaits have given consent for the execution of the leases and there is no case on behalf of the appellant that consent was given by the Shebaits otherwise than in the disputed meeting. It is significant to note that although previously written notices used to be served for the disputed meetings it is said that only oral notices were served. Exhibits H, DD, G and P would show that written notices were previously served. Another curious feature about the meeting of the 25th February, 1946 is that the meeting of the 24th February, 1946 was finished at night. It would naturally take some time to decide that that meeting was not enough and another meeting should be held on the next day. There could hardly be any time to serve the notices for the meeting said to have been held on the 25th February, 1946, In the application for permission filed before the District Judge at Alipore no mention was made of the meeting said to have been held on the 27th February, 1946. On the other hand the plaintiff has given sufficient evidence to prove that no notices were served and no meetings were held. The persons shown to be present in the meetings of 24th and 25th are the same. The persons shown to be present in the meeting of the 27th are slightly different. Out of the persons shown to be present in the meetings of the 24th and 25th the plaintiff has called as witnesses a large number who may be considered to be disinterested. The plaintiff has called Khetra. The next person is Khagendra himself. Dhirendra is siding with Khagendra. Sushil and Sachindra are dead. Provat and Panchanan were called as witnesses. Pasupati and Sanat were siding with Khagendra. They were the persons in the suit filed in Alipore and their father Khetra was the broker in the transaction. Manindra was siding with Khagend'a. Bhajahai, Amarendra and Kiron Dasi arc all dead. Over and above those persons the plaintiffs have examined Ajay Hriday Mitra who was shown to have been present in the meeting of 27th February, 1946. Four other Shebaits, namely Ajit Uday Mitra, Anil Krishna Mitra, Rabindra Lala Mitra and Amulyadhan Joardar were also examined on behalf of the plaintiff. The last named person i.e. Amulyadhan Joardar has slated in his evidence that he usually does not concern himself with the affairs of the debuttar estate. Nothing was suggested to him as to why he would depose falsely. In this state of evidence it must be held that the 3 meetings in question were not held as claimed by the defendants.
12. Another aspect to be considered in connection with the question whether the meetings were held or not, is the service of notice of the disputed meetings. On behalf of the appellant Mr. Banerjee contended before us that even assuming that there has been some irregularity in the matter of service of notice of the meetings the appellant cannot be held liable for that. It was contended that the charges of collusion and fraud not having been allowed to be raised by the trial court, it must be held that the enquiry made by Chintaharan Bhattacharyya was enough to uphold the transaction. In support of this contention be relied upon the decisions in : AIR1966SC1011 and a passage at page 225 in Hindu Law of Religious and Charitable Trusts bv Dr. B. K. Mukherjea. In our opinion, the authorities cited by Mr. Banerjee in support of his contention do not help him as would appear from the following passage at page 225 of Dr. Mukberjea's book of Hindu Law of Religious and Charitable Trusts (3rd Edition):
'Suppose that the income of the Debuttur estate which was originally sufficient to meet the expenses of all the rites and festivals, either directed by the founder or observed in practice since the foundation of the temple, dwindles down, for some reason or other, can it be said in such cases that the Shebait can claim to continue the rites and ceremonies in the same scale as before and go on borrowing money to meet these additional expenses or else alienate the Debutter property to make up the deficiency. The answer must certainly be in the negative. Such conduct certainly cannot be that of a prudent manager which is essential to valid alienations of idol's property but would be repugnant to the very object of the grant....................................
The Shebait in such circumstances, is duty bound to regulate the scale of service with reference to the reduced income and even some of the unessential ceremonies could be. discontinued altogether.'
The learned standing Counsel appearing on behalf of the Official Receiver, on the other hand, contended that clause 16 of the scheme requires a particular mode of service of notice and under clause 15 at least 3 days' notice must be given in order to enable the Shebaits to give proxy. He argued that in the present case no notice was served as prescribed under the scheme and in fact no notice was served at all. He contended that unless the notice was served in the prescribed manner any business transacted in a meeting, even assuming that a meeting was held, would be illegal and invalid in law. Reliance was placed in support of this contention on the decision of the Supreme Court in Gujarat Electricity Board v. Girdharlal Motilal, : 1SCR589 . In that case it was held that Section 6(1)(a) of the Electricity Act (1910) (as amended in '1959) was mandatory. The notice must specifically call upon the licensee to sell the undertaking. It was further held that before the power conferred by Section 6(1) could be exercised by the State Electricity Board the notice must be served in strict compliance with the provisions made in the Act. The learned standing counsel also relied upon a passage at pages 23, 24 in Shackleton's Law and Practice of Meetings (5th Edition). The said passage is as follows:
'Where meetings concern elected or other properly constituted bodies, due and adequate notice must be given to every member of the body, and the rules or regulations of that body must be strictly observed on all matters appertaining to the authority to issue, attestation of, and particular methods prescribed for, the service of notices ... ... ... ... ...
When notice is necessary, the following general rules must be observed.
1. Every person entitled to attend the meeting must be summoned, unless he be beyond reasonable 'summoning distance or is too ill to attend.
2. The notice must be frank, clear and free from trickiness, and if any special business is to be transacted this must be clearly stated.
3. ... ... ... ... ... ... ... ... ... ...
4. The notice must be served strictly in accordance with the regulations of the body on whose behalf it is given, and if any particular method is prescribed by Act of Parliament this also must be observed.
5. ... ... ... ... ... ... ... ... ...'
In the present case the scheme has provided for a particular mode of service of notice.
The debuttar estate was being managed in terms of the scheme framed by the court. It was therefore incumbent upon the managing Shebaits to serve notice of any proposed meeting strictly in the manner prescribed by the scheme. In our opinion, therefore, the failure to serve notice in accordance with the procedure prescribed by the scheme will render the meetings invalid in law even if such meetings were held, it having been admitted by Khagendra himself that no notices were served in the prescribed manner. It is to be noticed also that the majority of the Shebaits within the meaning of clause 17 (b) of the scheme did not sanction the grant of the leases. As has already been seen clause 17 (b) of the scheme itself is a restriction upon the right of the members of the committee, to grant a lease for a term exceeding 3 years at a time. It further provides that if the committee wants to grant a lease for a term exceeding 3 years the committee shall be empowered to do so with the sanction and consent of the majority of the Shebaits to be ascertained in a general meeting of the Shebaits held specially for that purpose. It was contended on behalf of the appellant that the term 'majority of the Shebaits' in this clause implies majority of the Shebaits present at the meeting. In our view the said expression in the said clause implies the majority of the total number of Shebaits. This would be quite evident from the different expressions used in different clauses of the scheme. Clauses 4(7), 4(8), 4(11), 6(2), 6(3), 7(2), 9, 14, 15 and 19 would show that three different kinds of majority have been contemplated. The first kind is with regard to the decision by a majority of Shebaits present at the meeting, the second is with regard to the decision of the majority of the Shebaits to be ascertained at a general meeting and the third is the decision by the majority of votes of Shebaits present at a meeting. It would appear from the different clauses that where the income of the estate is likely to be affected the scheme requires the decision by a majority of all the Shebaits. In the present case the number of Shebaits was more than 50 as would appear from the evidence of Khagendra, Abani and Chintaharan. It is not the case of the defendant that except in the disputed meeting consent of the majority of the. Shebaits was independently taken in support of the alienation made. It must therefore be held that the 3 members of the managing committee were not competent to execute the leases in question as the same were executed contrary to the provisions of the scheme.
13. Even assuming that the 3 members of the managing committee were competent to execute the leases and the consent of the majority of the Shebaits had been obtained it must be shown that the leases were-executed for legal necessity before the same can be upheld. It is well settled that it is for the party who wants the court to uphold the alienation of debuttar property to prove that the alienation was made for legal necessity. On behalf of the appellant Mr. Banerjee contended that there was legal necessity inasmuch as the income of the debuttar property was only Rs. 246/- per month from the lessee Sankarsen Ltd. and an income of Rs. 100/-from the remaining property. It was contended that the said income was totally insufficient to meet the expenses for sheba puja as provided in the scheme framed in Suit No. 1528 of 1926 and also for meeting the necessary repairs of the Thakurbari, purchase of utensils, expenses of preparing of bhog etc. Mr. Banerjee referred to the evidence of plaintiffs' witnesses Jogendra Lala Mitra, Ajit Uduy Mitra and Khetra Lal Mitra and also to the evidence of the defendant's witnesses Khagendra Lal Mitra, Abani Ghosh and Chintaharan Bhattacharyya. Mr. Banerjee also referred to Exhibits D, 01, J and K in this connection and contended that from the above oral and documentary evidence it would appear that there was a pressing necessity upon the estate. Mr. Banerjee further contended that bis client had made bona fide enquiry about the existence of legal necessity and therefore the alienation should be upheld. On behalf of the respondent it was contended 'that the evidence adduced in the case does not establish the existence of legal necessity and in any event the appellant did not make any bona fide enquiry as to the existence of legal necessity. It is to be noticed that in the written statement filed on behalf of the defendant No. 5 no case of bona fide enquiry has been pleaded. It was accordingly contended on behalf of the respondent that the appellant should not be permitted to raise that pica. But in the written statement filed OB behalf of the Naskar defendant this plea had been taken specifically in paragraph 19. We would accordingly allow this point to be raised by the appellant. The facts constituting legal necessity as appearing from the recital in the lease, Exts. R. T. and W are the difficulty in performing the daily sheba and periodical festivals for want of fund in the hands of the Shebaits and that consent of 'majority of the Shebaits' and 'majority of the Shebait present at the meeting' was obtained sanctioning the lease. In paragraphs 7, 15, 16, 17 and 18 of the written statement filed on behalf of the Naskar defendants the particulars which necessitated the granting of leases have been mentioned. It has been stated that there were no sufficient funds in the hands of the Shebaits for which the terms of the scheme could not be complied with and necessary expenses for sheba puja of the deity could not be performed, that rent could not be realised from the tenants, that large sums had to be spent by the estate for litigation, that as a result of reduction of rent by Sankarsen Ltd., the financial position of the estate had become far precarious and that the Naskar defendants had paid considerable sums of money as selami, and rent payable by them was sufficient, and this has immensely benefited the debottar estatt. Exhibit B2 the scheme framed by this court provides that the responsibility for proper performance of the sheba puja of the deity is on the committee and the committee is to take steps for improvement of the property and realisation of rent of the debuttar estate. It contains a provision in clause 7 (3) that if the income decreases or increases then with the consent and approval of the majority of the Shebaits the committee shall be entitled to reduce or increase the puja expenses as the case may be. This provision in the scheme is important and has been incorporated in the scheme keeping in view the financial condition of the debuttar estate in future. By a order dated 18-8-1943, Ext. 001, the schema was amended in two important respects, firstly, although the life of the first committee appointed by the scheme was for 5 years, by this order retirement of the first committee was accepted and direction was given for formation of the next committee by election, and secondly, directions were given for reduction of expenses and there was a mandatory direction upon the committee to be elected to take steps for reducing the expenses proportionately so that the same do not exceed the income of the debuttar estate. This modification of the scheme was necessitated by the fact that the rent of Sankarsen Ltd. was reduced to Rs. 266/- per month. It appears that no steps were taken by the committee to implement this order. In the first meeting of the elected managing committee this question was considered. In the subsequent meetings of the committee which are Ext. L, DD, EE, S and Ext. 05 it was unanimously decided that the expenditure should be reduced and efforts should be made to increase the income, As a matter of fact all were agreed to implement the order dated 18th August, 1943. From the letter dated 24th August, 1945, Ext. D, it appears that Jogendra made a grievance against Khagendra that he was deliberately opposing Jogendra's request to curtail the expenditure and he therefore submitted his resignation. In the committee meeting dated 1st June, 1944, Ext. FF, we find a complete change of attitude on the part of Khajendra and Abani and they stated that they were not in favour of any curtailment of the expenses. From Ext. 01 the proceedings of the general meeting of the Shebaits on the 9th July, 1944 it would appear that it was decided that in view of the increase of prices it is not possible to reduce the expenses prescribed for daily sheba and the managing committee was directed to find out means for meeting the expenses by improvement of the present income of the estate. The expense which was found not possible to reduce in this meeting relates only to the daily sheba and not to the periodical festivals. In the adjourned general meeting held on 25th March, 1945, Ext. P, a request was made to the managing committee to frame a scheme or place any proposal for any improvement for the consideration of the Shebaits. But the managing committee did not follow this direction. From the above facts it would appear that prior to the execution of the disputed leases the income of the debuttar estate was Rs. 300/-per month and although repeated directions were given in the meeting to the managing committee to reduce the expenses nothing was done by the managing committee. The managing committee was directed to frame a scheme for reducing the expenses and for improvement of the estate for consideration by the general body of the Shebaits but this direction was not complied with by the managing committee. The question of legal necessity has to be considered in the background of these facts and circumstances appearing in evidence. It is well established that in order to constitute legal necessity there must be such a pressure upon the estate that without the alienation in question the estates could not have been preserved. In Palaniappa Chetty v. Srimath Deivasikamony Pandara Sannadhi, 44 Ind App 147 = (AIR 1917 PC 33) it was held that the Shebaits have power and authority to alienate the endowment only in case of necessity or for the benefit of the estate and also power to curb derivative interest out of them. It is impossible to give a precise definition of benefit to the estate' or 'necessity' applicable to all cases. The preservation, however, of the estate from the iextinction, the defence against hostile litigaition affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits. In Ramsumran Prosad v. Mt. Shyamkumari, 49 Ind App 342 = (AIR 1922 PC 356) it was pointed out by the Privy Council that necessity does not mean actual compulsion but the kind of pressure which the law recognises as serious and sufficient, in the case of Biram Prokash v. Narendra Das, : AIR1966SC1011 it was held by the Supreme Court that the expenses incurred in litigation by the head of a religious endowment for the preservation of the endowed property against a trespasser and subsequent sale of a portion of the endowed property for such costs of litigation would amount to legal necessity, inasmuch as, the same was incurred for the preservation of the endowed property. From the principles enunciated in these decisions it follows that in order to constitute legal necessity an alienation must be for the preservation of or for the benefit to the estate. In The present case what we find is that the managing committee did not take any steps to reduce the expenses although such decision was repeatedly taken by the general body of the Shebaits and although there was a clear direction by this Court to that effect. It cannot therefore be said that there was such a pressure upon the debuttar estate that without the leases in question the debuttar estate could not be preserved at all. We accordingly hold that there was no legal necessity justifying the alienation.
14. On the question of bona fide enquiry by the Naskar defendants it was contended on behalf of the appellant that the Naskars having made bona fide enquiry as to the existence of legal necessity they entered into the transaction and as such their interest is protected under the law. On behalf of the respondents it was contended that there was no such pleading in the written statement and therefore the appellant should not be allowed to urge this point. Even if the appellant is allowed to urge this point we are unable to hold, upon the evidence adduced by the parties, that there was any bona fide enquiry made by the appellant about the existence of legal necessity. Bona fide enquiry implies that one must act with reasonable care and must act in good faith in entering into the transaction. From the evidence of Cbintaharan in answer to questions 355 to 358 it is clear that the Naskars, were fully aware of the suit in which the scheme was framed and they had full notice of the scheme. In fact there were proceedings on the basis that the leases would have to be taken under the scheme. It appears further from the evidence of Chintaharan that the Naskars were aware that consent of all the Shebaits had to be taken. From the recital in the leases it would also appear that they were aware of the distinction between the 'majority of the Shebaits' and 'majority of the Shebaits present in the meeting'. The Naskars were also aware of the order dated 18th August, 1943 passed by this Court (Ext. 001) inasmuch as the leases recite that the term of the office of the first nominated committee ceased after the expiry of December 5, 1943. If the said order was not passed then according to the original scheme the term of office of the first nominated committee would have expired on 28th March, 1944. Knowledge of the Naskars about the aforesaid order would also be evident from the recital hi the leases that the committee of which Khagendra was a member was elected at a general meeting on 5th December, 1943 upon notice to all the She-baits and this notice, Ext. 1, specially mentions the order dated 18th August, 1943. In any event they should have known not only about the aforesaid order but everything that has happened thereafter if they had acted with reasonable care. It was their duty to make proper enquiry and search the relevant documents and also to make enquiry from independent sources. The defendant's witness Chintaharan has stated in his evidence that he knew that there were 53 Shebaits at the relevant time. But the resolution sanctioning the leases show the names of 16 or 17 Shebaits only. The recitals in the leases are that the leases were with the consent of the majority of the Shebaits. From the evidence of Chintaharan it would further appeal that he was aware that only 3 shebaits were functioning in the committee and they had doubt about their competency to grant the leases. It was argued that because of the order of the injunction passed by the Munsif at Sealdah, Ext. 2 (a), and also the order of injunction passed by the Subordinate Judge at Alipore, Ext. 07 (a), restraining the other Shebaits from interfering with the possession of the 3 members of the Committee, the Naskars had to take the leases from the committee consisting of 3 members only. The first lease, Ext. R is dated 3rd May, 1946. This is prior to the dates on which the orders of injunction were passed in the two suits at Sealdah and Alipore respectively. Secondly, if the committee was not a valid committee which could grant the leases the order of injunction could not confer upon it the authority to grant the leases. In his evidence Chintaharan at first tried to deny any knowledge of any jetter being written by any of the Shebaits with regard to the proposed lease but in answer to Q. 463 he was constrained to admit that a letter had been received by Naskars from Kanailal Mitra, one of the Shebaits, informing them that no general meeting was held and no resolution had been passed sanctioning the proposed lease. No further enquiry was made about the correctness of the statements made in the said letter, nor was the said letter replied to until after about a month when the lease had already been executed. This would be evident from Chintaharan's evidence and Ext. SS. From the entire evidence it appears that no independent enquiry was made. No inspection of documents was made, books of accounts were not referred to and relying only upon the verbal statements of the Shebaits and copies of the resolution the Naskars entered into transaction and obtained the leases. Such enquiry, in our opinion, cannot be called bona fide enquiry about the existence of legal necessity where a person was dealing with properties belcnging to a debuttar estate (See ATR 1935 Cal 94: (1911) 15 Cal WN 793; (1880) 8 Ind App 8 (PC)).
15. Next point urged on behalf of the appellant is that the Official Receiver is not competent to file the suit. It was contended that the right to sue in respect of the deity's property is vested in the Shebaits, and therefore none other than the Shebaits is competent to sue for setting aside the alienation of the deity's property without legal necessity. Reliance was placed on Maharaja Jagadindra Nath Roy v. Rani Hemanta Kumari, (1904) 31 Ind App 203 (PC) and V. R. Reddy v. K. S. Reddy, : AIR1967SC436 . In the case of Maharaja Jagadindra Nath Roy the suit was not by the idol represented by the Shebaits but by the Shebait himself who claimed to recover the possession of the suit property as belonging to the deity. The courts below held that the title to the property was in the plaintiff but the High Court held the suit was barred by limitation on the ground that the plaintiff did not claim proprietary interest in himself with respect to the lands in suit but as shebait of the idol, and qua shebait was not entitled under Section 7 of the Limitation Act to any extension of the period of limitation by virtue of his minority. This decree was reversed by the Judicial Committee and it was held that as the plaintiff was a minor at the time when the cause of action arose, he was entitled to claim extension under Section 7 of the Limitation Act. In the case before the Supreme Court the question was whether the Commissioner appointed under the Madras Hindu Religious and Charitable Endowments Act had any authority to represent the deity in proceeding before the District Judge under Section 85 of the Act, and whether the compromise entered into by him on behalf of the deity would be binding upon the deity. It was held that the possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait. It was further held that where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. Reliance was placed in Kalimata Debi v. Nagendranath, 44 Cal LJ 522 = (AIR 1927 Cal 244). In our opinion the aforesaid cases relied upon on behalf of the appellant do not go to the length of saying that under no circumstances a person other than a Shebait can institute a suit to set aside an alienation of deity's property. The deity is the owner of the debuttar property. All the Shebaits can jointly file the suit for the protection of the property. In a case where there is dispute between the Shebaits some of the Shebaits can even file a suit on behalf of the deity. A worshipper or a person interested in the deity may also, under certain circumstances, file a suit. The court may also appoint a next friend and authorise him to file a suit on behalf of the deity (See : AIR1967SC436 ). In the present case the suit has been filed by the Official Receiver after obtaining permission from the Court. The Receiver has no independent cause of action in him. Under the provisions of Order 40, Rule 1, Code of Civil Procedure a Receiver is competent to enforce the cause of action of somebody else. He sues in a representative character. General law gives certain rights either to the deity or to the Shebaits or to both. Order 40 gives the entirety of that right to the Official Receiver. The Official Receiver represents the deity as well as the collective rights of the Shebaits to sue. When the Receiver is enforcing the cause of action of the owner itself the person against whom relief is being claimed is alone a necessary party. The right of action of the deity and the right of action of all the Shebaits are represented by the Receiver. The suit in which the Receiver has been appointed is an administration suit and the circumstances are such that the administration of the debuttar estate has devolved upon the court. In these circumstances the court may pass any order for proper representation of the deity. The appointment of the Receiver is in the suit and upon notice to all the parties. There is a direction on the Receiver to ascertain the wishes of the Shebaits regarding the leases in dispute. The wishes of the Shebaits were ascertained by the Receiver in a meeting. He thereafter, obtained a formal order empowering him to file a suit. In these circumstances it must be held that the Receiver is competent to file the suit and the suit is maintainable at his instance. It was argued on behalf of the appellant that the two other suits filed by Ashalata Majumdar, one of the Shebaits, namely, suit No. 4868 of 1950 in which the lease in favour of Hem Chandra Naskar and Joendra Nath Naskar on 13th December, 1947 has been challenged and suit No. 4575 of 1950 in which it was alleged that the estate is being mismanaged and a prayer has been made for steps to be taken for setting aside all the leases in favour of the Naskars, are pending. It was contended that in view of the pendency of these two suits where prayers have been for the same reliefs the present suit by the Official Receiver is not maintainable. It was further contended that the permission to sue was obtained by the Receiver on an ex parte application without notice to all the Shebaits. It was submitted that from Exhibit A4 it appears that the Receiver called a meeting in his office and wanted to know how many Shebaits were willing to file a suit and how may Shebaits were against it, and in view of the majority having agreed to file a suit the suit was filed by the Official Receiver. It was contended that so long as some shebaits were willing to file a suit the court had no jurisdiction to make an order authorising the Official Receiver to file the suit. We are unable to accept this contention of the appellant. After the appointment of the Receiver the management of the debuttar estate is in the hands of the court and as such the court has power to grant permission to the Receiver to file a suit for the protection of the deity's interest and for preservation of the deity's property. The right of the deity to be represented by a next friend where neither Shebaits nor worshippers have come forward has been considered in the cases reported in : AIR1960Cal741 and also in Hindu Law of Religious and Charitable Trusts by Dr. Mukherjea, where the learned author after discussing various cases, has, at page 212 observed as follows :--
'The rules of procedure after all are only means to serve the ends of justice, and if the appointment of a next friend by the court is calculated to safeguard the interest of the deity, there could be no real objection to the procedure suggested by Mr. Justice Pal in Tarit Bhusan's case.'
Earlier at page 209 the learned author bag stated as follows :
'In such cases where the deity wanted relief against the Shebait himself, it cannot possibly be expected that the Shebait would represent the deity in the suit. If the deity has any right of suit at all, it must be exercised through some other person as next friend. Mr. Justice Pal's opinion seems to be that no person other that the Shebait can legally of effectively represent the deity unless he has been specially appointed by the court.' It has been held in the case of Sm. Sushama Roy v. Atul Krishna Roy, : AIR1955Cal624 that the normal rule is that the court can pass an ex parte order appointing a next friend- But there is nothing to prevent the court from ascertaining the wishes of the general body of the Shebaits. The present case is not one where the suit has been filed by a next friend with the leave of the court. Representation by the Receiver in the present case is more complete than in the case of appointment of a next friend by the court. The order granting leave to the Receiver to file the suit ia not an order which affects the rights of the appellant in any way and as such the appellant cannot make any grievance on that account.
16. Another argument which was advanced on behalf of the appellant is that in the absence of all the Shebaits the present suit is not maintainable. It was contended that all the Shebaits were interested in the debuttar property and they were entitled to have their say in the matter. But because they were not made parties in the suit they have been denied the opportunity to make their submission before the court. In support of this contention Mr. Banerjee relied upon the abovementioned decision in Sm. Sushama Roy v. Atul Krishan Roy. : AIR1955Cal624 and Pramatha Nath v. Pradyumna Kumar, 52 Ind App 245 = (AIR 1925 PC 139). It was contended that if all the Shebaita are made parties to the suit it is expected that at least some of them would file written statements stating clearly whether there is legal necessity or not. In this case only 3 of the Shebaits have been made parties. Therefore, the other Shebaits never got a chance to tell the court whether there was any legal necessity or not, or whether the leases are for the benefit of the estate or not. It was further contended that even after the appointment of the Receiver the residuary powers of the She-baits were still with them and therefore it was necessary for the Shebaits to be made parties to the suit, and in their absence the suit could not proceed. The two cases relied on by Mr. Banerjee in support of his contention do not lay down that in a suit such as the present one all the Shebaits are to be implicated as parties to the suit.
17. In the decision reported in : AIR1955Cal624 it was held that ordinarily the interests of the deity require that nobody other than a shebait be allowed to institute a suit in the name of the deity without a previous order of the court appointing him to represent the deity. But where the Shebaits of a deity have precluded themselves by their conduct from bringing a suit to protect the interests of the deity, a person interested in the proper sheba puja of the deity may institute a suit on behalf of the deity, only after he makes an application to the court appointing him as the next friend of the deity. In Pramalha Nath Mullick v. Pradyumna Kumar Mullick, 52 Ind App 245 = (AIR 1925 PC 139) the Judicial Committee held that the right of worship of an idol cannot be made object of partition. The joint owners of such a right are entitled to perform their worship by turns. The Judicial Committee observed that an argument which would reduce a family idol to the position of a mere movable chattel is one which cannot be supported and that there is no ground for the proposition that Hindu family idols are property in the crude sense maintained, or that their destruction, degradation or injury are within the power of their custodian for the time being. Such ideas appear to be in violation of the sanctity attached to the idol, whose legal entity and rights as such the law of India has long recognized. This case, in our opinion, do not lend any support to the argument that a suit filed for the benefit of the idol and for the protection of its property is not maintainable unless all the Shebaits We made parties thereto. The other point urged with regard to the maintainability of the suit is that the deities have been made parties defendants to the suit. It was argued that even if the suit is for the benefit of the deity it must figure as the plaintiff and not as a defendant. It was contended that unless this was done the suit is not maintainable. We are unable to accept this argument advanced on behalf of the appellant. Here no relief is being claimed against the deity. On the contrary it is expressly stated that this suit has been instituted for the benefit of the deity. The category in which a party to a suit is described, namely, the plaintiff or defendant, does not determine the question as to whether any adverse interest is being claimed against it. In the present suit the Receiver is not claiming any adverse interest to that of the deity. Therefore when the deity is implicated as a defendant it normally means that it is a party to the proceeding so that the adjudication may be made in its presence In : 3SCR283 it has been held that a decree may be passed in favour of the defendant. It has been pointed out in several cases that in a suit filed by the Shebaits or between the Shebaits a deity is a proper party if its interest is likely to be affected by the decision. The Courts have accordingly on many occasions directed the deity to be made a party to the suit. Obviously in such cases the deities have to be added as a party defendant (See : AIR1952Cal763 ; The contention urged on behalf of the appellant that the suit as framed is not maintainable is accordingly overruled.
18. The last point raised in this appeal on behalf of the appellant is with regard to mesne profits. It has been submitted that in prayer H in the plaint of suit No. 1654 of 1952 and in prayer G of the plaint in Extraordinary Suit No. 6 of 1957 the plaintiff prayed for an enquiry into damages suffered by the defendant deity by reason of the execution of the leases challenged in those suits. It was contended that in view of the prayers made in the plaint and in view of the provisions of Order 20, Rule 12, Code of Civil Procedure the learned Judge ought to have directed an enquiry for ascertaining mesne profits. A criticism was made of the judgment of the learned Judge awarding mesne profits on the ground that he awarded mesne profits because the books of accounts were not produced by the appellant. It was contended that at that stage the appellant was not required to produce his books of accounts because the prayer made in the plaint was for an enquiry into damages. It was further contended that the learned Judge himself could not accept the evidence of Dhirendra Nath Sarbadhikary, an assessor of Calcutta Corporation, and he was of the opinion that the letting value of the land stated by him was relatively high. We find that there is a good deal of force in this contention urged on behalf of the appellant. The plaintiff himself prayed for an enquiry into damages suffered by the defendant deity by reason of the execution of the said leases and a decree for the same found so due against the defendants. In view of this prayer made in the plaint the appellant bad no opportunity to place all materials before the Court to show the actual amount realised by him from the property and also the actual payment made by him and also expenses incurred for improvement of the demised land by him. The learned Judge has also observed in the judgment that there is no dependable evidence as to the actual amount realised by the Naskar defendants from the tenants. He has also found that the plaintiff's evidence about the letting value of the land is relatively high and that the evidence of Sri Sarbadhikary is not acceptable as clinching evidence of letable value of the demised lands. In the end the learned Judge has increased the rent reserved in the leases by 50 per cent by a rough and ready method. Under Section 2(12) of the Code of Civil Procedure 'mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession. The learned Judge in the trial Court appears to have overlooked this aspect of the matter in passing a decree for mesne profits. In our view this approach to, the question by the learned Judge has no basis in Jaw and this part of the judgment and decree cannot therefore be sustained.
19. We accordingly allow this appeal in part and set aside the judgment and decree of the trial court with regard to mesne profits and in its place we pass a preliminary decree for mesne profits in favour of the plaintiff. The rest of the judgment and decree are affirmed.
20. The Extraordinary Suit No. 6 of 1957 is remitted back to the trial court of pas-sing an appropriate order with regard to the plaintiff's prayer for enquiry into damages or mesne profits.
21. The appellant must pay three-fourths of the taxed costs of this appeal to the plaintiff-respondent No. 1.
22. In addition to what we have said, on the prayer of the learned advocate for the appellant we stay the operation of the judgment and decree relating to cancellation of the leases in question for a period of three months from this date. The stay is only limited to that part of the judgment and decree. All other interim orders passed in the appeal arc vacated.
23. Liberty is given to the parties to make an appropriate application for further direction. We make it clear that there will be no stay in so far as the enquiry relating to mesne profits is concerned.
A.N. Sen, J.
24. I agree.