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Dhanpat Singh Kulari and ors. Vs. Johurmal Tusimal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.161
AppellantDhanpat Singh Kulari and ors.
RespondentJohurmal Tusimal and ors.
Excerpt:
right of suit - mohunt of idol--executor of last mohunt--de facto manager of endowed property--right to bring rent suit--plaint, amendment of--'de facto manager' instead of 'executor'--whether character of suit is changed. - .....the defendants denied the right of the plaintiffs to sue for rent, on the ground that the late mohunt, mukunda das, had no power to will away the properties belonging to the idol. 3. the court of first instance decreed the suit.4. the decree of the munsif was affirmed by the district judge, after allowing an amendment of the plaint by substituting the names of the plaintiffs as de facto managers and per-sons interested in the endowment instead of executors of mukunda das and trustees of the endowed properties.5. the defendants have now appealed to this court: and the grounds urged by the learned pleader who appears on their behalf are, first, that the amendment was contrary to law, inasmuch as it altered the character of the suit; and, secondly, that even if the amendment can be.....
Judgment:

Sharf-ud-din, J.

1. The plaintiff in this case sued the defendants for the rent of some houses belonging to the Idol Jagannath Jiu. The last mohunt of the endowed property was a person named Mukunda Das. He died, but before his death he made a Will. By that Will he made the plaintiffs executors and appointed them trustees of the endowed properties. The plaintiffs, after the death of the mohunt, obtained probate of his Will and have since been managing the deb sheba of the idol ; and, as such managers, they have brought the present suit.

2. The defendants denied the right of the plaintiffs to sue for rent, on the ground that the late mohunt, Mukunda Das, had no power to will away the properties belonging to the idol.

3. The Court of first instance decreed the suit.

4. The decree of the Munsif was affirmed by the District Judge, after allowing an amendment of the plaint by substituting the names of the plaintiffs as de facto managers and per-sons interested in the endowment instead of executors of Mukunda Das and trustees of the endowed properties.

5. The defendants have now appealed to this Court: and the grounds urged by the learned pleader who appears on their behalf are, first, that the amendment was contrary to law, inasmuch as it altered the character of the suit; and, secondly, that even if the amendment can be allowed, the plaintiffs can-not sue for rent, as they are strangers and practically trespassers.

6. The suit was instituted by the plaintiffs as ''executors furnished with the probate of the Will of the late Mukunda Das Mahanta, shebait of the idol and trustee of the property of the said idol.' In the plaint it was alleged that the plaintiffs, under the Will of the late mohunt, took out probate of the Will and have been carrying on the sheba, worship, of the said idol. Seven issues were framed by the first Court ; and the third issue was to this effect: 'Is the suit maintainable in its present form P Are the plaintiffs entitled to sue the defendants for rent ?' In the decision of this third issue by the Court of first instance we have the following passage: 'Plaintiffs themselves cannot be shebaits, but I do not see why they could not manage the deb sheba by engaging proper persons to officiate as priests till a mohunt is found or appointed. Mukunda Das had the right to get rent for the lands and I do not see why plaintiffs, as executors of Mukunda's Will, would not get rent from the defendants.' So that the question as to whether the plaintiffs were or were not managing the deb sheba of the idol has been considered in the decision of that issue. We also observe that in the lower appellate Court's judgment there is a finding to the effect that after the death of one Ram Sebak the plaintiffs were the de facto managers of the endowment, having obtained possession of the office through the help of the police. There is no doubt, therefore, that after the death of the last mohunt the plaintiffs began to manage the endowed properties and also the deb sheba of the idol and that as such they are in possession and en-titled to act for the idol as long as no mohunt is appointed.

7. It has been urged on behalf of the appellants that the amendment was not strictly according tolaw. Before the amendment it was the idol that was really suing for rent through the plaintiffs. After the amendment it was again the idol that was suing for rent through the plaintiffs. The subject of the suit is a certain sum of money as rent for a certain number of years. In fact there has been no change between the suit as it was originally instituted and the suit as amended ; the only difference being in the description of the plaintiffs. That being so, we do not think that the alteration of the denomination of the plaintiff's caused any change in the character of the suit itself. Various authorities have been shown to us, but, as a matter of fact, there is not one single authority exactly on the point. As de facto managers, under the Hindu Law, there can be no doubt that the plaintiffs could sue for the rent of the houses in question.

8. In the above circumstances I think that the two points urged on behalf of the appellants have failed and that this appeal should be dismissed with costs.

Doss, J.

9. This appeal arises out of an action t recover rent from the defendants, who are the tenants, by the plaintiff who is described in the plaint as 'the idol Jagannath Jiu represented by the plaintiffs as executors and trustees of the properties of the endowment, under the Will of the late shebait Mukunda Das Mohunta.' Makunda Das died without nominating a mohunt as his successor. He, however, left a Will by which he appointed the plaintiffs and certain other persons as executors and trustees of the endowment, with powers to appoint a manager. The plaintiffs duly obtained probate of the Will of Mukunda Das Mohunt, but, as no mohunt had been appointed by them, they themselves on behalf of the idoll as duly appointed executors and trustees, brought the present suit for rent. The defendants did not deny their liability for rent. The only defence raised by them was that the idol was not properly represented in the suit and that it was, therefore, not maintainable.

10. The learned District Judge held that the appointment of the plaintiffs as executors and trustees of the endowment was ultra vires. But he amended the plaint by sub-stituting for the description of the idol's representatives in the plaint the following description, namely, 'de facto managers and persons interested in the endowment;' and he accordingly gave the plaintiffs a decree for rent.

11. The defendants have appealed to this Court; and it has been contended on their behalf that the amendment is improper inasmuch as it has had the effect of altering the character of the suit. Under Section 53 of the Code of Civil Procedure, 1882, the Court had the power of amending a plaint at any time before judgment, provided the amendment had not the effect of converting a suit of one character into a suit of another and inconsistent character. I do not think the amendment altered the character of the suit as a suit for rent.

12. It is then said that the idol is not entitled to a decree for rent when it is suing by persons who are de facto managers of the endowment'. No authority has been shown why, in the circumstances which have happened in the present case, the idol is not competent to sue through the plaintiffs. They were appointed executors and trustees by the late mohunt. They have duly obtained probate and have since been carrying on the worship of the idol and are in actual charge and management of the properties of the endowment. In these circumstances it appears to me only reasonable to hold that the idol is competent to sue the tenant for rent through such persons. Whether they are described as executors of the Will of the late mohunt and trustees of the properties of the endowment or as de facto managers of the property, is, to my mind, quite immaterial. The real point is whether they are competent to give the tenant a valid discharge for payment of rent. There is no reason why they should not be able to do so. For these reasons, I am of opinion that the decision of the lower appellate Court should be affirmed and this appeal dismissed with costs.


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