Malik, J.:— The facts of this case are very simple. One Khetsi Tilloo was a Hindu residing in Bombay. He came to Muttra and ultimately settled there. He had a private deity and before he died he executed a will dated 25-10-1909, by which he dedicated all his properties to the deity. The deity is known as Charnarvind Sri Thakur Gokuleshji Maharaj and is installed in the house situate in Golpara at Muttra. In accordance with the terms of this will one Mt. Saraswati Bai, who was no relation of Khetsi Tilloo and, as a matter of fact, belonged to a different caste, was appointed the manager and mutwalli after him. On her death, one Chaturbhuj son of Dongersi, who was the wife's sister's son of Khetsi Tilloo, was to be the mutwalli. Khetsi Tilloo did not nominate any one as mutwalli after Chaturbhuj. He, however, appointed four persons as managers or supervisors and gave them the right to nominate a mutwalli after the death of the two persons nominated by him. The will further provided that the four persons nominated by him or their survivor had the right to appoint a successor to any of them. It is admitted that the four supervisors are all dead and that they took no interest in the deity or in its management, nor did they appoint any one as their successor. It is further the common case of the parties that Chaturbhuj Doongarsee predeceased Mt. Saraswati.

2. Khetsi Tilloo died on 27-8-1914. On his death, Mt. Saraswati became the mutwalli and, as such, was in possession of the property dedicated to the deity. Chaturbhuj died sometime in the year 1935 and Mt. Saraswati died in September 1936. Mt. Saraswati had on 27-2-1936 executed a will under which she appointed Mukhia Tirbhuwan Das, defendant 1 as the mutwalli. This she must have done as she realised that Chaturbhuj being already dead and the four supervisors appointed by the founder having all died there was no one who could appoint the next mutwalli. She further nominated five persons as trustees or supervisors and gave them the same powers as had been given to the supervisors appointed by Khetsi Tilloo, the only difference being that while the will of Khetsi Tilloo was a brief document, Mt. Saraswati's was more elaborate and contained clearer directions as to the management and sewa, puja. After the death of Mt. Saraswati, Mukhia Tirbhuwan Das, defendant 1 took charge of the deity and its sewapuja and took possession of the properties at Muttra. Since September 1936 Mukhia Tirbhuwan Das has thus been managing the property of the deity at Muttra.

3. In the trust properties are included houses Nos. 105 and 107 situate in mohalla Khand Bazar, Qazi street, Bombay. In the will of Khetsi it was provided that Chaturbhuj Doonarsee was to realise the rent of these houses and pay Rs. 50 per month to Mt. Saraswati for the expenses of the Thakurji and the rest of the income he could utilise for his own purposes. It is clear from the will of Khetsi that the two houses were dedicated to the deity but Chaturbhuj during his lifetime was to remain in possession of the two houses and utilise the balance of the income, after payment of Rs. 50 for his own purposes. There is no provision for Chaturbhuj's wife or his descendants. After the death of Mt. Saraswati, when Mukhia Tirbhuwan Das got into possession of the property of the deity at Muttra and started managing the same, he gave notice on 19-10-1936, to Mst. Velabai widow of Chaturbhuj, claiming Rs. 2,500 from her as the income of the houses. Mt. Velabai, it appears, did not send any reply. On 1-7-1937 plaintiff 1 Doongarsee Shyamji Joshi of Bombay, filed a suit in the Bombay High Court as the next friend of the deity against Velabai for possession of the properties belonging to the diety and for the preparation of a scheme. The suit was compromised and a compromise decree was prepared on 6th August, 1937 under which Dongarsee Shyamji Jhosi, Gordhan Das Vallabh Das Dayal and Velabai were appointed managers and trustees of the properties of the deity. It is on the strength of this consent decree of the Bombay High Court that the present suit was filed. In the plaint the plaintiffs claimed that defendant 1 was not a validly appointed mutwalli of the deity and was not entitled to attend to or carry on the worship. Possession of the house in Muttra was claimed and it was prayed, among other prayers, that a decree in favour of the plaintiffs for possession of the house and certain movable properties might be passed in their favour. It may be noted here that no allegations were made in the plaint about mismanagement of the properties nor was there any charge that defendant 1 had not duly performed (?) and looked after the deity. The plaint was based simply on the allegation that the defendant had no legal right to possession as Mt. Saraswati could not appoint her successor and that the plaintiffs were legally en-titled to bring the suit and to eject the defendant and obtain possession of the property.

4. The suit was defended on the ground that the plaintiffs had no right to bring the suit. The defendant also alleged that he had been duly appointed the mutwalli and that he was not bound by the decree of the Bombay Court to which he was no party and which was further alleged to be a collusive decree. Defendants 2 to 5 were the supervisors nominated by Mt. Saraswati and it does not appear that they filed any written statement or took any interest in the suit. Defendant 6, Bhikhimal Saraf, (who on the death of Ram Das defendant became defendant 5), was in possession of certain movables belonging to the deity and was, therefore, impleaded. He too does not appear to have put in any appearance.

5. The lower Court framed nine issues. It held that Mt. Saraswati had no right to appoint her successor and the defendant was, therefore, not a duly appointed mutwalli, but he was in fact, in possession, of the property and was the de facto manager of the deity. As regards the plaintiffs, the lower Court held that plaintiffs 1 to 3 had no right to bring the suit and that the defendant was not bound by the decree of the Bombay High Court which the lower Court held was also collusive. The result, therefore, was that the plaintiffs' suit was dismissed with costs.

6. The plaintiffs have filed this appeal. On behalf of the plaintiffs, learned counsel for the appellants has urged two points. His allegations are firstly that the diety is himself a party to the suit through a next friend and the position of a deity being exactly the same as that of a minor, any one could file a suit as the next friend of the diety and if the lower Court had considered that another person should be appointed as the next friend the Court should have made the appointment, but no such objection having been taken it must be now accepted that plaintiffs 1 to 3 could act as the next friends of the deity and the deity being the owner of the property the suit was bound to be decreed. His next argument is that the decree of the Bombay High Court preparing the scheme of management is binding on all, and though the defendants were no parties to the same, their only remedy was to go to the Bombay High Court and to ask that Court to modify the scheme if they could satisfy that Court that the scheme was not in the best interest of the deity and that the defendant could not in this case ask the Court to go behind that decree and to hold that plaintiffs 1 to 3 were not the properly appointed trustees of the property at Muttra.

7. The first argument of learned counsel is that any one can file a suit as the next friend of the deity and that to such a suit the provisions of O. 32 of the CPC though strictly not applicable, should be applied so that the decree could be passed in favour of the deity and all that the Courts need see is whether the person purporting to act as the next friend has any interest adverse to the minor and in case the Court is of the opinion that the person purporting to act as the next friend is not a proper person, the Court may appoint some one else. Learned counsel has further developed this argument by urging that the deity was a plaintiff to the suit as plaintiff 4 and that the suit was brought on behalf of the deity by plaintiffs 1 to 3 as the next friends. The defendants, if they had any such objection, should have urged in the Court below that plaintiffs 1 to 3 had some interest adverse to the deity, and in that case the Court might have appointed another next friend on the analogy of O. 32 and the rules in that order framed by this Court. That the defendants never having taken any such objection in the Court below it must be held that no objection could be taken to plaintiffs 1 to 3 acting as next friends of the idol. The analogy of a deity being treated as a minor is a very imperfect analogy and we cannot carry it far enough to make O. 32 of the CPC applicable. In cases where the sebaits of a temple have done something which is obviously adverse to the interest of the institution it may be that the Courts would allow a disinterested third party to file a suit, but such suits must be filed in the interest of the foundation or the deity, as the case may be. The cases relied on by learned counsel where a sebait transferred property be-longing to the deity and a stranger was allowed to file a suit as next friend can be distinguished on that ground.

8. Learned counsel has relied on the case in A.I.R 1915 Cal. 3761. In that case an application was filed by Sm. Karunamoyee Dassi who wanted to be appointed the next friend of the plaintiff deity Thakurani Sri Sri Annapuma Debi with the object of continuing the suit in the name of the idol for the setting aside of certain transfers of the debutter property made by the sebait. The argument was that ordinarily the proper person to sue on behalf of an idol was the sebait and that in certain circumstances it may be that somebody else could be appointed to look after the interests of an idol in a suit. It was held by Sen J.:

“It is obvious that circumstances may well arise when it would be impossible to expect any of the sebaits to institute a suit; for instance, all the sebaits may be misappropriating debutter property and secularizing it; the idol may be despoiled by all the sebaits acting in concert. In such a case, it is not possible to expect any of the sebaits to institute a suit to protect the property of the idol. In those circumstances what is to happen? It seems to me that the only course open would be for some person to come forward and institute a suit as the next friend of the idol. The matter would first come up before the Court by a suit being instituted by a person claiming to be next friend of the idol. It would be permissible for the defendants thereafter to come up before the Court and contest the fitness of the next friend to act as such. The Court would then investigate the matter and decide upon the suitability of the persons instituting the suit to act as next friend.”

9. Learned counsel strongly relied on these observations, but, to our mind, those observations must be restricted to a suit of the nature before that Court where the suit was brought obviously in the interest of the deity to protect it from its sebaits who were trying to misappropriate the debutter property, the reason being that in a case of that kind the only way the Court could give relief to the deity was by holding that the action of the sebaits was illegal and was not binding on the deity.

10. Learned counsel has also referred to certain observations of a Bench of the Calcutta High Court in A.I.R 1945 Cal. 2682. The facts of that case were that there was a suit filed by a Hindu deity Sri Sri Iswar Sridhar Jieu Thakur for the recovery of some money lent, and the question that arose in that case was who was the proper person entitled to represent the deity in that suit. Tushar Ranjan claimed to represent the deity as one of the plaintiffs (plaintiff 2), the suit being constituted as one by the deity represented by its sebaits. Plaintiff 1 was Nirmal who was also one of the sebaits. The other sebait Harimohan was impleaded as a pro forma defendant. The trial Court at first held that the loan was not due to the deity, but the advance was made by Harimohan out of his private funds and dismissed the suit. There was an appeal in the Calcutta High Court which was allowed and the case was remanded. After the remand none of the plaintiff-sebaits appeared and the pleader informed the Court that he had no instructions to proceed with the case. The result was that the suit was dismissed for default. It was at this stage that Jyoti Prasad appeared on the scene and claimed that he had been appointed sebait under a document executed by Harimohan who was one of the sebaits and he filed an application for restoration of the suit on the allegation that the other sebaits had entered into a collusive arrangement with the debtors at the expense of the deity and the question, therefore, arose whether Jyoti Prasad could continue the proceedings. Various points were raised in the case, one of the points being whether the suit must be deemed to be a suit by the deity or by the sebait. It was argued that if it was a suit by the sebait then Jyoti Prasad's application to continue the suit must be deemed to be barred by limitation under Section 22(1) of the Limitation Act. The main discussion in the case centred round the point whether the right to sue vested in the deity or in its sebaits, as it was held that Jyoti Prasad was also a duly appointed sebait. The case is not very helpful for the decision of the point whether a third party can or cannot file a suit as next friend, but even in that case Joyti Prasad was allowed to continue the suit on the finding that the sebaits who had originally filed the suit had colluded with the defendants and had done something which was prejudicial to the interest of the deity. The decision of this Court in 45 ALL. 3193 by Ryves and Daniel JJ. is also to the same effect. That was a suit for the recovery of property wrong, fully alienated by the sebait and it was held that the suit by a disinterested person connected with the idol acting as its next friend was maintainable.

11. In the case before us there are no allegations that it is in the interest of plaintiff 4, the deity, that the defendant should be removed and plaintiffs 1 to 3 put in charge of its property, nor are there allegations of any waste or mismanagement. There are no allegations in the plaint that defendant 1 is not a fit person to look after the deity or that he is not looking after the deity and its property properly. Neither the defendant nor plaintiffs 1 to 3 can claim to be the properly appointed sebaits of the deity and Saraswati Bai, who was the last sebait, was as great a well wisher of the deity as plaintiffs 1 to 3 and it cannot be said that when she selected defendant 1 and put him in charge, though strictly speaking she may not have had the legal authority, she did not act in the best interest of the deity. The result of accepting the argument of learned counsel would be that any person can constitute himself as the next friend of a deity and file a suit in the name of the deity for possession of the property by the dispossession of a de facta sebait who may be managing the property and looking after the deity to the satisfaction of everybody and get hold of the property in the name of the idol till such time as he is dispossessed again by somebody else. We are not prepared to hold that such is the law that any third person can constitute himself as next friend and file a suit and claim an absolute right to possession of the property simply because he has filed the suit in the name of the deity.

12. Learned counsel for the respondent has placed great reliance on a decision of their Lordships of the Judicial Committee in 32 Cal. 1294. In that case their Lordships dealing with the respective rights of an idol and its sebait held that though the idol was the owner of the property the sebait had the right of management, and dealing with the question of limitation whether a suit brought by a sebait who was a minor on the date when the cause of action arose and who brought the suit within 3 years after attaining majority was within time, their Lordships observed:

“But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the sebait 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 sebait, not in the idol. And in the present case the right to sue accrued to the plaintiff when he was under age …..”

13. Learned counsel for the respondent has urged that the idol has no right of suit and the right vests only in the sebait. The point was fully considered by Nasim Ali and Biswas JJ. in A.I.R 1945 Cal. 268 and by Nasim Ali and Pal JJ. in A.I.R (1941) 2 Cal. 4775. In the latter case Nasim Ali J. pointed out the similarity and the difference between a minor and a Hindu idol. In every suit the question arises whether the suit is brought in the enforcement of the right which vests in the plaintiff who has filed the suit, and in a case where a sebait has filed a suit for the enforcement of his own rights there can be no doubt that he is entitled to maintain the suit in his own name. An idol, though it is a juristic person, is in charge of its sebait who, for all practical purposes, represents it. But there may be cases where the right of the sebait and the right of the idol are at conflict and in such a case it may be that the idol may bring a suit for the vindication of its rights through a disinterested third party as its next friend. We do not think we can accept the contention of learned counsel for the respondent that an idol has no right of suit at all, though we agree with him that a suit in the name of the idol can be filed only in the interest of the idol and not with the object of getting hold of its property by the person purporting to act as next friend.

14. Learned counsel for the respondents has also relied on a decision of the Calcutta High Court in A.I.R 1937 Cal. 5596 where in a case of a private debutter it was held that a third party, who was not a member of the family, had no right of suit and that such right was possessed only by a de jure manager or by a de facto manager who was in possession of the property and was exercising the right in the interest of the idol. His contention is that this is a case of a private debutter and the deity and its property are in the possession of the defendant who is, therefore, its de facto manager and the plaintiffs' suit being a suit for possession merely on the strength of the compromise decree of the Bombay High Court the only point for decision in the case is how far the compromise decree of the Bombay High Court binds the deity and the defendant. To our mind, this contention is correct, though we must say that there is a certain amount of misconception about the term “private idol” and “public idol”.

15. There is really no such thing as an idol which is the private property of an individual or a family or which belongs to the public. According to Hindu philosophy, an idol, when it is installed in a temple is the physical personification of the deity and after consecration the stone image gets its soul breathed into it. Before an idol can be installed in a temple,- the temple must be dedicated to it and it becomes its private property. The books of ritual contain a direction that before removing the image into the temple the building itself should be formally given away to God for whom it is intended. The sankalpa, or the formulae of resolve, makes the deity himself the recipient of the gift which, as in the case of other gifts, has to be made by the donor taking in his hands water, sesamum, the sacred kush grass and the like. It is this cere, mony which divests the proprietorship of the temple from those who had built it and vests it in the image which by, the process of vivification has acquired existence as a juridical personage. A temple building, therefore, under the strict Hindu law is the property of God and the idol and cannot be the private property of an individual or a family or a section of the public. The property dedicated to an idol in an ideal sense vests in the deity, though no Hindu professes to give the property to God. He only dedicates it to the worship of God and under the strict Hindu law the King, who is the servant and the protector of the deity, is the custodian of the property: see, 37 Cal. 1287 at p. 153.

16. In 62 I.A 2458 a case in which the question of the location of the private idol was in suit, their Lordships of the Judicial Committee observed:

“It must be remembered in regard to this branch of the law that the duties of piety from the time of consecration of the idol are duties to something existing which, though symbolising the Divinity, has in the eye of the law a status as a separate persona.”

17. At page 255 of the same report their Lordships refused to give countenance to the argument that the idols or images which Mutty Lal had set up were his personal property and that he had left them absolutely to Jadu Lal and Jadu Lal might, if he had so pleased, have thrown them into the river. Again at page 256, their Lordships have observed:

“An argument which would reduce a family idol to the position of a mere movable chattel is one to which the Board can give no support. They think that such an argument is neither in accord with a true conception of the authorities, nor with principles.”

18. In that case, though the temple was a private temple, their Lordships held that the will of the idol in regard to location must be respected and sent the case back to the High Court of Calcutta with a direction that the idol should appear by a disinterested next friend appointed by the High Court, so that the wishes of the idol may also be ascertained by the Court with respect to its location.

19. To our mind, the only difference between a private and public temple is that while in a private temple the public at large have no right to worship or right of management, they have these rights in a public temple. In both such trusts the rights and liabilities of the deity must always be the same. This does not apply to a, case where, though the property is dedicated to the idol, there are further directions as regards the income and in such cases people, who are beneficially interested in the fund, may have certain independent rights of their own. In the case of a public temple the public have a right of worship and a right of management and they are entitled to have their rights properly protected under Section 92 of the CPC. In the case of a private temple the Court would not entertain a suit at the instance of a person who can have no interest in the temple as he does not belong to the family of the founder. Courts may, in those special cases where the person in charge of a private temple or its properties has done something against its interest, allow a member of the public to act as the next friend of an idol to bring a suit solely in the interest of the idol and for the protection of the property, but such a suit cannot be entertained unless it is clear that the suit has been filed in the interest of the idol and for the vindication of its rights. We have already held that there are no allegations in the plaint that this is a suit of that nature. The suit is in vindication of the right of plaintiffs 1 to 3 to be the persons entitled solely to look after and manage the property of the deity and that claim of the plaintiffs can only be based on the compromise decree of the Bombay High Court.

20. Coming to the decree of the Bombay High Court, we have already mentioned the circumstances in which the consent decree was passed by that Court. The suit was filed on the original side of the Bombay High Court by Thakur Gokleshji Maharaj through its friend Doongersey Shamji Joshi of Bombay against Velabai, widow of Chaturbhuj Doongersey. The relief claimed in the plaint, as appears from the consent decree, was that it be declared that the properties described in Exs. A and B to the plaint, that is, the properties in Bombay and Muttra, belonged to the deity and that some fit and proper person be appointed to conduct the worship of the plaintiff deity with power to take charge of and manage the said properties and lastly that a scheme be framed for regulating the worship of the plaintiff and for appointment of successors to continue the worship of the plaintiff. Velabai was not interested in the trust or the trust properties, she being the widow of Chaturbhuj Doongersey who had predeceased Saraswati Bai. Chaturbhuj Doongersey was the wife's sister's son of the founder and it cannot be said, therefore, that he belonged to the family of the founder. His widow was no doubt in wrongful possession of the house property in Bombay, otherwise she had no interest. We do not know what interest Doongersey Shamji Joshi had in the deity. The case was compromised and Doongersey Shamji Joshi, Velabai and one Gordhandas Vallabhdas Dayal, became the managers and trustees under this compromise. In the compromise no rights were reserved for the heirs of the founder—we do not know whether there were any — and it was assumed that the right of worship was vested in the family of Chaturbhuj Doongersey. Under the law, as we have already said, the family of Chaturbhuj Doongersey had no such vested right of management of the property of the deity or of its worship.

21. The compromise also gave the defendant and other members of the family of Chaturbhuj Doongersey the absolute right to remove the deity from Muttra to Bombay. It would appear, therefore, that in this compromise it was assumed that Chaturbhuj Doongersey should be treated as the founder and all the rights that the founder or his family had were given to the family of Chaturbhuj Doongersey. But as in the case before their Lordships in 52 Cal. 809, the wishes of the idol as regards its location were not considered. The compromise decree cannot have any greater sanctity or binding effect than the compromise on which it was based. The compromise between the plaintiff and the defendant of that case could not bind a third party who was not a party to the compromise and further the compromise was not such that we can say that the interest of the idol was considered by the Court and a proper scheme was prepared by it.

22. In a proper case where all parties interested in a deity or in its management or worship are impleaded and the deity itself is represented by a disinterested third party, the Court may, after giving due consideration to the matter, prepare a scheme which may be considered to be binding against third persons not so interested; for example, if in the case of a private deity all the persons interested therein are parties to a suit, in a scheme prepared by the Court, a trustee or manager so appointed may have the right to claim rent from tenants or eject a trespasser or file suits in his own name as sebait and the Courts may not allow the defendant to raise the question of the propriety of his appointment. As a matter of fact, even a de facto sebait's or de facto mutwalli's right to bring such suits is now well recognised. In 57 ALL. 1599. their Lordships of the Judicial Committee recognised the right of a de facto mahant of a math, accepted as such by all persons interested and in possession of the math, to bring a suit for recovery of property from a trespasser for the benefit of the math. The right of a de facto sebait or mutwalli has also been recognised in 41 C.W.N 1849, 35 C.W.N 76810, 37 ALL. 8611, A.I.R 1927 Mad. 6912 and other cases. But we cannot hold that by a compromise decree of the kind, as in this case, the parties to the compromise can assume the right to eject the de facto manager of the deity when he was no party to the compromise. In the case of a suit for a scheme under Section 92 of the CPC the suit is filed in a representative capacity and on behalf of the public and, as such, the other members of the public may be bound by the decision. It cannot be claimed that the Bombay suit was a representative suit and the decree binds anybody who was not a party.

23. Learned counsel for the respondents has urged that only a person interested in the endowment, i.e who belonged to the family of the founder, could apply for a scheme in a private trust. It is not necessary for us in this case to consider that point as we feel satisfied that the suit filed in the Bombay High Court was not a suit filed in the interest of the deity, nor was the interest of the deity properly considered, nor was it properly represented in that litigation. In any case, we must hold that the person who was the de facto manager or sebait at the time when that suit was filed was a necessary party to that suit. We, therefore, agree with the decision of the Court below that the plaintiffs are not entitled to rely on the decision of the Bombay High Court and urge that the consent decree gives them an absolute right of possession and that the defendant has no right to challenge their authority.

24. Learned counsel for the appellants has urged that the only remedy open to the defendant is to go to the Bombay High Court to have the consent decree set aside before he can challenge the competency of the plaintiffs to maintain the suit.

25. The defendant was no party to that Bombay suit and we do not see why it is necessary for him to go to that Court. The lower Court has held that the Bombay suit was collusive. Learned counsel has urged that there was no evidence of any collusion and that no such case of collusion or fraud was suggested in the cross-examination of the plaintiffs or their witnesses. It is not necessary for us to go to the length of holding that the suit in the Bombay High Court was filed as a result of any fraud or collusion, but there is no doubt that suit was filed soon after the defendant had given a notice to Velabai. In that suit the defendant was not impleaded as a party and the suit was compromised, the parties to the litigation appointed themselves as managers and trustees and gave themselves the right to take charge of the idol's property. Under the circumstances we cannot hold that the decree of the Bombay High Court gives the plaintiffs a right to dispossess the defendant who is the de facto shebait and take charge of the deity or its property.

26. Under Section 120 of the CPC, (Act 5 [V] of 1908) Ss. 16, 17 and 20 of the Code do not apply to a High Court in exercise of its original civil jurisdiction. Under cl. 12, Letters Patent, the High Court of Judicature at Bombay has original civil jurisdiction to try suits in cases of immovable property where such property is situate within the original jurisdiction of that Court, or where the cause of action has arisen within the same limits, and if the cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the Court, then with the leave of the Court, or if the defendant at the time of the commencement of the suit was living or carrying on business within those limits. The deity in the case before us was in Muttra. The defendant was in charge of its property at Muttra and was carrying on the worship of the deity at Muttra. Any suit against the defendant who was the de facto manager either for possession of the property situate there or for a scheme could not be filed in the Bombay High Court, and we, therefore, agree with the contention of learned counsel for the respondent that the Bombay High Court had no jurisdiction to entertain the suit for preparation of a scheme for the worship of the idol situate in Muttra. In the result this appeal is dismissed and the decree of the trial Court is affirmed. Plaintiffs 1 to 3 must pay the costs of the defendant-respondents in both the Courts.

27. Appeal dismissed.