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Gouri Prosad Surma Bardeuri and ors. Vs. Kali Kanta Surma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal907
AppellantGouri Prosad Surma Bardeuri and ors.
RespondentKali Kanta Surma and ors.
Cases ReferredPrahlad Singh v. Luchmunbutty
Excerpt:
right of suit - suit to establish right to offerings--emoluments--defect of parties--code of civil procedure (act xiv of 1882), sections 11, pl. 30. - .....course laid down in section 30 of the code of civil procedure, and permitted some of each group of persons interested and who ought to have been made parties, to represent the rest. we have heard the order of the first court read out to us, and though that order purports to have been passed under section 30, it is. clear that the provisions of that section have not at all been properly carried out. section 30, as we understand-it, requires that the court should exercise a judicial discretion in permitting some definite person or persons to sue or be sued on behalf of all the persons interested, and it further requires the court to give to the persons interested notice of the institution of the suit which must include a notice of the names of the persons who have been permitted to.....
Judgment:

Banerjee, J.

1. The plaintiffs state that they are the representatives of one of five Brahmins, who were brought from Kunoj by an ancient Hindu monarch to worship in the temple of Kamakhya in Kamrup, and that down to the present time the Dalois or managers of the temple have been always elected from among the representatives of the five Brahmins. They say that there are some smaller temples subordinate to the main temple in which the worship is conducted by other Brahmins, and that there are also a number of Sudras employed about all the temples. The defendants are the Brahmins employed about the temples other than those who are descendants of the five imported persons and the Sudras. The family of one of the five Brahmins is become extinct, that of another is represented by the plaintiffs; but descendants 'of the remaining three persons who are admitted to be living, and who are said to claim the same rights as those claimed by the plaintiffs, are no parties to this action. It is alleged that a goat is sacrificed in the temple each day, and this action is brought to obtain a declaration that the plaintiffs as representing the house of one of the five imported Brahmins are by the custom of the temple entitled to the whole of the goat which is sacrificed in the temple on the 4th of each month. The defendants object that the action cannot be maintained without the presence of the representatives of the other families of imported Brahmins and of certain other Brahmins and certain Sudras connected with the temple, and also contend that the five families between them are only entitled by custom to two goats in each month and not to the number alleged by the plaintiffs. The Courts below have found for the plaintiffs and given them a decree.

2. In second appeal it is contended for the defendants, first, that the Courts below were wrong in entertaining the suit, which was substantially one for dignity in a Hindu temple unconnected with any profit; secondly, that the suit must fail for defect of parties; thirdly, that there is no legal evidence to establish the customary right set up by the plaintiffs, and that such right can be enforced only if it is in accordance with the original conditions of the endowment; fourthly, that the sidhanta-patra has been misconstrued by the Courts below; and fifthly, that the learned Judge below was wrong in affirming the decision of the first Court when he disagreed with the Munsif as to his estimate of the evidence.

3. We do not think there is much in the first contention of the appellants. In the case of Krishnama, v. Krishnasami I.L.R. 2 Mad. 62 which was decided under the Civil Procedure Code of 1859, the Privy Council held that a claim to pecuniary benefits in respect of the performance of religious services was triable by the Civil Courts. Moreover Section 11 of the present Code, which enacts that the Courts shall try all suits of a civil nature, has an explanation added to it which provides that a suit in which a right to property is contested is a suit of a civil nature, notwithstanding that such right may depend on the decision of questions as to religious rites. Now in the present case, the right claimed is a right to certain offerings, that is, goats sacrificed on certain days, which, it is admitted, are not the voluntary offerings made by pilgrims, but are the regular offerings made out of the temple funds, and which being articles of food are clearly property. The suit therefore is one of a civil nature as explained in Section 11, and is triable by the Civil Court. We may add that the offerings claimed are of substantial value as emoluments, and are not mere tokens of dignity, though the customary right to them might have been based originally upon considerations as to the position of the plaintiffs, and that the present case is distinguishable on this ground from the case of Narayan Vithe Parab v. Krishnaji Sadashiv I.L.R. 10 Bom. 233.

4. The second objection is however, in our opinion, fatal to the maintenance of the suit. The plaintiffs base their claim to the goat sacrificed on the 4th of each month on an alleged custom under which they say that each of the five 'families took certain goats in each month, and they bring this suit to have their right to the goat killed on the 4th declared without making the other four 'families parties. We do not think that such a declaration could in any case be made in their absence, or in the absence of the other Brahmins and Sudras attached to the temple and interested in the offerings. It is part of the plaintiffs' case that they are interested in the offerings, and to make any declaration in* a suit to which they are not parties would be in effect to partition joint property, and to define the share of each without all the shares being before the Court, which manifestly cannot be done-see Prahlad Singh v. Luchmunbutty 12 W.R. 256. It was argued on behalf of the plaintiffs-respondents that the parties being numerous, the first Court followed the course laid down in Section 30 of the Code of Civil Procedure, and permitted some of each group of persons interested and who ought to have been made parties, to represent the rest. We have heard the order of the first Court read out to us, and though that order purports to have been passed under Section 30, it is. clear that the provisions of that section have not at all been properly carried out. Section 30, as we understand-it, requires that the Court should exercise a judicial discretion in permitting some definite person or persons to sue or be sued on behalf of all the persons interested, and it further requires the Court to give to the persons interested notice of the institution of the suit which must include a notice of the names of the persons who have been permitted to represent others, so that the persons interested may have an opportunity of knowing who have been selected to represent them. Now in the present case no such thing was done, In the first place the Court did not give permission to any definitely named persons among those interested to represent the rest; and in the second place the notice issued by the Court did not show who the persons were that had been selected to represent the remaining persons interested. That being so, we think that the persons interested in the result of the suit who are necessary parties have not been properly made parties to it, and that the suit must fail by reason of defect of parties. In this view of the case it is not necessary to consider the remaining points raised in the case. The result is that the decrees of the Courts below will be reversed, and the suit dismissed for defect of parties, with costs in all the Courts.


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