GURU CHARAN JENA Vs. SATYANARAYAN JEW THAKUR

JUDGEMENT

(1.) THIS appeal was referred to a Division Bench for disposal by a learned Single Judge and that is how it has come before this Bench.

(2.) THE defendant is the appellant against a reversing judgment of the learned Third Additional Subordinate Judge, Cuttack, in a suit for ejectment and for recovery of rent until the termination of the tenancy and damages for use and occupation until delivery of possession.

(3.) THE only other question that remains for consideration is as to whether though properly constituted at the time of institution, the suit became non-maintainable on account of non-substitution of the legal representatives of plaintiffs 4 and 6 who died during the pendency of the suit. THE learned Appellate Judge relied upon a Bench Decision of the Patna High Court in AIR 1942 Pat 181 (Sadhu Charan v. Krishnamani Dei). As the report shows, a money decree had been obtained by a deity. THEre appeared to be 23 marfatdars and the suit had abated against one, but the decree had been passed. An objection was taken during the execution proceeding that the decree was a nullity the suit having abated on account of the death of one of the shebaits. THE question that engaged the attention of the Division Bench in the said case was as to whether in the facts of the case the decree was not a valid one. Meredith, J. spoke thus :" THE question as to the effect of the death of one of the shebaits before the trial has been argued at great length. THE contention on behalf of the appellants is that the shebaits form a corporate body, and can act only as a whole; every one of them is a necessary party to the suit, if not as plaintiff, at least as defendant. In support of this contention a number of rulings have been cited, going back to the Privy Council case of Rajendranath Dutta v. Shaikh Mohamed Lal, (1882) ILR 8 Cal 42 (PC). Of the remaining rulings cited, it will suffice to notice Bechu Lal v. Oliullah, (1885) ILR 11 Cal 338, where it was held that all the mutwallis of the endowment should be made parties to a suit for recovery of property; Kokilasari Dasi v. Mohunt Rundranand Goswami, (1907) 5 Cal LJ 527, where it was held that where the administration of a trust is vested in several trustees, they all form, as it were, but one collective trustee and their interest and authority being equal and undivided they cannot act separately, but all must join; Abdul Gafur v. Umakanta, 24 Ind Cas 266 : AIR 1915 Cal 33, where it was held that joint shebaits are, in some respects, joint trustees, in order to succeed in the suit both shebaits should have joined as plaintiffs, or plaintiff should have made out a case that he was authorised by his co-shebaits to maintain the suit on her behalf; Thina Shanmugha Mooppana v. Mona Chuna, 70 Ind Cas 645 : (AIR 1922 Mad 317), where it was held that if several persons have a joint right of action all must join in suing, if any will not come in as plaintiffs, they must be joined as defendants, and co-trustees form one collective trustees, and cannot act separately; Baraboni Coal Concern Ltd. v. Gokulananda Mohanta Thakur, ILR 61 Cal 313 : (AIR 1934 PC 58), where the Privy Council held that one of several co-shebaits cannot sue for his own share of rent. Lastly it is pointed out, on the authority of the Privy Council in (1905) ILR 32 Cal 129 that, however the plaint may be worded, actually the right to sue for the protection of the dedicated property vests in the shebaits, and not in the idol." THE Court thereafter referred to the application for substitution and expressed the view that as the suit was already disposed of there could be no substitution in the execution proceeding so as to remove the defect of the decree in the suit, and thereafter formulated the question thus :