B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff and arises out of a suit commenced by him as paricharak and shebait of certain deities for declaration of title to the property in suit and for a permanent injunction restraining the defendants from interfering with the possession of the deities. The original plaintiff whose name was Bhaktaram Roy having died after the institution of the suit, his nephews Panchkari Boy was substituted in his place and is the appellant before me.
2. The facts which are for the most part undisputed may be briefly stated as follows: One Ramdas Mohunt who was admittedly the owner of the property in suit died in February 1915 leaving behind him a will by which he dedicated this property to certain idols named Bankubehari Jew, Salgram Sila and others. His youngest daughter Arunbala was made the shebait and the direction was that Golap Sundari, his widow, would manage the property so long as Arunbala remained an infant. There was no provision in the will as to who would succeed Arunbala as she bait and the only provision was that in case there was misappropriation of the idol's property, five gentlemen would be entitled to remove the shebait and take steps for the protection of the debuttar estate. In July 1926 Golap Sundari, who is found to have become unchaste even during the lifetime of Ramdas, took out probate of the will on behalf of her infant daughter Arunbala, and in November 1916 she herself sold the property in suit to one Satish, who is defendant 4 in this suit, treating it as secular property and one which had devolved upon her by inheritance. In March 1928, Arunbala who had in the meantime attained majority sold this property to defendant 1 on the footing that it was secular property which she had got under her father's will. There was a litigation then between these purchasers, which ultimately ended in this Court which held on 7th July 1933 that defendant 1 had the preferential title and was entitled to get the property in preference to defendant 4.
3. Shortly after that, the present suit was instituted by the plaintiff Bhaktaram and his case was that the property in suit was a debuttar property of the deities to whom it was validly dedicated by Ramdas and that he was the shebait of the idols as being the spiritual preceptor of Ramdas. He further alleged that Golap Sundari had made over to him the idols after the death of Ramdas and he removed these idols to his own place and was worshipping them there since then. The property according to the plaintiff was in possession of Satish, defendant 4 as a tenant of the debuttar estate, and as the decree obtained by defendant 1 against defendant 4 had thrown a cloud on the title of the deities the present suit was instituted. Defendant 4 did not contest the suit which was contested by the other three defendants who contended inter alia that the property was not debuttar, that the suit was a mala fide one being instituted at the instance of defendant 4 who being defeated in his suit against defendant 1 had now set up the plaintiff; and that the plaintiff was not the spiritual guide of Ramdas nor was he a shebait or worshipper of the deities, if any such existed. As I have said before, Bhaktaram Roy died pending the hearing of the suit, and Panchkari, his nephew and alleged heir, was substituted in his place. The trial Court dismissed the plaintiff's suit. It held inter alia that the property was debuttar, but the plaintiff Bhaktaram was neither the spiritual guide of Ramdas nor was he a shebait or even a worshipper of the deities and had no right to institute the suit. It further held that Panchkari was not the heir of Bhaktaram and the suit was not maintainable at his instance. The lower appellate Court affirmed the decision of the trial Court though it did cot accept all its findings. It held that the property was debuttar and that the idols were actually in possession of Bhaktaram who removed them to his house at Galigram and worshipped them. It held however that both Bhaktaram and Panchkari were pujaris and not shebaits, either de jure or de facto, and consequently had no right to sue. It is against this decision that this second appeal has been preferred, and the whole controversy centres round the point as to whether Bhaktaram or Panchkari has any right to represent the deities and institute a suit on their behalf.
4. Mr. Bankim Chandra Mukherjee who appears for the appellant does not press the point that Bhaktaram was a spiritual guide of Ramdas and as such was entitled to be a shebait of the deities under the will of Ramdas. His contention is that both Bhaktaram and Panchkari were worshippers of the deities and they were persons interested in the endowment which entitled them to institute the suit on behalf of the deities as against trespassers. At any rate they were de facto shebaits and could maintain this suit for establishment of the title of the deities to the property in suit. Now, as Sir Arthur Wilson said in Maharaja Jagindra Nath Boy v. Rani Hemanta Kumari (1908) 32 Cal 129:
The right to possession and management of the dedicated properties belongs to the shebait and this carries with it the right to bring whatever suits are necessary for the protection of the property; every such right of suit is vested in the shebait and not the idol.
5. When the shebait himself is negligent or alienates debuttar property in breach of trust, not only a prospective shebait under the terms of the grant but any member of the family in case of a family endowment may maintain the suit on behalf of the deities to recover that property from a trespasser (vide Girish Chandra v. Upendra Nath : AIR1931Cal776 . Dr. Gour in his Hindu Code lays down the law as follows:
Any person interested in the endowment may sue to set aside an improper alienation of its property by the manager: See Gour's Hindu Code, Edn. 3, p. 1205.
6. The question therefore is as to whether Bhaktaram and Panchkari could be said tot be persons interested in the debuttar. In my opinion in cases of private debuttar or family endowment, all members of the family, either male or female, who are entitled to participate in the worship, can be said to be persons interested, but a person who is not a member of the family does not come under that description however much otherwise he might be interested in the welfare of the idol. The case in Pramatha Nath v. Pradhymna Kumar , upon which reliance has been placed by Mr. Bankim Chandra Mukherjee, really strengthens this view. It is not because the female members actually worshipped the deity that the Judicial Committee recognized their right to be consulted in the matter of location of the deity but it was because as members of the family they had a right to participate in the worship, though, being females they were excluded from the managership of the idols. None but a member of the family can have a legal right to worship the deity in the case of family endowment and no such person can sue on behalf of the deity for recovery of property belonging to it unless the founder has expressly given such power. In the present case the testator did not give any such authority to Bhaktaram or his heirs even if we assume that Bhaktaram was his spiritual guide; and as they could not be said to be members of the family in any sense of the word, in my opinion they could not be said to be persons interested in the endowment. This contention therefore of Mr. Bankim Chandra Mukherjee cannot be sustained.
7. The next question is whether they can be said to be de facto shebaits. The Judicial Committee, in Bam Charan Das v. Nourangi Lal , and again in Mahadeo Prosad Singh v. Karia Bharti , laid down that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Math. Mr. Apurbadhan Mukherji who appears for the respondent contends that the said principle does not apply to property dedicated to an idol. There may be and in fact there is difference between a Math and an idol, but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debuttar. The power of a de facto shebaite to act on behalf of the idols has been recognized in many cases of which the case Girish Chandra v. Upendra Nath : AIR1931Cal776 , referred to above, may be cited as an instance, and in that case the learned Judges, besides citing earlier authorities, referred to a certain paragraph in Gour's Hindu Code which laid down that 'powers of a de facto and de jure manager are the same, provided he is in actual possession.' In order to make a person a de facto shebait it is necessary however that he should be in actual possession of the office and the debuttar estate. In Mahadeo Prosad Singh v. Karia Bharti , Karia had been managing the affairs of the institution since 1904 and was treated as Mohunt by all the persons interested. His name appeared in the revenue records and he was in possession of all the endowed property. Under these circumstances the Judicial Committee held that he was entitled to institute a suit even though he was held not to have a legal title in him. The de facto shebait would, in my opinion, be one who exercises all the functions of a shebait and is in possession of the debuttar property though the legal title may be lacking. The mere fact that he has been able to acquire the custody of the idols is not enough to make him a de facto shebait. In this case Bhaktaram alleged that the idols were delivered over to him by Golap Sundari, the widow of Ramdas. Golap Sundari had herself no shebait right. She was the guardian of her minor daughter and she herself ignored the debuttar character of the property and the will altogether and sold this very property to defendant 4 as secular property which she obtained by succession from her husband. If under such circumstances she had made a gift of the idols to Bhaktaram, it cannot be said that Bhaktaram became a de facto shebait, and even if he worshipped these idols along with his own in his native village, he cannot be endowed with the capacity of a shebait. As the trial Court pointed out, the name of Bhaktaram does not appear in any document or in rent receipt nor even in the municipal register, and the name of Satish appears in this connexion all through.
8. I am unable to hold that under the circumstances Bhaktaram could be regarded as a de facto shebait entitling him to institute a suit for recovery of possession of certain property on behalf of the deity. Panchkari, who is Bhaktaram's nephew, purports to come in as heir of Bhaktaram. The Courts below have found that he is not the heir, but even that is immaterial, for there could not be any devolution of the right of a de facto shebait upon his heir unless he succeeds in proving independently that he was a de facto shebait himself. As I have said above, except the fact of his getting possession of the idols from his deceased uncle, there is nothing proved which endowed him with the rights of a shebait. Under the circumstances I hold that the Court of appeal below was perfectly right in the view that it took, and the appeal must stand dismissed with costs one gold mohur. Leave to appeal under Section 15, Letters Patent, is asked for and is refused.