Bishwanath & ANR Vs. Shri Thakur
Radhaballabhji & Ors  INSC 30 (6 February 1967)
06/02/1967 RAO, K. SUBBA (CJ) RAO, K. SUBBA
(CJ) SHELAT, J.M.
CITATION: 1967 AIR 1044 1967 SCR (2) 618
CITATOR INFO :
D 1986 SC 231 (8,15)
Code of Civil Procedure (Act 5 of 1908), s.
92-Shebait of Hindu idol alienating idols Property--suit by worshipper on
behalf of idol for declaration of title and recovery of said property-Suit
whether governed by s. 92.
Hindu Law-Shebait acting adversely to
interests of idol or not protecting its interest Right of worshipper to file
The Manager of a temple alienated the idols
property. A worshipper of the idol who also assisted the Manager in his duties,
filed a suit as next friend of the idol challenging the alienation. The reliefs
sought were a declaration that the property belonged to the idol and recovery
of possession. The trial court's decree in favour of the plaintiff was upheld
by the High Court. The defendants came to this Court, with certificate.
It was urged on behalf of the appellants that
s. 92 of the Code of Civil procedure was a bar to the suit, and that no one but
the Sheba it was entitled to file the suit and represent the deity.
HELD : (i) The suit was filed by the idol for
possession of its property from the person who was in illegal possession
thereof and therefore it was a suit by the idol to enforce its private right.
The suit also was for a declaration of the plaintiffs title and for possession
thereof, and was not therefore a suit for one of the reliefs mentioned in s.
in either view this was a suit outside the
purview of s. 92 of the Code and therefore the said section was not a bar t o
its maintainability. [621 D-E] Abdur Rahim v. Barkat Ali, (1928) L. R.. 55 I.A.
96 and Mahant Pyagdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai,
 S.C.R. 513, relied on.
Mukhda Mannudas Bairagi v. Chagan Kisdn
1957 Bom. 809, Darshan Lat v Shibji Maharai
Biraiman, (1922) I.L.R. 45 All. 215 and Madhavrao Anandrao Reste v. Shri
Omkareshvar Ghat, (1928) 31 Bom. L.R 192, referred to.
(ii)An idol is in the position of a minor;
when a person representing it leaves it in the lurch, a person interested in
the worship of the idol can certainly be clothed with an ad hoc power of
representation to protect its interest. It is a pragmatic, yet a legal solution
to a difficult situa- tion. Should it be held that a Shebait, who transferred
the property, can only bring a suit for recovery, in most of the cases it will
be an indirect approval of the dereliction of the Sheba its duty, for more
often than not he will not admt his default and take steps to recover the
property apart from other technical pleas that may be open to the transferee in
a suit. Should it be held that a worshipper can file only a suit for the
removal of a Shebait and for the appointment of another in order to enable him
to take steps to recover the property, such a procedure will be rather a
prolonged and complicated one and the interest of the idol may irrarably suffer.
That is why a worshipper is permitted in such circumstances to represent the
idol and to recover the property for the idol. [622 G623 B] 619 Kunj Behari
Chandra v. Sri Sri Shyarn Chand Thakur, A.I.R.
1938 Pat 394 and Artatran Akkhagadi Brahma v.
Sudersan Mohaparra, A.I.R. 1954 Orissa 11, disapproved.
Pramatha Nath Mullick v. Pradyumna Kumar
Mullick, (1925) LR. 52 IA. 245 and Kanhaiya Lal v. Hamid Ali, (1933) L.R. 60
I.A. 263, appled.
In the present case the suit was brought on
behalf of the idol by a worshipper and therefore in the circumstances of the
case the High Court Tightly field that it was maintainable. [624 D]
CIVIL APPELLATE JURISDICTION Civil Appeal No.
780 of 1964.
Appeal from the judgment and decree dated
December 21 1959 of the Allahabad High Court in First Appeal No. 87 of 1948.
M. S. Gupta, Lalit Kumar and S. N. Varma, for
the appellants J. P. Goyal and Raghunath Singli, for respondent No. 1.
The Judgment of the Court was delivered by
Subba Rao, C.J. This appeal by certificate is preferred against the decree of
the High Court of Judicature at Allahabad decreeing the suit filed by the
respondents for possession of the plaint schedule property.
Shri Thakur Radhaballabhji, the deity,
represented by yaso- danandan as next friend, filed O. S. No. 61 of 1946 in the
Court of the 2nd Civil Judge, Kanpur, against the appellants for a declaration
that the deity was the proprietor of house No. 49/54 situate in Ban Bazar in
the City of Kanpur, for possession thereof and for mesne profits. The case of
the plaintiff (1st respondent herein) was that Lala Jagan Prasad the 2nd
defendant to the suit, was the manager and Sarvarakar of the deity, that the
said manager executed a sale deed dated January 13, 1942, conveying the said
property to one Lala Behari Lal, the 1st defendant to the suit, for a
consideration of Rs. 10,000 and that the sale, not being for necessity or for
the benefit of the idol, was not binding on the deity. It was further alleged
that, as the 2nd defendant had taken no steps to recover the property in order
to safeguard the rights of the idol the suit was filed through Jagan Prasad,
who was one of the devotees and worshipper of the deity and who had been taking
keen interest in the management of the temple where the deity is installed. To
that suit the alienee was made the 1st defendant and the manager, the 2nd
The 1st defendant set up the case that the
suit property did not constitute the property of the idol but was the property
of the 2nd defendant purchased by him out of his own funds.
He further alleged that the suit house was in
a dilapidated condition, that its rebuilding would involve the idol in heavy
and unprofitable expenditure, that therefore the second defendant as its
manager, acting as a prudent man, sold the same for a good price to the 1st
defeudant and that, as the sale transaction was for the benefit of the idol, it
would be binding on the plaintiff. He also questioned the right of Yasodanandan
to represent the idol and to bring the suit on itabehalf. Both the learned 2nd
Civil Judge, Kanpur, in the first;
instance, and, on appeal, the High Court
concurrently held that the sale was not for the benefit of the deity and that
the consideration was not adequate. They also held that in the circumstances of
the case the idol had the right to file the suit represented by Yasodanandan,
who was a worshipper of the deity and was helping the second defendant in the
management of the temple. In the result the trail court gave a decree for
possession and for recovery of Rs. 1,400 as past mense profits against the 1st
defendant on condition that the plaintiff returned a sum of Rs. 10,000 to the
1st defendant within two months from the date of the decree and also that the
plaintiff would be entitled to future mesne profits at Rs. 45 p.m-. till the
date of delivery of possession of the property. The High Court confirmed the
same. Hence the present appeal.
Mr. M. S. Gupta, learned counsel for the
appellant, canvassed, the correctness of the findings of both the courts on the
questions of fact as well as of law. On the questions of fact, namely, whether
the impugned transaction was binding on the idol and was supported by
consideration, we do not think we would be justified to permit the appellant to
question their correctness, because the said findings are concurrent and are
based upon appreciation of the relevant evidence. We accept the said findings.
The only outstanding question, therefore, is
whether the suit is maintainable by the idol represented by Yasodanandan, who
is a worshipper as well as a person who had been assisting the 2nd defendant in
the management of the temple.
Two obstacles are raised against the
maintainability of the suit' namely, (1) s. 92 of the Code of Civil Procedure
is a bar to the maintainability of the suit, and (2) a suit for possessionof
the property of the idol, after setting aside the alienation, could only be
filed by the Shebait and none else could represent the deity.
It is settled law that to invoke s. 92 of the
Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the
trust is created for public purposes of a a charitable or religious nature;,
(ii) there was a breach of trust or a direction of court is necessary in the
administration of such a trust; and (iii) the relief claimed is one or other of
the reliefs enumerated therein. If any of the 3 conditions is not satisfied,
the suit falls outside the scope of the said section. A suit by an idol for a
declaration of its title to property and for possession of the same from the
defendant, who is in possession thereof under a void alienation, is not one of
the reliefs 621 found in s. 92 of the Code of Civil Procedure. That a suit for
declaration that a property belongs to a trust is held to fall outside the
scope of s. 92 of the Code of Civil Procedure by the Privy Council in Abdul
Rahim v. Barkat Ali(1) and by this Court in Mahant Pragdasji Guru Bhagwandasji
v. Patel Ishwarlalbhai Narsibhai(2) on the ground that a relief for declaration
is not one of the reliefs enumerated in s. 92 of the Code of Civil Procedure.
So too, for, the same reason a suit for a
declaration that certain properties belong to a trust and for possession
thereof from the alienee has also been held to be not covered by the provisions
of s. 92 of the Code of Civil Procedure: See Mukhda Mannudas Bairagi v. Chagan
Kisan Bhawasar( ). Other decisions have reached the same result on I a
different ground, namely, that such a suit is one for the enforcement of a
private right. It was held that a suit by an idol as, a juristic person against
persons who interfered unlawfully with the property of the idol was a suit for
enforcement of its private right and was, therefore, not a suit to which s. 92
of the code of Civil Procedure applied: see Darshon Lal v. Shibji MaharaJ
Birajman(1); and Madhavrao Anandrao Raste v. Shri Omkareshvar Ghat(3). The
present suit is filed by the idol for possession of its property from the
person who is in illegal possession thereof and, therefore, it is a suit by the
idol to enforce its private right. The suit also is for. a declaration of the
plaintiffrs title and for possession thereof and is, therefore.not a suit for
one of the reliefs mentioned in s. 92 of the Codeof Civil Procedure. In either
view, this is a suit outside the purviewof s. 92 of the said Code and,
therefore, the said section is not it bar to its maintainability.
The second question turns upon the right of a
worshipper to represent an idol when the Shebait or manager of the temple is,
acting adversely to its interest. Ganapathi Iyer in his valuable treatise on
"Hindu and Mahomedan Endownments", 2nd edn.,. at p. 226, had this to
say in regard to the legal status of an idol in, Hindu law:
"The ascription of a legal personality
to- the deity supposed to be residing in the image meets with all, practical
purposes. The deity can be said to possess property only in an ideal sense and
the theory is, therefore, not complete unless that legal personality is linked
to a natural person." It would be futile to discuss at this stage the
various decisions which Considered the relationship between the idol and its
Shebait or Manager qua the management of its property, as the Privy Council in
Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta, Kumari Debi(6) has
settled the legal position and stated thus:
(1)  L. R. 55 I. A. 96.
(3) 1. L. R. 1957 Bombay 809.
(5)  31 Bom L. R. 192.
(2)  S.C.R. 513.
(4)  1. L. R. 45 All. 215.
(6)  L. R. 31 1. A. 203, 209, 210- 622
"There is no doubt that an idol may be regarded as a juridical person
capable as such of holding property, though it is only in an ideal sense that
property is so held." Dealing with the p osition of the Shebait of such an
idol, the iprivy Council proceeded to state:
"........... it still remains that the
possession and management of the dedicated property belong 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, not
in the idol," This was a case where the Shebait filed a suit for eviction
from the dedicated property within three years after attaining majority and the
Board held that, as he had the right to bring the suit for the protection of
the 'dedicated property, s. 7 of the Limitation Act, 1877, would apply to him.
The present question, namely, if a 'Shebait acts adversely to the interests of
the idol whether the idol represented by a worshipper can maintain a suit for
eviction, did not arise for consideration in that case.
That question falls to be decided on
Three legal concepts are well settled : (1)
An idol of a Hindu temple is a juridical person; (2) when there is a Shebait,
ordinarily no person other than the Shebait can represent the idol; and (3)
worshippers of an idol are its beneficiaries, though only in a spiritual sense.
It has also been held that persons who go in only for the purpose of devotion
have, according to Hindu law and religion, a greater and deeper interest in temples
than mere servants who serve there for some pecuniary advantage : see Kalyana
Venkataramana Ayyangar v. Kasturi Ranga Ayyangar(1). In the present case, the
plaintiff is not only a mere worshipper but is found to have been assisting the
2nd defendant in the management of the temple.
The question is, can such a person represent
the idol when the Shebait acts adversely to its interest and fails to take
action to safeguard its interest. On principle we do not see any justification
for denying such a right to the worshipper. An idol is in the position of a
minor; when the person representing it leaves it in the lurch, a person
interested in the worship of the idol can certainly be clothed with an ad hoc
power of representation to protect its interest. It is a pragmatic, yet a legal
solution to a difficult situation. Should it be held that a Shebait, who
transferred the Property ,Can only bring a suit for recovery, in most of the
cases it will be an indirect approval of the dereliction of the Shebait's duty,
for more often than not he will not admit his default and take steps to recover
the property, apart from other technical pleas that may be open to the
transferee in a suit. Should it be held that a worshipper can (1) (1916) I.L.R.
40 Mad. 212,225.
6 23 file only a suit for the removal of a
Shebait and for the- appointment of another in order to enable him to take
to recover the property, such a procedure
will be rather a prolonged and a complicated one and the interest of the idol
may irreparably suffer. That is why decisions have permitted a worshipper in
such circumstances to represent the idol and to recover the Property for the
idol. It has been held in a number of decisions that worshippers may file a
suit praying for possession of a property on behalf of an endowment; see
Radhabai Kom Chimnaji Sali v.Chimnaji Bin Ramji(1) Zafaarab Ali v. Bakhtawar
Singhe Chidambaranat- Thambiran @ Sivagnana Desika Gnanasambanda Pandara
Sannadhi v. P. S. Nallasiva(3) Mudaliar, Dasondhay v. MuhammadAbu Nasar(4),
Kalavana Venkataramana Aiyangar v. Kasturi Ranga- Aiyangar(s) Sri Radha
Kirshnaji v. Rameshwar Prashad Singh(6) Manmohan Haldar v. Dibbendu Prosad Roy
Choudhury.(7) There are two decisions of the Privy Council, namely Pramatha
Nath Mullick v. Pradyumna Kumar Mullick (8) and Kanhaiya Lai' v. Hanid Ali (9)
wherein the Board remanded, the case to the High Court in order that the High
Court might appoint a disinterested person to represent the idol.
No doubt in both the cases no question of any
deity filing a suit for its protection arose, but the decisions are authorities
for the position that apart from aShebait, under certain circumstances, the
idol can be represented by disinterested persons. B. K. Mukherjea in his book
"The Hindu Law of Religious and Charitable Trust" 2nd Edn sum--
marizes the legal position by way of the following propositions,,, among
others, at p. 249.
"(1) An idol is a juristic person in
whom the title to the properties of the endowment vests. But it is only in an
ideal sense that the idol is the owner. It has to act through human agency, and
that agent is the Shebait, who is, in law, the person entitled to take
proceedings on its. behalf. The personality of the idol might therefore be
said, to be merged in that of the Shebait.
(2)Where, however, the Shebait refuses to act
forthe idol, or where the suit is to challenge the act of theShebait himself as
prejudicial to the interests of the idol then there must be some other agency
which must have the right to act for the idol. The law accordingly recognises a
right in persons interested in the endowment to take proceedings on behalf of
(1)  I. L. R. 3 Bom. 27.
(3) (1917) 6 Law Weekly, 666.
(5) A. I.-R. 1917 Mad. 112.
(7) A. I. R. 1949 CAI. 199.
(2)  1. L. R. 5 All. 497.
(4)  1. L. R. 33 All. 66), 664.., (6)
A. 1. R. 1934 Pat. 584.
(8) (1925) L. R. 5 2 I.A. 245.
(9)  L. R. 60 1. A. 263.
6 24 This view is justified by reason as well
as by decisions.
Two cases have been cited before us which
took a contrary view. In Kunj Behari Chandra v. Sri Sri Shyam Chand Thakur(1)
it was held by Agarwala, J:, that in the- case of a public endowment, a part of
the trust property which had been alienated by the Shebait or lost in
consequence of his action could be recovered only in a suit instituted by a
Shebait. The only remedy which the members of the public have, where the
property had been alienated by a person who was a Shebait for the time being
was to secure the removal of the Shebait by proceedings under s. 92 of the Code
of Civil Procedure land then to secure the appointment of another Shebait who
would then have authority to represent the idol in a suit to recover the idol
properties. So too, a division Bench of the Orissa High Court in Artatran
Alekhagadi Brahma v. Sudersan Mohapatra (2) came to the same conclusion. For
the reasons given above, with great respect, we hold that the said two
decisions do not represent the correct law on the subject.
In the result, agreeing with the High Court,
we hold that the suit filed by the idol represented by a worshipper, in the
circumstances of the case is maintainable. The appeal fails and is dismissed
(1) A. 1. R.-1938 Pat. 394. (2) A 1. R.
1954 Orissa, II.