Patna High Court
Vishwakarma Mandir Trust vs Mt. Munu Devi And Ors. on 5 September, 1985
Equivalent citations: AIR1986PAT158, AIR 1986 PATNA 158, 1985 BLT (REP) 317, 1985 BBCJ 805, (1986) BLJ 60, (1986) PAT LJR 1046
JUDGMENT Anand Prasad Sinha, J.
1. This appeal has been placed before us on a reference made by a learned single Judge. The only question involved in the case is as to whether only one trustee out of several co-trustees can effectively maintain a suit for eviction from the suit premises belonging to Vishwakarma Mandir Trust.
2. The judgment and decree passed, in Title Appeal No. 32 of 1976/19 of 1977 dt. 25-1-1978 dismissing the plaintiffs suit, earlier decreed by the learned Additional Munsif, Ranchi in Title Suit No. 205/109 of 1973/1975, is under challenge. The plaintiff is the appellant and the defendants are the respondents.
3. The plaintiff had filed a title suit for eviction of the respondents from the suit premises in question and also for realisation of Rs. 216/- being the arrears of rent. The eviction was sought squarely on the ground of default as contemplated under Section 11(i)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter to be referred to as the Act).
4. The plaintiff is the Vishwakarma Mandir Trust through its President Baldeo Prasad Vishwakarma. Two rooms are claimed to have been let out on a monthly rental of Rs. 6/-only. The default had been attributed from Oct. 1969 to May 1973.
5. The tenant-respondent had resisted the claim of default as put forward by the plaintiff. The relationship of landlord and tenant has been admitted. The main defence put forward is that the suit is not maintainable.
6. It appears that Baldeo Prasad Vishwakarma happened to be one of the trustees of Vishwakarma Mandir Trust. Further it appears from the evidence that Baldeo Prasad Vishwakarma used to make demands for rent. The rooms had been let out by him and further it appears that he used to look after the affairs of the tenancy involved in this case.
7. As a matter of fact, both in the trial court and also in the lower appellate court, the two issues concerning default and also service of notice under Section 106 of the Transfer of Property Act had been adjudicated and further it appears that the concurrent finding of both the courts below is that the tenant respondent had, in fact, defaulted. The findings of fact concerning service of notice under Section 106 of the T.P. Act is not relevant now to discuss.
8. On perusal of the evidence and also the findings so far as the question on default is concerned, that has been firmly established and there is no occasion to interfere with the same.
9. However, the real issue involved in this appeal is as to whether the suit as framed is maintainable. It is because admittedly all the trustees have not joined as the plaintiffs and also they have not been made pro forma defendants. It appears that there is no written instrument in support of the nature of trust and absolutely there is no evidence or any document to say that Baldeo Prasad Vishwakarma was authorised by all other trustees to file the suit.
10. The learned lower appellate court has found legal impediment in maintaining the suit on the ground that all the trustees being necessary parties are not on the record and in support of this it has mainly relied upon a decision in the case of Atmaram Ranchhodbhai v. Gulam Husein Gulam Mohiyaddin, AIR 1973 Guj 113 (FB).
11. In my opinion, the learned lower appellate court has ignored to consider the sharp distinction between the facts of the present case and of the aforesaid decision relied upon for giving finding regarding non-maintainability of the suit. The plaintiff has been described to be Vishwakarma Mandir Trust through Baldeo Prasad Vishwakarma There being a Mandir the concerned property, which is the subject matter of the suit, is definitely vested in the deity. The deity being a juristic person, the suit by a trustee being the manager or the person involved with the state of affairs will be a competent person to maintain the suit alone. It appears from the trend of the evidence that he looks after the realisation of the rent of the property concerned in the suit and he had let out the portion from which eviction had been sought. In addition to that he will be termed to be the person who looked after the affairs of certain properties belonging to the deity; he has also a legal status as laid down in Section 2(f) of the Act. This relates to the definition of a "landlord" and in a suit for eviction the "landlord" as defined under the Act is the right person to maintain a suit. However, independent in itself, by virtue of the definition of the landlord if definite impediment comes in on the principle that all the trustees are the necessary parties, even in the circumstances of this case the suit will be maintainable. In view of the discussions stated above, the distinction that the properties have vested in the juristic person, "the deity," will make the fact of this case distinguishable.
12. It may be appreciated that in the instant case, it is a private trust. The properties belong to the deity, Baldeo Prasad Vishwakarma looks after the suit property in the manner that he has let out the premises and had received the rents. Under these circumstances, I am tempted to quote a few lines from the book "B. K. Mukherjee on Hindu Law of Religious and Charitable Trust, Tagore Law Lectures," 5th Edition by A. C. Sen at page 203 : --
"The exact legal position of a Shebait or manager cannot be said to be altogether beyond the range of controversy, though much of the earlier theories has now been discarded It is now settled by the pronouncement of the Judicial Committee in Vidyavaruthi v. Balusami, (1921) 48 Ind App 302 : (AIR 1922 PC 123) that the relation of a Shebait in regard to the Debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of the cestui que trust. In a Hindu religious endowment, the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person, and the Shebait or Mahant is a mere manager. "A trust" thus runs the judgment of the Judicial Committee "in the sense in which the expression is used in English law, is unknown in the Hindu system pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system ...... Under the Hindu law the image of a deity of the Hindu pantheon is...... a juristic entity, vested with the capacity of receiving gift and holding property. Religious institutions known under different names are regarded as possessing the same juristic capacity and gifts are made to them eo nomine. In many cases, in Southern India, especially where the diffusion of Aryan Brahminism was essential for bringing the Dravidian people under the religious rule of the Hindu system, colleges and monasteries under the name of Math were founded under spiritual teachers of recognised sanctity. When a gift is directly to an idol or temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a "trustee" in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a truistee in the general sense for mal-administration." Where a testator created an absolute Defaulter in favour of his family deity and bequeathed to executors and trustees named in the will his dwelling house containing 84 rooms upon trust to hold and use the premises as debutter property for the service and worship of the family deity located in one of the rooms of the dwelling house without expressly constituting the trustees as Shebaits held, shebaitship devolved not upon the trustees but upon the heirs of the testator. Profullo Chorone v. Satya Chorone, AIR 1979 SC 1682."
Another passage appearing at page 260 of the aforesaid book runs as follows : --
"When a Shebait declines to bring a suit or by his conduct places himself in such a position that he could not be expected to bring a suit, the question arises what other persons can file a suit to protect the interests of the deity. The answer to this question depends on whether the endowment is private or public. In the case of a private endowment the members of the family of the founder are persons interested in protecting the interests of the Debutter, and the law is well settled that they can sue to enforce the rights of the deity. In Manohar Mukherjee v. Rajah Peary Mohan, 24 Cal WN 478 : (AIR 1920 Cal 210), the suit was brought by an heir of the founder upon whom the management of the Debutter would devolve if the actual incumbent was removed for misconduct and it was held that the founder or his heirs could, under the law, "sue for the enforcement of the trust, for the removal of the old trustees, for the appointment of a new one and may thereby secure the proper administration of the trust and its properties," and it was further observed that the restriction imposed by Section 92 of the Civil P.C. as to the mode of institution of such suits applied only to public trusts and that the rights of the founder of a private trust or of his heirs remained un-impaired. In Girish v. Upendra, (1931) 35 Cal WN 768 : (AIR 1931 Cal 776), it was laid down by a Division Bench of the Calcutta High Court that when a private Debutter or family endowment has been created for the worship of a deity, a prospective Shebait or any member of the family of the donor is entitled to maintain a suit for a declaration that certain properties do not belong to the Shebait for the time being but are trust property or that an alienation made by a Shebait was not binding on the deity. The same principle was laid down in Panchkori v. Amode Lal, (1937) 41 Cal WN 1349 : (AIR 1937 Cal 559). An opinion was expressed in the last named decision that even a de facto Shebait will be entitled to bring a suit for such purpose. But, as on the facts of that case, it was held that the plaintiff was not a de facto Shebait at all, the opinion expressed by the learned Judge cannot rank higher than an obiter."
Another relevant passage is at page 272 of the aforesaid book which runs as follows : --
"The view that a de facto trustee is entitled to maintain an action on behalf of the trust has since been laid down in a number of decisions, Jaganath v. Thirthananda, AIR 1952 Orissa 312; Sri Ram v. Chandeshwar Prasad, ILR 31 Pat 417 : (AIR 1952 Pat 438); Lalta Prasad v. Brahmanand, AIR 1953 All 449; Kanakulamada Nadar v. Pichakannu Ariyar, AIR 1954 Trav. Co. 254; Sapta Koteshwar v. R. V. Kuttur, AIR 1956 Bom 615. In Sapta Koteshwar v. R. V. Kuttur, AIR 1956 Bom 615, it was observed that the fact that the de facto trustee was also seeking to advance his own interests was not a ground for non-suiting him but that the court might make appropriate directions for protecting the interests of the deity. The question has since been considered by the Supreme Court in Vikramadas v. Daulat Ram, 1956 SCA 826 : (AIR 1956 SC 382). Therein it was held that a de facto trustee in possession and management of the as than and its properties had a right to take proceedings for protecting the rights of the institution."
Another relevant passage is to be found in me book B. K. Mukherjea on the Hindu Law of Religious and. Charitable Trusts Tagore Law Lectures, 4th Edition by P. B. Gaiendragadkar and P. M. Bakshi at page No. 259, which runs as follows : --
"When a Shebait declines to bring a suit or by his conduct places himself in such a position that he could not be expected to bring a suit, the question arises what other persons can file a suit to protect the interests of the deity. The answer to this question depends on whether the endowment is private or public. In the case of a private endowment the members of the family of the founder are persons interested in protecting the interests of the Debutter, and the law is well settled that they can sue to enforce the rights of the deity. In Manohar Mukherji v. Rajah Peary Mohan 24 Cal WN 478 : (AIR 1920 Cal 210), the suit was brought by an heir of the founder upon whom the management of the Debutter would devolve if the actual incumbent was removed for misconduct and it was held that the founder or his heirs could, under the law, "sue for the enforcement of the trust, for the removal of the old trustees, for the appointment of a new one and may thereby secure the proper administration of the trust and its properties", and it was further observed that the restriction imposed by Section 92 of the C.P.C. as to the mode of institution of such suits applied only to public trusts and that the rights of the founder of a private trust or of his heirs remained unimpaired."
The above mentioned principles find support from a decision in the case of Vidya Varuthi Thirtha and Balusami Ayyar 48 Ind App 302 : (AIR 1922 PC 123). The aforesaid decision hasdealt with the different aspects of Religious Endowment Math -- Relation of Heads and Managers of Religious Institutions to a property. Alienation by head of Math --"Trustee". The decision at page 311 says as follows : --
"It is also to be remembered diat a "trust" in the sense in which the expression is used in English law is unknown in the Hindu system pure and simple. (J. G. Chose. "Hindu Law" P. 276). Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind and for all purposes considered meritorious in the Hindu Social and religious system; to Brahmans, Goswamis, Sanyasis etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hindu law the image of a deity of die Hindu pantheon is, as has been partly called, a juristic entity, vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same "juristic" capacity, and gifts are made to them eo nomine. In many cases in Southern India, especially where the diffusion of Aryan Brahmanis was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monesteris under the names of math were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application of the funds of the institution, but always subject to certain obligations and duties, equally governed by custom and usage. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a "trustee" in the English sense of the terms, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration."
The decision further lays down at page 315 as follows "Neither under the Hindu law nor in the Mahommedan system is any property "conveyed" to a Shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him, whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutawalli or sajjadanishin, or by any other name, is merely a manager. He is certainly not a "trustee" as understood in the "English system."
The decision further lays down at page 319 as follows :--
"From the above review of the general law relating to Hindu and Mahommedan pious institutions it would prima facie follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a "trustee" to whom property has been "conveyed in trust" and who by virtue thereof has the capacity vested in him which is possessed by a "trustee" in the English law."
Another decision in support of the principles enumerated above is to be found in the case of Pramatha Nath Mullick and Pradyumna Kumar Mullick 52 Ind App 245 : (AIR 1925 PC 139). The following passages at pages 250, 251 and 252 are extremely relevant :--
"One of the questions emerging at this point, is as to the nature of such an idol, and the services due thereto. A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a "juristic entity". It hasa juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities, for this doctrine, thus simply stated, is firmly established."
XX XX XX XX "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. The position and rights of the deity must, in order to work this out both in regard to its preservation, its maintenance and the services to be performed, be in the charge of a human being: Accordingly he is the Shebait custodian of the idol and manager of its estate."
13. Therefore, in my opinion, the suit as framed is maintainable. Accordingly, the judgment and decree of the lower appellate court is hereby set aside. The judgment and decree of the trial court is hereby restored with costs throughout. This appeal is accordingly allowed. Hearing fee Rs. 250/- for this Court.
Madan Mohan Prasad, J.
I agree.