Kachakanti Seva Samity and Another vs Kachakanti Devi and Others

J.N. Sarma, J.—This Second Appeal has been filed by the Defendants.

The case of the Plaintiff in brief is that "Plaintiff No. 1 Shri Kachakanti Devi, the deity was established by the then King of Cachar Maharaja Krishna Chandra Dhaj Narayan and about 200 years age. He appointed one Sonaram Sarma as Shebail Sonaram Sarma was conferred title of Deshmukhya in recognition to his learning, Plaintiffs No. 2 to 25 and proforma Defendants No. 3 and 4 are the direct descendants of said Sonaram Sarma After the establishment of the deity the right of sebaitship was permanently vested on Sonaram Sarma which according to the Plaintiff was a private endowment in their favour. It was further alleged that the subsequent British ruler also recognised the aforesaid right of the Plaintiffs. Plaintiffs'' forefathers were thus in full control of the deity as their private institution offering puja and other services to her.

The local public on recent days formed an assembly named by styled ''Shri Shri Kachakanti Mandir construction committee'' for the sole purpose construction of that temple and making other development works around the year 1970. But ultimately, more over enthusiastic persons of the locality formed a society named and styled as Sri Kachakanti Seba Samity (Defendant No. 1 with ulterior motive of gaining full control of the deity and with malafide intention to deprive the Plaintiffs 2 to 25 from their right of Sebaitship The society go registered and now is interfering with the management of and service to the deity which is a private religious institution belonging to the Plaintiff alone. it alleged that Defendants have absolutely no right to interfere with the management of the institution aforesaid. That the formation of the Society and its active caused apprehension and threat to the enjoyment of the right of sebaitship of the Plaintiffs 2 to 25 giving rise to cause of action for the suit by middle part of 1979.

Plaintiffs prayed for declaration of their right of Sebaitship etc., for negative declaration that the principal Defendants have no right to interfere who the management of the Plaintiff No. 1 and for injunction etc.

The schedules of the plaint contains description of the movable as immovable property held by Plaintiff No. 1.

The Defendants have raised the usual pleas regarding want of cause of action, non-maintainability, bar of law of limitation, Specific Relief Act (sic) defect of parties, waiver, estoppel and so on. Statement on the plaint were dead and the defense version of the case was given vide para 27 of the W.S. Acconlla to the Defendants Maharaja Krishna Chandra died in the year 1813 A.D. as thereafter his brother Govinda Chandra ruled Cachar till 1818 A.D. when Manipuri King, namely, Gumbhir Singh came to rule Cachar till 1824 A.D. Thus, the documents relied upon by the Plaintiffs creating the right of sebaitship in their favour in 1213 B.S. can not be genuine document as the date on it corresponds to 1824 A.D. when Maharaja Krishna Chandra was already dead.

They alleged further that seat of Plaintiff No. 1 was title far away from the residence of the Plaintiffs No. 2 to 25. That local public used to manage and offer service to ''Sri Kachakanti Devi'' with the help of local Brahmins and it was a public institution. That Sri Kachakanti Bari Development Committee formed by the local public constructed the boundary walls and the ''Kriton ghar'', by collecting subscription from the public. That in several meetings held by the Defendant society some members of the Plaintiffs were present and they had the acquiescence and consent with the activity and functioning of the Defendants society. That the society has also been duly registered for the purpose of giving service to the idol Sri Kachakanti Devi and on and from the date of its formation it is in full management and control of Plaintiff No. 1. That no private or Govt. document ever recorded the right of shebaitship as claimed by the Plaintiffs and all properties belonging to the deity have been vested in the Plaintiff No. 1 herself. That the Plaintiffs 2 to 25 with the sole intention of disturbing the smooth functioning of the institution have instituted this suit for wrongful gain and therefore, cannot succeed.

As many as 12 issues were framed by the Trial Court. The Trial Court first took up for discussion of Issues No. 8 and 9. These two issues relate to the appointment of Sonaram Sarma as Shebait by Kachari Kings and whether Plaintiffs No. 2 to 25 and Defendants No. 3 and 4 are Shebaits. Issue No. 9 is with regard to the creation of grant by the Kachari Kings in favour of the fore-fathers of the Plaintiffs. The Trial Court came to the findings that Sona Ram Sarma was over appointed as Shebait of the deity by the Kachari Kings. The fore-fathers of Plaintiffs No. 2 to 25 and Defendants No. 3 to 4 are not present Shebaits as such it was held that the Plaintiffs and Defendants No. 3 and 4 are not the shebaits of the deity. The learned Munsiff also considered the issues, and the decision having been arrived and also that the suit was dismissed. It may be stated herein that the Defendants did not examine any witness. There was an appeal being Title Appeal No. 90 of 1983 before the learned Assistant District Judge, Cachar at Silchar. The learned Judge decided Issue No. 1. that is the examination of cause of action flavour of the Plaintiffs. Thereafter the learned Judge took up for consideration Issue No. 8, 9 and 12. Issue No. 12 is: Whether the Defendants have any right a form the Shebait Samity in order to take control over the deity and administer of property. The learned Judge came to the finding that the Plaintiffs are doing the job of the puja of Shebaitship. The claim was made by the Defendant that the deity is performed by the local public by appointing indigenous Bramhins as Pujari. But the learned Judge found that there is no evidence in-support of this plea. The learned Judge came to the categorical finding as follows: Therefore, I find that the present Plaintiffs were in possession of the properties of the Plaintiff No. 1 as per caretaker and were offering her services till the alleged date of threatened dispossession due to the formation of the Committee and subsequent activities of Defendant No. 1 in and around the year of 1979." It was further found by the learned Judge that the Plaintiffs were in enjoyment of their right of shebaitship for a considerable period of time undisturbed and to the exclusion of all other claimants and the learned Judge came to the finding that the Plaintiffs arc de-facto shebait. The position of a de-facto shebait as enumerated in Hindu Law is that a de-facto shebait is not a trespasser. He can maintain an action for recovery of possession of Debottor property, though legal title may be lacking, he has right to manage the property of the deity. A Hindu Idol is always deemed to be a minor in the eye of law. The possession and management of such property of the idol shall always vest in the Shebait. The Shebait must necessarily be empowered to do what-ever may be required for the service of the idol and for the benefit and preservation of its property. If this was not so, the estate of the idol would be disturbed or wasted and its worship would be discontinued for want of necessary fund to preserve and maintain them. (See 1875 (2) I.A. 145 (P.C.) (Prasanna Kumari v. Golap Chand). An idol as per Hindu Law no doubt is a juridical person, but for the management of the property there must be somebody and he is the Shebait. A de-facto shebait can not be thrown out by a third party by forming a society to manage the affairs. It must be done by following the due process of law. As the lower Appellate Court found that the Plaintiffs arc the do-facto shebait, the Defendant No. 1 can not throw away the Plaintiffs from exercising their rights.

Regarding the question of non-joinder the Appellate Court found that the suit is not bad for nonjoinder. Once it is found that the Plaintiffs arc the shebaits the decree passed by the lower Appellate Court requires no interference. Accordingly this appeal is dismissed.

I have heard Shri B. Acharryya, learned Advocate for the Appellants and Shri N.M. Lahiri, learned Advocate for the Respondents. I leave the parties is bear their own costs.