Kunj Behari Chandra and Others vs Sri Sri Shyam Chand Jiu Thakur and Others

Agarwala, J.—This second appeal arises out of a suit brought by Sri Sri Shyam Chand Jiu Thakur through Jyoti Lal Goswami, described as the future shebait and the son of Radha Gobind Goswami, the person who was the shebait at the time the suit was instituted. Radha Gobinda was impleaded as defendant 4. The suit was for recovery of certain debutter property which had come into possession of the defendants in the following circumstances. In 1924 the shebait was one Dalgovinda. Dalgovinda and his brother Radha Gobinda executed a mortgage in favour of the defendants of 6 annas 3 pies in Mauza Bhurkunda Bari. The mortgage was expressed to be for the purpose of raising a loan for the payment of taxes due in respect of Mauza Shyampur.

The mortrgagees sued on their mortgage in 1930 and obtained a decree in execution of which they purchased the mortgaged property. They have been in possession of it since their purchase. The present suit was instituted to eject the defendants from the 6 annas 3 pies of Mauza Bhurkunda Bari which they purchased in execution of the decree on their mortgage. A number of questions have been argued before me but none of them calls for discussion unless it is first established that the suit was maintainable.

On behalf of the defendants it has been contended, from the trial Court up to the present stage of the litigation, that the idol could only sue to recover the debutter property if properly represented and that the only permissible representation of the idol in the suit was by his shebait. The shebait, on the date of the institution of the suit, as I have already stated, was Radha Gobinda. I am informed that pending the second appeal Radha Gobinda has died and has been succeeded by his son Jyoti Lal, but this is not admitted by the appellants. The trial Court held that in the case of a public endowment no one is entitled to sue on behalf of the idol to recover possession of any part of the endowed property except the shebait.

The lower Appellate Court reversed this decision relying on the decision of Lort-Williams J. Sharatchandra Shee Vs. Dwarkanath Shee and Others, in which it was held that, in the case of a private religious trust in a suit relating to a mismanagement of the trust in which the shebait could not be expected to institute a suit against himself, it was necessary and desirable that a disinterested next friend should be appointed by the Court to represent the idol. The learned advocate for the respondents has not contended that that case applied to the circumstances of the present case where the endowment is a public and not a private endowment.

In Sri Sri Kalimata Debi and Another Vs. Nagendra Nath Chuckerbutty and Others, , Chotzner J. held that in the absence of refusal by the shebait to institute a suit for the protection of the property of an idol neither a worshipper nor the idol is competent to maintain a suit.

The learned advocate for the respondents relies on a decision of a Division Bench of the Calcutta High Court in Giris Chandra Saw and Another Vs. Upendra Nath Giridas and Others, in which it was held that a member of the family of the donor is entitled to maintain a suit for a declaration that certain properties do not belong to the shebait for the time being but are trust properties and inalienable or that alienations made by a shebait are not binding on the trust estate and that such a suit may be maintained by a prospective shebait. This also however was a case of a private debutter and not of a public endowment and in any case, the prospective shebait, referred to in that case, was a person who under the terms of the grant would ordinarily have succeeded to the shebaitship.

In the present case the terms of the trust regulating the succession to the shebaitship are not on the record. The authorities on which Chotzner J. relied, which included the decisions of their Lordships of the Judicial Committee of the Privy Council, appear reasonably clear that in the case of a public endowment suits to recover a part of the trust property which had been alienated by the shebait or lost in consequence of his action can be recovered only in a suit instituted by the shebait. It would appear that the only remedy which the members of the public have, in a case of this description, is to secure the removal of the shebait by proceedings u/s 92, Civil P.C, and then to secure the appointment of another she bait who would then have authority to represent the idol in a suit to recover the idol''s properties.

It was strenuously contended by the learned advocate for the respondents that in any case, this Court was entitled to take judicial notice of facts which have occurred since the institution of the suit and that Jyoti Lal is now the shebait of the endowment and competent to maintain the action. If they were admitted, I should have no difficulty in dealing with the matter; but it is not admitted by the appellants and there is nothing on the record from which I can gather with certainty either that Jyoti Lal is the shebait or that Radha Gobinda is dead. I am therefore forced to the conclusion that Jyoti Lal was incompetent to represent the idol in the present litigation and the suit fails for that reason. The result is that the decision of the Court below must be reversed and the decision of the trial Court reinstated. The appellants are entitled to the costs of this appeal. Leave to appeal under the Letters Patent is refused.