Indian Kanoon - Search engine for Indian Law

11. It is settled law that any person interested in the endowment can bring a suit to recover the idol's property for debutter purposes. In the case of a private endowment a co-shebait or one who is entitled to become a shebait after the present incumbent, or a member of the family may sue to set aside an alienation of the office or of the endowed property illegally made : vide G. Sastri's Hindu Law, 8th Edn., p. 696. In Manohar Mukerjee v. Peary Mohan ('20)7 AIR 1920 Cal 210, which was affirmed by the Privy Council in Peary Mohan v. Manohar Mukerjee ('22) 9 AIR 1922 PC 235 one of the heirs of the founder was held entitled to invoke the assistance of the Court for proper administration of the debutter property and for removal of the existing shebait, even though the deity was not made a party to the suit. A shebait is certainly a person interested in the endowment, and if he can institute a suit to bring back to the debutter any property of the idol which was illegally alienated by his co-shebait, there is no good reason, in my opinion, why he cannot in the same capacity maintain a suit in the interests of the endowment itself for removal of a shebait from his office on the ground of misappropriation of the deity's money and for recovery of the money that might be illegally retained by the latter. It is true-that the plaint has not been very artistically drawn up and the plaintiff in the present ease does not expressly say that he is suing in the capacity of a person interested, and the frame of the suit might suggest, at first sight, that it was a dispute between the shebaits inter se. But as the material allegations are all in the plaint it would be only a question of amendment, and this could have been allowed had the defendants raised this question pointedly at the earliest opportunity. We feel reluctant to throw out the suit on this ground alone if the facts, established by evidence, entitle the plaintiff to any relief against the defendants, in the interests of the endowment itself. The first contention of Mr. Chakravarti is, therefore, overruled. The next point for our determination is whether on the facts admitted and found, the District Judge was justified in making an order of removal against either or both of the defendants. The allegations of the plaintiff upon which he sought to remove both the defendants from their office as shebaits are of a two-fold character. The first accusation against them was that they had neglected their duties as shebaits, and the second charge was that they had actually misappropriated the moneys due on the handnote of Suresh by realizing them from the two sons of the latter and then allowing the money suit which was remanded by this Court to be dismissed for default.

21. The decision in Bhuban Mohan v. Narendra Nath , upon which Mr. Gupta relies, is not of much assistance to us in the present case. There, two out of four shebaits instituted a suit for rent against certain tenants who held lands under the debutter. The two remaining shebaits were made parties defendants, and it was alleged in the plaint that they were not looking after the affairs of the temple or worship of the idol. One of the questions raised was whether the suit was maintainable at the instance of two of the shebaits without joining the other two as co-plaintiffs. The Courts below decided the question in favour of the plaintiff's, and this decision was affirmed by this Court in appeal. It will be seen that in this case the claim was for the entire rent of the holding and all the shebaits were made parties to the suit. It was found as a fact that one of the defendant shebaits had removed from her husband's house and was living at a distant place, while the other shebait had sold her rights to a stranger-who was not in the line of shebaits at all. It was further found that none of them managed the debutter estate or looked after the idol. In these circumstances it was held that they had ceased to be shebaits. This decision has no bearing on the facts of the present case, where Tushar has not certainly done anything which might be construed to be an act of abandonment or renunciation of his rights as shebait. Sir Suhrawardy J. expressed himself in my opinion rather too broadly when he said that a shebait, being a manager, cannot remain as-such when he ceases to manage the property and carry on the worship of the idol. He has no right of property transferable or heritable as such.

24. In view of the position taken up by Mr. Gupta and having regard to the plaintiff's own case and the findings arrived at by the District Judge, we think that it would be quite sufficient if we direct defendant 1 to render accounts to the remaining two she-baits, of the moneys actually received by him out of the debutter funds and spent by him for debutter purposes, for the period commencing from 1st January 1926 and ending with 23rd December 1938. Up to the year 1925, the debutter estate was managed by three shebaits, namely, Harimohan, Nirmal and Nihar Ranjan. According to the deed of agreement mentioned above each one of the shebaits had his turn of worship every three years. He was to collect the income of debutter property during that year and make the disbursements necessary for the daily and periodical pujas. It is admitted that both Nirmal and Nihar had to stay away from Bhadrakali on account of their business for the greater part of the year, and Hari Mohan who was a licentious spendthrift sold his own house which he got from Bidhu to the plaintiff's wife and began to occupy the thakurbari with his family. The deity was located in the house of the priest and Nirmal used to send money for the worship of the idol. Nihar is dead and Hari Mohan has renounced his rights as a shebait in favour of the present plaintiff in the year 1925. There is no allegation that Nirmal misappropriated any money during this period and, as I have said already, the charge of neglect of duty brought against him was not substantiated. The only income of the debutter property being the interest on the sum of Rs. 10,000 lent to Suresh, Nirmal could have at the most received his interest for four or five years. He admittedly sent moneys to the priests for daily and periodical pujas but as he has kept no regular vouchers and the priest is dead, it is difficult for him to prove now as to how much was spent on each of these religious festivals. The enquiry must necessarily be of a harassing character and Nirmal would have to fall back upon oral evidence for the purpose of proving the amounts he had actually spent. As no accounts are obtainable from the other two shebaits who acted with Nirmal during this period, and as the presumption must be, unless something to the contrary is proved, that Nirmal had discharged his duties faithfully during this period, we think that accounts should not be carried back prior to the time when the plaintiff himself was appointed a shebait. Hari Mohan had his turn of worship in the year 1925 in accordance with the deed of agreement mentioned above, and for this year there is no liability to account so far as defendant 1 is concerned. We therefore think it proper that he should account from the beginning of the year 1926, and not only will this meet the ends of justice, but it will afford complete protection to the plaintiff himself.

26. The result therefore is that both the appeals are allowed in part. The plaintiff is declared to be a shebait of the idol Sri Dhar Jew and the order for removal of defendant 1 as a shebait as made by the District Judge is confirmed. The order for removal of defendant 2 is set aside. Defendant 1 will render accounts to the plaintiff and defendant 2 of his receipts and expenditure in connexion with the debutter property from 1st January 1926 to 23rd December 1938. The accounts will be taken not on the basis of wilful default, but on the footing of what was actually received by defendant 1 out of the debutter estate and what was spent by him in the interests of the idol. He will certainly be entitled to all the expenses reasonably incurred in connexion with the litigation he brought on behalf of the deity in the year 1928 up to the date when it was dismissed for default. If the accounts disclose that any sum of money is still in the bands of defendant 1, he will be directed to refund the money to the two existing shebaits of the deity. If no money is found due this part of the plaintiff's claim will be dismissed. The parties will bear their own costs in all Courts up to this stage: further costs in connexion with the equiry into accounts will be in the discretion of the trial Judge. The case will be sent back for taking accounts in accordance with the directions given above. As both these appeals arise out of the same suit only one decree need be drawn up. No order is necessary on the application.