Indian Kanoon - Search engine for Indian Law

23. It was faintly suggested in the argument that these two decisions of the Judicial Committee related to the case of mutts where the Mahant or head of the mutt had a beneficial interest in the properties of the mutt and would not apply to the case of a manager or of a dharmakartha of a temple, as the latter is in a different position, having no personal interest or right in the income of the temple property, but only the right or duty to apply it for the purposes of the idol. This consideration, far from supporting the argument tends to weaken it, because if you can predicate a de facto trusteeship even in cases where the trustee has an appreciable personal or beneficial interest of his own in the property, it is an a fortiori case where there is no personal interest whatever in the trustee and he is a mere manager. Apart from this consideration, the Privy Council has held that the head of a mutt, the shebait of a family idol and the dharmakartha of a temple all occupy the same position in the eye of the law even though there may be an element of beneficial interest in the case of the head of a mutt or shebait of a family idol, Ponnambala v. Periannan Chetti (1936) 71 M.L.J. 105 : L.R. 63 I.A. 261: 59 Mad. 809 (P.C.) Incidentally I may observe that Sir George Rankin, who delivered the judgment of the Judicial Committee in the case last cited, used the expression "de facto managership", to describe the position of Nataraja who functioned as the head of the Kunnakudi Mutt from 1902 to 19-13 without any legal title to the office, his nomination as the head of the mutt having been held invalid by the Privy Council in Nataraja v. Kailasa (1920) L.R. 48 I.A. 1 : 39 M.L.J. 98 : I.L.R. 44 Mad. 283 (P.C.). In a later case Iskwar Ramachandra v. The Bengal Duars Bank Ltd. I.L.R. (1941) Kar. (P.C.) 51 : A.I.R. 1941 P.C. 33, their Lordships of the Privy Council referred to the suit before them as one for the recovery of property by a de facto shebait of an idol and, affirmed the dismissal of the suit by the courts below on the 'ground that there was no evidence of the plaintiff having in fact acted in management of the idol's property as, for instance, by the collection of rents. Their Lordships did not say that a de facto shebait was like a trustee de son tort and therefore wholly incompetent to sue but they proceeded in the assumption, that a de facto shebait could sue if he could establish that he was functioning as such. I say so because their Lordships' attention was pointedly drawn to the two earlier cases in Mahant Ramachandradas v. Naurangi lal (1933) L.R. 60 I.A. 124 : 64 M.L.J. 505: I.L.R. 12 Pat. 251 (P.C.) and Mahadeoprasad Singh v. Karia Bharti (1934) L.R. 62 I.A. 47 : 68 M.L.J. 499 : I.L.R. 57 A. 159 (P.C.) as empowering de facto trustees to sue.

25. A Hindu religious endowment is a complex juridical concept and in considering the rights and remedies of persons interested in the welfare of endowment, it is unsafe to import bodily the doctrines of the English law relating to express trusts, or trustees de son tort. With a view to protect the interests of religious endowments as well as the rights of persons dealing with shebaits or managers, the Indian Legislature has amended Section 10 of the Limitation Act by providing that managers of property comprised in a Hindu Religious endowment are deemed to be express, trustees thereof and has also enacted Article 134-A to 134-C of the same Act assimilating the position of the''manager to that of a trustee. Similarly Madras Act II of 1927 by Section 9 Clause (13) defines the term: 'trustee" as including any person, by whatever designation known, in whom the administration of a religious endowment is vested including a person who would be liable as a trustee i.e., a de facto trustee. In other respects, the so-called trustees of a Hindu temple are merely managers or supervisors with obligations resembling those of trustees, the property itself being vested in ownership in the idol and its possession and management alone being vested in the trustee, dharmakartha or manager. This is the normal, feature of most religious institutions in this part of the country. An express conveyance of property to named trustees to be held in trust for an idol, though perfectly legal, is not common. It should be observed that the rights of a de facto-trustee are not in all respects identical with those of a de jure trustee. A de jure trustee of a public religious endowment can be removed only for misconduct and that only in a suit instituted with the sanction prescribed by Section 92, Civil Procedure Code or Section 73 of Madras Act II of 1927. Where, however, there is-only, a de facto trustee functioning as such, it is open to persons interested in the trust to bring a suit under the above provisions alleging a vacancy in the office and requiring that it should be filled up by the appointment of a trustee by the court. This would entail the removal of the de facto trustee without any misconduct on. his part. If the de jure trustee appears on the scene and claims the office and the-properties appeartaining to it, the de facto trustee must, unless he had in the meantime perfected his title to the office by adverse possession for the requisite period, surrender possession of the office and the properties to the de jure trustee. The de facto trustee so long as he is functioning as such, has, from the necessities of the situation, the right to bring suits on behalf of and in the interests of the trust for evicting trespassers claiming adversely to the trust. In this respect and for this; purpose his rights and powers are the same as that of a de jure trustee. It is not competent to any person other than a de jure or de facto trustee to sue for recovery of possession of the properties of a religious endowment, from a person claiming to hold adversely to the trust. Whatever may be the necessity for and the propriety of a separate representation of an idol by a separate and independent next friend or guardian, when the rights of the idol and the rights of the shebait are in conflict or when the de jure shebaits or trustees of the idol are quarrelling among themselves, as regards its location and custody, treating the idol as a mere chattel as in the cases of Pramathanath Mullick v. Pradyumna Kumar Mullick (1925) 49 M.L.J. 30 : L.R. 52 I.A. 245 : I.L.R. 52 Cal. 809 (P.C), Kanhayalal v. Ahmed Ali (1933) 65 M.L.J. 811 : L.R. 60 I.A. 263: I.L.R. 8 Luck. 351 (P.C.), it is a fallacy to treat the idol as a perpetual minor as suggested in Ramareddi v. Rangadasan (1925) 50 M.L.J. 589: I.L.R. 49 Mad. 543. and therefore capable of being represented by any next friend or guardian ad litem. Such an assumption is extravagant and is repugnant to the sentiments and feelings entertained by the faithful. It is also repelled by authority, see Surendrakrishna v. Iswar Bhuvaneswari, affirmed on appeal by the Privy Council (1932) I.L.R. 60 Cal. 54, 73, 77 affirmed on appeal by the Privy Council in (1937) 2 M.L.J. 527: L.R. 64 I.A. 203 : I.L.R. (1937) 2 Cal. 447 (P.C.). The Indian Limitation Act has exempted a minor from the bar of limitation but this protection does not extend to an idol. The only point of similarity is that they are both incapable of managing and protecting their property and interests which have to be done through another human agency, the powers of the guardian of a minor and the manager of an idol being similar. The analogy should not be pressed further and it is not necessary or proper to have a next friend or guardian ad litem appointed for an idol in every suit in which its interests are concerned.

26. I am referring to this aspect of the case for it would introduce inextricable confusion in the administration of religious endowments if people professing to act in the interests of an idol or mutt, are allowed to bring suits in the name of the idol or the institution ignoring the manager or the head of the mutt who is living and functioning as such. As we are recognising the power of a de facto trustee to sue on behalf of an idol or a mutt, it is necessary that courts should prevent this power from being abused or exercised fraudulently or collusively to the detriment of the trust by persons professing to act on behalf of and in the interests of the idol or mutt, behind the back of the de jure manager or head of the mutt. The law is clear that where there is a lawful shebait, Dharmakartha or head of a mutt, he alone can bring the suits necessary for recovering possession of the property of the institution and otherwise protecting its interests and he ajone is the proper person to represent it in a suit filed against the mutt, temple or idol as the case may be, Prosonna Kumari Debya v. Golab Chand Baboo (1875) L.R. 2 I.A. 145 (P.C.)., Jagadindranath v. Hemanthakumari (1904) L.R. 31 I.A. 203: I.L.R. 32 Cal. 129 (P.C.). Where there is a lawful shebait or manager, until he is removed or controlled by the Court, he can alone act for the idol. Per Rankin, C.J., see Surendrakrishna v. Ishwar Bhuvaneshwari (1932) I.L.R. 60 Cal. 54, 73, 77 affirmed on appeal by the Privy Council in (1937) 2 M.L.J. 527 : L.R. 64 I.A. 203 : I.L.R. (1937) 2 Cal. 447 (P.C.). Indeed, the Privy Council has observed that in such cases, the right of suit is really in the manager or shebait though the processual law of the country allows for a suit in the name of the idol or the deity. See the Shahid Ganj case (1940) 2 M.L.J. 903: L.R. 67 I.A. 251: I.L.R. 1940 Lab. 493 (P.C.). Though as already stated, managers of Hindu temples are not trustees in the English sense, still, on the analogy of co-trustees, if there are more shebaits or managers than one, they are deemed to constitute one single body, as it were, in the eye of law and all of them must normally.be parties to a suit on behalf of or against the deity or the idol. If any of the managers are unwilling to be joined as plaintiffs or have themselves done acts prejudicial to the trust or otherwise precluded themselves from being plaintiffs, they should be made defendants, Rajandranath Dutt v. Sheik Muhammad Lal (1881) L.R. 81. A. 135 : I.L.R. 8 Cal. 42 (P.C.). As regards co-trustees, strictly so-called, they stand on a different footing from joint managers or shebaits, for, the property is vested in all of them ; there is unity of title and possession and their interests are joint and indivisible. But having regard to the position and status of shebaits and managers of Hindu religious endowments and their relation to the endowed property the legal title in which vests, not in the managers but only in the deity or the idol, the rule requiring all co-shebaits or managers to join in an action on behalf of the deity or idol is not so inexorable or incapable of exception or relaxation as in the case of co-trustees strictly so-called. In Rajendranath Diitt v. Sheik Muhammad Lal (1881) L.R. 8 I.A. 135 : I.L.R. 8 Cal. 42 (P.C.),; where three out of four joint shebaits omitted to implead the fourth in their suit to recover alienated property, the Judicial Committee dismissed the suit, because their Lordships were of the opinion that those plaintiffs were acting from motives personal to themselves and sought to recover the property for their own use. In. Baraboni Coal Concern, Ltd. v. Gokulananda Mahanta Thakur (1933) 66 M.L.J. 399 : L.R. 61 I.A. 35 :I.L.R. 61 Cal. 313 (P.C.)., it was held by the Judicial Committee that orie of four joint shebaits could not sue to recover his one-fourth share of the royalties payable to the deity or the idol. Their Lordships stated that the claim being laid on behalf of the deity by the plaintiff suing only as shebait, he could not competently sue for his share in the idol's interest. There was no warrant for splitting up the property of the deity in the manner the plaintiff tried to do and it was not competent to one of four joint shebaits and lessors to sue for an adequate share of the whole. " The suit must be for the whole of the interest demised, else it fails." There are observations of a general character in the other reported cases to the effect that all the co-shebaits or managers must join in a suit filed on behalf of the deity, whether as plaintiffs or defendants. While I agree that this should be the normal rule, I would, at the same time, express my respectful agreement with the following statement of the law by Biswas, J., in Ishwar Sridhar Jieu v. Jahorlal (1945) 49 C.W.N. 37.

As is, however, recognised in many of these cases, and is in fact implied in the statement, of the rule, it cannot be maintained as an absolute rule of law that all the co-shebaits must join in representing the deity. The rule is subject to exceptions, and circumstances may exist in which, the deity may be validly represented by some only of the shebaits, and even by a person who is not a shebait. Where a suit is a, suit by the deity represented by some of its shebaits, the question whether or not the other shebaits should be joined as parties is often, in the last analysis, a mere question of procedure and expediency : the test is whether or not, having regard to all the circumstances, of the case, the interest of the deity may be said to be sufficiently represented. See also Nirmal-Kumar v. Jyoti Prasad I.L.R. (1941) 2 Cal. 128.