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1. These two appeals are by different parties against the decision in the same suit which was commenced by the plaintiff for settling a scheme in relation to a private debutter. The facts which are material for our present purpose may be briefly stated as follows; Three brothers, namely, Nabin Krishna, Raj Krishna and Gopi Krishna installed two deities to wit Radhaballav Jew and Radha Rani Jew in a Thakurbati which they erected close to their residential house. There was an Ekrarnama executed by and between the brothers on 15th April 1852 which recited inter alia that the brothers had contributed a sum of Rupees 1,500 each and certain ornaments and utensils for the Seva of the idols and that with this money certain immovable properties would be purchased, the income of which would be sufficient to meet the expenses of worship. So long as such property was not purchased, the Seva would be carried on with the interest of this money and in case it was found insufficient, the brothers would supplement the income from their own private funds. Under this Ekrarnama, the three brothers were made joint Shebaits with rights of survivorship amongst them and after the death of the last survivor the Shebaiti right, would devolve per stirpes upon the heirs of the three founders. It may be mentioned here that there were two other brothers and all the five had effected a partition amongst them sometime in the year 1846, and since then each one of the brothers had separate funds of his own. The plaintiff in the suit is one Ganendra Krishna Ghose who is a great-grand-son of Nabin Krishna and what he alleges in substance is that after the death of the original Shebaits, there was an arrangement come to by the heirs according to which a sum of Rs. 821 was to be spent yearly for the Pujah and ceremonies of the deities. Apurba Krishna, a son of Nabin Krishna became the managing Shebait with the consent of all the co-sharers and after him Bata Krishna, another son of Nabin became the manager. This Bata Krishna, is alleged to have wasted and misappropriated a good amount of debutter money in collusion with one Namik Chandra, a Gomasta of the debutter estate. He died in 1910 and since then a quarrel is going on amongst the Shebaits regarding the mode of management and performance of the Seva of the idols. Hence the plaintiff brought this suit for having a proper scheme settled by the Court as to how the debutter property should be managed and the Seva performed. Originally, there were six defendants who are all the descendants of three sons of Nabin, namely, Siva Krishna, Pran Krishna and Bata Krishna. Later on, the heirs of Gosain Das, another son of Nabin, and the descendants of Raj Krishna and Gopi Krishna were added as parties defendants and some of them subsequently got themselves transferred to the category of plaintiffs and figure as added plaintiffs in the suit. Defendants 1 to 5 are in reality the contesting defendants and they raised certain points some of which have come up for decision in this appeal. The other defendants practically supported the plaintiffs in their written statements.

2. Defendants 1 to 5 contended inter alia that the debutter being a private debutter, no scheme could be settled by the civil Court and the deity would be a necessary party to such a proceeding. It was further alleged that with regard to properties 1, 2 and 3 of the debutter estate the management should be confined to Nabin's branch alone according to the provision of the Ekrarnama inasmuch as they were subsequent gifts made by Nabin out of his own self, acquisition. Among Nabin's descendants, it is said, that the heirs of Gosain Das and Radhanath, two of the five sons of Nabin should be excluded and amongst the heirs of the other three sons, again defendants 1 to 5 want to exclude the plaintiff and defendant 6 all of whom according to them had forfeited their Shebaiti right by reason of their conduct. The trial Court overruled all these contentions and passed a preliminary decree in favour of the plaintiffs. It was ordered that a scheme should be framed for the better management of the debutter estate and Seva of the idols and all the Shebaits on record were invited to submit a scheme for approval of the Court. Defendants 1 to 5 preferred an appeal against this decision to the lower appellate Court which modified the trial Court's decree to some extent. The contention of defendants 1 to 5 was so far allowed that with regard to properties Nos. 2 and 3 the management was left exclusively to the plaintiff and defendants 1 to 6; in other words, it was held to be confined to Nabin's descendants' excluding the heirs of Gossain Das and Radhanath. Against this decree, two second appeals have been taken to this Court, being Second Appeals Nos. 1730 of 1935 and 125 of 1936. Appeal No. 1730/35 is by defendants 1 to 5. Some of the other defendants who sided with the plaintiff are the appellants in Appeal No. 125 of 1936.

3. Mr. C.C. Biswas who appears in Second Appeal No. 1730/35 pressed three points for our consideration. He has put forward the two preliminary points raised in the Court below, namely, that a suit for a scheme in respect of a private debutter was not entertainable by a civil Court, and that in any event, no relief could be given unless the deities were made parties to the suit. In the third place, he has argued that the direction given by the Court of appeal below as regards properties Nos. 2 and 3 that they should remain in exclusive management of plaintiffs and defendants 1 to 6 should have been extended to property No. 1 as well inasmuch as the said property was also Nabin's self-acquisition and the finding to the contrary, which was arrived at by the Court of appeal below, was vitiated by an error of law. Mr. Gupta who has appeared in support of the other appeal has contested all these three points and has pressed one point in support of his appeal, namely, that the Ekrarnama does not support the conclusion of the lower appellate Court that the properties subsequently dedicated by one particular Shebait should remain under the exclusive control and management of his branch. Mr. Abinash Chandra Ghose who appears for the original plaintiff who was made a respondent in both these appeals has supported Mr. Gupta in his contention. It is better that we should take these points in their proper order. We will first of all deal with the two preliminary points raised by Mr. Biswas, and then take up the point raised by Mr. Gupta in support of his appeal and consider along with that the third point raised by Mr. Biswas as indicated above.

In respect of a Debutter in this country, the founder or his heirs may invoke the assistance of a judicial tribunal for the proper administration thereof on the allegation that the trusts are not properly performed.

6. Mookerjee, J. invoked the analogy of the rule of English law according to which in case of a charitable corporation where the founder was a private person he and his heirs became visitors in law and in case such heirs were extinct or were incompetent the visitatorial powers devolved on the crown. It is true that in England such trusts are regarded as matters of public concern and the Attorney-General who represents the Crown takes proceedings on his behalf for protection of these charities: vide Att.Gen. v. James Brown (1816) 1 Swans 265 at p. 291. In India, the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the Shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement or maladministration of the deity's estate and to have a proper scheme for management framed which would end the disputes amongst the guardians and prevent the debutter estate from being wasted or ruined. This principle was reiterated in Rabindra Nath v. Chandi Charan . The Privy Council itself directed the framing of a scheme, in case of a private debutter in Pramatha Nath v. Pradhyumna Kumar Mullick and the case was remanded to the trial Court expressly for that purpose. The same directions were given by this Court in the case in Prasad Das Pal v. Jagannath Pal which was also a case of private debutter and we are unable to uphold the extreme contention raised by Mr. Biswas that a civil Court is incompetent to entertain a suit the object of which is to have a scheme established for the administration of a private debutter.