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3. Shortly after that, the present suit was instituted by the plaintiff Bhaktaram and his case was that the property in suit was a debuttar property of the deities to whom it was validly dedicated by Ramdas and that he was the shebait of the idols as being the spiritual preceptor of Ramdas. He further alleged that Golap Sundari had made over to him the idols after the death of Ramdas and he removed these idols to his own place and was worshipping them there since then. The property according to the plaintiff was in possession of Satish, defendant 4 as a tenant of the debuttar estate, and as the decree obtained by defendant 1 against defendant 4 had thrown a cloud on the title of the deities the present suit was instituted. Defendant 4 did not contest the suit which was contested by the other three defendants who contended inter alia that the property was not debuttar, that the suit was a mala fide one being instituted at the instance of defendant 4 who being defeated in his suit against defendant 1 had now set up the plaintiff; and that the plaintiff was not the spiritual guide of Ramdas nor was he a shebait or worshipper of the deities, if any such existed. As I have said before, Bhaktaram Roy died pending the hearing of the suit, and Panchkari, his nephew and alleged heir, was substituted in his place. The trial Court dismissed the plaintiff's suit. It held inter alia that the property was debuttar, but the plaintiff Bhaktaram was neither the spiritual guide of Ramdas nor was he a shebait or even a worshipper of the deities and had no right to institute the suit. It further held that Panchkari was not the heir of Bhaktaram and the suit was not maintainable at his instance. The lower appellate Court affirmed the decision of the trial Court though it did cot accept all its findings. It held that the property was debuttar and that the idols were actually in possession of Bhaktaram who removed them to his house at Galigram and worshipped them. It held however that both Bhaktaram and Panchkari were pujaris and not shebaits, either de jure or de facto, and consequently had no right to sue. It is against this decision that this second appeal has been preferred, and the whole controversy centres round the point as to whether Bhaktaram or Panchkari has any right to represent the deities and institute a suit on their behalf.

The right to possession and management of the dedicated properties belongs to the shebait and this carries with it the right to bring whatever suits are necessary for the protection of the property; every such right of suit is vested in the shebait and not the idol.

5. When the shebait himself is negligent or alienates debuttar property in breach of trust, not only a prospective shebait under the terms of the grant but any member of the family in case of a family endowment may maintain the suit on behalf of the deities to recover that property from a trespasser (vide Girish Chandra v. Upendra Nath . Dr. Gour in his Hindu Code lays down the law as follows:

7. The next question is whether they can be said to be de facto shebaits. The Judicial Committee, in Bam Charan Das v. Nourangi Lal , and again in Mahadeo Prosad Singh v. Karia Bharti , laid down that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Math. Mr. Apurbadhan Mukherji who appears for the respondent contends that the said principle does not apply to property dedicated to an idol. There may be and in fact there is difference between a Math and an idol, but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debuttar. The power of a de facto shebaite to act on behalf of the idols has been recognized in many cases of which the case Girish Chandra v. Upendra Nath , referred to above, may be cited as an instance, and in that case the learned Judges, besides citing earlier authorities, referred to a certain paragraph in Gour's Hindu Code which laid down that "powers of a de facto and de jure manager are the same, provided he is in actual possession." In order to make a person a de facto shebait it is necessary however that he should be in actual possession of the office and the debuttar estate. In Mahadeo Prosad Singh v. Karia Bharti , Karia had been managing the affairs of the institution since 1904 and was treated as Mohunt by all the persons interested. His name appeared in the revenue records and he was in possession of all the endowed property. Under these circumstances the Judicial Committee held that he was entitled to institute a suit even though he was held not to have a legal title in him. The de facto shebait would, in my opinion, be one who exercises all the functions of a shebait and is in possession of the debuttar property though the legal title may be lacking. The mere fact that he has been able to acquire the custody of the idols is not enough to make him a de facto shebait. In this case Bhaktaram alleged that the idols were delivered over to him by Golap Sundari, the widow of Ramdas. Golap Sundari had herself no shebait right. She was the guardian of her minor daughter and she herself ignored the debuttar character of the property and the will altogether and sold this very property to defendant 4 as secular property which she obtained by succession from her husband. If under such circumstances she had made a gift of the idols to Bhaktaram, it cannot be said that Bhaktaram became a de facto shebait, and even if he worshipped these idols along with his own in his native village, he cannot be endowed with the capacity of a shebait. As the trial Court pointed out, the name of Bhaktaram does not appear in any document or in rent receipt nor even in the municipal register, and the name of Satish appears in this connexion all through.

8. I am unable to hold that under the circumstances Bhaktaram could be regarded as a de facto shebait entitling him to institute a suit for recovery of possession of certain property on behalf of the deity. Panchkari, who is Bhaktaram's nephew, purports to come in as heir of Bhaktaram. The Courts below have found that he is not the heir, but even that is immaterial, for there could not be any devolution of the right of a de facto shebait upon his heir unless he succeeds in proving independently that he was a de facto shebait himself. As I have said above, except the fact of his getting possession of the idols from his deceased uncle, there is nothing proved which endowed him with the rights of a shebait. Under the circumstances I hold that the Court of appeal below was perfectly right in the view that it took, and the appeal must stand dismissed with costs one gold mohur. Leave to appeal under Section 15, Letters Patent, is asked for and is refused.