A.K Nandi, J.:— This appeal has been preferred against the judgment and decree awarded by the 2nd Court of the Additional District Judge, Midnapore to Title Appeal No. 30 of 1975.
2. The plaintiff filed the suit for a declaration that the disputed ‘ka’ schedule property is absolute debuttar property of the deities and the kobala mentioned in the plaint schedule in favour of defendant Nos. 1 to 5 is not binding on the deities. The plaintiff sued as a shebait of the deities.
3. One Satya Kinkar, father of the plaintiff by virtue of a registered Deed of Settlement on 30-1-1952 endowed ‘kha’ schedule property to the deities and appointed three sons figuring as plaintiff and defendant Nos. 6 and 7 as shebaits of the deities. The ‘ka’ schedule property is a part of ‘kha’ schedule property. The plaintiff was born on 1-4-1951 and he attained majority on 1-4-1969. On attainment of majority he tried to take possession of the ‘kha’ schedule property. While defendant Nos. 1 to 5 refused to deliver a possession to the plaintiff it was disclosed that defendant No. 6 and his father Satya Kinkar as guardian of the minors viz. plaintiff and defendant No. 6 had transferred the property on 12-7-1966.
4. Defendant Nos. 1 to 5 in their joint written statement inter alia contended that defendant No. 6 and his father, Satya Kinkar as guardian of the minor plaintiff and defendant No. 7 had transferred the property to them for valuable consideration and for legal necessities.
5. It has been concurrently found by the two courts below that the plaintiff as shebait of the deities had locus standi to sue. It has further been held that the suit by the plaintiff is not barred by limitation since he filed the suit within 3 years from the date of attainment of the majority in the year 1969. Both the courts are of the opinion that the disputed property was the absolute debuttar property belonging to the deities. There is a concurrent finding that the disputed property was not sold for legal necessity.
6. In Second Appeal all these concurrent findings of the two courts below are not vulnerable.
7. The only legal point that falls for consideration in this appeal is as to whether the action by the plaintiff is barred by limitation. Shebaiti is both an office and a property as held in Profulla v. Satya (1979) 3 SCC 409; Sri Sri Kalimata v. Ramchandra 75 CWN 1; Ram Rattan v. Bajrang Lal, AIR 1978 SC 1393. Nevertheless, the shebaits are the Managers or the Trustees of an idol. One of the Managers or Trustees cannot transfer a property by virtue of a Deed. This theory was propounded by the Privy Council in Lal Manmohan v. Janaki Prasad, 49 CWN 195. Therefore, the plaintiff can very well question the transfer made by one of the shebaits figuring as defendant No. 6 and his father as guardian of the plaintiff and defendant No. 7. In other words, a transfer by defendant No. 6 who was a shebait will not bind the deity. No. 7 was another shebait. He, however did not question the transfer even on attainment of majority. We have been invited to decide as to whether section 7 of Indian Limitation Act will operate as a bar to an action by the plaintiff since defendant No. 7 did not question the transfer after attainment of majority. Section 7 of the Indian Limitation Act reads as follows:—
“Disability of one of several persons—where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all, but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the order or until the disability has ceased.
Explanation I.—This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II.—For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara Law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint property.”
8. There is absolutely no doubt that this Section 7 of the Indian Limitation Act applies to monetary claims as also immovable property. Supreme Court in Sarda Prasad v. Jala Jamuna Prasad, AIR 1961 SC 1074 had occasion to opine that provisions of Section 7 of the Indian Limitation Act are not limited to suits or decree on monetary claims alone nor the word “discharge” refers only to debts. Since thereafter Supreme Court's view has found place as a piece of legislation in explanation I appended to section 7 of Limitation Act of 1963.
9. In our opinion the decision as sought for by the appellant in the instant case is not necessary. Both the minor viz., plaintiff and defendant No. 7 could question the alienation on attainment of majority either jointly or severally.
10. So either of the shebaits can maintain an action to challenge an invalid alienation. Therefore the plaintiff's right to sue survives despite inaction on the part of defendant No. 6. Calcutta High Court held in Sri Iswar Dashabhuja Kanchanbala, AIR 1977 Cal. 473 that one of the shebaits can sue impleading other shebaits as parties. In the instant case other shebaits are parties. As a matter of fact, a solemn duty is vested in the shebait to protect the property of the deity who is a perpetual minor. In an anxiety to protect such minor Supreme Court went so far as to say that even a worshipper can maintain an action (Biswanath v. Sri Thakur Radha Ballavji, AIR 1967 SC 1044). Therefore despite inaction or action by other shebaits the right of action by plaintiff survives. In view of our foregoing reasons we hold that the action by the plaintiff does not come within the mischief of Section 7 of the Indian Limitation Act nor an action is otherwise barred. The appeal therefore fails. We make no order as to costs.
11. Let a copy of this judgment go down to the court below forthwith together with Lower Court Record.
N.K Mitra, J.:— I agree.
Appeal dismissed.
A.R