MAHADOBA DEVASTHAN Vs. MAHADBA ROMAJI BIDKAR

JUDGEMENT

(1.) This is a first appeal from the decision of the learned Joint Civil Judge (S.D.) Mahadoba Devasthan vs. Mahadba Romaji Bidkar and Ors. (19.12.1951 -BOMHC) Page 3 of 9 ji Bidkar and Ors. (19.12.1951 -BOMHC) Page 3 of 9 at Poona who dismissed the plaintiff's suit. The plaintiff is the Shree Mahadoba Devasthan, Mouje Theur, Kasbe Poona, by its vahivatdar Keshav Waman Waghule, and the suit was filed by the plaintiff thus described against the original defendant 3 who was the then vahivatdar and the father of Keshav Waman Waghule and defendants 1 and 2 who were alienees of certain properties alleged to belong to the plaintiff for two declarations, one that the sale-deeds of the suit lands were void and the lands were of the ownership of Shree Mahadoba Devasthan, and two, that the plaintiff was entitled to recover possession oi S. Nos. 240A, 242, 243 and 344 from the Government and recover possession of s. nO. 245 from the defendants and costs of the suit. The defences which were taken up were that Keshav Waman Waghule was not the vahivatdar, defendant 3 being the vahivatdar of Shree Mahadoba Devasthan, that the suit properties Vere not the Devasthan properties, that the alienations were valid and binding on the plaintiff and that the suit was barred by limitation, the defendants having been in adverse possession o the properties for more than the prescriptive period. The learned trial Judge held the existence of the Shree Mahadoba Devaathan and the grant of the suit properties to the said Devasthan proved. He also held proved that Ganoji bin Rakhamoji, the ancestor of original defendant 3, was a trustee and his trusteeship was hereditary. He, however, came to the conclusion that Keshav Waman Waghule was not entitled to bring the suit on behalf of Shree Maha-doba Devasthau. He, therefore, dismissed the plaintiff's suit without .recording his findings in regard to issues Nos. 5, 6, 8, 9 and 10. This appeal haa been filed by the plaintiff against that decision of the learned trial Judge.

(2.) The main question which has been agitated by Mr. Lulla for the plaintiff is that even if the lower Court came to the conclusion that Keshav Waman Waghule was not the vahivatdar of the Shree Mahadoba Davasthan, the order of dismissal was not justified because the plaintiff was Shree Mahadoba Devasthan to whom the suit properties belonged, and 'the mere fact of the suit having been filed in the name of Shree Madadoba Devasthan by Keshav Waman Waghule describing himself as its vahivatdar did not vitiate the suit. Shree Mahadoba Devasthan is a description o the institution whore the imago of Shree Mahadoba has been installed and is worshipped. The image of Shree Mahadoba is, as has been held by the Privy Council, a juridical person and capable of holding property and also capable of suing or boing sued. The contention, however, which was urged by the defendants and which found favour with the learned trial Judge was that even though the image of Shree Mahadoba was a juridical person the whole management of the properties belonging to the image could be and was carried on by its shebait or its vahivatdar and the right tp sue for the protection of the properties belonging to tho image of Shree Mahadoba was vested in the shebait and not in the image or the idol. Reliance was placed in support of this contention on the observations o their Lordships of the Privy Council in Jagadindra Nath v. Hemanta Kumari Debi, 32 cal. 129 p. c. where Sir Arthur Wilson observed (p. 141) : "But assuming the religions dedications to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebait. And this carries with it tho right to bring whatever suits are necessary for the protection of the Mahadoba Devasthan vs. Mahadba Romaji Bidkar and Ors. (19.12.1951 -BOMHC) Page 4 of 9 ji Bidkar and Ors. (19.12.1951 -BOMHC) Page 4 of 9 property. Every such right of suit is vested in the shebait, aot in the idol, And in the present ease the right to sue accrued to the plaintiS when he was under age. The case therefore falls within the clear language of Section 7, Limitation Act..." These observations were particularly relied on for the purpose of shewing that the suit for sotting aside the alienations complained of could not be filed in the name of Shree Mahadoba Devasthhan at all but could only be filed in the name of the shebait for the time being who was Waman Chimnaji Waghule, original defendant 3. These observations of their Lordships of the Privy Council were, however, made .in a suit which was a suit for recovering possession of the property belonging to tho idol against the persons who had dispossessed the idol of the same. The shebait of the idol was then a minor. The idol was no doubt a juridical person and capable of suing or being sued, but even there the suit could be brought in the name of the idol by the shebait and the shebait was a minor with the result that their Lordships o the Privy Council held that the right of possession and management of the dedicated property having belonged to the shebait whatever suits were necessary for the protection of the property couid also be brought by the shebait. There is no doubt that the words "not in tho idol" are a part of tho sentence which was used by their Lordships : "Every such right is vested in the shebait, not in the idol." Their Lordships of the Privy Council were, however, concerned with a case where even if the idol being a juridical person capable of holding the property could have filed the suit for recovering possession of the property of which it was dispossessed, that suit could only have been filed though in tho name of the idol by its shebait and the shebait being a minor, they had got to consider what the position would be if the shebait was the person who could and should have filed the suit in the name of the idol for recovering possession of the property. We are of tho opinion that their Lordships had not their attention t'ocussed on this aspect of tho question, namely, whether a suit could have been filed in the name of the idol by the shebait apart from the shebait vindicating his right of possession and management of the dedicated property and filing a suit for the protection o the same. This dictum of their Lordships of the Privy Council was considered by a Division Bench of the Calcutta High Court in the case of Jyoti Prosad v. Jahor Lal, A. I. R. 1945 cal. 268. In the course of the judgment Biswas J. observed as follows (p. 277) :

(3.) Normally speaking, a manager or an agent would not be competent to file a suit in his own name in regard to the affairs of his principal and euch a suit even if brought by the manager would lave to be in the name of the principal. The prin-cipal in the case of an image or idol is not an entity capable of acting on its own, with the result hat it has of necessity got to act through its manager or an accredited agent, who under the circumstances is the only person capable of per-orming these functions in the name of the idol, The shebait is in possession and management of he property belonging to the image or idol, and laving such possession and management vested n him, it is only an extension of the principle of responsibility from the image or idol to the manager, or to use the other words, from the prin-ipal to the agent to vest the right of protection of the property which is incidental to the right of possession and management thereof by way of filing a suit in connection with the same, in the sbebait. The extension of the right in tho shebait lowever does not mean that the right which the image or the idol as a juridical person has by virtue of its Mahadoba Devasthan vs. Mahadba Romaji Bidkar and Ors. (19.12.1951 -BOMHC) Page 6 of 9 ji Bidkar and Ors. (19.12.1951 -BOMHC) Page 6 of 9 holding the property to file a suit in regard thereto is by any process eliminated. Both these rights can exist simultaneously, so that if the suit is filed in the name of the image or idol, the image or the idol would be a proper plaintiff, though, as observed before, of necessity it would have to be represented in the suit by its manager or shebait. If the manager or the shebait on the other hand chooses in vindication of his right to sue for the protection of the properties to file a suit in his own name, he may just as well do so. But that would be no bar to the right of the image or the idol to file such a suit if it had chosen to do so. Of course these rights either by the image or the idol or by the manager or by the shebait could be exercised only by the one or the other and not by both; so that if the cause of action was prosecuted to judgment, it would be merged in a decree properly passed in favour of the plaintiff and the defendant could not be proceeded against any more in respect of that very cause of action. We are, therefore, of the opinion that the suit waa properly filed in the name of Shri Mahadoba Devastlian the image or idol by its vahivatdar Ke-shav Waman Waghule. It was, however, urged by Mr. Chandracaud that Keshav Waman Waghule was not in fact the vahivatdar. The vahivatdar-for the time being was his father Waman Chim-naji Waghule, original defendant 3. Normally speaking again this would be the correct position and we have the analogy of suits filed on behalf of the minors and lunatics by their next friends. Where there is a testamentary guardian or a certificated guardian, nobody except such guardian could be the next friend of a minor plaintiff. But if the interests of that guardian were adverse to those of tho minor, he certainly could not be appointed the nest friend for the purpose of the suit. Applying that analogy so far it is possible to do so in the circumstances of the present case, no Court would appoint the manager or tho shebaitj who was himself a party to an unauthorised alie-nation as the nest friend of the image oc the idol where the alienation was being challenged. The next friend would, of necessity, be some person other than the manager or tho shebait of the image or tho idol, and what better person could ever be found than the person next in order of succession of the shebaitehip? in the case before us, Waman Cbinmaji Waghule was the person who was alleged to have unauthorisediy alienated some of the suit properties. He could certainty not be appointed the next friend of the plaintiff for the purpose of instituting and prosecuting this suit. Keshav Waman Waghule, tho son of original defendant 3, waa the next vahivatdar after Waman Chimnaji Waghule. It waa therefore in the fitness of things that he acted as the next friend of tha plaintiff in the matter of the institution and prosecution of this suit.