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Norendra, Nath Kumar and anr. Vs. Atul Chandra Bandopadhya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.837
AppellantNorendra, Nath Kumar and anr.
RespondentAtul Chandra Bandopadhya and ors.
Cases ReferredPyari Mohun Bose v. Kedarnath Boy
Excerpt:
bengal tenancy act(viii b.c. of 1885), section 148 a, suit under, by co-shebait, maintainability of - co-shebaits, whether co-sharers in debutterproperty-trustees, joint, powers of. - .....plaintiffs instituted this suit under section 148a of the bengal tenancy act for recovery of one-fourth share of the rent payable by the tenant defendants, on the allegation that they were interested to the extent of one-fourth in the dedicated property while the pro forma defendants were interested to the extent of three-fourths. the court of first instance held that the suit as framed was not maintainable, and that view has been affirmed on appeal by the subordinate judge. the subordinate judge observes that the shebaits are not co-sharers but co-worshippers, and any family arrangement at which they may have arrived amongst themselves cannot entitle them to treat the debutter property as personal property and to sue personally for their share of the rent payable to the idol. he.....
Judgment:

1. This Rule raises the question, whether the Trial Court refused to exercise a jurisdiction vested in it by law, when it dismissed the claim on the ground that the suit was not properly constituted and could not be entertained. The plaintiffs and the pro forma defendants are joint shebaits of the property dedicated to an idol Damodar Jeo Thakur. The principal defendants are the tenants in occupation of the land. The plaintiffs instituted this suit under Section 148A of the Bengal Tenancy Act for recovery of one-fourth share of the rent payable by the tenant defendants, on the allegation that they were interested to the extent of one-fourth in the dedicated property while the pro forma defendants were interested to the extent of three-fourths. The Court of first instance held that the suit as framed was not maintainable, and that view has been affirmed on appeal by the Subordinate Judge. The Subordinate Judge observes that the shebaits are not co-sharers but co-worshippers, and any family arrangement at which they may have arrived amongst themselves cannot entitle them to treat the debutter property as personal property and to sue personally for their share of the rent payable to the idol. He further holds that Section 148A of the Bengal Tenancy Act contemplates the case of a co-sharer landlord who is entitled to sue for his share of the rent separately, and, consequently, cannot be applied to co-shebaits who have no personal interest in the debutter property and merely represent the idol for secular purposes. We are of opinion that the view taken by the Subordinate Judge in concurrence with the Court of first instance is well-founded on principle.

2. The true position of a co-shebaits was explained by this Court in the case of Kokilasari Dasi v. Mohunt Rudranand Goswami 5 C. L. J. 527 Where property belonging to an endowment is sought to be recovered from a third party who asserts that he is the owner thereof, all the trustees of the endowment should be made parties to the suit. Ordinarily all the trustees should be co-plaintiffs and only such of them should be made defendants as are an willing to be joined as co-plaintiffs or have done some act precluding them from being plaintiffs. Where the administration of the trust is vested in several trustees, they all form, as it were, but one collective trustee, and they must exercise the powers of their office in their joint capacity. Their interest and authority being equal and undivided, they cannot act separately, but all must join. This principle in no way contravenes the decision of the Judicial Committee in Jagadindra Nath Roy v. Hemanta Kumari Debi 32 C. 129 : 31 I A. 203 8 C.W. N. 809 : 6 Bom. L. R. 765 : A. L. H. 585 : 8 Sar. P. C. J. 698 (P. C.). and was applied to a suit for enhancement of rent in Abdul Gafur Mandal v. Uma Kanta Pandit 24 Ind. Cas. 266 : 19 C. W. N. 260. where it was pointed out that joint shebaits are for many purposes joint trustees. The same principle was recognized in Kumban v. Moorthi 7 Ind. Cas. 422 : 8 M. L. T. 208 : (1910) M. W. N. 359 : 20 M. L. J. 951 : 34 M 406. In the case before us, it is impossible for the plaintiffs to maintain the position that they have an interest in the land to the extent of one-fourth share and that on that basis they are entitled to collect one-fourth share of the rent from the tenant defendants. If the pro forma defendants declined to join with the plaintiffs in the institution of this suit, the proper course for the plaintiffs was to institute a suit for recovery of the entire arrears due. Luke v. South Kensington Hotel Co. (1879) 11 Ch. D. 121 : 48 L. J. Ch. 361 : 40 L. T. 638 : 27 W. R. 514. That a suit of this description is maintainable is clear from the decision of a Full Bench of this Court in Pyari Mohun Bose v. Kedarnath Boy 26 C. 409 : 3 C. W. N. 271 : 13 Ind Dec. (N. S.) 864. The plaintiffs are clearly not entitled to maintain a suit for one-fourth share of the rent and the Court below has correctly held that the suit as framed is not maintainable.

3. The result is that this Rule is discharged with costs. We assess the hearing fee at one gold mohur.


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