Ewart Greaves, J.
1. This is an appeal by the plaintiff in the suit, who is an. idol Sri Sri Newal Kishore Jew, appearing by his shebait Panchu Gopal Seal, against a decision of the Subordinate Judge of the Second Court of Hooghly. On the 27th June 1922 a certain touzi which was the property of the idol was sold for arrears of Government revenue. The arrears amounted to a sum of Rs. 155 and after deduction of this amount a sum of Rs. 9,344 remained as the balance of the sale-proceeds of the touzi. Panchu Gopal claiming to be the shebait of the idol asked that this amount should be paid over to him on behalf of the idol. This was refused on the ground that Panchu was not registered as a shebait of the idol and that his father Dwarika who died in the year 1918 still remained on the register, no mutation having been effect. As a Result, this suit was commenced for the. establishment of the shebaitship of Panchu and of his consequent right to the surplus sale-proceeds on behalf of the idol. The learned Judge in the Court below has found that Panchu Gopal is the only son of Dwarika Nath and is shebait of the idol in succession to his father but the learned Subordinate Judge imposed, as a condition for the payment of the money to the shebait on behalf the idol, the giving security by the shebait for the amount of the surplus sale-proceeds and against this portion of the order of the Subordinate Judge the present appeal is directed. The rights of shebaitship and of the ownership of the property were declared by a decree of this Court, dated the 30th July 1894, passed in Appeal No. 193 of 1893, whereby this Court declared that the touzi was an absolute debutter property of the thakur and directed that the then shebait one Khetternath Seal should continue to be the shebait and perform the daily and periodical worship out of the income of the properties set apart for the purpose and declared to be debutter properties by the said decree. The Court further declared that no shebait had any right to alienate or encumber the property or any part thereof that might come to his possession as a shebait. In my opinion, the learned Subordinate Judge was not justified in imposing the condition which he did with regard to security. No doubt in the case of an infant security is to be furnished on the payment of money to the guardian on his behalf. But this is under the terms of the Guardians and Wards Act and similarly in the case of a lunatic security is directed by virtue of the provisions of the Lunacy Act.
2. Again under the express provisions of Order XXXII, Ruler 6 of the C.P.C. a guardian ad litem or a next friend of an infant is to give security as a term of the. property of the infant being handed over to him. But we do not think that apart from express statutory provisions of this nature it is open to the Court to direct security: to be given in a case of this nature. After all, the idol is 'the person entitled to the property. He comes to the Court and asks for payment and there is no answer to his demand. Having regard to his disability he can only receive the property and hold it through a shebait but it does not seem to me that this justifies a Court in imposing as a term of payment that security should be furnished by the shebait. Some such provisions may be very necessary and very desirable with regard to property of this kind. But apart from Statute we do not think that it is open to the Court to impose as a, term of the delivery of the property the furnishing of security by the shebait. After all if the property is wasted proceedings can be taken to restrain the waste or recover the property that, has been wasted in a proper suit. For the reasons we have indicated we do not think that the learned Subordinate Judge was justified in imposing the condition that he has imposed, namely, that security should be furnished as a term of the money being handed over.
3. The appeal, accordingly, succeeds and the plaintiff is entitled to the surplus sale-proceeds apart from any condition such as was imposed by the learned Subordinate Judge.
4. The order of the lower Court as to costs is vacated.
5. We make no order as to costs in this appeal.
6. I agree.