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Radha Charan Saha Vs. Sree Sree Iswar Joykali Bigraha Represented by Shebaits Mukunda Kumar Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal295
AppellantRadha Charan Saha
RespondentSree Sree Iswar Joykali Bigraha Represented by Shebaits Mukunda Kumar Choudhury and ors.
Cases ReferredRadha Proshad v. Esuf
Excerpt:
- .....notice issued by some of the shebaits only. we must therefore hold that the ejectment notice was invalid. in view of the above findings no further question arises on the point whether or not the notice only related to a portion of the tenancy. the result is that the plaintiffs' suit for ejectment must fail. the appeal is allowed. the decision of the lower appellate court is set aside and that of the court of first instance is restored. having regard to the circumstances of the case we make no order with regard to costs.biswas, j. 6. i agree.
Judgment:

Edgley, J.

1. Defendant 1, Kadba Charan Saha, is the appellant in this case in the suit out of which this appeal arises. The plaintiffs who are some of the shebaits of a deity known as Sree Sree Iswar Joykali Bigraha, sought to evict the principal defendant after having served him with a notice to quit. They also claimed arrears of rent. Two of the shebaits did not associate themselves with the service of the notice to quit although it was alleged that they had been requested to do so. These persons were, therefore, impleaded as pro forma defendants. Further, it may be mentioned that three of the other shebaits who originally consented to the notice subsequently retracted their consent after the institution of the suit and were transferred from the category of plaintiffs to that of the pro forma defendants. The defence of the principal defendant was to the effect that the suit was not maintainable because it had been instituted by some of the shebaits, and that the notice was invalid as two of the shebaits did not associate themselves therewith and it related only to a portion of the tenancy.

2. The first Court held that the plaintiffs' claim for ejectment must fail, but the learned Munsif gave the plaintiffs a partial decree for rent to the extent of Rs. 184-4-0. The plaintiffs appealed to the lower appellate Court and the learned Subordinate Judge held that the plaintiffs' suit was maintainable, that the notice to quit was valid and that the plaintiffs were entitled to khas possession of the tenancy by evicting the principal defendant from the same. Radha Charan Saha, defendant 1, has now appealed to this Court. The learned advocate for the appellant maintains that the plaintiffs' suit was not maintainable as it had been instituted on behalf of the deity by some of the shebaits only. He further contends that the ejectment notice was invalid by reason of the fact that two of the she-baits were not associated therewith and that, in any event, this notice related only to a portion of the tenancy. With regard to the first of these points the general rule was formulated in a recent judgment of this Court in Nirmal Chandra v. Jyoti Prosad : AIR1941Cal562 it was there laid down that:

All the trustees or shebaits should, if possible, join as co-plaintiffs in a suit which is brought on behalf of the deity, and only such of them should be made defendants as are unwilling to be joined as co-plaintiffs or have done some act precluding them from being plaintiffs.

3. This view was also adopted by Pal J. in a later decision in Tarit Bhusan Rai v. Iswar Sridhar Salagram Shila Thakur : AIR1942Cal99 . The same view had been taken in several earlier decisions of this Court, Bechu Lal v. Oliullah ('85) 11 Cal. 338; Kokilasari Dasi v. Rudranand Goswami ('07) 5 C.L.J. 527 and Norendra Nath v. Atul Chandra ('18) 5 A.I.R. 1918 Cal. 810. The last mentioned case was cited with approval by the Judicial Committee of the Privy Council in Baraboni Coal Concern, Ltd. v. Gokulananda Mohanta Thakur . In view of the fact that two of the shebaits did not wish to join in the institution of the suit, the plaintiffs appear to have adopted a proper course in impleading these persons as defendants and no objection can be taken to the procedure which was adopted in transferring three other shebaits to the category of defendants after they had expressed their unwillingness to be associated with the plaintiffs in connexion with this matter. It was open to any of these defendants at any time during the course of the trial to ask that they might be transferred to the category of plaintiffs and, further, they had an opportunity to raise any defence which they might consider necessary for the purpose of protecting the interests of the deity. It follows therefore that the deity was fully represented in the suit and that Dr. Basak's first objection with regard to its maintainability must fail. The underlying principle with reference to the procedure to be followed when a deity sues through some only of its shebaits seems to be that all the shebaits must be impleaded whether as plaintiffs or as defendants in order to insure that, in adjudicating upon the matter before it, the Court will not overlook some aspect of the case which may affect the interests of the endowment. It is, however, difficult to apply this principle in matters affecting the general management of an endowment before a suit with reference thereto is actually instituted. Persons who transact business with the debutter estate must ordinarily proceed in the assumption that those shebaits with whom they enter into some contractual relationship have been vested with proper authority by their co-shebaits and that they represent the endowment. Adequate remedies are open to shebaits who consider that the interests of the deity are likely to suffer by obstructive or dishonest conduct on the part of their colleagues. If in the absence of a special clause to that effect in the deed of endowment, the majority of the she-baits might assume authority to perform some act in connexion with the administration of the estate merely by inviting the minority to associate themselves with such act, confusion would arise and persons who had entered into contracts with the majority might find themselves involved in litigation at the instance of the minority who might claim to be the true representatives of the deity, The adoption of such a procedure might therefore be detrimental in many cases not only to the interests of the actual parties to a contract but to those of the deity itself.

4. Dr. Basak contends that the ejectment notice must be regarded as invalid because it is clear from its terms and the facts found that the shebaits were not acting as a body with reference thereto. In support of this contention, he places some reliance on two recent decisions of this Court in Iswar Lakshi Durga Har Tatneswar v. Surendra Nath ('41) 45 C.W.N. 665, and Issur Raj Rajeswar Jiu v. Benode Behary Seal (Original Side Appeal) Appeal From Original Decree No. 3 of 1941 arising out of Suit No. 896 of 1935 decided on 30th July 1941. The former case related to the recovery of some debutter property which had been alienated by one of the shebaits and, in this connexion, Mukherjea J. pointed out that

the trustees or shebaits, when they are more than one, form, as it were, but one body in the eye of law. The deity is represented by all of them acting together and no one shebait can be said to represent the idol in part or to possess any specific interest in any share of the idol's property.

5. The latter case does not appear to be of much assistance to Dr. Basak as the main point decided therein was that a shebait could not change the line of succession to the shebaitship, at any rate, without obtaining the consent of the other members of his family. The question whether the unanimous consent of such persons would be necessary was expressly left open. Dr. Basak further contends that shebaits should be regarded in the same position as cosharer landlords and that, on the principle laid down by this Court in Radha Proshad v. Esuf ('81) 7 Cal. 414, where a tenant has been put into possession of ijmali property with the consent of all the cosharers, no one or more of the cosharers can turn the tenant out without the consent of the others. Of course, shebaits are not the landlords of debutter properties the ownership of which is vested in the deity itself. At the same time, they speak for the deity on earth and are the managers, of the debutter estate. Ordinarily, the management at the deity's properties must be transacted either by the shebaits as a body or by a person duly authorized for this purpose. It is arguable that circumstances might possibly arise in connexion with the administration of debutter property, in which in the interests of the deity some of the shebaits might properly act without the consent of the others, for instance, in a case in which some of the shebaits had temporarily disqualified themselves by their conduct from acting as shebaits for some particular purpose. In such cases, however, ii the validity of the particular act were subsequently questioned in a Court of Justice, the onus would lie heavily upon the shebaits who purported to act on behalf of the deity to show that the other shebaits had either disqualified themselves from acting in that capacity or had done something which was detrimental to the best interests of the estate. Whether in such circumstances some of the shebaits might act alone on behalf of the deity is a question which we are not called upon to decide in the present case, because, with reference to the issue of the ejectment notice against the principal defendant, it certainly cannot be said that the plaintiffs have shown that the two shebaits who were not associated with the notice were either disqualified temporarily from acting as shebaits or had done anything detrimental to the interest of the deity All that they have been able to show, as far as these two gentlemen were concerned, is that they did not wish to he associated with the ejectment notice. In our view, this fact alone would not be sufficient to validate an ejectment notice issued by some of the shebaits only. We must therefore hold that the ejectment notice was invalid. In view of the above findings no further question arises on the point whether or not the notice only related to a portion of the tenancy. The result is that the plaintiffs' suit for ejectment must fail. The appeal is allowed. The decision of the lower appellate Court is set aside and that of the Court of first instance is restored. Having regard to the circumstances of the case we make no order with regard to costs.

Biswas, J.

6. I agree.


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