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Brojo Nath Misser and anr. Vs. Protap Chandra Misser and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal275
AppellantBrojo Nath Misser and anr.
RespondentProtap Chandra Misser and ors.
Cases ReferredKazem Ali v. Azim Ali Khan I.L.R.
Excerpt:
endowment - religious trust--shebaits, removal from office of--arbitration--order giving leave to sue under section 18, act xx of 1863--appealable order--regulation xix of 1810--act xx of 1863, sections 1--12, 14 and 18--act xii of 1887, section 20. - .....endowment was not a public one, and that act xx of 1863 was in consequence not applicable to the present suit.4. the court below thought that the act was applicable to the case, and it referred the case to arbitration under section 16 of the act, though the defendant no. 2 was unwilling to refer the matter to arbitration. the arbitrators, to whom the case was referred, made an award, and the court below made a decree in modification of the award to the effect that it be declared that the idol raghunath jeo is the ancestral idol of both parties, and that the defendants be directed to perform the worship in a certain way, not necessary to specify here, and that they do repair the temple as necessary within six months; and that if the parties do not act as directed, then any member of the.....
Judgment:

Tottenham and Banerjee, JJ.

1. This appeal arises out of a suit brought under Section 14 of Act XX of 1863 for the removal of the present shebaits of a certain religious endowment.

2. The plaintiffs allege in their plaint that the idol Raghunath Jeo had certain debottar property endowed for its worship and for the feeding of guests; that the present shebaits had no exclusive right of their own in the said property; that all Hindus had a common right of worshipping the idol; that the present shebaits had been mismanaging the debottar property and misappropriating its profits; that the plaintiff's as persons interested in the worship, having obtained the permission of the District Judge under Section 18 of Act XX of 1863, were entitled to maintain this suit; and that they brought this suit for the purpose of having the present shebaits removed from office.

3. The defendant No. 2, who is the appellant before us, amongst other objections not necessary now to consider, urged that the endowment was not a public one, and that Act XX of 1863 was in consequence not applicable to the present suit.

4. The Court below thought that the Act was applicable to the case, and it referred the case to arbitration under Section 16 of the Act, though the defendant No. 2 was unwilling to refer the matter to arbitration. The arbitrators, to whom the case was referred, made an award, and the Court below made a decree in modification of the award to the effect that it be declared that the idol Raghunath Jeo is the ancestral idol of both parties, and that the defendants be directed to perform the worship in a certain way, not necessary to specify here, and that they do repair the temple as necessary within six months; and that if the parties do not act as directed, then any member of the Misser family shall be able to take steps for the due performance of the said acts, that is to say, any member of the Paricharak Misser family shall be able to bring a suit for the appointment of a manager.

5. The defendant No. 2 has appealed against that decree; and it is contended on his behalf that the decree is bad, first, because, upon the fact found in the case and embodied in the decree that the idol is the ancestral idol of both parties, Act XX of 1863 was not applicable to the case, and the compulsory reference to arbitration and the decree made on the footing of the arbitration award are altogether illegal and void; and secondly, because the decree that has been made in the case is one that is not authorized by the terms of Section 14 of Act XX of 1863.

6. We think that both these contentions are valid. Act XX of 1863, as appears from the preamble to the Act and Sections 1 to 12, applies only to endowments to which Regulation XIX of 1810 was applicable; and that Regulation, as appears from Section 16, had application only to endowments for public purposes. This is the view that was taken of the scope of the Act in the case of Delrus Banoo Begum v. Razee Abdur Ruhman 23 W.R. 453. That case went up on appeal to the Privy Council, and though in consequence of the decision arrived at upon another question raised in the case the Judicial Committee did not think it necessary to decide the present question, yet their Lordships say 'that they see no reason for disagreeing with that part of the judgment'of this Court which dealt with the question now before us. We think therefore that this case is an authority binding upon us, and we accordingly follow it--Ashgar Ali v. Delroos Banoo Begum I.L.R. 3 Cal., 324 330.

7. Several other cases, both in this Court and in the other High Courts, have been discussed in the course of the argument; but we do not think it necessary to refer to them in detail, as some of them are not quite in point, and there is no decision of this Court which takes the contrary view; and though there is one Madras case--Fakuruddin Sahib v. Ackeni Sahib I.L.R. 2 Mad. 197--which favours the respondents' contention that Section 14 of Act XX of 1863 is general in its application, a different view is taken of the scope of the Act in a later case Sathappayyar v. Periasami I.L.R. 14 Mad. 1 which is in favour of the restricted construction put upon the Act by this Court in the case to which reference has already been made.

8. It was contended by the learned vakil for the respondents that whatever may be the true view of the scope of the Act, the defendant, appellant, is precluded from raising the present contention by reason of his having omitted to appeal against the order of the Judge under Section 18 of the Act, which was made in his presence.

9. We do not think there is anything in this contention. That order was not appealable under Act XX of 1863, and there is nothing in the Code of Civil Procedure which would allow an appeal from such an order, it not being a decree in any sense. In support of the argument that an appeal lies against such an order, reference was made to Section 20 of the Civil Courts Act, XII of 1887, which says: 'Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court'. It was argued that the language of this section compared with the language of the corresponding provision of the former Act, VI of 1876, goes to show that whereas by the former provision of the law an appeal lay to the High Court where such an appeal was allowed, the intention of the present law is to allow an appeal to the High Court, except where such an appeal is taken away. We do not think that this is the correct interpretation of the law. Section 20 of the Civil Courts Act is intended only to define the Court to which an appeal lies from a decree or order of a District Judge, but it is not intended to define the right of appeal or the class of decrees or orders from which appeals shall lie. In support of our view that no appeal lies from an order under Section 18 of Act XX of 1863, we may refer to the case of Kazem Ali v. Azim Ali Khan I.L.R. 18 Cal. 382 and also to a Full Bench decision of the Madras High Court, Vankateswara, In re I.L.R., 10 Mad., 98.

10. In our opinion, therefore, Act XX of 1863 was not applicable to this case upon the findings arrived at by the Court below, and the proceedings had in this case are therefore contrary to law and void.

11. We are further of opinion that the decree made in this case is not one that comes within the scope of Section 14 of Act XX of 1863.

12. We accordingly set aside the decree made by the Court below, and dismiss the suit with costs of both Courts.


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