Kalee Churn Giri v. Golabi

Regular Appeal from a decree passed by the Judge of Dacca, dismissing the plaintiff's suit.

The plaint set forth that before the accession of the British Government, one Shumambun Purmahungso Paree Brojak established a guddee, and a shivalay, and an idol Shiddhessuri. The kurani, at his akra at Khilgram; that in order to maintain the ??? of these idols, lands were assigned by the Nawab and by ??? zemindars as lakehraj and debutter properties; that with ??? thereof the said Shumambun and, after his death, his statives and other mohunts had regularly performed the ??? of the said guddee and temples; and that the defendant, ??? of the last mohunt, having obtained the managership ??? of the said guddee, was leading a life of ??? the profits of the debutter properties, and ??? the shrine. The plaint prayed that, under section Act XX of 1863, the defendant should be removed from ??? of trustee; that the plaintiff (who claimed to be ??? to the office) or some other person approved of by the should, under section 5, be appointed thereto; and, under ??? of the same Act, for an account.

??? having been granted to institute the suit under section ??? Act XX of 1863, the case came on for hearing, when the ??? judgment was delivered by the learned Judge:—

??? case has been brought under section 14, Act XX of ??? discharge the person in charge of a certain akra on the ??? that she is an incompetent person, and has grossly abused ???. The first issue raised is, whether this akra is one that ??? under the purview of Act XX of 1863 or not. Act XX is ??? an Act to enable Government to divest itself of the ??? of religious endowments, and all the sections of ??? appear to refer only to such endowments as would, under section XIX of 1810, have come under the management of ???. Now it does not appear that this akra was ever ??? the management of Government, or that the State ??? in the management of its concerns; but for ???, therefore, it would appear that this akra ??? an endowment that comes within the purview of this ??? the wording of section 14 of the Act is, to some ??? larger than that of the other sections of the Act, ??? at that section alone it would appear to entitle ??? Court to take cognizance of any case of misfeasance or ??? of duty against the manager of any religious endowment, ??? that was a religious endowment falling within the ??? the Act or otherwise; and if it were so, no doubt the present suit could have been entertained; but I think the clear that after the words “any temple” in section 14 the “to which the provisions of this Act shall apply” must clear understood; and my reason for thinking this is that the gives me no means of enforcing any order I might make, ??? in the case of an endowment falling within the provisions ??? Act. To take the case of the present akra I might make ??? for the re-institution of the worship, and if that were ??? I might remove the present sebait, but there I must stop, as result of my act would be to keep the akra absolutely ??? prevent all worship and to deprive any person of any right soever to meddle with the akra until some person had ??? a right to succeed to the vacant akra.

“The pleader for the petitioner refers to section 5, and ??? that after removing the present sebait I should be ??? appoint a manager to take charge of the akra under that ??? but that section says, whenever a vacancy shall occur in the ??? of any superintendent to whom property shall have been ??? under the last preceding section, the Civil Court ??? appoint a manager, & c., but in the present case it is clear the such property has been transferred; and, therefore, I fail ??? how I can have jurisdiction under that section to ??? manager in the present case.

“It appears, therefore, to me clear that if I regard section as applying to any trust indiscriminately, I must arrive ??? conclusion that the law gives me the power to pull down, ??? to build up, the power to discharge the manager, not to ??? provisions for carrying on the trust after the manager has ??? discharged, a power so important that I cannot suppose ??? contemplated by the law. I think, therefore, that this suit ??? be dismissed, the malibog akra not being within the ??? the Act. I regret that I did not notice this point before, ??? should not have given permission for the institution ??? suit.”

The plaintiff appealed to the High Court.

Baboo Byconto Nath Dass, for Appellant;

Baboo Oomakali Mookerjea, for Respondent.

Judgment of the Court (1) was delivered by

Garth, C.J:— ??? suit not framed in such a way as to accord with the ??? the law which was lately laid down by Mr. Justice ??? and myself, after a good deal of consideration, in the ??? Punch Cowree Mull v. Choonee Lall, 2 C.L.R, 121, ??? my learned brother here and myself believe to be the ??? view of it.

??? case is not one of those for which Act XX of 1863 is ??? to provide. That Act only applies to certain ??? and endowments, which had been or might be under agreement of the Government, and we held in the case ??? Cowree Mull above referred to, that section 14 of that ??? in its terms it appears to be more general than the ??? applies in fact only to the same religious trusts ??? to which the rest of the Act applies, and ??? such a case as this would not fall within its ???.

??? assuming that this case does not come within the Act, ??? way in which the plaintiff could frame his suit is this, ??? amongst other persona, is interested in the proper ??? idol, and in the religious trust being carried out in ??? with the terms, —whatever they may be,—of the ??? that this person, the defendant, who is now in charge ??? guddee, has neglected the worship and abused the trust, ??? praying the Court to remove her from the and guddee and ??? some proper person, under any direction which the ??? think it right to give, to carry out the trusts, ???, if reason there be, to call upon the defendant to ???.

??? the suit is not framed in this way; it is framed with a ??? enforce certain personal claims of the plaintiff himself. ??? to be placed on the guddee instead of the defendant, ??? not even show that he is interested in the worship ??? temple, ??? by its not having been ??? to.

Therefore, as the plaintiff has asked that he may be ??? to withdraw this suit and bring a fresh one, we will make order allowing him to do that, on his paying within a mouth ??? this date the costs of this appeal. Otherwise the appeal will dismissed with costs.