Negi Ram vs Mandir Shivji Maharaj

R.S. Pathak, C.J.—This Letters Patent Appeal arises out of proceedings upon an application u/s 11(1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953.

Dhumi made an application to the Compensation Officer, Arki u/s 11(1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act (hereinafter referred to as ''the Act'') for the acquisition of the landowners'' rights in 25 plots of agricultural land covering a total area of 11 bighas 16 biswas in village Darla of Tehsil Arki. The landowner is ''Shri Mandir Shivji Maharaj, Darla''. Objections were filed on behalf of the landowner claiming the benefit of Section 11(2) of the Act. The Compensation Officer over-ruled the objections, and allowing the application granted proprietary rights to the legal representatives of Dhumi, who had meanwhile died, on payment of compensation. An appeal was filed by the landowner before the learned District Judge, Mahasu and was dismissed. A second appeal u/s 104 of the Act has been allowed by our brother D.B. Lal. He has taken the view that the landowner, being a Hindu idol, was in the position of a minor or, alternatively, a person suffering from physical or mental disability incapable of earning his livelihood, and therefore that Section 11(2) of the Act was attracted. Accordingly, he has dismissed the application filed u/s 11(1) of the Act.

Learned Counsel for the Appellants contends that a Hindu idol is not a minor and the view taken by the learned single Judge is erroneous. The relevant provisions of Section 11 are--"11.

(1) Notwithstanding any law, custom or contract to the contrary a tenant other than a sub-tenant shall, on application made to the Compensation Officer at any time after the commencement of this Act, be entitled to acquire, on payment of compensation, the right, title and interest of the landowner in the land of the tenancy held by him under the landowner....

(2) Nothing contained in Sub-section (1) shall apply to a landlord, if he has no other means of livelihood and is a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood. In the case of a minor, Sub-section (1) shall not apply during his minority and in other cases for his life time....

The benefit of Section 11(2) can be enjoyed only by (a) a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood and (b) if he or she has no other means of livelihood. Both conditions must be satisfied. If the landowner is unable to satisfy either condition he cannot avail of the exemption conferred by Section 11(2).

Is a Hindu idol a minor? The expression ''minor'' has not been defined in the Act. It must, therefore, be considered to take its generally accepted meaning. A person is a minor who has not attained the age of majority. By virtue of Section 3 of the Indian Majority Act, 1875, a person domiciled in India is deemed to have attained his majority on completing the age of 18 years, except where a guardian of his person or property is appointed by a Court or where his property is assumed under its superintendence by a Court of Wards, in which case the age of majority is 21 years. Plainly, what is contemplated here is a natural person. A Hindu idol is a juridical person. As long ago as Damodar Das v. Adhikari Lakhan Dass 37 L.R.IndAp 147, the Privy Council spoke of a Hindu idol as a legal entity capable of owning property, the Mahant being only his representative and manager. There are some points of similarity between a Hindu idol and a minor, for example, both must act through another person. But a series of cases have laid down that despite the similarity a Hindu idol is not a minor. In Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao AIR 1937 P.C. 12, the Privy Council declined to extend the principles applicable to minors to the property of a deity. It has sometimes been said that an idol is a perpetual minor. That concept was suggested by the Madras High Court in Rama Reddy v. Rangadasan AIR 1926 Mad. 7693. But Rankin, C.J. that eminent Judge of the Calcutta High Court and later a member of the Judicial Committee of the Privy Council, observed in Surendra-kishna Roy v. Shree Shree Ishwar Bhubaneshwari Thakurani AIR 1933 Cal. 2954 that the doctrine that an idol is a perpetual minor is an extravagant doctrine contrary to the decision of the Judicial Committee in such cases as Damodar Dass v. Adhikari Lakhan Dass (supra). A few days later in (Sri Sri) Gopal Sridhar Mahadeb v. Sashi Bhusan Sarkar AIR 1933 Cal. 1095, a Division Bench of the same High Court repelled the contention that the deity is a minor and observed that "the analogy of minority, in our judgment, is a pure fiction for which no authority is to be found in Hindu law itself. .". That view was maintained by the Calcutta High Court in Tarit Bhusan Rai v. Sri Sri Iswar Sridhar Salagram Shila Thakur AIR 1942 Cal. 996, where analysing the nature of the status and rights of a Hindu idol, Dr. Radha Binode Pal pointed out the several distinctions between a Hindu idol and a minor. The Allahabad High Court in Chitar Mal v. Panchu Lal AIR 1926 All. 3927 also rejected the contention that an idol was a perpetual minor and therefore refused to apply Section 7 of the Indian Limitation Act. In Jaganath v. Tirthananda Das AIR 1952 Ori 3128, a Division Bench of the Orissa High Court, on which Jagannadhadas C.J. presided, also declined to describe a Hindu idol as a minor. The same view was taken by the Patna High Court in Naurangi Lal v. Ram Char an Das AIR 1930 Pat. 4559, where Fazl Ali J. pointed out that while a Hindu idol could be said to be under a perpetual disability in the sense that it could not assert its title except through human representatives it could not be described as a perpetual minor, and he expressly dissented from the view taken in Rama Reddy v. Rangadasan (supra). Indeed, the view expressed by the Madras High Court in that case was not accepted subsequently by that same Court in Periyanan v. Govinda AIR 1932 Mad. 32810. In Bishwanath and Anr. v. Sri Thakur Radha Ballabhji AIR 1967 S.C. 104411, the Supreme Court has observed that a Hindu idol is in the position of minor. But that, in my opinion is very different from saying that a Hindu idol is a minor. There can be no doubt that in certain respects a Hindu idol can be likened to a minor, but it is equally true, as has been observed in some of the cases, that there are points of difference between the two. It may be pointed out that in Kalanka Devi Sansthan v." The Maharashtra Revenue AIR 1970 S.C. 43912, the Supreme Court held that a Hindu idol was not a minor, and that therefore it was not covered by Explanation I read with Section 2(12) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.

The Respondent relies upon Ram Brahma Chatterjee v. Kedar Nath Banerjee AIR 1923 Cal. 6013 in support of the submission that a deity is considered as a living person. It is pointed out that the decision in the case received the approval of the Privy Council in Pramatha Nath Mullick v. Pradhyumna Kumar Mullick AIR 1925 P.C. 13914. There can be no dispute that for certain purposes a Hindu idol is considered as a living person, but that is far removed from the proposition that a Hindu idol is a minor. Our attention has also been drawn to Jogendra Nath Naskar v. Commissioner of Income Tax, Calcutta AIR 1969 S.C. 118915. In that case the Supreme Court held that a Hindu idol was an ''individual'' within the scope of Section 3 of the Indian Income Tax Act, 1922 and was, therefore, liable to be treated as a unit of assessment for the purposes of Income Tax. I am unable to appreciate how that decision helps us in the present case.

The expression ''minor'' in Section 11(2) of the Act, as I have said, refers to a natural person. That conclusion is reinforced by the provision in Section 11 (2) which declares that the exemption from Section 11(1) is available to a minor only for the period of his minority. In other words, Section 11(2) contemplates a person whose minority will come to an end.

In my opinion, a Hindu idol is not a minor and is not covered by Section 11(2) of the Act.

The next question is whether a Hindu idol can be said to be a person ''suffering from physical or mental disability'' within the meaning of Section 11(2) of the Act and therefore incapable of earning his livelihood. It is difficult to conceive of a Hindu idol in this context. What is contemplated by Section 11(2) is a person who could personally earn his livelihood but is incapable of doing so by reason of a physical or mental disability. That a Hindu idol does not personally earn its livelihood is so not because of any physical or mental disability but because of its essential nature, that it is a juridical entity. Again, Section 11(2) provides that the exemption conferred by it will subsist only during the life-time of the person suffering from the physical or mental disability. That implies reference to a natural person. In Kalanka Devi Sansthan (supra) the Supreme Court had to consider whether a Hindu idol was a ''minor or a person who is subject to any physical or mental disability'' according to Explanation I of Section 2(12) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Section 2(22) of the Act defines "physical or mental disability" to mean physical or mental disability by reason of which the person subject to such disability is incapable of cultivating land by personal labour or supervision. The Supreme Court held that reference was intended to natural persons, and not legal persons, because personal cultivation was in mind.

I am of opinion that a Hindu idol is not "a person suffering from physical or mental disability" within the meaning of Section 11(2) of the Act and therefore that provision does not apply to it.

Accordingly, Section 11(2) of the Act cannot be called in aid by the Respondent in this case.

Turning to the next requirement of Section 11(2) that is that the landowner should have no other means of livelihood, it appears that the learned single Judge has found that the income of the Respondent consisted of income from the plots in dispute and from offerings made by devotees. He has observed that the offerings of devotees was fluctuating and uncertain, and therefore could not be considered for the purpose of deciding whether the Respondent had sufficient means of livelihood. Therefore, he has come to the conclusion that apart from the plots in dispute, the Respondent had no other means of livelihood. It seems to me unnecessary to enter into that question. As, in my opinion, the Respondent cannot be said to be a minor or a person suffering from physical or mental disability incapable of earning his livelihood, the question whether he has any other means of livelihood does not call for examination.

Learned Counsel for the; Respondent urges that the application made u/s 11(1) of the Act by Dhumi is not maintainable because it has been brought against ''Mandir Shivji Maharaj'', that is to say against the temple and not the idol. Support is sought from Bhajan Sheikh v. Balai Sarkar AIR 1923 Lah. 37516. With great respect to the learned Judges who decided that case, it seems to me that if upon the facts and circumstances it is clear that the Plaintiff all along intended to bring the suit against the deity as Defendant, the mere description of the deity by reference to the temple in which it is installed cannot justify the dismissal of the suit. The landowner in the revenue records is described as "Mandir Shivji Maharaj" and there has never been any dispute that the idol of Lord Shiva is installed therein. Nowhere does it appear that the Respondent was misled into believing that the application was brought against the temple and not the deity. The Compensation Officer rejected the contention that the application was not maintainable as it was brought against "Mandir Shivji Maharaj" and not against the deity. The view taken by the Compensation Officer was affirmed on appeal by the learned District Judge. It seems to me that having regard to the facts of this case the contention raised on behalf of the Respondent proceeds upon a pure technicality and cannot be sustained. It is, therefore, rejected.

Accordingly, I allow the appeal, set aside the judgment and decree of the learned single Judge and restore that of the learned District Judge, Mahasu. The Appellants are entitled to their costs.

Chet Ram Thakur, J.

I agree.