Mukherjea, J.:— These two connected appeals are on behalf of defendants Nos. 1 and 2, and both of them arise out of one suit commenced by the plaintiff for a declaration that he was a validly appointed shebâit of an idol named Sreedhar Jiu under a niyoga-patra executed by a previous shebâit. The plaintiff further prayed for the removal of defendants Nos. 1 and 2 who were the two existing shebâits of the idol from their office on grounds of misappropriation and neglect of duties, and claimed accounts against them.

The facts are rather long, and so far as they are necessary for purposes of the present appeals, may be stated as follows: There is an idol named Sreedhar Jiu which was the ancestral family Deity of one Harish Chandra Banerji, a Hindu inhabitant of Bhadrakali in the District of Hooghly. Harish Chandra died, leaving behind him his three sons, to wit, Bidhu Bhushan, Priya Nath and Karuna May, and a grandson by a predeceased son named Kumud. In the year 1890, there was a deed of partition amongst these sons and grandson of Harish Chandra and, by that document, a property yielding an annual income of Rs. 26 was set apart for the sheba and worship of the Deity, and it was further provided that these four persons would carry of the worship by turns. Bidhu Bhushan held the post of a Subordinate Judge and was childless. He erected a puccâ ghât and a puccâ thakurbârhi at his own expense for the location of the Deity, and he himself performed the pujâs so long as he was alive. Bidhu Bhushan died in 1909, leaving behind him a will, by which he gave a sum of Rs. 10,000 for the worship of the idol and appointed three persons as its shebâits, namely, Hari Mohan (a son of Priya Nath and a pro formâ defendant in this suit), Nirmal (defendant No. 1, who was a son of Karuna May) and Nihar Ranj an (a son of Kumud, the nephew of the testator, who was the father of Tushar Ranjan, defendant No. 2 in this suit). The relationship between these persons and the testator would be clear from the pedigree that is set out in the judgment of the trial Court and which is to be found at p. 2 of the paper-book.

The will of Bidhu Bhushan further provided that each shebâit would have the power to nominate a successor in his absence, and if any shebâit died without exercising the powers of nomination, the eldest among his heirs would be the shebâit. Bidhu Bhushan left the bulk of his properties to Hari Mohan, who took out letters of administration with a copy of the will annexed in November, 1909. After taking possession of the assets, Hari Mohan advanced the sum of Rs. 10,000, which was bequeathed to the Deity, as a loan to one Suresh Chandra Mukherji, a zemindâr of Uttarpârhâ, on a promissory note, which was taken in the name of Hari Mohan personally, but was later on endorsed by him in favour of all the shebâits.

In 1913, a deed of agreement was executed by the three shebâts, by which it was agreed by and between them that the worship of the Deity would be carried on by rotation and each shebâit would have his turn of worship every three years. Hari Mohan has been described in the plaint as a man of immoral habits, who was heavily involved in debts and was living a life of shameless profligacy. He sold the house which he got under Bidhu Bhushan's will to the plaintiff's wife, and on August 11, 1925, he executed a niyogapatra or a deed of appointment by which he purported to relinquish his rights as a shebâit and appointed the present plaintiff Jyoti Prasad Banerji as a shebâit it his place. The plaintiff, it may be stated here, is not a member of the family of Harish, though his mother happened to be a cousin sister of Nihar's mother. Hari Mohan severed his connection with the debattar estate after executing the deed of appointment, and the plaintiff says that he immediately took over possession of the Deity and began to perform the pujâs and the ceremonies.

In 1927, Nihar Ranjan died and the defendant No. 2, Tushar, succeeded to his rights as a shebâit under the terms of Bidhu Bhushan's will. It appears that the defendants Nos. 1 and 2 were not willing to admit the plaintiff as a shebâit of the family Deity, and they ignored him altogether in their dealings in connection with the Deity's property. On April 2, 1928, the defendants Nos. 1 and 2 instituted a suit in the name of the image in the Court of the Subordinate Judge at Hooghly against Jahar Lal and Panna Lal, the sons and heirs of Suresh, for recovery of a sum of Rs. 11,000 and odd alleged to be due on the hand-note executed by, Suresh in favour of Hari Mohan in 1909. The plaintiff Jyoti Prasad was not made a party to the suit, nor did he make any attempt to be added as a co-plaintiff. The trial Court dismissed the suit, holding that the money did not belong to the Deity, and, consequently, the suit as framed was not maintainable. There was an appeal taken against this decision by defendants Nos. 1 and 2 to this Court. That appeal was allowed, and the case was sent back to the trial Judge to be retried on its merits. The defendants Nos. 1 and 2, however, did not proceed with the suit any further, and it was dismissed for non-prosecution on August 12, 1935. It appears further that on July 23, 1935, there were two bonds executed by Jahar Lal and Panna Lal, the two heirs and sons of Suresh, each for a sum of Rs. 6,000 in favour of one Nirod Chandra Chatterji, who is a son-in-law of Nirmal, the defendant No. 1. The plaintiff's case is that the two defendants, in clear violation of their duties as shebâits, entered into a fraudulent arrangement with the debtors and misappropriated the whole amount, that the latter owed to the Deity, by taking these bonds in the name of a benâmdâr of theirs, and subsequently allowed the suit to be dismissed for default. It was further alleged that the defendants Nos. 1 and 2 neglected their duties as shebâits and did not pay the expenses of the worship of the image or repairs of the temple which were being borne by the plaintiff entirely out of his own pockets. The defendant No. 2 was further alleged to have turned insane and hence incapable of discharging his duties as shebâit. On these allegations, the plaintiff prayer that defendants Nos. 1 and 2 might be removed from their office as shebâits and he might be declared to the sole shebâit of the Deity on the strength of the deed of appointment executed by Hari Mohan. He also claimed accounts against defendants Nos. 1 and 2 for their respective periods of shebâitship.

The defence of the defendants in substance was that the plaintiff was a trespasser and that the niyoga-patra, upon which he relied, was an invalid document, which could not, in law, give him the rights of a shebâit. They denied the charges of misappropriation and neglect of duty, and asserted that the money suit was not prosecuted by them, acting under proper legal advice, and that there was nothing dishonest or malâ fide in their conduct.

It may be stated here that Nirmal, the defendant No. 1, himself brought another suit (being suit No. 4 of 1937) against Jyoti Prasad, to which Hari Mohan was also made a party defendant. He prayed in that suit for a declaration that the niyoga-patra was a void and inoperative document and Jyoti Prasad being an outside had no rights to have the custody of the idol. He further prayed for the removal of Hari Mohan as a shebâit on the ground that by executing the niyoga-patra he really sold his religious office to Jyoti Prasad.

Both these suits were heard together by the Subordinate Judge, First Court, Hooghly, who by his judgment dated June 5, 1937, dismissed the suit brought by Jyoti Prasad, and decreed the other suit which was filed by Nirmal as plaintiff. The Subordinate Judge took the view that the niyoga-patra executed by Hari Mohan was an illegal and inoperative document which could not confer upon Jyoti Prasad the status of a shebâit. Against these decrees, there were two appeals taken by Jyoti Prasad to the Court of the District Judge at Hooghly. The District Judge, by his judgment dated January 7, 1938, allowed the appeal preferred against the decree in suit No. 4 of 1937 and dismissed that suit in its entirety, holding that the niyoga-patra of Hari Mohan was a valid document, by which Jyoti Prasad was legally appointed a shebâit of the Deity in place of Hari Mohan. By the same judgment the other appeal was allowed and the case was sent back to the Subordinate Judge for determination of the question as to whether Nirmal and Tushar had abused the trust imposed on them. After the Subordinate Judge had recorded his findings on that point, the appeal was disposed of by the District Judge by his judgment dated December 23, 1938. The plaintiff's suit was decreed; he was declared to have been validly-appointed a shebâit, and both the defendants were removed from their office,—the defendant No. 1 on the ground of his having committed a breach of trust and defendant No. 2 on account of his lunacy. The District Judge further ordered that defendant No. 1 was liable to account to the plaintiff, his co-trustee, and the case was remanded to the Subordinate Judge for the purpose of taking accounts for such period as was not barred by limitation. It is against this judgment that Second Appeal No. 481 of 1939 is directed.

After the case went back for enquiry into accounts, the Subordinate Judge by his order dated December 1, 1939, directed that a commissioner should be appointed to examine the accounts and ascertain the liability of defendant No. 1 for the period of his shebâitship from February 13, 1909, till December 23, 1938, and accounts ware directed to be taken not merely on the basis of what the defendant received and spent out of the debattar property, but on the basis of the loss which the Deity sustained through his negligence or wilful default. An appeal was taken against this order by Nirmal, which was disposed of by the District Judge on April 4, 1940. It was held that the period of accounting should be from April 15, 1911, and not from February 13, 1909, as directed by the Subordinate Judge. The District Judge was further of opinion that the trial Court was not right in directing accounts to be taken on the basis of wilful default when no such case was made in the suit. The case was again sent back in order that further evidence might be taken by the trial Court and the basis of accounting properly determined. It is against this order that Second Appeal No. 830 of 1940 has been taken to this Court.

The points that have been taken by Mr. Hiralal Chakravarti, who appears in support of these appeals, are really of a three-fold character: The first point taken is that in the suit, as framed, no relief by way of removal of the shebâits or for accounts against them consequent on such removal could be granted. The second ground urged is that on the facts found no case of removal of either of the two defendants has been made out, and that Court of appeal below erred in law in holding that subsequent lunacy of a shebâit would cause forfeiture of his rights. The third ground taken relates to the question of accounting, and it is argued that defendant No. 1 is not accountable in law to the plaintiff; and if accounts are to be taken at all, they should be taken not on the basis of wilful default nor for the entire period of his shebâitship. I will take up these three points one after another.

As regards the first point, the contention of Mr. Chakravarti is that a shebâit can be removed only at the instance of the Deity, but the present suit is neither is form nor in substance one on behalf of the idol. It is said that the plaintiff who is one of the shebâits cannot, in law, represent the Deity, and from the pleadings of the parties it would be clear that the dispute was in the nature of a scramble for power between rival shebâits, neither of whom can be said to be a representative of the idol. This contention really involves two questions: (i) Whether the plaintiff being one of the three shebâits can, in law, represent the Deity, and (ii) even if he can, whether the present suit is one by the Deity, or by a shebâit as such to establish his own rights with regard to the endowment.

On the first question, I am of the opinion that Mr. Chakravarti's contention cannot succeed. It is well settled that when the right to sue is vested in several trustees or shebâits, all of them form, as it were, but one body and they must exercise the powers of their office jointly. Ordinarily, therefore all the trustees or shebâits should, if possible, join as co-plaintiffs in a suit which is brought on behalf of the Deity, and only such of them should be made defendants as are unwilling to be joined as co-plaintiffs or have done some act precluding them from being plaintiffs. [Vide Bechu Lal v. Oliullah; Kokilasari Dasi v. Mohunt Rudranand Goswami and Narendra Nath Kumar v. Atul Chandra Banerjee], which was approved by the Privy Council in the case of Baraboni Coal Concern, Limited v. Gokulananda Mohanta Thakur.

This principle cannot obviously be invoked in the present case. Here the suit was to remove two of the shebâits from their office on grounds of misappropriation and breach of trust. It would be absurd to suggest that the two defendants, against whom charges of misfeasance and neglect of duties were made, should be invited to join as plaintiffs in the suit. A case like this would come within the exceptions which are recognised in the decisions mentioned above, and it must be held that, in view of the nature of the suit and the allegations made in the plaint, it would not be possible to bring together all the shebâits as plaintiffs in the suit. Moreover, as, according to Mr. Chakravarti, the right to sue in such a case is vested in the Deity and not in the shebâit, the Deity can certainly sue through any person as next friend who has no interest adverse to it, and it is immaterial that the next friend happens to be one of its shebâits. [Vide Jodhi Rai v. Basdeo Prasad,.] I hold, therefore, that the suit is not defective merely because all the shebâits of the Deity did not appear as plaintiffs, and it could not be held to be defective even if it was found later on that the charges brought against one or both of the defendants shebâits were not well-founded.

The material question, however, is whether the suit has been really brought by the Deity through the plaintiff as shebâit or it is a suit by the shebâit himself. The description of the parties as given in the heading of the plaint undoubtedly supports the contention of Mr. Chakravarti, for the plaintiff is not the Deity Sreedhar Jiu, suing through one of the shebâits, but it is Jyoti Prasad Banerji, describing himself as one of the shebâits of the Deity, who figures as the plaintiff in the suit, and the defendants also are described as shebâits of the same Deity. The form, however, is not conclusive, and it is necessary that we should look more closely into the allegations made in the plaint: Vide Radha Binode Maridal v. Gopal Jiu Thakur.

The first paragraph of the plaint gives the early history of the debattar and recites the will of Bidhu Bhushan, which appointed three persons as shebâits and empowered them to nominate their successors in their absence. Foundation is thus laid in this paragraph for introducing the story of the appointment of the plaintiff himself as a shebâit by Hari Mohan. The second and third paragraphs set out the facts relating to the advance of Rs. 10,000 as a loan by Hari Mohan to Suresh and the subsequent endorsement of the promissory note in favour of all the shebâits and the payment of interest by Suresh on the same. In the fourth paragraph we have an account of the execution of the niyoga-patra by Hari Mohaji in favour of the plaintiff, which constitutes the foundation of the plaintiff's title. In the fifth and sixth paragraphs the plaintiff avers that, after he was appointed a shebâit, the other shebâits did not join with him in worshipping the Deity or making Repairs of the temple and the plaintiff had to carry on these expenses from his own pockets. In the remaining paragraphs in the plaint are contained the facts relating to the dismissal of the money suit by defendant Nos. 1 and 2 against the heirs of Suresh for non-prosecution and the allegation of misappropriation against defendants Nos. 1 and 2, who were said to have misappropriated this entire money due to the Deity. The other acts of neglect of duty for which the defendants were sought to be removed from their office as shebâits were also set out in these paragraphs. The prayers were, in the first place, to establish the plaintiff's rights as a shebâit on the basis of the niyoga-patra executed by Hari Mohan and, in the second place, to remove defendants Nos. 1 and 2 from the shebâitship on grounds of misappropriation and neglect of duties. The other prayers were consequential in their nature; the plaintiff claimed a declaration that he was the sole shebâit of the Deity and also demanded Accounts against the defendants consequent on their removal.

From the allegations and the prayers set out above it is quite apparent that the suit is not really one on behalf of the Deity, but it is the plaintiff Jyoti Prasad who is seeking to establish his rights against his co-shebâits and demanding their removal on grounds of misfeasance and abuse of trust. So far as the plaintiff's prayer for a declaration of his title as shebâit is concerned, there is no defect whatsoever in the frame of the suit, and the whole question narrows down to this as to whether the prayer for removal of the other shebâits and the demand of accounts against them are maintainable at the instance of a co-shebâit when the Deity is not a party to the suit.

It is settled law that any person interested in the endowment can bring a suit to recover the idol's property for debattar purposes. In the case of a private endowment a co-shebâit or one who is entitled to become a shebâit after the present incumbent, or a member of the family may sue to set aside an alienation of the office or of the endowed property illegally made: (Vide G. Sastri's Hindu Law 8th Ed., p. 696). In the case of Monohar Mookerjee v. Peary Mohan Mookerjee, which was affirmed by the Privy Council in Peary Mohan Mukerji v. Manohar Mukerji one of the heirs of the founder was held entitled to invoke the assistance of the Court for proper administration of the debattar property and for removal of the existing shebâit, even though the Deity was not made a party to the suit. A shebâit is certainly a person interested in the endowment, and if he can institute a suit to bring back to the debattar any property of the idol, which was illegally alienated by his co-shebâit, there is no good reason, in my opinion, why he cannot in the same capacity maintain a suit in the interests of the endowment itself for removal of a shebâit from his office on the ground of misappropriation of the Deity's money and for recovery of the money that might be illegally retained by the latter. It is true that the plaint has not been very artistically drawn up and the plaintiff, in the present case, does not expressly say that he is suing in the capacity of a person interested, and the frame of the suit might suggest, at first sight, that it was a dispute between the shebâits inter se. But as the material allegations are all in the plaint, it would be only a question of amendment, and this could have been allowed, had the defendants raised this question pointedly at the earliest opportunity. We feel reluctant to throw out the suit on this ground alone, if the facts, established by evidence, entitle the plaintiff to any relief against the defendants, in the interests of the endowment itself. The first contention of Mr. Chakravarti is, therefore, overruled.

The next point for our determination is whether, on the facts admitted and found, the District Judge was justified in making an order of removal against either or both of the defendants. The allegations of the plaintiff, upon which he sought to remove both the defendants from their office as shebâits, are of a two-fold character. The first accusation against them was that they had neglected their duties as shebâits, and the second charge was that they had actually misappropriated the moneys due on the hand-note of Suresh by realising them from the two sons of the latter and then allowing the money suit, which was remanded by this Court to be dismissed for default.

On the first point, the finding of the District Judge is in favour of both the defendants, and it is held expressly in the judgment that no case of removal was made out on the ground of non-performance of the debshebâ. On the other point, the finding is that, though Nirmal did not actually receive the moneys due on the hand-note of Suresh, and, consequently, could not misappropriate the same, yet it was a grossly improper act on his part to get two bonds Executed by the two sons of Suresh in favour of his son-in-law, who was nothing but a benâmdâr of his, and then to allow the money suit against the debtors to be dismissed for non-prosecution. This was conduct which fell far below the standard of rectitude and accuracy, which is expected from a trustee of charitable funds, and justified the removal of defendant No. 1 from his position of trust.

With regard to Tushar, the defendant No. 2, it was expressly found that no case of misappropriation or abuse of trust was established against him, but it was held that he forfeited the rights of a shebâit on account of his having become a lunatic in the year 1933.

As regards Nirmal, Mr. Chakravarti argues that, even if he took the bonds in the name of his son-in-law, there was no dishonest object behind it and he did it only to spite the plaintiff. Jyoti Prasad, whose claims he was resisting all along. Mr. Chakravarti says that the intention of Nirmal was not to deprive the Deity of the money, but only to prevent the money from falling into the hands of Jyoti Prasad, whom his clients could not but look upon as an arrant trespasser. It is true that Nirmal did not recognise the validity of the niyoga-patra by which a stranger to the family was appointed a shebâit, and there were considerable doubts also, till the matter was decided by this Court, as to whether, according to the terms of Bidhu's will, a shebâit could hand over his rights to a nominee during his own life-time.

Jyoti Prasad, it seems, was not at first very sure of his position and for some years at least he avoided raising the question of his shebâitship in any Court of law. He had one advantage over his co-shebâits, viz., that he had got possession of the Deity from Hari Mohan and also the thâkurbârhi which was close to his residence. Jyoti Prasad, as I have said above, did not join in the money-suit which was instituted by Nirmal and Tushar in 1928, although three years had already elapsed from the date of the execution of the niyoga-patra, and, if the evidence of Jahar Lal Mukherji is to be believed, he assisted the debtors during the progress of the suit, in the trial Court. It was in 1935, after the money suit was allowed to be dismissed for default, that Jyoti Prasad came to Court for establishment of his rights as a shebâit and for removal of his co-shebâits. But whatever strained feelings there might exist between Nirmal and Jyoti Prasad, it is difficult to see how the taking of the two bonds in the name of his benâmdâr could at all help Nirmal in resisting the claims of Jyoti Prasad or preventing the money from falling into the hands of the latter. Jyoti Prasad was either a legally appointed shebâit or he was not. If he was legally a shebâit, Nirmal had no right to prevent him from having the custody of the Deity's property along with his co-shebâits, while, on the other hand, if he was a trespasser, Nirmal would have been entirely within his nights if he refused to hand over the money to Jyoti Prasad till the rights of the latter were established in a Court of law. We have no hesitation, therefore, in agreeing with the Court of appeal below that the conduct of Nirmal was grossly improper and amounted to an abuse of his fiduciary position. It is true, as has been pointed out by Mr. Chakravarti, that Nirmal had acted throughout the earlier stages of the litigation in a perfectly honest and conscientious manner, and it may be that, if he had been dishonestly inclined, he could have entered into some dishonest compromise with the debtors after the trial Court dismissed the suit and an appeal was pending against that decision in this Court. It would be difficult to speculate on his motives, but, when on the face of it the transaction was improper, it was for Nirmal to offer an explanation. Far from offering an explanation, he denied that the bonds taken in the name of his son-in-law had any connection with the debattar money and he attempted to justify his non-prosecution of the suit on the ground that he had no funds in his hands to carry on the litigation, and, moreover, that he was advised by his lawyers that the suit was bound to be dismissed on the ground of limitation. The fact that there was no actual misappropriation and that the Deity has not actually suffered any loss are no doubt pertinent matter for consideration or determining the extent of Nirmal's liability to accounts, but they cannot, in my opinion, justify the reversal of the order of removal that has been passed by the District Judge. It is pointed out to us by Mr. Chakravarti that Nirmal has already resigned hence there is no necessity of removing him by any order of the Court. We are not concerned with the question of his resignation in this appeal at all, and whether or not he has resigned, the order of removal must stand.

We now come to Tushar, the other shebâit, and an interesting question of law arises as to whether a shebâit, who was of sound mind when the shebâitship devolved upon him, loses his rights by subsequently becoming insane. The District Judge was of opinion that subsequent lunacy of a shebâit would cause forfeiture of his rights, and, in support of his proposition, he relied upon a passage in Sir Dinshaw Mulla's well-known treatise on Hindu law, where the learned author stated the law on the point in the following manner:—

In the case of temples the ideal person is the idol itself: in the case of maths the ideal person is the office of the spiritual teacher, âcharya, which, as it were, incarnate in the person of each successive swâmi or head of the math. The difference in the character of the juridical person in the case of temples and in the case of maths leads to this result that while the shebâit of a temple forfeits his position as such by reason of his lunacy, the head of a math does not.

This statement of law is based entirely on the pronouncement, of two learned Judges of the Madras High Court in the case of Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami. In that case the title of the plaintiff to the headship of a math depended on the question, as to whether on the date when the plaintiff was said to have been appointed there was a vacancy in the office by reason of the then head of the math (who was defendant No. 1 in the suit) having become a lunatic. If the lunacy of the mohanta was a ground of forfeiture of his rights, the plaintiff would succeed in the suit, assuming that the person who appointed him had the requisite authority to make the appointment, but if, on the other hand, there was no vacancy on account of the lunacy of the mohanta, the plaintiff's suit would fail. The trial Court held that there was no vacancy, even if the mohanta had become insane, and this decision was upheld by the High Court on appeal. The legal position of the head of a math was elaborately discussed by the two learned Judges (Sir Subramania Ayyar, Acting Chief Justice, and Bhashyam Ayyangar, J.) who heard the appeal and delivered separate but concurring judgments. It was held that the head of a math was not a mere trustee, but a corporation sole, having an estate for life in the permanent endowments of the math and an absolute property in the income derived from the offerings, and the lunacy of a mohanta would not occasion a forfeiture of his tights. The question whether the same principle would be applicable to the case of a shebâit of a temple was not a matter for consideration in the case at all. But there are certain observations of the learned Judges in their respective judgments to the effect that in the case of a temple, the juridical person being the idol itself, the custodian of the temple, who has no beneficial interest in the endowment, but occupies the fiduciary position of a mere manager, might not improperly be looked upon as subject to the strict liabilities of a trustee. This was said, and that in a very guarded manner, with regard to dharmakartâs or panchâyets and the expression “shebdit” itself was not used in the judgments. In my opinion, these observations, which certainly cannot rank above an obiter, could not be taken to be any pronouncement by the learned Judges on the legal position of a shebâit of a religious endowment. The distinction between a dharmakartâ and a shebâit or mohanta was pointed out by the Judicial Committee in the case of T.P Shrinivasa Chariar v. C.N Eralappa Mudaliar, where it was said that the position of a dharmakartâ was not the same as that of a shebâit of an institution or the mohanta or head of a math. “These functionaries” their Lordships observed—

have a much higher right with larger powers of disposal and administration and they have a personal interest of a beneficial character.

The decision in the case of Vidyapurna v. Vidyanidhi (supra) was cited with approval in the judgment. I think, therefore, that the decision in the above case cannot be regarded as an authority for the proposition that a shebâit of a private religious endowment loses his rights as soon as he becomes insane.

In my opinion nothing turns upon the fact that in the case of a property dedicated to an idol the juristic person is the Deity himself in whom the property is vested, and the shebâit is a mere manager or custodian of the idol. In the case of a math also the proprietary right vests in the institution and not in the mohanta. As was pointed out by the Judicial. Committee in the case of Vidya Varuthi Thirtha v. Balusami Ayyar, the idea of a trust in the English sense of the word was unknown to Hindu law. Hindu piety found expression in gifts to images consecrated or installed in temples or to religious institutions, by whatever name they might be called. In the case of a temple, it is the idol which is the juristic person, while in maths the juristic person is the institution itself. Neither the mohanta nor the shebâit is a trustee in the English sense and has property conveyed to, or vested in him, but in almost every case he has some personal interest in the endowment which depends on the usage or terms of the grant. It is the presence of this personal interest in the trust property which makes the rule of English law relating to appointments, of new trustees, when a trustee becomes a lunatic, inapplicable to a mohanta or a shebâit in India. This was expressed very clearly by Bhashyam Ayyangar, J. in the following passage:—

I am, however, of opinion that the head of a math, as such, is not a trustee in the sense in which that term is generally understood in the Law of Trusts, and a decision on the question under consideration cannot therefore properly be governed by the principles regulating the appointment of new trustees or by analogy derived therefrom. I may also say that in the case of hereditary trustee in India and other trustees having a beneficial interest in the trust property, the principles of the English Law of Trust—embodied in the Indian Trusts Act—as to the appointment of new trustees, when a trustee becomes incapable of acting by reason of unsoundness of mind, etc., are inapplicable. (Vide I.L.R 27 Mad. 435, p. 447).

I have no hesitation in holding that the same principle applies to shebâits also. A hereditary shebâit has not merely duties to discharge, he has some sort of beneficial interest in the endowment itself. In the words of Lord Buckmaster—

there is a close intermingling of duties and personal interest which together make up the office of a shebâit.

[Vide Peary Mohan Mukerji v. Manohar Mukerji (supra)]. It is not merely an office, but it is also a property, and this has been held by a Full Bench of this Court in the case of Manohar Mukherji v. Bhupendranath Mukherji. It is a thing which is capable of being disposed of by the founder, and failing such disposition, it follows, like any other species of heritable property, the line of inheritance from the founder. According to the rules of Hindu law relating to devolution of property, lunacy of the heir at the time when the succession takes place may prevent him from succeeding to the estate, but subsequent lunacy will not effect a divestment of the interest already vested in him. In my opinion, the same rule ought to be applied to the devolution of shebâiti rights as well, and, as Tushar was admittedly of sound mind when his father died, his subsequent lunacy could not divest him of the rights which he had already acquired.

Mr. Gupta, who appears for the plaintiff respondent, has fairly conceded that, in the case of a private debattar, when the shebâitship is confined to the heirs of the founder, the lunacy of one of the shebâits may not justify his removal or the appointment of another shebâit in his place. The duties, both secular and spiritual, of such a shebâit can efficiently be discharged by the other shebâits acting along with the guardian of the lunatic, if necessary. In other Words, the same course may be followed as in the case of an infant shebâit. In the present case, however, he says that the circumstances are different. Here the idol was an ancestral Deity of Harish Chandra Banerji and the shebâitship was in all the heirs of the original founder. It is true that the Deity had little of no property at the time when it was installed, but Bidhu, who created the endowment, being nothing more than a shebâit himself could not alter the original line of shebâitship and the shebâits acting under his will would not be shebâits in the proper sense of the word. They would be mere managers of the property given to the Deity by Bidhu; in other words, there would be no mingling of duties and personal interest, as in the case of shebâits proper, but they would have only duties to discharge, and no personal or beneficial interest in the endowment. This contention, in my opinion, does not seem to be sound. In making additions to an existing foundation it may not be competent for a shebâit by his own act alone to alter the line of succession to the office of the shebâit; but if the new line of shebâits laid down by the grantor is attached as an essential condition to the grant, the Deity or its representatives may reject the grant if they like, but if they choose to accept it they must accept it subject to that condition. [Vide Ashutosh Seal v. Benode Behary Seal].

In the present case it must be assumed that the. Deity accepted the gift of Bidhu, subject to the conditions relating to the devolution of shebâitship as laid down in his will. The shebâits appointed under the will of Bidhu must, therefore, be taken to be the only shebâits of the Deity, and they are shebâits in the full sense of the word and not mere managers of the endowed property.

It has been further argued by Mr. Gupta that, even though lunacy may not occasion the forfeiture of the rights of a shebâit, yet, if he is incapable of discharging his religious or temporal duties, he should be removed from his office or at least suspended so long as his disability lasts. This point was raised and considered in the case of Vidyapurna v. Vidyanidhi (supra) referred to above. Bhashyam Ayyangar, J. was of opinion that, in such a case, the proper course for the purpose of securing the due discharge of the spiritual function of the office and the management and preservation of the endowment and its income is to provide a suitable agency for the purpose. The learned Judge was further of opinion that, when a Court of law had already appointed a manager of the lunatic's estate, the manager might take charge of the endowed property on behalf of the lunatic and provide for the conduct of the necessary worship and the religious ceremonies of the math by appointing persons duly qualified for the purpose. If this is possible in the case of a mohanta, who has to exercise a large amount of discretion in the administration of the affairs of the math, it should be equally possible in the case of a shebâit of a private endowment. I quite agree with Mr. Gupta that there may be exceptional cases where the duties imposed on the shebâit are of such a character that they cannot possibly be discharged by a representative; and, in such a case, it may be proper to make other exceptional arrangements so long as the lunacy subsists. But this case, in my opinion, does not present any such exceptional features. The only income-bearing property which the Deity possesses is a sum of Re. 10,009, which was advanced to Suresh. The shebâits have got to realise the interest due on this money and make arrangements for repairs of the temple whenever necessary. As regards spiritual duties, there are the daily worship and the periodical ceremonies which are all fixed and are performed by a priest. The shebâits have only to determine the amount which they can spend on such ceremonies and exercise a general supervision over them. All these things, in my opinion, can be done by the guardian of the lunatic in the present case, who is no other than the mother of the shebâit, and there is no necessity whatsoever for removing him from his office.

The decision in the case of Bhuban Mohan Koley v. Narendra Nath Konaur, upon which Mr. Gupta relies, is not of much assistance to us in the present case. There, two out of four shebâits instituted a suit for rent against certain tenants who held lands under the debattar. The two remaining shebâits were made parties defendants and it was alleged in the plaint that they were not looking after the affairs of the temple or worship of the idol. One of the questions raised was whether the suit was maintainable at the instance of two of the shebâits without joining the other two as co-plaintiffs. The Courts below decided the question in favour of the plaintiffs, and this decision was affirmed by this Court in appeal. It will be seen that in this case the claim was for the entire rent of the holding and all the shebâits were made parties to the suit. It was found as a fact that one of the defendant shebâits had removed from her husband's house and was living at a distant place, while the other shebâit had sold her rights to a, stranger—who was not in the line of shebâits at all. It was further found that none of them managed the debattar estate or looked after the idol. In these circumstances it was held that they had ceased to be Shebâits. This decision had no bearing on the facts of the present case, where Tushar has not certainly done anything which might be construed to be an act of abandonment or renunciation of his rights as shebâit. Suhrawardy, J. expressed himself, in my opinion, rather too broadly when he said that—

“A shebâit, being a manager”, cannot remain as such when he “ceases to manage the property and carry on the worship of the idol. He has no right of property transferable or heritable as such”. This is not, borne out by the decision of their Lordships of the Judicial Committee in the case of Vidya Varuthi v. Balusami (supra), upon which the learned Judge purported to rely, and it is definitely opposed to the subsequent pronouncement of a Full Bench of this Court in the case of Manohar Mukherji v. Bhupendranath Mukherji (supra).

The question as to the validity of the niyoga-patra, upon which the plaintiff relies for establishing his right as a shebâit, has already been decided in his favour in the other suit and that decision has been confirmed by this Court. The plaintiff is, therefore, entitled to a declaration that he is a shebâit of the Deity, but he cannot have a declaration that he is the sole shebâit. The order for removal of Tushar, as passed by the District Judge, must be vacated, and we express no opinion also, as to the validity of an appointment that is said to have been made by Nirmal after his alleged resignation during the pendency of this suit.

The last point raised by Mr. Chakravarti relates to the question of accounting. There are two points which require consideration under this head: (i) whether the defendant No. 1 is at all liable to render accounts to the plaintiff, and (ii) if he is bound to render accounts, on what basis and for what period should the accounts be taken? The District Judge was of opinion that ordinarily one trustee is not bound to account to his co-trustees, but he may be made liable when a clear breach of trust is established. He apparently took the plaintiff's claim for accounts to be one made by a trustee against his co-trustees, though life directed accounts for the whole period of Nirmal's shebâitship, including the period during which the plaintiff was not a shebâit at all. It is true that, under certain circumstances, namely, when he is not given custody or control of the trust property or there is a breach of trust committed, one trustee may sue another for accounts, and if the latter is guilty of a breach of trust, a claim for restoration of the trust fund might also necessitate taking of accounts. Vide the case of Maharaj Bahadur Singh v. Tej Bahadur Singh.

Mr. Gupta, who appears on behalf of the plaintiff respondent, has stated to us that his client does not demand accounts as a co-trustee, but claims them as a person interested in the endowment, and accounts are necessary to determine whether the shebâit shall is going to be removed has in his hands any money belonging to the Deity. He says, therefore, that if Tushar is not removed, the defendant No. 1 must account to both the plaintiff and defendant No. 2. We think that this is the correct position to take up. Accounts have been claimed in the suit as ancillary to the prayer for removal. The dismissed trustee is entitled to a discharge for which accounts are necessary. The question now is on what basis and for what period accounts should be directed. Mr. Gupta, on behalf of his client, has definitely given up before us a claim for accounts on the basis of wilful default. The non-prosecution of the money-suit has not resulted in a loss to the Deity, and Mr. Gupta does not dispute the deed of agreement which was executed between the shebâits in 1913. The defendant No. 1 is sought to be made accountable for the moneys which he himself has actually received, in accordance with the deed of agreement, during the period of his shebâitship and no accounts are demanded for any money that might have been received by his co-shebâits. In view of the position taken up by Mr. Gupta and having regard to the plaintiff's own case and the findings arrived at by the District Judge, we think that it would be quite sufficient if we direct the defendant No. 1 to render accounts to the remaining two shebâits of the moneys actually received by him out of the debattar funds and spent by him for debattar purposes, for the period commencing from January 1, 1926, and ending with December 23, 1938. Up to the year 1925, the debattar estate was managed by three shebâits, namely, Hari Mohan, Nirmal and Nibar Ranjan. According to the deed of agreement mentioned above, each one of the shebâits had his turn of worship every three years. He was to collect the income of the debattar property during that year and make the disbursements necessary for the daily and periodical pujâs. It is admitted that both Nirmal and Nihar had to stay away from Bhadrakali on account of their business for the greater part of the year, and Hari Mohan, who was a licentious spendthrift, sold his own house, which he got from Bidhu, to the plaintiff's wife and began to occupy the thâkurbârhi with his family. The Deity was located in the house of the priest and Nirmal used to send money for the worship of the image. Nihar is dead and Hari Mohan has renounced his rights as a shebâit in favour of the present plaintiff in the year 1925. There is no allegation that Nirmal misappropriated any money during this period and, as I have said already, the charge of neglect of duty brought against him was not substantiated. The only income of the debattar property being the interest on the sum of Rs. 10,000 lent to Suresh Nirmal could have at the most received this interest for four or five years. He admittedly sent moneys to the priests for daily and periodical pujâs, but, as he has kept no regular vouchers and the priest is dead, it is difficult for him to prove now as to how much was spent on each of these religious festivals. The enquiry must necessarily be of a harassing character and Nirmal would have to fall back upon oral evidence for the purpose of proving the amounts he had actually spent. As no accounts are obtainable from the other two shebâits, who acted with Nirmal during this period, and, as the presumption must be, unless something to the contrary is proved, that Nirmal had discharged his duties faithfully during this period, we think that accounts should not be carried back prior to the time when the plaintiff himself was appointed a shebâit. Hari Mohan had his turn of worship in the year 1925 in accordance with the deed of agreement mentioned above, and for this year there is no liability to account so far as the defendant No. 1 is concerned. We, therefore, think it proper that he should account from the beginning of the year 1926, and not only will this meet the ends of justice, but it will afford complete protection to the plaintiff himself.

The Court of Chancery in England had always a discretion with regard to the period for which accounts were directed in cases of charitable trusts, and the period varied according to the circumstances presented to the consideration of the Court: (Vide Lewin on Trusts, 14th Ed., p. 513). As a general rule, the Court will direct accounts so far as there has been misapplication of funds or from the date on which the breach of trust commenced: [Vide Attorney-General v. Newbury Corporation; Attorney-General v. Corporation of Leicester.] The Court may also in the exercise of its discretion decline to direct accounts when the prosecution of them would lead to harassing and protracted enquiry which would not at all be beneficial to the charity. [Vide Attorney-General v. Dixie].

The result, therefore, is that both the appeals are allowed in part. The plaintiff is declared to be a shebâit of the image Sreedhar Jiu and the order for removal of defendant No. 1 as a shebâit as made by the District Judge is confirmed. The order for removal of defendant No. 2 is set aside. The defendant No. 1 will render accounts to the plaintiff and defendant No. 2 of his receipts and expenditure in connection with the debattar property from January 1, 1926, to December 23, 1938. The accounts will be taken not on the basis of wilful default, but on the footling of what was actually received by the defendant No. 1 out of the debattar estate and what was spent by him in the interests of the idol. He will certainly be entitled to all the expenses reasonably incurred in connection with the litigation he brought on behalf of the Deity in the year 1928 up to the date when it was dismissed for default. If the accounts disclose that any sum of money is still in the hands of defendant No. 1, he will be directed to refund the money to the two existing shebâits of the Deity. If no money is found due, this part of the plaintiff's claim will be dismissed.

The parties will bear their own costs in all Courts up to this stage: further costs in connection with the enquiry into accounts will be in the discretion of the trial Judge. The case will be sent back for taking accounts in accordance with the directions given above. As both these appeals arise out of the same suit; only one decree need be drawn up.

No order is necessary on the application.

Biswas, J.:— I agree.

Appeals allowed in part.

A.C.S