Norendra Nath Kumar v. Atul Chandra Bandopadhya

1. This Rule raises the question, whether the trial Court refused to exercise a jurisdiction vested in it by law, when it dismissed the claim on the ground that the suit was not properly constituted and could not be entertained. The plaintiffs and the pro forma defendants are joint shebaits of the property dedicated to an idol Damodar Jeo Thakur. The principal defendants are the tenants in occupation of the land. The plaintiffs instituted this suit under Section 148-A of the Ben. Ten. Act, for recovery of one-fourth share of the rent payable by the tenant defendants, on the allegation that they were interested to the extent of one-fourth in the dedicated property while the pro forma defendants were interested to the extent of three-fourths. The Court of first instance hold that the suit as framed was not maintainable, and that view has been affirmed on appeal by the Sub-ordinate Judge. The Sub-ordinate Judge observes that the shebaits are not co-sharers but coworshippers, and any family arrangement at which they may have arrived amongst themselves cannot entitle them to treat the debutter property as personal property and to sue personally for their share of the rent payable to the idol. He further holds that Section 148-A of the Ben. Ten. Act, contemplates the case of a co-sharer landlord who is entitled to sue for his share of the rent separately, and consequently cannot be applied to coshebaits who have no personal interest in the debutter property and merely represent the idol for secular purposes. We are of opinion that the view taken by the Sub-ordinate Judge in concurrence with the Court of first instance is well-founded on principle.

2. The true position of a coshebait was explained by this Court in the case of Kokilasari Dasi v. Mohunt Budranand Goswami (1). Where property belonging to an endowment is sought to be recovered from a third party who asserts that he is the owner thereof, all the trustees of the endowment should be made parties to the suit. Ordinarily all the trustees should be co-plaintiffs 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.

3. Where the administration of the trust is vested in several trustees, they all form as it were, but one collective trustee, and they must exercise the powers of their office in their joint capacity. Their interest and authority being equal and undivided they cannot act separately, but all must join. Thia principle in no way contravenes the decision of the Judicial Committee in Jagadindra Nath Ray v. Hemanta Kumari Debi (2) and was applied to a suit for enhancement of rent in Abdul Gafur Mandal v. Uma Kanta Pandit (3), where it was pointed out that joint shebaits are for many purposes joint trustees. The same principle was recognized in Kumban v. Moorthi (4). In the case before us, it is impossible for the plaintiffs to maintain the position that they have an interest in the land to the extent of one-fourth share and that on that basis they are entitled to collect one-fourth share of the rent from the tenant defendants. If the pro forma defendants declined to join with the plaintiffs in the institution of this suit the proper course for the plaintiffs was to institute a suit for recovery of the entire arrears due: Luke v. South Kensington Hotel Co. (5). That a suit of this description is maintainable is clear from the decision of a Full Bench of this Court in Pyari Mohun Bose v. Kedarnath Roy (6). The plaintiffs are clearly not entitled to maintain a suit for one-fourth share of the rent and the Court below has correctly held that the suit as framed is not maintainable. The result is that this Rule is discharged with costs. We assess the hearing fee at one gold mohur.

V.B/R.K

4. Rule discharged.