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Dasarathi Chatterjee and ors. Vs. Asit Mohan Ghosh Maulik Shebait of God Radha Gobinda Deb Thakur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.126
AppellantDasarathi Chatterjee and ors.
RespondentAsit Mohan Ghosh Maulik Shebait of God Radha Gobinda Deb Thakur
Cases ReferredJagadindra Nath Boy v. Hemanta Kumari Debi
Excerpt:
religious endowment - contract with shebait of thakur, whether terminates on death of shebait--limitation act (ix of 1908), schedule i, article 132, applicability of, to suit for accounts by shebait against tahsildar. - .....tahsildars of the debutter properties of a certain thakur in 1287 when the plaintiff's father, radha raman, was the shebait of the thakur.3. the tahsildars executed a security bond in bhadro 1287 in favour of the thakur represented by its shebait radha raman, hypothecating certain immoveable properties for the due performance of their duties as gomasta. they acted as tahsildars till choitra 1316 when one of them died and the other, the defendant no. 1, worked till sraban 1318 when he was dismissed. the plaintiff's father died in bhadro 1310 when the plaintiff succeeded as shebait of the thakur.4. the present suit was instituted on the 14th may 1915 against the defendants for accounts from 1311 to 1317. the court of first instance held - that the agency terminated on the death of the.....
Judgment:

1. This appeal arises out of a (SIC) for accounts against an agent.

2. It appears that the defendant No. 1 and the predecessor of the defendant No. 2 were appointed Tahsildars of the debutter properties of a certain thakur in 1287 when the plaintiff's father, Radha Raman, was the shebait of the thakur.

3. The Tahsildars executed a security bond in Bhadro 1287 in favour of the thakur represented by its shebait Radha Raman, hypothecating certain immoveable properties for the due performance of their duties as gomasta. They acted as Tahsildars till Choitra 1316 when one of them died and the other, the defendant No. 1, worked till Sraban 1318 when he was dismissed. The plaintiff's father died in Bhadro 1310 when the plaintiff succeeded as shebait of the thakur.

4. The present suit was instituted on the 14th May 1915 against the defendants for accounts from 1311 to 1317. The Court of first instance held - that the agency terminated on the death of the plaintiff's father in Bhadro 1310 and, there fore, a new agency was created, and that the suit was governed not by Article (SIC), but by Article 89 of the Limitation Act. That Court accordingly held that the suit was barred by limitation. On appeal, the learned District Judge held that the death of the Radha Raman did not terminate the agency, and the suit was, therefore, in time under Article 132 of the Limitation Act. The defendants have appealed to this Court.

5. It is well settled that Article 132 applies where the suit is not merely for accounts but is one to enforce in the plaintiff's favour the charge created to secure the moneys which might be found due from the agent to his principal on his accounts. See Hofezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7 C.L.J. 279 and Madhusudan Sen v. Rakhal Chandra Das 30 Ind. Cas. 697 : 43 C. 248 : 19 C.W.N. 1070 : 22 C.L.J. 652, where the case of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 132, was dissented from; and Troilokhya Nath Mandal v. Abinas Chandra Roy 24 Ind. Cas. 18 : 21 C.L.J. 459. That proposition is not disputed before us on behalf of the appellants, but what is contended on their behalf is that the agency terminated on the death of plaintiff's father, Radha Raman, in Bhadro 1310 and the plaintiff, therefore, cannot sue upon the hypothecation bond. Reliance was placed upon certain observations of the Judicial Committee in the case of Jagadindra Nath Roy v. Hemanta Kumari Debi 32 C. 129 at p 140 : 31 I.A. 203 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698. Their Lordships observed: 'There is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. And probably this is the true legal view when the dedication is of the completest kind known to the law. But there may be religious dedications of a less complete character.... But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs, to the shebait. And this carries with the right to bring whatever suits are necessary for the protection of the property. Every each right of suit is vested in the shebait, not in the idol.' It is contended that the agency terminated on the death of the shebait Radha Raman, and the present shebait, the plaintiff, has no right to sue upon the hypothecation bond. But the case of Jagadindra Nath Roy v. Hemanta Kumari Debi 32 C. 129 at p 140 : 31 I.A. 203 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698, does not support the above contention. In that case the shebait was a minor when he was dispossessed, and the suit for recovery of possession was instituted within three years of his attaining majority. The question was whether a shebait of at thakur was entitled to the benefit of the provisions of petition 7 of the Limitation Act. The High Court held that the proprietary right being in the thakur, the shebait was not entitled to such benefit. The Judicial Committee pointed out that, although a thakur may be regarded as a juridical person capable as such of holding property, the possession and management of the dedicated property belongs to the shebait and the right of suit being necessarily vested in the shebait, he was entitled to the benefit of the provisions of Section 7 of the Limitation Act. Their Lordships did not lay down that contracts in respect of the dedicated property entered into by the shebait of a thakur terminate on the death of such shebait. In the case of Maharanee Shibessource Debia v. Mothooranath Acharjo 13 M.I.A. 270 at p 273 : 13 W.R.P.C. 18 : 2 Suth. P.C.J. 300, 2 Sar. P.C.J. 528 : 20 E.R. 552, the Judicial Committe, with reference to the rights of a shebait observed: 'Where land is dedicated to the religions services of an idol, the rents of the land constitute in legal contemplation the property of the idol and the shebait has not the legal property, but only title of a manager of a religious endowment,' and in Prosunno Kumari Debya v. Golab Chand Baboo 2 I.A. 145 : 14 B.L.R. 450 (P.C.) : 3 Sar. P.C.J. 449 : 23 W.R. 253 : 3 Suth. P.C.J. 102, their Lordships observed as follows: 'It is only in an ideal sense that property can be said to belong to an idol; and the possession and management of it must, in the nature of things, be entrusted to some person as shebait, or manager. It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. If this were not so, the estate of the idol might be destroyed or wasted, and its worship discontinued for want of the necessary funds to preserve and maintain them'. And, later on, with reference to the position of a former shebait and the succeeding shebaits, they say that the 'succeeding shebaits in fact form a continuing representation of the idol's property.'

6. In the case of Jagadindra Nath Boy v. Hemanta Kumari Debi 32 C. 129 at p 140 : 31 I.A. 203 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698, their Lordships did not lay down any rule contrary to that laid down in the above cases; and all that was said was that the possession and management of the dedicated property are vested in the shebait, and the right of suit being therefore in the shebait, he was entitled to bring the suit within three years of his attaining majority, as he was a minor when the dispossession took place. It does not follow that all contracts with the shebait of a thakur cease to be operative on the death of the particular shebait, where the contract is not one with the shebait personally.

7. Having regard to the fact shat the position of a shebait is that of a manager of a religious endowment, and to the observations in Prosunno Kumari Debya's case 2 I.A. 145 : 14 B.L.R. 450 (P.C.) : 3 Sar. P.C.J. 449 : 23 W.R. 253 : 3 Suth. P.C.J. 102, viz., that 'succeeding shebaits in fact form a continuing representation of the idol's property,' we hold that the contract entered into between the Tahsildara and Radha Raman, the former shebait, did not terminate on his death, bat can be sued upon by the present shebait. The hypothecation bond, as stated above, was not executed in favour of Radha Raman in his personal capacity, but as shebait of the thakur. We are accordingly of opinion that the present shebait can sue to enforce that bond.

8. We do not think the position of the Tahsildars is that of sub-agents or that the sub-agency terminated on the death of the shebait, Radha Raman, as contended on behalf of the appellants.

9. We have already said that Article 132 of the Limitation Act applies to the case. That being so, the suit is not barred by limitation. The appeal is accordingly dismissed with costs.


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