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Giris Chandra Saw and anr. Vs. Upendra Nath Giridas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal776
AppellantGiris Chandra Saw and anr.
RespondentUpendra Nath Giridas and ors.
Cases ReferredNuri Mia v. Ambika Singh
Excerpt:
- .....and plaint-tiffs 2 to 4 are the sons of akshoy, the deceased son of madhusudan. they brought the suit as shebaits of the deity and prayed that the properties in suit be declared to belong to the idol and their sale in execution be declared invalid in law and for delivery of possession of the properties to the idol and for other consequential reliefs. the trial court found that the properties were debuttar properties, that they were not personal properties of madhusudan and that therefore the purchase in execution of the decree by the appellants, did not transfer any title to them. in this view the trial court; decreed the plaintiffs' suit declaring that the deity was entitled to the properties mentioned in the plaint except some plots and also declaring that the auction sale of those.....
Judgment:

Suhrawardy, J.

1. This is an appeal by defendants 1 and 2 against a decision of the Additional District Judge of Midnapur confirming a decision of the Subordinate Judge of that place, allowing the plaintiffs' suit in part. The facts are that one Jaga Mohan Giri Das disposed of certain properties by. a will executed in 1286 A. S. whereby he dedicated some of his properties mentioned in schedule Ka of the plaint for worship of the family deity installed by him and appointed his wife Taramani as the she-bait of the deity. After her death her adopted son Madhusudan was to carry on the shebaitship of the deity with the income of the properties and after him shebaitship would continue in his line. Madhusudan mortgaged some personal properties to the appellants who obtained a decree upon the mortgage and had them sold. The entire debt under the mortgage not having bean satisfied by the sale they obtained a decree under Order 34, Rule 6, Civil P.C., and in execution of that decree, purchased the properties mentioned in schedule Ka, which were dedicated by the will of Jaga Mohan to the deity.

2. This suit is instituted by the present plaintiffs mainly for a declaration that those properties are inalienable. Plaintiff 1 is the son of Madhusudan and plaint-tiffs 2 to 4 are the sons of Akshoy, the deceased son of Madhusudan. They brought the suit as shebaits of the deity and prayed that the properties in suit be declared to belong to the idol and their sale in execution be declared invalid in law and for delivery of possession of the properties to the idol and for other consequential reliefs. The trial Court found that the properties were debuttar properties, that they were not personal properties of Madhusudan and that therefore the purchase in execution of the decree by the appellants, did not transfer any title to them. In this view the trial Court; decreed the plaintiffs' suit declaring that the deity was entitled to the properties mentioned in the plaint except some plots and also declaring that the auction sale of those properties in execution of the appellants' decree was void and inoperative against the idol and allowing possession to the idol of the properties. The appellants appealed to the District Judge who confirmed the decree of the trial Court. They have appealed further to this Court and several points have been taken on their behalf.

3. The main contention of Mr. Bose appearing for the appellants is that the suit is not maintainable at the instance of the present plaintiffs. His submission is that; the only remedy open to the plaintiffs is to bring a suit for removal from shebaitship of Madhusudan who was defendant 3 in the suit and was alive at the time of the institution of the suit and to get another shebait appointed in his place who may raise a suit of this character. The point has been very elaborately argued but in my judgment there is no substance in the appellants' contention.

4. The competency of the plaintiffs to maintain this suit may be advocated on several grounds. In the first place they are the members of the family and as such are interested to see that the worship of the deity is carried on according to the direction of the founder. In Promotha Nath Mullick v. Prodyumna Kumar Mullick , the Judicial Committee have held that in the case of dedication to a family deity one person acts as shebait but the other members of the family including the females are interested in She maintenance of the worship. It is admitted that the debuttar is a private debuttar and it is a family endowment.

5. It is worthy of note that in the ease of a public and charitable endowment any person who is in any way interested in the trust, is entitled to maintain a suit. for a declaration that the alienations made by the trustee are not binding on the trust, Abdur Rahim v. Mahomed Barkat Ali A.I.R. 1928 P.C. 16. There is the greater reason for holding a person interested in a private trust as a 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 should be entitled to maintain a suit of this nature. In Nagendra Nath Palit v. Rabindra Nath Deb A.I.R. 1926 Cal. 490, Page, J., went to the length of holding that an unlawful alienation could be challenged even by the transferor himself.

When an alienation of the office or of the endowed property has been illegally made, it may be set aside by a co-shebait or by one entitled to become the shebait after the present incumbent : Golap Sastris' Hindu law, Edn. 6' p. 800.

6. Reference may also be made to Dr. Gour's Hindu Code, Edn. 3, p. 1205, Section 263 (3):

Any person interested in the endowment may sue to set aside an improper alienation of its property by the manager.

7. Paragraph 2471, p. 1216 of the same volume says:

An improper alienation made by the Manager, being in breach of trust and in excess of his power, may be set aside by a suit instituted by anyone interested in the endowment, including the alienor himself.

8. In the second place, the plaintiffs are the future shebaits and therefore are entitled to see that the dedicated-property is in no way affected by any unlawful act of any shebait in office. In Rani Anund Koer v. The Court of Wards [1881] 6 Cal. 764 it has been held that a reversioner may bring a suit for a declaration that an alienation by a Hindu widow is not binding on him or on the estate. On the same principle there can be no doubt that a future shebait can maintain a suit to have it declared that alienations by a shebait of the deity are unauthorized and do not affect the title of the idol. A suit of this character comes within the scope of Section 42, Specific Relief Act, as it appears from Illus. (e) to (h) appended to that section. The words ' as to right in the property ' in that section have bean interpreted in a wide sense and in my opinion, however slight that right may be, it entitles the possessor of it to sue for a declaration to avoid infringement of such right. It is not necessary to deal more elaborately with this point as the right to maintain a declaratory suit by a person in the position of the plaintiffs has never been doubted and no authority has been placed before me in support of the appellants' contention.

9. In the third place, the plaintiffs are able to maintain the suit as present shebaits, as before its institution, Madhusudan had executed a Nadabipatraor deed of release in favour of the plaintiffs by which he gave up the shebait-ship he was holding to the plaintiffs in this case. I have no doubt that the release was good and valid. A shebait, as has been repeatedly held by the Judicial Committee, is a mere manager-a person holding an office without any vested interest in the property. The holder of an office, such as a manager, as distinguished from an executor or trustee in English law, is competent to re-sign it. There is also ample authority 'for holding that a shebait is competent to resign his office or abdicate in favour of his co-shebait or successor-in-office. Golap Sastri's Hindu law, p. 797. I am not called upon to deal with the disputable question of the right of a shebait to transfer his office to a stranger, or whether he is competent to transfer the managership and incompetent to transfer that part of his office which entails upon him to carry on religious duties. Here the case is a very simple one. The manager who has been holding the office gives it up in favour of a person who will succeed after his death. I do not think that there is any obstacle in his doing so in law or usage. Reference may be made to the recent amendments of the Limitation Act, by Act 1 of 1929, by which Articles 134-B and 134-C have been added to the Limitation Act. Under these articles the period of limitation for bringing a suit is prescribed to run from the date of the death, resignation or removal of the manager of a Hindu, Mahomedan or Buddhist religious or charitable endowments. It is assumed that the manager is competent to resign his office.

10. It may be looked upon from . another point of view. A holder of a life estate is entitled to accelerate succession by relinquishing his right in favour of the reversioner. This is the settled law in the case of a Hindu widow qualified by the condition that the relinquishment must be of the entire estate. The same view may legitimately be adopted in the case of a shebait who is the manager for life of an endowment and there is no violation of any principle of law in holding that such a manager is entitled to accelerate the succession of his successors-in-office by-relinquishing or resigning the office: Golap Sastri's Hindu Law, p. 797.

11. In the view that I have expressed above it is not necessary to consider the other grounds on which the Courts below held that the plaintiffs are entitled to maintain the suit. But it may be noted in passing that they are of opinion that the plaintiffs as de facto shebaits having come into possession of the office in 1921 under the deed of release by Madhusudan, are entitled to maintain this suit. It has been held that a de facto shebait has got certain rights and is competent to act on behalf of the idol in certain matters. It is sufficient for our present purpose to refer to the cases of Sheo Shankar Gir v. Ram Shewak Chowdhury [1897] 24 Cal. 77, Raja Ranajit Sinha Bahadur v. Basanta, Kumar Ghose [1908] 9 C.L.J. 597:

Powers of a de facto and a de jure manager are the same provided he is in actual possession:' Gour's Hindu Code, Edn. 3, p. 1216, also p. 1205, Section 263.

12. The learned District Judge has also expressed his view that Madhusudan having died during the pendency of the suit and the plaintiffs having succeeded to the office on his death, they are entitled to maintain the present suit as de jure shebaits on the principle that the appellate Court is competent to take cognizance of circumstances which have happened since the institution of the suit in order to shorten the litigation. This view is supported by authority. Nuri Mia v. Ambika Singh [1917] 44 Cal. 47 where it is said:

Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances become inappropriate by that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree-according to the circumstances as they stand at the time the decree is made.

13. I need not consider this matter further though I agree, as the grounds given above are sufficient to hold that the plaintiffs are competent to maintain-this suit.

14. When concluding his argument Mr. Bose also contended that the present dedication should be taken to create a charge only upon the properties for the worship of the idol and therefore they should be regarded as personal properties of Madhusudan subject to the charge of worship. On this point both the Courts below have concurrently found that the properties are absolute debuttar properties. In fact the will of Jagamohan shows that no portion of these properties was to be devoted for secular purposes; the user of the income of these properties for family purpose is prohibited in the will by a curse and it is ordained for the entire sheba puja of the deity.

15. In the above view this appeal fails and is dismissed with costs.

Graham, J.

16. I agree.


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