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Case Number

Appeal No. 1717 of 1935

Judges

B.K Mukherjea, J.

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Smart Summary

Opinion Summary — Appeal arising from a suit concerning debuttar property and the right to sue as shebait

Factual and Procedural Background

This appeal is brought by the substituted plaintiff (Panchkari Roy) who replaced the original plaintiff Bhaktaram Roy following the latter's death. The underlying suit was instituted by Bhaktaram as paricharak and shebait on behalf of certain deities for a declaration of title to the property in dispute and for a permanent injunction restraining defendants from interfering with the deities' possession.

Key factual and procedural points stated in the opinion:

Ramdas Mohunt, the admitted owner of the property, died in February 1915 leaving a will dedicating the property to idols named Bankubehari Jew, Salgram Sila and others. His youngest daughter Arunbala was named shebait; Golap Sundari (the widow) was directed to manage the property while Arunbala was an infant. The will contained no provision for Arunbala's successor as shebait; it provided that five gentlemen could remove the shebait in case of misappropriation.
Golap Sundari took out probate of the will (stated as July 1926 in the opinion) and is recorded as having sold the property in suit in November 1916 to Satish (defendant 4), treating it as secular property she claimed by inheritance.
Arunbala, upon attaining majority, sold the property in March 1928 to defendant 1 on the basis that it was secular property under her father's will. Litigation between purchasers resulted in a decision of this Court on 7 July 1933 holding that defendant 1 had preferential title over defendant 4.
Thereafter Bhaktaram instituted the present suit claiming the property was debuttar belonging to the deities and that he was shebait as spiritual preceptor of Ramdas. He alleged Golap Sundari had given him the idols and that he had been worshipping them at his place. The plaintiff alleged the property was in Satish's possession as a tenant of the debuttar estate and that defendant 1's decree against defendant 4 cast a cloud on the deities' title.
Defendant 4 did not contest the suit. The other defendants contested, asserting inter alia that the property was not debuttar, that the suit was mala fide (allegedly instigated by defendant 4), and that Bhaktaram was neither the spiritual guide of Ramdas nor a shebait or worshipper of any existing deities.
The trial Court dismissed the plaintiff's suit: it found the property to be debuttar but held Bhaktaram was not the spiritual guide nor a shebait or worshipper and that Panchkari was not Bhaktaram's heir and therefore could not maintain the suit. The lower appellate Court affirmed the dismissal in result but modified some findings: it held the property was debuttar and that the idols were actually in Bhaktaram's possession, but concluded that Bhaktaram and Panchkari were pujaris, not shebaits (de jure or de facto), and so had no right to sue.
This second appeal challenges the conclusion that Bhaktaram and Panchkari have no right to represent the deities and institute suit on their behalf.

Legal Issues Presented

Whether Bhaktaram (original plaintiff) or Panchkari (his substituted nephew) were "persons interested in the endowment" such that they could maintain a suit on behalf of the deities when the de jure shebait was negligent or had improperly alienated debuttar property.
Whether Bhaktaram or Panchkari could be regarded as de facto shebaits (i.e., persons in actual possession and performing functions of a shebait) and thereby entitled to bring suit to recover property for the benefit of the deity.
Whether the appellant should press the separate contention that Bhaktaram was the spiritual guide of Ramdas and therefore a shebait under the will (not pressed by appellant's counsel in this appeal).

Arguments of the Parties

Appellant's Arguments (Mr. Bankim Chandra Mukherjee)

The appellant did not press the specific ground that Bhaktaram was Ramdas's spiritual guide (i.e., entitled as shebait under the will).
Primary contention: both Bhaktaram and Panchkari were worshippers of the deities and therefore were "persons interested in the endowment," which entitled them to sue on behalf of the deities to protect the endowment against trespassers.
Alternative contention: at least they were de facto shebaits and could maintain the suit to establish the deities' title.
Relied on authority (cited as 52 IA 245) to support the view that those who actually worshipped (including female worshippers in the authority) had rights connected to participation in worship.

Respondent and Defendants' Arguments (including Mr. Apurbadhan Mukherji)

Defendants contested that the property was debuttar and alleged the suit was mala fide and instigated by defendant 4 after losing earlier litigation.
They contended that Bhaktaram was not the spiritual guide of Ramdas, not a shebait, and not even a worshipper with legal standing to sue.
Mr. Apurbadhan Mukherji (for the respondent) argued that the principle allowing a person in actual possession of a Math to sue for its benefit (cited authorities 60 IA 124 and 62 IA 47) does not necessarily apply to property dedicated to an idol — i.e., there is a suggested distinction between a Math and an idol in application of the de facto manager doctrine.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
31 IA 2031 (Sir Arthur Wilson)	States that "The right to possession and management of the dedicated properties belongs to the shebait and this carries with it the right to bring whatever suits are necessary for the protection of the property; every such right of suit is vested in the shebait and not the idol."	The Court used this principle to frame the threshold rule: ordinarily the right to sue to protect debuttar property vests in the shebait, not the idol itself or other persons.
35 CWN 768 (referred to in the opinion)	Holds that when a shebait is negligent or alienates debuttar property in breach of trust, a prospective shebait or any member of the family in a family endowment may maintain a suit on behalf of the deities to recover property from a trespasser.	The Court relied on this authority to recognize an exception permitting family members or prospective shebaits to sue when the manager/shebait breaches trust, but read it as limited to family members in family endowments.
Gour, Hindu Code (Edn. 3, p. 1205) — authoritative treatise cited	States the proposition: "Any person interested in the endowment may sue to set aside an improper alienation of its property by the manager."	The Court cited this statement to support the general proposition that persons interested in an endowment may sue to restrain or set aside improper alienations, using it to analyse who qualifies as a "person interested" in private/family debuttar cases.
52 IA 245	The decision recognized the rights of female family members to be consulted in matters of location of the deity because they were members of the family entitled to participate in worship; it was not recognition based merely on their actual worship.	The Court relied on this to conclude that, for a family endowment, the class of "persons interested" is limited to family members who have a legal right to participate in worship; non-family worshippers do not qualify as persons interested for purposes of instituting suit.
60 IA 124	Holds that a person in actual possession of a Math is entitled to maintain a suit to recover property appertaining to it for the benefit of the Math (i.e., de facto manager doctrine).	The Court accepted the principle that actual possession and exercise of functions can vest a person with capacity to sue for the institution's benefit and considered whether that principle should extend to de facto shebaits in family endowments dedicated to idols.
62 IA 47	Applied the de facto manager principle where a person (Earia) had managed the institution since 1904, appeared in revenue records, and was in possession of all endowed property; such a person could institute suit despite lacking legal title.	The Court used this authority to define the requirements for a de facto shebait (actual possession, performance of shebait functions, appearance in records) and to distinguish such cases from the present facts where possession and formal recognition were lacking.

Court's Reasoning and Analysis

The Court proceeded by addressing the two principal routes by which the appellant might secure standing to sue on behalf of the deities: (A) as "persons interested in the endowment" (e.g., worshippers or family members entitled to participate in worship), and (B) as de facto shebaits (i.e., persons in actual possession exercising the functions of a shebait).

(A) Persons interested in the endowment:

The Court accepted that where the shebait has been negligent or has alienated debuttar property in breach of trust, a prospective shebait or any member of the family in case of a family endowment may maintain a suit on behalf of the deities (citing 35 CWN 768 and Gour's authority).
However, the Court emphasized that in private or family debuttar cases the category of "persons interested" is confined to members of the family who are entitled to participate in worship. It rejected the view that non-family worshippers, however well-disposed, qualify as persons interested with a legal right to sue.
Relying on 52 IA 245, the Court explained that the recognition of female members' rights in that authority was because they were family members entitled to participate in worship (not merely because they actually worshipped). From this the Court derived the principle that only family members can have the legal right to worship the deity for family endowments, and only such persons (unless the founder expressly gave broader power) may sue on behalf of the deity.
Applying this principle, the Court found Bhaktaram and Panchkari were not members of the founding family in any sense shown by the record; consequently they could not be regarded as "persons interested" entitled to sue under the family-endowment exception.

(B) De facto shebait:

The Court acknowledged precedents (60 IA 124 and 62 IA 47) recognizing that a person in actual possession and management of a Math may sue to recover property for the institution's benefit even if lacking legal title. It saw no principled reason why a de facto shebait could not be allowed to sue in family endowment cases for idols, provided the requirements were met.
The Court defined the de facto shebait as one who exercises all the functions of a shebait and is in possession of the debuttar property even though legal title may be lacking; crucially, actual possession of the office and endowment property is necessary.
The Court examined the facts: Bhaktaram claimed the idols were delivered to him by Golap Sundari. But Golap Sundari herself had no shebait right; she had acted as guardian for her minor daughter and had ignored the debuttar character of the property by selling it as secular property to defendant 4. The Court held that a purported gift of the idols by a person without shebaitship (and who treated the property as secular) could not vest Bhaktaram with the status of a de facto shebait.
The Court noted absence of documentary or municipal records showing Bhaktaram in any managerial or possessory role in respect of the estate: his name did not appear in documents, rent receipts, or municipal registers, whereas Satish's name did. Mere custody of idols and worshipping them in his native village did not establish the comprehensive possession and performance of shebait functions required to be a de facto shebait.
Panchkari, as an alleged heir of Bhaktaram, could not derive a de facto shebait status via devolution unless he independently established that he himself was a de facto shebait. The courts below had found he was not Bhaktaram's heir; in any event the record lacked evidence to show he had the necessary independent possession or functions.

On these grounds the Court concluded that neither Bhaktaram nor Panchkari satisfied the legal tests for being persons interested in the family endowment nor for being de facto shebaits entitled to sue on behalf of the deities. The Court therefore found the lower appellate court's decision to be correct.

Holding and Implications

APPEAL DISMISSED.

Direct consequences and specific orders given in the opinion:

The appeal is dismissed with costs of one gold mohur.
Leave to appeal under Section 15, Letters Patent, was sought and refused.

The Court confined its decision to the parties and facts before it: it applied existing authorities to deny standing to the appellant and substituted plaintiff because they were not family members entitled to participate in the family endowment nor were they de facto shebaits in actual possession exercising shebait functions. The opinion does not assert the creation of any new legal precedent beyond its application and clarification of existing authorities.

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(Sree Sree Banku Behary Thakur And Shalgram Shila Thakur By Their Parieharak And Shebait) Panchkari Roy v. Amode Lal Barman And Others

1. This appeal is on behalf of the plaintiff and arises out of a suit commenced by him as paricharak and shebait of certain deities for declaration of title to the property in suit and for a permanent injunction restraining the defendants from interfering with the possession of the deities. The original plaintiff whose name was Bhaktaram Roy having died after the institution of the suit, his nephews Panchkari Roy was substituted in his place and is the appellant before me.

2. The facts which are for the most part undisputed may be briefly stated as follows: One Ramdas Mohunt who was admittedly the owner of the property in suit died in February 1915 leaving behind him a will by which he dedicated this property to certain idols named Bankubehari Jew, Salgram Sila and others. His youngest daughter Arunbala was made the shebait and the direction was that Golap Sundari, his widow, would manage the property so long as Arunbala remained an infant. There was no provision in the will as to who would succeed Arunbala as shebait and the only provision was that in case there was misappropriation of the idol's property, five gentlemen would be entitled to remove the shebait and take steps for the protection of the debuttar estate. In July 1926 Golap Sundari, who is found to have become unchaste even during the lifetime of Ramdas, took out probate of the will on behalf of her infant daughter Arunbala, and in November 1916 she herself sold the property in suit to one Satish, who is defendant 4 in this suit, treating it as secular property and one which had devolved upon her by inheritance.

3. In March 1928, Arunbala who had in the meantime attained majority sold this property to defendant 1 on the footing that it was secular property which she had got under her father's will. There was a litigation then between these purchasers, which ultimately ended in this Court which held on 7th July 1933 that defendant 1 had the preferential title and was entitled to get the property in preference to defendant 4.

4. Shortly after that, the present suit was instituted by the plaintiff Bhaktaram and his case was that the property in suit was a debuttar property of the deities to whom it was validly dedicated by Ramdas and that he was the shebait of the idols as being the spiritual preceptor of Ramdas. He further alleged that Golap Sundari had made over to him the idols after the death of Ramdas and he removed these idols to his OWN place and was worshipping them there since then. The property according to the plaintiff was in possession of Satish, defendant 4 as a tenant of the debuttar estate, and as the decree obtained by defendant 1 against defendant 4 had thrown a cloud on the title of the deities the present suit was instituted. Defendant 4 did not contest the suit which was contested by the other three defendants who contended inter alia that the property was not debuttar, that the suit was a mala fide one being instituted at the instance of defendant 4 who being defeated in his suit against defendant 1 had now set up the plaintiff; and that the plaintiff was not the spiritual guide of Ramdas nor was he a shebait or worshipper of the deities, if any such existed. As I have said before, Bhaktaram Roy died pending the hearing of the suit, and Panchkari, his nephew and alleged heir, was substituted in his place. The trial Court dismissed the plaintiff's suit. It held inter alia that the property was debuttar, but the plaintiff Bhaktaram was neither the spiritual guide of Ramdas nor was he a shebait or even a worshipper of the deities and had no right to institute the suit. It further held that Panchkari was not the heir of Bhaktaram and the suit was not maintainable at his instance. The lower appellate Court affirmed the decision of the trial Court though it did not accept all its findings. It held that the property was debuttar and that the idols were Actually in possession of Bhaktaram who removed them to his house at Galigram and worshipped them. It held however that both Bhaktaram and Panchkari were pujaris and not shebaits, either de jure or de facto, and consequently had no right to sue. It is against this decision that this second appeal has been preferred, and the whole controversy centres round the point as to whether Bhaktaram or Panchkari has any right to represent the deities and institute a suit on their behalf.

5. Mr. Bankim Chandra Mukherjee who appears for the appellant does not press the point that Bhaktaram was a spiritual guide of Ramdas and as such was entitled to be a shebait of the deities under the will of Ramdas. His contention is that both Bhaktaram and Panchkari were worshippers of the deities and they were persons interested in the endowment which entitled them to institute the suit on behalf of the deities as against trespassers. At any rate they were de facto shebaits and could maintain this suit for establishment of the title of the deities to the property in suit. Now, as Sir Arthur Wilson said in 31 IA 2031:

The right to possession and management of the dedicated properties belongs to the shebait and this carries with it the right to bring whatever suits are necessary for the protection of the property; every such right of suit is vested in the shebait and not the idol.

6. When the shebait himself is negligent or alienates debuttar property in breach of trust, not only a prospective shebait under the terms of the grant but any member of the family in case of a family endowment may maintain the suit on behalf of the deities to recover that property from a trespasser (vide 35 CWN 7682). Dr. Gour in his Hindu Code lays down the law as follows:

Any person interested in the endowment may sue to set aside an improper alienation of its property by the manager: See Goar's Hindu Code, Edn. 3, p. 1205.

7. The question therefore is as to whether Bhaktaram and Panchkari could be said to be persons interested in the debuttar. In my opinion in cases of private debuttar or family endowment, all members of the family, either male or female, who are entitled to participate in the worship, can be said to be persons interested, but a person who is not a member of the family does not come under that description however muoh otherwise he might be interested in the welfare of the idol. The case in 52 IA 245,3 upon which reliance has been placed by Mr. Bankim Chandra Mukherjee, really strengthens this view. It is not because the female members Actually worshipped the deity that the Judicial Committee recognized their right to be consulted in the matter of location of the deity but it was because as members of the family they had a right to participate in the worship, though, being females they were excluded from the managership of the idols. None but a member of the family can have a legal right to worship the deity in the case of family endowment and no such person can sue on behalf of the deity for recovery of property belonging to it unless the founder has expressly given such power. In the present case the testator did not give any such authority to Bhaktaram or his heirs even if we assume that Bhakta ram was his spiritual guide; and as they could not be said to be members of the family in any sense of the word, in my opinion they could not be said to be persons interested in the endowment. This contention therefore of Mr. Bankim Chandra Mukherjee cannot be sustained.

8. The next question is whether they can be said to be de facto shebaits. The Judicial Committee, in 60 IA 124,4 and again in 62 IA 47,5 laid down that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it not for his OWN benefit but for the benefit of the Math. Mr. Apurbadhan Mukherji who appears for the respondent contends that the said principle does not apply to property dedicated to an idol. There may be and in fact there is difference between a Math and an idol, but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debuttar. The power of a de facto shebait to Act on behalf of the idols has been recognized in many cases of which the case 35 CWN 768, referred to above, may be cited as an instance, and in that case the learned Judges, besides citing earlier authorities, referred to a certain paragraph in Gour's Hindu Code which laid down that “powers of a de facto and de jure manager are the same, provided he is in actual possession.” In order to make a person a de facto shebait it is necessary however that he should be in actual possession of the office and the debuttar estate. In 62 IA 47, Earia had been managing the affairs of the institution since 1904 and was treated as Mohunt by all the persons interested. His name appeared in the revenue records and he was in possession of all the endowed property. Under these circumstances the Judicial Committee held that he was entitled to institute a suit even though he was held not to have a legal title in him. The de facto shebait would, in my opinion, be one who exercises all the functions of a shebait and is in possession of the debuttar property though the legal title may be lacking. The mere fact that he has been able to acquire the custody of the idols is not enough to make him a de facto shebait. In this case Bhaktaram alleged that the idols were delivered over to him by Golap Sundarir the widow of Ramdas. Golap Sundari had herself no shebait right. She was the guardian of her minor daughter and she herself ignored the debuttar character of the property and the will altogether and sold this very property to defendant 4 as secular property which she obtained by succession from her husband. If under such circumstances she had made a gift of the idols to Bhaktaram, it cannot be said that Bhaktaram became a de facto shebait, and even if he worshipped these idols along with his OWN in his native village, he cannot be endowed with the capacity of a shebait. As the trial Court pointed out, the name of Bhaktaram does not appear in any document or in rent receipt nor even in the municipal register, and the name of Satish appears in this connexion all through.

9. I am unable to hold that under the circumstances Bhaktaram could be regarded as a de facto shebait entitling him to institute a suit for recovery of possession of certain property on behalf of the deity. Panchkari, who is Bhaktaram's nephew, purports to come in as heir of Bhaktaram The Courts below have found that he is not the heir, but even that is immaterial, for there could not be any devolution of the right of a de facto shebait upon his heir unless he succeeds in proving independently that he was a de facto shebait himself. As I have said above, except the fact of his getting possession of the idols from his deceased uncle, there is nothing proved which endowed him with the rights of a shebait. Under the circumstances I hold that the Court of appeal below was perfectly right in the view that it took, and the appeal must stand dismissed with costs one gold mohur. Leave to appeal under S. 15, Letters Patent, is asked for and is refused.

T.M/D.S

10. Appeal dismissed.

(Sree Sree Banku Beh... v. Amode Lal Barman And...