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Sharatchandra Shee Vs. Dwarkanath Shee and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal558
AppellantSharatchandra Shee
RespondentDwarkanath Shee and ors.
Cases ReferredDoorganath Roy v. Ram Chunder Sen
Excerpt:
- .....shebait should cause harm to the debattar estate, then the other brothers and brothers' sons of baidyanath shee should be entitled to remove him and appoint another member of baidyanath shee's family in his place.4. baidyanath and his mother and his brothers and brothers' sons are all dead, with the exception of defendant 1 and his son kanailal shee, defendant 2. defendant 3 is the nephew of kanailal. defendant 1 is now the shebait under the terms of the said deed.5. plaintiffs 1 and 2 are the grandsons of baidyanath's brother dinanath. plaintiff 3 is the idol suing by its nest friend plaintiff 1.6. the plaintiffs allege that defendant 1 with the connivance of his son, defendant 2, is mismanaging the debattar estate, and allowing it to fall into disrepair and neglecting to perform the.....
Judgment:

Lort-Williams, J.

1. By a dead of endowment, dated 18th June 1892, one Baidyanath Shea, a Hindu governed by the Bengal School of Hindu law, dedicated certain property to an idol, which he had previously established at his family dwelling-house.

2. By the terms of the said deed, he provided that he should be the first shebait and after his death his mother and after her death his youngest brother, Dwarkanath Shee, defendant 1, in the present suit, and after his death it was provided that the office should devolve on the eldest lineal defendant of defendant 1 in the male line.

3. It was further provided that if any shebait should cause harm to the debattar estate, then the other brothers and brothers' sons of Baidyanath Shee should be entitled to remove him and appoint another member of Baidyanath Shee's family in his place.

4. Baidyanath and his mother and his brothers and brothers' sons are all dead, with the exception of defendant 1 and his son Kanailal Shee, defendant 2. Defendant 3 is the nephew of Kanailal. Defendant 1 is now the shebait under the terms of the said deed.

5. Plaintiffs 1 and 2 are the grandsons of Baidyanath's brother Dinanath. Plaintiff 3 is the idol suing by its nest friend plaintiff 1.

6. The plaintiffs allege that defendant 1 with the connivance of his son, defendant 2, is mismanaging the debattar estate, and allowing it to fall into disrepair and neglecting to perform the worship of the idol, and misappropriating the income thereof.

7. The defendants allege that the plaintiffs have no cause of action, that they have no interest in the idol or the debattar property and that they cannot maintain the suit. They allege also that the suit is bad for nonjoinder of parties, inasmuch as the widow of one of the grandsons of Dinanath is living and has not been joined.

8. The preliminary points, which I have been asked to decide, are whether the suit is maintainable by the plaintiffs or any of them and whether it is necessary to add a party or parties.

9. This is a private religious trust and is governed by the terms of the deed.

10. It seems clear that the first two plain-tiffs, as the grandsons of Dinanath, have no interest therein. The power of interference given by the deed extends only to the brothers and brothers' sons of Baidyanath, and the office of shebait devolves upon defendant 1's line to the exclusion of the lines of his brothers.

11. Speaking generally the only person who can bring a suit on behalf of an idol is the shebait and although an idol is a juridical person, it cannot bring a suit on its own behalf. An idol can hold property, but the possession and management thereof with the right to sue are vested in the shebait : Jagadindra Nath Roy v. Hemanta Kumari Debi [1904] 32 Cal. 129

12. But that this statement of general principle may need qualification was recognized by Chotzner, J., in the case of Kalimata Debi v. Nagendra Nath Chuckerbutty : AIR1927Cal244 , where the learned Judge expressed the opinion that in the absence of refusal by the shebait to institute a suit for the protection of the property of the idol, neither a worshipper nor an idol is competent to maintain a suit, but if the shebait definitely declined then perhaps the idol through its next friend could do so.

13. The general principle is clearly and comprehensively stated by Lord Shaw in Pramatha Nath Mullick v. Pradyumna Kumar Mullick .

14. That was a suit between contending shebaits about the location of the idol, and the Court held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by the shebaits, it ought to appear by a disinterested next friend appointed by the Court.

15. In the circumstances of the present case it cannot be expected that the shebait will bring a suit against himself charging himself with mismanagement and misappropriation of the debattar estate and income; upon such issues the interest of the shebait is adverse to that of the idol.

16. Being a private religious trust no member of the public can intervene, and the founder's living relatives other than Dwarka's line are excluded by the terms of the deed itself.

17. In such circumstances, counsel for the defendants has contended that there is no remedy provided by law, and that the shebait can, if he so choose, throw the idol into the Ganges and appropriate the debattar property.

18. It may be that such a contingency might happen if all members of the family who held any interest in the trust, agreed to put an end to it : see the remarks of Sir M. E. Smith in Doorganath Roy v. Ram Chunder Sen [1876] 2 Cal. 341. But no such scheme has been attempted yet--and the trust and the idol still exist.

19. Meanwhile, and in the circumstances of the present case I consider that it is necessary and desirable that the idol should appear in this suit by a disinterested next friend appointed by the Court. As I have indicated already, Sharatchandra Shee has no interest and therefore, I appoint him as such. Leave is given to apply to add any other parties whom it may be considered necessary to add, in order that the matters in issue may be disposed of, but in my opinion, defendants 1 and 2 as such are not necessary parties and their names must be struck out. Costs will be costs in the cause.


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