SHIVA NAND Vs. SHANKERJI MAHARAJ BIRAJMAN MANDIR

JUDGEMENT

(1.) This second appeal arises oat of a suit for injunction filed in respect of a property belonging to the deity, Shankarji Maharaj filed by the deity and one Manni Lal, claiming to be the Manager of the property of the said deity, over which the defendant-appellants and, their predecessor-in-interest Shri Kamla Nand wanted to make certain encroachments. The two courts below have returned concurrent findings and have decreed the suit holding that Manni Lal was the Manager of the properties of plaintiff 1. The original defendant Kamla Nand claimed to be the Pujari of the said temple and claimed to be in management thereof, having been authorised by Vithal Sewa Ashram Samiti, which pleas have not found favour with the courts below.

(2.) The short question which has been raised in the appeal is whether on the death of the original plaintiff, Mannilal, the suit was still maintainable by his heirs? It may be recalled that after the suit had been decreed by the trial court. Kamla Nand, the original defendant died and the appellants alone went up In appeal against the trial court decree. When their appeal was dismissed, they alone filed the present appeal againsl the plaintiffs. During the pendency of the appeal in this court, heirs of Manni Lal plaintiff-respondent 2, were brought on record by an order of this court dt. 6-5-82. The appellants themselves brought his heirs on the record as the legal representatives of Manni Lal who are now contesting the appeal. It has been contended before me firstly that Manni Lal had, no right to file the suit and secondly that he had only claimed a personal right as Manager and on his death the suit should fail and his personal heirs had no right to continue the suit. In support of his contention he placed reliance on some decisions which are dealt with hereunder.

(3.) Reference was made to Jodhi Rai v. Basudeo Pd. (1911) ILR 33 All 735 wherein a Full Bench of this court was dealing with the position of idol and its capacity to bring a suit in its own name. It was observed in that case as under: "An idol has been held to be juristic person who can hold property. Therefore, when a suit is brought in respect of property held by an idol, it is tre idol who is the person bringing the suit or against whom the suit is brought, the idol being the person beneficially interested in the suit. No doubt, in every suit the party bringing it or the party against whom it is brought must, when he is suffering from an incapacity, being represented by some other person, as in the case of an infant or a lunatic. Therefore, when a suit is brought on behalf of or against an idol, there must be on the record a person who represents the idol, such as the Manager of temple in which the idol is installed. The Manager of the idol is not personally interested in the suit, any more than is the next friend or guardian of the minor. As a suit by a minor should be brought in the name of the minor and not of his next friend, so should a suit on behalf of the idol be brought in the name of the idol as represented by the Manager, and in a suit against the idol the defendant should be similarly described. It is true that every pleading must be signed by a sentient being; but this can be done by the manager; just in the same way as in the case of an infant the pleadings are signed by his next friend or guardian for the suit. The first defendant in this suit was, therefore, properly described in the plaint, and the view of the learned Judge in this respect is, in our judgment, erroneous. If there is any defect in the description of the defendants in suit of this kind, it is nothing more than an irregularity or misdescription. If, for instance, a suit on behalf of an idol is brought in the name of the manager of the idol that would not warrant dismissal of the suit; but the plaint may be amended by correcting the description."