BISWANATH AND ANR. versus SHRI THAKUR RADHABALLABHJI & ORS.

BISHWA!'IATH A'.'iD ANR.

SHRI THAKt;R RADHABALLABHJI & ORS.

February 6, 1967

[K. ScDBA RAO, C.J. A~D J.M. SHELAT, J.]

Code of Cii·i/ Prvced11rc (Act 5 of 190~). s. 92-Shebait of Hindu idol alienating idots proper1y-Srdt by \\'ors/zipper on behalf of iclol for declaration of title and recovery of said properry-Suit 'k·hether governed hy .<, 92.

Hindu Lall'-Shehait acting adversely ·to interests of idol or not Pro-tecting ils intere.Hs-Right of H:or.<::hipper 10 file .~uil.

The :\fanagcr o[ temple alienated the idol's property. worshipper of the idol who f.llso assisted the Manager in his duties, filed suit as next friend of 1he idol challenging the alienation. The reliefs sought were declaration that the property belonged 10 the idol and recovery of posses· sion. The trial court's decree in favour of the plaintiff was upheld by the High Court. ·me defendants came to this Court, with certificate.

It was urged on behalf of the appellants that s. 92 of the Code of Civil Procedure was har lo the suit, and that no one hut 1he Shehait was entitled to file 1hc suit and represent the deity.

HELD : (i) The suil was filed by the idol for possession o[ iL< pro-pcny from the person who was in illegal possession thereof and there· . fore it was suit by the idol to enforce its private right. The suit also was for declaration of the plaintiffs title and for possession thereof, and was not therefore suit for one of the reliefs mentioned in s. 92. In either view this was suit outside the purview of s. <J2 of the Code and therefore ,.,_, said section was not bar to its maintainability. [621 D-EJ

Abdur Rahim v. Barkat Ali, (1928) L.R. 55 I.A. 96 and Mahant Pra11-dasji Guru Bhagwundasji v. Patel lshwarlalbhai Narsibhai, (1952) S.C.R. 513, relied on.

Mukhda Mannuda.r Bairagi v. Chagan Kisan Blrawasar. 1.L.R. 1957 Dom. 809, Danhan Lal v. Shibji Maharaj Birajman, (1922) I.L.R. 45 All. 215 and Mad/iavrao Anandrao Rtstc v. Shri Omkareshvar Gh111, (1928) 31 Born. L.R 192, referred to. (ii) An idol is in the position of minor; when person representing it leaves it in the lurch, person interested in the v.·orship of the idol can certainly be clothed with an ad hoc JlOWer of representation to pro--tect its interest. It is pragmatic, yet legal solution to difficult situa· tion. Should it be held that Shebail, who transferred the property, can only bring suit f1Jr recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's du!y, for more often than not he will no! admit his default and take step~ to recover the property apan from other technical pleas that may be open 10 the transferee in suit. Should i1 be held that wol'ihipper can file only suil for the removal of Shebait and for the appointment of another in order to enable him to take step.~ to recover the property. such procedure will be rather prolon~ed and complicated one and the inte"Cest of the idol may irrcpara· bly suffer. That is why worshipper is permitted in such circumstances to represent the idol and 10 recover 1he properly for the idol. [622 G-(,Z3 Bl

Kun; Behari Chandra v. Sri Sri Shyam Chand Thakur, A.l.R. 1938 Pat. 394 and Artatran Alekhagadi Brahma v. Sudersan Mohapatra, A.I.R. 1954 Orissa II, disapproved.

Pramatha Nath Mullick v. Pradyumna Kumar Mullick, (1925) L.R. 52 I.A. 245 and Kanhaiya Lal v. Hamid Ali, (1933) L.R. 60 I.A. 263, applied.

In the present case the suit was brought on behalf of the idol by worshipper and therefore in the circumstances of the case the High Court rightly held that it was maintainable. [624 DJ

C!vrL APPELLATE JURISDICTION : Civil Appeal No. 780 of 1964.

Appeal from the judgment and decree dated December 21 19~9 of the Allahabad High Court in First Appeal No. 87 of 1948.

M. S. Gupta, La/it Kumar and S. N. Varma, for the appellants

J. P. Goyal and Raghunath Sinf{h, for respondent No. I.

The Judgment of the Court was delivered by

Sobba Rao, C.J. This appeal by certificate is preferred against the decree of the High Court of Judicature at Allahabad decreeing the suit filed by the respondents for possession of the plaint schedule property.

Shri Thakur Radhaballabhji, the deity, represented by Yaso-danandan as next friend, filed O.S. No. 61 of 1946 in the Court of the 2nd Civil Judge, Kanpur, against the appellants for declaration that the deity was the proprietor of house No. 49/54 situate in Ban Bazar in the City of Kanpur, for possession thereof and for mesne profits-. The case of the plaintiff (!st respondent herein) was that Lala Jagan Prasad, the 2nd defendant to the suit, was the manager llnd Sarvarakar of the deity, that the said manager executed sale deed dated January 13, 1942, conveying the said property to one Lala Behari Lal, the 1st defendant to the suit, for consideration of Rs. 10,000 and that the sale, not being for necessity or for the benefit of the idol, was not binding on the deity. It was further alleged that, as the 2nd defendant had taken no steps to recover the property, in order to safeguard the rights of the idol the suit was filed through Jagan Pr:asad, who was one of the devotees and wor-G shipper of the deity and who had been taking keen interest in the management of the temple where the deity is installed. To that suit the alienee was made the !st defendant and the manager, the 2nd defendant.

The 1st defendant set up the case that the suit property die! not constitute the property of the idol but was the property of the 2nd defendant purchased by him out of his own funds. He further alleged that the suit house was in dilapidated condition, that its rebuilding would involve the idol in heavy and unprofitable expen-

diture, that therefore the second defendant as its manager, acting

as prudent man, sold the same for good price to the I st defen-dant and that. as the sale transaction was for the benefit of the idol, it would be binding on the plaintiff. He also questioned the right of Yasodanandan to represent the idol and to bring the suit on its behalf. Both the learned 2nd Civil Judge, Kanpur, in the first instance, and. on appeal, the High Court concurrently held that the sale was not for the benefit of the deity and that the consideration was not adequate. They also held that in the circumstances of the case the idol had the right to file the suit represented by Yasoda-nandan, who was worshipper of the deity and was helping the second defendant in the management of the temple. In the result the trail court gave decree for possCS6ion and for recovery of Rs. 1,400 as past mense profits against the 1st defendant on condition that the plaintiff returned sum of Rs. 10,000 to the 1st defendant within two months from the date of the decree and also that the plaintiff would be entitled to future mesne profits at Rs. 45 p.m. till the date of delivery of possession of the property. The High Court confirmed the same. Hence the present appeal.

Mr. M. S. Gupta, learned counsel for the appellant, canvassed

the correctness of the findings of both the courts on the questions of fact as well as of law. On the questions of fact, namely, whether the impugned transaction was binding on the idol and was supported by consideration, we do not think we would be justified to permit the appellant to question their correctness, because the said findings are concurrent and are based upon appreciation of the relevant evidence. We accept the said findings . .. is whether the suit is

.. The only outstanding question, therefore, is whether the suit is maintainable by the idol represented by Yasodanandan, who is worshipper as well as person who had been assisting the 2nd' .; defendant in the management of the temple.

Two obstacles are raised against the maintainability of the suit, namely, (I) s. 92 of the Code of Civil Procedure is bar to the maintainability of the suit, and (2) suit for possession of the property of the idol, after setting aside the alienation, could only be filed by the Shebait and none else could represent the deity.

It is settled law that to invoke s. 92 of the Code of Civil Proce-dure, 3 condit'ons have to be satisfied, namely, (i) the trust is created for public purposes of charitable or religious nature; (ii) there was breach of trust or direction of court is necessary in the administration of such trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. suit by an idol for declaration of its title to property and for possession of the same from the defendant, who is In pos-session thereof under void alienation, is not one of the ntliefs

found in s. 92 of the Code of Civil Procedure. That suit for

declaration· that property belongs to trust is held to fall outside the scope of s. 92 of the Code of Civil Procedure by the Privy Council in Abdul. Rahim v. Barkat Ali(') and by this Court in Mahant Pragdasji Gu;u Bhagwandasji v. Patel Ishwarlalbhai Narsibhai(2) on the ground that relief for declaration is not one of the reliefs enumerated in s. 92 of the Code of Civil Procedure. So too, for the same reason suit for declaration that certain properties belong to trust and for possession thereof from the alience has also been held to be not covered by the provisions of s. 92 of the Code of Civil Procedure: See Mukhda Mannudas Bairagi v. Chagan Kisan Bhawasar( ). Other decisions have reached the same result on different ground, namely, that such suit is one for the enforcement of private right. It was held that suit by an idol as juristic person against persons who interfered unlawfully with the property of the idol was suit for enforcement of its private right and was, therefore, not suit to which s. 92 of the Code of Civil Procedure applied: see Darshan Lal v. Shibji Maharaj Birajman([4]); and Madhavrao Anandrao Raste.v. Shri"Omkareshvar Ghat('). The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is suit by the idol to enforceits private right. The suit also is for declaration of the plaintiff's title and fqr possession thereof and is, therefore, not suit for one of the reliefs mentioned in s. 92 of the Code of Civil Procedure. In either view, this is suit outside the purview of s. 92 of the said Code and, therefore, the said section is not bar to its maintainability.

The second question turns upon the right of worshipper to represent an idol when the Shebait or manager of the temple is. acting adversely to its interest. Ganapathi Iyer in his valuable treatise on "Hindu and Mahomedan Endownments", 2nd edn., at p. 226, had this to say in regard to the legal status of an idol in Hindu law:

"The ascription of legal personality to the

deity supposed to be residing in the image meets with all praGtical purposes. The deity can be said to possess property only in an ideal sense and the theory is, therefore, not complete unless that legal personality is linked to natural per sun."

It would be futile to discuss at this stage the various decisions which considered the relationship between the idol and its Shebait or Manager qua the management of its property, as the Privy Council in Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi(') has settled the legal position and stated thus:

(2) (1952] S.C.R. 513.

(I) [1928] L. R. SS I. A. 96.

(4) [1922] I. L. R. 45 AU. 215.

(3) I. L .. R. 1'157 Bombay 809.

(6} [19J4] L. R. 31 I. A. 203, 209, 210

(5) (1928] 31 Born L. R. 192.

.. There is no doubt that an id<>l may he regarded as juridical person capable as such of hold111g property, though it is only in an ideal sense that property is so held."

Dealing with the position of the Shebait of such an idol, the Privy Council rroceedcd to state:

. . . . . 1t still remains that the po;sessio11 and management of the dedicated property belong to the Shehait. And this carries with it the right to hring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait, not in the idol."

This was case where the Shehait filed suit for eviction from

the dedicated property within three years after attaining majority and the Board held that, as he had the right to bring the suit for the protection of the dedicated property. s. 7 of the Limitation Act, 1877, would apply tu him. The present question, namely, if Shebait acts adversely to the interests of the idol whether the idol represented by worshipper can maintain suit for eviction, did not arise for consideration in that case. That question falls to be decided on different considerations.

Three legal concepts are well settled : (I) An idol of Hindu temple is juridical person; (2) when there is Shehait, ordinarily no person other than the She bait can represent the idol; and (3) worshippers of an idol arc its beneficiaries, though only in spiritual sense. It has also been held that persons who go in only for the purpose of devotion have, according to Hindu law and religion. greater and deeper interest in temples than mere servants who serve there for som! pecuniary advantage : sec Ka/yana Venkatara-mana Ayyangar v. Kasr11ri Ranga Ayya!!gar('). In the present case. the plaintiff is not only mere worshipper but is found to have been assisting the 2nd defendant in the management of the temple.

The question is, can such person represent the idol when the Shebait acts adversely to its interest and fails to take action to safe-guard its interest. On principle we do not sec any justification for denying such right to the worshipper. An idol is in the position of minor; when the person representing it leaves it in the lurch, person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is pragmatic, yet legal solution to difficult situa-tion. Should it be held that Shebait, who transferred the property, can only bring suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property. apart from other technical pleas that may be open to the transferee in suit. Should it be held that worshipper can ·-

(I) (1916) l.L.R. 40 Mad. 212, 225.

file only suit for the removal of Shebait and for the appointment of another in order to enable him to take steps to recover the property, such procedure will be rather prolonged and complicaied one and the interest of the idol may irreparably suffer. That is why decisions have permitted worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in number of decisions that wor-shippers may file suit praying for possession of property on behalf of an endowment: see Radlwbai Ko111 Chi11111(1ji Safi v.Chimnaji Bin Ramjil ') Za/aarab Ali v. Bakhta1l'ar Singh('\ Chidambaranat Tlwmhiran fli Sirngnana Desika G11anasa111banda Pandora Sa1111ml/;i '" P. S. Nallasfra([3]) Muda/iar, Dasondhay v. Muhammad Abu Nasar([4]), Kalavana Venkataramana Aiyangar v. Kasturi Ranga Aiyangarl') Sri Radha Kirshnaji v. Rameshwar Prashad Singh([6]) Manmo/wn Haldar v. Dibbendu Prasad Roy Choudhury.(7) There are two decisions of the Privy Council, namely Pramatha Nath Mullick v. Pradyun:na Kumar Mullick(') and Kanhaiya Lal v. Hamid Ali ([9]) wherein the Board remanded the case to the High Court in order that the High Court might appoint disinterested per>on to represent the idol. No doubt in both the cases no question of any deity filing suit for its protection arose, but the decisions are authorities for the position that apart from Shebait, under certain circumstances, the idol can be represented by disinterested persons. B. K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., sum-E marizes the legal position by way of the following propositions, among others, at p. 249.

"(!)An idol is juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might therefore be said to be merged in that of the Shebait.

(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises right in persons interested in the endowment to take proceedings on behalf of the idol.

(1) [1878] I. L. R. 3 Bom. 27.

(2) [1883} I. L. R. 5 All. 497.

(4) [1911} I. L. R. 33 All. 660, 664.

(3) (1911) 6 Law Weekly, 666.

(6) A. I. R. 1934 Pat. 584.

(5) A. I. R. 1917 Mad. 112.

(8) [1925} L. R. 52 l.A. 245.

(1) A. I. R. 1949 Cal. 199.

(9) [1933] L. R. 60 I. A. 263.

This view is justified by reason as well as by decisions.

Two cases have been cited before us which took contrary view. In Kunj Behari Chandra v. Sri Sri Shyam Chand Thakur(') it was held by Agarwala, J., that in the case of public endowment, part of the trust property which had been alienated by the Sheliait or lost in consequence of his action could be recovered only in suit instituted by Shebait. The only remedy which the memb~rs of the public have, where the property had b~n alienated by person who was Shebait for the time being was to secure the removal of the Shebait by proceedings under s. 92 of the Code of Civil Proc.:dure and then to secure the appointment of another She bait who would th~n have authority to represent the idol in suit to recover the idol properties. So too, division Bench of the Orissa High Court in Artatran A/ekhagadi Brahma v. Sudersan Molzapatra (2) came to the same conclusion. For the reasons given above, with great respect. we hold that the said two decisions do not represent the correct law on the subject.