Orissa High Court
Radhakrushna Choudhury vs Radhakrushna Mohaprabhu And Anr. on 27 October, 1970
Equivalent citations: AIR 1971 ORISSA 274
JUDGMENT
1. The sole defendant is in appeal against a reversing decree of the learned Subordinate Judge. Aska in a suit for permanent injuction against him restraining him from entering upon the disputed property or interfering with the possession of the deities. There was also a prayer for recovery of Rs 100/-being the value of damages caused to the deities by his wrongful act.
2. One Ganapati had three sons --Harekrushna. Radhakrushna and Nadiachand. According to the plaintiffs Harekrushna had been adopted away. Sri Radhakrushna and Sri Hanumanjew were the two family deities. Ganapati and his wife took to Baishnabism and thereafter on 2-1-42 they founded an endowment in respect of the aforesaid two deities and under Ext. 3 laid down the terms of succession to the office of shebaitship. In the said document it is indicated that the first son Harekrushna had been adopted away and of the two other sons Radhakrushna had been living away from the house for more than 20 years and similarly the third son had been living away from the house for about 12 years. It was stated that Ganapati and his wife were the two Dharmakartas. The succession to office was clearly indicated in Ext. 3. Ganapati who came to be known as Gourchandra on accepting Baishnabism died sometime in 1954. His widow Jamuna Dasi executed a deed dated 15-9-1956 appointing Harekrushna as the shebait of the endowment of the two deities (Ext. 2). As there was interference by the defendant Radhakrushna in the management by the plaintiff and the defendant forcibly misappropriated the properties of the deities, the suit was filed.
3. The defence taken in the suit was that Ext. 2 was not a valid document as it was the outcome of undue influence. It was asserted that possession of the institution was with the defendant and he had been appointed as a non-hereditary trustee by the Assistant Commissioner of Endowments. It was also stated that Harekrushna having been adopted away admittedly had no right to some into the management of the properties of the family deities.
4. The trial court found that the plaintiff could not represent the deities and Jamuna had no right to change the line determined under Ext. 3. It also found that the defendant's appointment by the Assistant Commissioner was a myth. It denied relief to the plaintiff of damages of Rs. 100/-. On these findings it dismissed the suit.
5. Before the lower appellate Court the entire matter was again canvassed and the learned Appellate Judge came to hold on an interpretation of Ext. 3 that Jamuna was entitled to appoint a trustee and the plaintiff haying been so appointed by Jamuna was entitled to succeed. Ext. 2, the appointment of trustee by Jamuna, was not in contravention of the terms of Ext. 3. On these findings of his he reversed the decree of the trial court and decreed the suit for permanent injunction. The defendant has appealed against this reversing decision.
6. The short question raised by Mr. Roy in this Court is as to whether the appointment made by Jamuna under Ext. 2 is valid and even if such an appointment was initially valid, would it enure beyond the lifetime of Jamuna who admittedly died sometime in March or April, 1965 during the pendency of the suit? In this Court there is an application by Nadiachand, the third son of Ganapati alias Gourchandra, to be impleaded as a party, and by order No. 10 dated 4-11-1968 that application has been directed to be taken up at the final hearing of the appeal. To implead Nadiachand as a party at this stage would not only prejudice him but would also prejudice the parties. The right of management of the plaintiff was interfered with by Radhakrushna, the defendant, alone and, therefore, the plaintiff had sued for permanent injunction as against Radhakrushna only. Such a suit was maintainable without Nadiachand being a party. Therefore, for the purpose of this suit Nadiachand need not necessarily be impleaded. It is a settled rule of law that a person who is not a party in the original forum would not be a party to the appeal and to add such a person who was not known to the record earlier as a party to the appeal for the first time would certainly prejudice either the newly added party or the person already on record and might necessarily involve the need of reopening the matter. In the facts of the present case Nadiachand is not bound by the decree passed in this action and if he is really aggrieved it is open to him to bring a comprehensive suit for title. At any rate, I would, therefore, reject his petition and not permit him to come on the record of the appeal.
7. Mr. Roy contended that the terms of Ext. 3 are very clear and the line of succession has been indicated. Therefore, after the death of Gourchandra it was not open to his widow Jamuna to make an appointment in derogation of the terms of Ext. 3. The learned Appellate Judge examined the terms of Ext. 3 and came to hold that the appointment by Jamuna of the plaintiff under Ext. 2 is not derogatory to the terms of Ext. 3 Examining this aspect the appellate court has stated, "So the only point that looms large for decision in this appeal is whether the appointment of Harekrushna Sahu as trustee of the deities is valid and whether the defendant has any right to meddle with the affairs and property of the deity. As already stated by me Harekrushna Sahu has not been accepted as chella by the last surviving Dharmakarta. Therefore his coming into the picture has nothing to do with the contravention of the terms of the deed of settlement. Though in the deed of settlement there is no specific recital as to the power of a Dharmakarta to appoint a trustee to look after the affairs of the deity but the right is inherent in a Dharmakarta, for the exercise of which no express stipulation is necessary. A Dharmakarta has the right to manage the affairs of the deity by himself or to get the same managed by a man of his own choice and liking. Therefore the appointment of Harekrushna Sahu as the trustee by the surviving Dharmakarta is in no way against the terms of the deed of settlement. It was within the full competence of surviving Dharmakarta to appoint Harekrushna Sahu."
A distinction has to be maintained between a "Dharmakarta" and a "shebait". While it is true that a Dharmakarta can also be a shebait, the reverse is not true. Jamuna was certainly a co-Dharmakarta, and under Ext. 3 after the death of Gourchandra she had also the right of Dharmakarta to exercise. In exercise of her right as Dharmakarta Ext. 2 was made and Harekrushna was appointed as the trustee. If Jamuna's shebaiti right had only been transferred or delegated in favour of Harekrushna under Ext. 2 there was considerable force in the contention of Mr. Roy that with the death of Jamnuna that right of shebaiti would die and Harekrushna would have no more right to continue. But as the position stands in this case Jamuna was not appointing Harekrushna as a substitute shebait during her lifetime, but Harekrushna came to be appointed as a trustee. There is some difference of opinion among the Courts in India as to whether once the founder has laid the line of succession of shebaits, the very founder or another Dharmakarta in succession would have the right to disturb that line. Some Courts have taken the view that once the line is set, it is not open to alteration while some other Courts have taken the view that the Dhamakarta has certain residual inherent powers and each Dharmakarta exercises that power as the founder. I think the latter view as indicated is reasonable and works out not only in a convenient way but also helps the proper administration of the institution in the long run. To hold that once the line is set it is not open to change it is likely to work against the endowment itself and may not on certain occasions lead to fair working of the endowment itself. On the aforesaid analysis I think it would be proper to hold, as has been held by the learned Appellate Judge, that Ext. 2 does not run counter to Ext. 3 and Jamuna was entitled to appoint Hare-krushna to the office of a trustee. As Harekrushna was not appointed merely as a shebait in lieu of Jamuna, Jamuna's death is not very material and Harekrushna is entitled to continue notwithstanding the death of Jamuna. On these conclusions it would follow that there is no merit in this appeal. Accordingly the appeal fails and is dismissed. In the peculiar circumstances of this case I think it proper to direct both the parties to bear their own costs throughout.