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Sashi Kumari Devi W/O Mohini Kishore Roy Vs. Dhirendra Kishore Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1941Cal248
AppellantSashi Kumari Devi W/O Mohini Kishore Roy
RespondentDhirendra Kishore Roy and ors.
Cases ReferredJagadindra Nath Roy v. Hemanta Kumari
Excerpt:
- .....conduct placed himself in such a position that he cannot be expected to bring such a suit.3. the learned judge further held that the suit was brought under the instigation of the shebait (defendant l) and thatthe prayer for removal of defendant 1 from the office of shebait, the appointment of a new shebait in his place and the framing of a scheme for the administration of the debutter was a mere dodge and a cloak to enable the suit to be instituted in the name of the plaintiff.4. the learned judge therefore held that plaintiff was not entitled to succeed. he accordingly allowed the appeal and dismissed the suit with costs. plaintiff has preferred this second appeal and has made parties not only those who were parties to the appeal in the court below but also those parties to the.....
Judgment:

Lodge, J.

1. This second appeal arises out of a suit instituted by a worshipper of a Hindu family deity in which the plaintiff prayed for the removal of the shebait, for the framing of a scheme for the proper sheba of the goddess, for a declaration that certain immovable properties were debutter properties and for a permanent injunction restraining the defendants from interfering with the sheba and puja of the deity and the collection of profits from the debutter properties. One Hara Kishore Roy was the owner of 1 anna, 13 gandas, 1 kara, 1 krant, share in hisya Krishna Ballav Roy which was one of the separate shares of a revenue paying estate known as taluk Daul Jagat Ballav Roy. In the year 1848, Hara Kishore Roy executed a document by which he created a permanent dartaluk in favour of the family deity. Sri Sri Baradeswari Hara Kishore was the first shebait and was succeeded by his adopted son Barada Kishore Roy. Barada Kishore died leaving three sons, the eldest of whom was Mohini. The three sons died leaving as the only male descendant of Hara Kishore in the direct line, Dhirendra son of the eldest son Mohini. Mohini had married twice. Dhirendra is the son of Mohini's first-wife who has since died. The plaintiff Sashi Kumari is the widow of Mohini, and the step-mother of Dhirendra. The plaintiff impleaded her step son, Dhirendra as shebait: he was defendant 1 in the suit. In addition, plaintiff impleaded certain persons who were alleged to be transferees of portions of the debutter property and certain other persons as members of the founder's family interested in the endowment. Also the deity herself was made defendant 13 in the suit and was represented by a pleader guardian appointed by the Court. The plaintiff alleged that there had been breach of trust on the part of the various shebaits who had transferred portions of the debutter property as though it had been their private property, and that there had been negligence on the part of defendant 1 in the performance of his duties as shebait. The shebait, defendant 1, did not contest the suit. The guardian appointed on behalf of the deity, defendant 13, reported that the interest of the deity was the same as that of the plaintiff. Certain of the alienees contested, disputing the debutter character of the properties and also disputing plaintiff's right to institute the suit. The original Court decreed the suit in part in the following terms:

It is hereby declared that the deity defendant 13 has a dartaluk at an annual jama of Rs. 7 under and in respect of 6 annas 17 gandas 2 karas share of touzi No. 119 of the Tippera Collectorate described in schedule Kha of the plaint and 'that the said dar-taluk is the debutter property of the Goddess Sri Baradeswari (defendant 13). It is further declared that all the lands of schedule Ka excepting O. S. dag 1929 form the exclusive lands of the aforesaid dar-taluk of defendant 13. It is further ordered and decreed that defendant 1 be removed from the office of shebait of defendant 13 and a scheme be framed by the Court for better management and administration of the debutter estate and for proper maintenance of the sheba and puja of the deity defendant 13; and that all the defendants connected with the founder's family and interested to see due performance of the sheba and puja of the Goddess Sree Baradeswari be invited to submit schemes for approval of the Court within two months hence. The claim for permanent injunction and the claim to C. S. dag 1929 are disallowed.

2. Against this decree defendants 2, 3, 5, 7, 11 and an heir of defendant 4 appealed. The appellants were all transferees; but they were not all the alleged transferees impleaded in the suit. Some of those alleged transferees did not join in the appeal. The sole respondent impleaded in the appeal was the plaintiff, Sashi Kumari Debi. Neither the shebait, defendant 1, nor the deity defendant 13 was made party to the appeal. The attention of the appellants was drawn by the Court to the fact that some of the parties to the suit had not been made parties in the appeal, and the appellants were directed to take the necessary steps. To this the appellants replied that as no relief was sought against the other parties to the suit, it was not necessary to make them parties in the appeal. The appeal was heard by the subordinate Judge, second Court, Tippera. The learned subordinate Judge came to the conclusion that

the right of a member of the family of the founder of a debutter (other than the shebait) to bring a suit respecting the debutter right arises only when the shebait has declined to bring such a suit or has by his conduct placed himself in such a position that he cannot be expected to bring such a suit.

3. The learned Judge further held that the suit was brought under the instigation of the shebait (defendant l) and that

the prayer for removal of defendant 1 from the office of shebait, the appointment of a new shebait in his place and the framing of a scheme for the administration of the debutter was a mere dodge and a cloak to enable the suit to be instituted in the name of the plaintiff.

4. The learned Judge therefore held that plaintiff was not entitled to succeed. He accordingly allowed the appeal and dismissed the suit with costs. Plaintiff has preferred this second appeal and has made parties not only those who were parties to the appeal in the Court below but also those parties to the original suit who were not impleaded in the lower appellate Court. Some of the respondents before us have filed a cross-objection. Three arguments have been urged before us, viz., (1) that inasmuch as the decree in the original Court was in favour of the deity, the appellate Court had no jurisdiction to set aside that decree in an appeal to which neither the deity nor the shebait was a party; (2) that any worshipper of a family idol is entitled to maintain a suit for a declaration that immovable property is debutter property, and (3) that the learned subordinate Judge's finding that the suit was brought under the inspiration of the shebait was not arrived at after a proper consideration of all the evidence.

5. Dr. Basak on behalf of the appellant drew our attention to the wording of Order 41, Rule 33, Civil P. C, and argued that though an appellate Court may pass a decree in favour of a person who is not party to the appeal, the Court is not authorized to pass a decree against such a person, and in support of his argument he referred to the case in Kamala Kanta Debnath v. Tamijaddin : AIR1935Cal24 . Dr. Basak therefore contended that as neither the shebait (defendant l) nor the idol (defendant 13) was a party to the appeal, the learned subordinate Judge had no jurisdiction to set aside the decree which was in fact a decree in favour of the idol (defendant 13). This objection was not taken by the respondents in the lower appellate Court. It is true that the officers of the Court had pointed out that certain of the parties to the original suit had not been made parties to the appeal and that the appellants had not added the persons so omitted. But no objection was taken by the respondents as to the competency of the appeal, and therefore no opportunity afforded to the appellants in the lower appellate Court to pray for the addition of the deity or the shebait as a party, under Order 41, Rule 20. Reference was made to the cases in Kanhaiya Lal v. Hamid Ali and Pramatha Nath Mullick v. Pradyumna Kumar Mullick as authorities for, the view that the idol was a necessary party. Kanhaiya Lal v. Hamid Ali is authority for the view that the idol or his representative is a necessary party in a suit for possession of land said to have been dedicated to the idol. Pramatha Nath Mullick v. Pradyumna Kumar Mullick merely lays down that in a dispute between co-shebaits regarding the location of the idol, the idol should be represented by a disinterested third party and that persons interested in the worship should also be joined as parties. In our opinion these rulings are no authority for the view that in a suit for declaration that immovable property is the debutter property of an idol, the idol, as distinct from the shebait, is a necessary party.

6. On the contrary, it was held in Jagadindra Nath Roy v. Hemanta Kumari ('08) 31 IA 203 that the shebait and not the idol had the right to sue and be sued. If, therefore, the idol was represented in the appeal, the omission to make the idol a party would not be fatal to the appeal. In our opinion, the interests of the idol were in fact represented before the lower appellate Court by the plaintiff-respondent; and the omission to make either the shebait (defendant l) or the idol herself (defendant 13) a party to the appeal was at most an error in form and not in substance. If the objection had been taken, the party could have been added in accordance with the provisions of Order 41, Rule 20 and the defect removed. Both the idol and the shebait are parties to this second appeal, and the appeal has been heard in their presence. We are accordingly of the opinion that the judgment and decree of the lower appellate Court should not be set aside merely for the alleged defect of parties.

7. The learned subordinate Judge held that a worshipper as such has not an unqualified right to sue for a declaration that immovable property is the debutter property of the idol. Dr. Basak contended that this view of the law was incorrect, and cited three rulings which appeared to support his contention. In Thakurdwara Sahawman v. Jewan Das ('28) 108 IC 270 the learned Judge observed 'the rulings are clear that the worshippers can bring a suit for a declaration.' The rulings referred to are not mentioned. It is not stated that any single worshipper on his own behalf and not acting in a representative capacity on behalf of the entire body of worshippers is entitled to bring such a suit. It is not clear from this decision that the right of the worshippers to sue was held to be unqualified. If it is urged that this authority gives to the worshippers an unqualified right to sue for such a declaration, it is in our opinion, contrary to the law as laid down in Jagadindra Nath Roy v. Hemanta Kumari ('08) 31 IA 203. Reliance was also placed on the decision in Giris Chandra Saw v. Upendra Nath Giridas : AIR1931Cal776 . In that case the learned Judges came to the conclusion that the plaintiff in the suit was in fact the shebait and as such was entitled to sue. But there are observations in the judgment of Suhrawardy J. which seem to support the view that any member of the family for whose spiritual benefit the worship of the idol was established and who has further the prospect of holding the office of shebait is entitled to maintain such a suit. In so far as this finding was not necessary for the decision of that suit, the finding must be regarded merely as an obiter dictum. We are not satisfied that the learned Judge intended to lay down that a worshipper has an unqualified right to sue. But if it be contended that such was the rule laid down, we must point out that the finding is based partly on the decision in Abdur Rahim v. Mahommed Barkat Ali ('28) 15 AIR 1928 PC 16 and partly on two extracts from Dr. Gour's Hindu Code. In the judgment in Abdur Rahim v. Mahommed Barkat Ali ('28) 15 AIR 1928 PC 16 two questions only were dealt with viz., whether the suit was 'maintainable in view of the provisions of Sub-section (2) of Section 92, Civil P.C. 1908;' and whether the suit was 'barred by the rule of res judicata under Expln. 6, Section 11 of that Code.' The extent of the right of a worshipper at a mosque to maintain such a suit was not discussed; and it is not possible to ascertain from that decision whether the right (which was not there denied) was an unqualified right or was a right peculiar to Mahomedans under the Mahomedan law.

8. The quotation from Dr. Gour's Hindu Code reads, Section 263 (3) 'any person interested in the endowment may sue to set aside an improper alienation of its property by the manager.' The decisions on which this is based do not however entirely support this view. In our opinion none of the decided cases which were placed before us with the possible exception of Giris Chandra Saw v. Upendra Nath Giridas : AIR1931Cal776 lay down a rule contrary to the view of the law expressed in the decision of the lower appellate Court. In Panchkarl v. Amode Lal : AIR1937Cal559 it was stated that

when the shebait himself is negligent or alienates debutter 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.

9. This is essentially the same view as that taken by the learned Judges in the lower appellate Court, and any other view would in our opinion conflict with the rule laid down in Jagadindra Nath Roy v. Hemanta Kumari ('08) 31 IA 203. It was further argued that in view of the definite findings of the Court of first instance, the learned subordinate Judge's finding that the suit was brought under the inspiration of the shebait and that the prayers for relief against the latter were added merely as a dodge to enable the plaintiff to maintain the suit, was not justified. In the argument it was pointed out that the learned Munsif gave a number of reasons for his finding, and that those reasons were not discussed in the judgment of the learned subordinate Judge. The learned subordinate Judge gave reasons for his finding, which seemed to him conclusive. We are unable to hold that a judgment of reversal is not a proper judgment merely because all the reasons given by the original Court are not discussed. If the reasons given by the appellate Court are so cogent as to justify the finding, no discussion of other less convincing reasons seems to us necessary. In the present case, the reasons given by the learned subordinate Judge were of such a nature; and omission to discuss all the reasons given by the original Court was perfectly justified. In the result therefore we are of opinion that this appeal must be dismissed. A cross-objection was filed by some of the transferee respondents. In our opinion, it is not necessary for us to consider that cross-objection at all and we do not therefore decide any of the questions raised therein. Hence ordered that the appeal is dismissed with costs. No order is passed on the cross-objection.

Khundkar, J.

I agree.


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