SOMANATH DANI Vs. GOPAL JEW MOHAPARVU

JUDGEMENT

(1.) This is a First appeal against the judgment and decree dated 5-11-1956, of Sri S. K. Mitra, Subordi-nate Judge of Sambalpur, arising out of a suit for foreclosure on the basis of a mortgage transaction dated 1-3-37 for a principal amount of Rs. 3500/-. The suit has been filed for Rs. 7000/- by the plaintiff Gopal Jew Mohapravu, represented through Raghunath Pujhari, the Manager of the deity. Defendants 1 and 2 and the deceased father of defendant No. 1 are the executants of the mortgage deed. Defendants 3 to 6 are the sons of defendant No. 2. Defendant No. 7 is a purchaser of a portion of the mortgaged property. It may be noted that in the mortgage deed, the mortgagee was named as Gopal Jew Mohapravu through the then manager, Nilamani Das. The plaintiffs suit is on the basis that the mortgage transaction is for the legal necessity of joint family consisting of defendants 1 to 6, and as such binding on the defendants. The main defence is that the present so-called next friend Raghunath Pujhari cannot represent the plaintiff and the suit in that view of the matter is not maintainable. Further defence was that the deity is only a benamidar, while in fact the money was advanced by the Maharaja of Sonepur. Several issues were raised; but the two important issues which are necessary for quotation are issues Nos. 1 and 3. --Issue No. 1-- "Can the present next friend represent the plaintiff?" and the issue No. 3--"Is the suit maintainable?" The other issues indeed were not seriously pressed. The trial Court gave ft decree in favour of the plaintiff finding that the defendants are estopped, from challenging the present manager Raghunath Pujhari to represent the deity, inasmuch as the mortgage transaction itself was executed by defendants 1 and 2 with their father in favour of the deity who was represented by the then manager, Nilamani Das. Whether a manager can properly represent the deity to bind the deity by a decree eventually passed in a suit was not decided.

(2.) Mr. U. C. Misra, appearing on behalf of the defendants-appellants takes up the point that the suit must fail as the deity has not been properly represented. The admitted position is that the Maharaja of Sonepur is the sebait (de jure) of the plaintiff deity. In the plaint it was asserted in paragraph 9 that the manager Raghunath Pujhari is the duly and authoritatively constituted manager of the plaintiff deity, and as such he is competent to represent the deity. In the written statement filed by defendant No. 1 it was alleged, "The present so-called next friend cannot represent the plaintiff and the suit in that view of the matter is not maintainable". In the two other written statements -- one filed by defendants 2 to 6 and the other by defendant No. 7 -- it was categorically stated that Raghunath Pujhari is not the manager as alleged and he cannot represent the deity. The evidence as to whether Raghunath Pujhari is the properly constituted manager of the deity appears to be very meagre. The evidence on the plaintiffs side is practically confined to the statement of Raghunath Pujhari (P. W. 2) and the evidence on the defence side is that of defendant No. 1 who is also D. W. 2. Raghunath Pujhari admits that he bad been appointed manager by the Maharaja of Sonepur in the year 1953, and he gets a sum of Rs. 50/- as pay for acting as such from the present Maharaja of Sonepur whose ancestors had founded or established the deity and installed the same in the temple. He also admits that the Maharaja olE Sonepur can dismiss him or remove him from the managership of the deity, as the Maharaja is the appointing authority. The position remains as admitted that it is the Maharaja of Sonepur who is the sebait and de jure manager of the deity. Raghunath Pujhari P. W. 2 also admits that there are rules in the temple of the plaintiff deity which enjoins the duties of different persons who work for the deity; but there are no rules defining the duties of the manager of the plaintiff deity. In this state of evidence, we are of the view that the deity in the present suit is not pro- perly represented and the decree which has eventually been passed in such a suit brought by the deity not having been properly represented, cannot be legally binding against the deity.

(3.) We would avail of this opportunity to clarify the position of law as to how in suits of this nature a deity can be said to be properly represent- ed. Ever since the decision of their Lordships of the Privy Council in Jagadindra Nath Rai v. Hemanta Kumari Devi, ILR 32 Cal 129 the position was recognised that right to property vests in the deity; but as the deity is a spiritual juristic person, right to sue is vested in the sebait and not in the deity. The position has been clarified by a number of decisions, and the proposition to a great extent is widened in order to meet the contingencies arising out of all situations where the de jure sebait had disqualified himself to bring a suit of this nature fay his own conduct, or where a person who asserts to represent the deity has not been able to fully estab-lish his absolute right to be the de jure trustee or manager. It will be needless in this appeal to refer to and trace out the history of the decisions. But we think it sufficient to refer to a Bench decision of this Court reported in Artatran v. Sudersan, ILR 1953 Cut 578 : (AIR 1954 Orissa 11), where after review of quite a number of decisions the position was fully explained and clarified. The leading judgment was delivered by Mohapatra J. to which Narasimham, J. (as he then was) agreed. It was laid down that in the case of a public endowment, it is the sebait alone who can represent the deity to bring a suit for recovery of possession of the properties improperly alienated by a sebait, and other members of the public have got the remedy under the provisions of statutes for removal of the trustee who is guilty of maladministration and for the appointment of a new trustee who alone can represent the deity. In the case of a private endowment, where there is a shebait in existence, he is the only person competent to sue on behalf of the idol unless his interest is adverse to that of the idol, or because of quarrels and conflicts between the different shebaits, or on account of several circumstances, the de jure shebait has disqualified himself to bring a suit, some other person is to be appointed by the Court to represent the idol. Where there is no sebait, it is open to any person interested in the religious foundation to bring a suit as the next friend of the idol with the permission of the Court. That was a case of a public endowment and the villagers on the basis of their right to worship the deity had brought the suit for setting aside the alienation by the then marfatdar. The marfatdar was made a party. It was however decreed in the form that the alienation was set aside, the properties were to be recovered from the alienees and possession was to be obtained by the deity through the marfatdar and not by the villagers. After this decision, there has been a subsequent decision of the Calcutta High Court reported in Sushama Roy v. Atul Krishna, (S) AIR 1955 Cal 624 which was in respect of a private institution, and they reiterated the same view. In the Cuttack case, as we have mentioned, the de jure marfatdar was made a party in order to clarify the position a little more, that where in the circumstances the. de jure manager has disqualified himself to bring a suit, the persons interested in the deity should obtain the permission of the court to prosecute the suit establishing their competency and the peculiar circumstances existing. But in such a suit the de jure manager should be made a party, so that the decree passed would be binding nbt only against the deity, but against the de jure manager, and should be a valid and forceful decree binding against all parties concerned. This will obviate all future difficulties.