GOBINDA DAS NATH Vs. SHYAMA CHARAN NATH

JUDGEMENT

(1.) The plaintiffs who are two in number brought this suit on tha following allegations. One Kirti Chandra Dutta the predecessor-in-interest of the plaintiffs and the defendants, dedicated certain property to a deity, Sri Sri Iswar Brindaban Behari Deb. He appointed himself the she bait and made provision for the succession to the shebaitship. The two plaintiffs and defendant 1 who is the principal defendant each possessed 5/12 share of the shebaiti right and the pro forma defendants possessed the remaining shares. From time immemorial each shebait used to perform the worship of the deity according to his pala or turn; each shebait also used to collect the rent of the debutter property in proportion to his share in the shebaiti interest and used to pay thereout such portion of the Government revenue as corresponded to his share in the shebaiti. Defendant 1 continually defaulted in making arrangements to pay the share of the Government revenue which was payable by him. The plaintiffs, in order to save the estate and to protect their shebaiti interest, have paid the entire revenue as there are no separate accounts in the Collectorate. They accordingly sued defendant 1 for contribution to the extent of the share of the Government revenue payable by him which had already been paid by the plaintiffs. The defendant; denied all the statements in the plaint except that he admitted that he has a 5/12 share in the shebaiti interest. He says that in spite of his having this share the plaintiffs have kept him out of possession of the debutter property and are mismanaging and misappropriating it. He alleges that the plaintiffs had ample funds of the debutter estate out of which to pay the Government revenue and that the suit is not maintainable in the form in which it has been brought. The trial Court gave the plaintiffs a decree. The defendant appealed and his appeal has been dismissed. He now appeals to this Court. On behalf of the appellants two broad contentions were urged; firstly that the suit as framed does not lie and secondly that the judgment of the learned Judge should be set aside as it does not contain any findings regarding the material facts of the case and as it is based on an erroneous conception of the law relating to the rights of shebaits.

(2.) The first objection taken by learned advocate for the appellant is based on the assumption that this suit is by the idol represented by some only of the shebaits against the other shebaits. It is argued that a suit in this form cannot lie, firstly, because on the facts alleged the idol has no cause of action and secondly, because the idol must sue by the entire body of shebaits or by a next friend duly appointed for that purpose. There can be no doubt that the facts alleged in the plaint do not disclose any cause of action in the idol. Obviously the idol has no interest in the quarrel between the plaintiffs and defendant 1 regarding reimbursement. This is not a case of any complaint being made on behalf of the idol that its estate is being wasted by some of the shebaits, nor is the idol claiming anything against any third party. The present case relates to a dispute between two groups of shebaits. If the suit is by the idol then clearly it should be dismissed for want of a cause of action so far as the idol is concerned. The suit however is really not by the idol at all. The plaintiffs are described as shebaits of the idol, but the idol himself is not made a party and no claim is made on behalf of the idol. It is true that the learned Munsif has described the suit as being a suit for contribution brought by the "plaintiff deity" against the defendant but this description of the suit is erroneous and not supported by the pleadings. The mis-conception of the learned Munsif is probably due to an entirely confused and wrong view which his judgment shows he entertains regarding the interest which a shebaifc has in debutter property. Be that as it may, this suit is really one by some shebaits against another shebait for the realization of a sum of money paid by the former which ought to have been paid by the latter; it is not a suit by the idol. It cannot therefore be said that the suit should fail on the ground that the plaintiff is the idol and that the plaint discloses no cause of action in the idol or on the ground that this is a suit brought by the idol improperly represented by only some of the shebaits.

(3.) There is another argument in support of the objection against the frame of the suit. It is said that one set of shebaits cannot sue another set of shebaits as they are in the position of joint trustees. There is no authority so far as I know which lays clown such a broad proposition. I am not concerned with what would be the position of trustees. Shebaits are managers of the debutter property and although their rights and duties to some extent resemble those of trustees it is now well established that they are not trustees in the true legal sense of the term inasmuch as the property of the estate is not vested in them. There is a long string of decisions of the Judicial Committee which lays this down. I need mention only the case in Vidya Varuthi Thirtha V/s. Balusami Ayyar (1922) 9 A.I.R. P.C. 123 at p. 312. This was also the view expressed recently by Mukherjee, J. in Manindra Deb V/s. Hanseswari (1936) 63 Cal. 629 at page 276. I can see no reason why, as manager of the estate of the idol, one of the shebaits cannot sue the others for expenses incurred in the course of management if it can be established that there was an obligation in the other managers to share in the pay. iment of these expenses. This suit is really not one by some of the shebaits for the benefit of the deity against the other shebaits. In that ease some difficulty may arise on the ground that the deity cannot be considered as being properly represented by some only of its shebaits as was pointed out by the Judicial Committee in Pramatha nath V/s. Pradyumna Kumar . Nor is this a suit by some shebaits for the recovery of a fractional share of the rent due under a lease to the deity, such share representing the shebait's share in the shebaiti right as was the case in Baraboni Coal Concern Ltd. V/s. Gokulananda Mohant Thakur . There the Privy Council held that such a suit would not lie for two reasons, viz. (1) because the terms of the lease forbade this course and (2) because the plaintiffs being interested in the property demised merely as shebaits and not as owners they could not sue for a fractional share of what was due to the deity as a whole. The present suit, however, is of an entirely different character. The deity is not involved in this suit at all. Nothing is claimed for or on behalf of the deity. This suit arises out of an alleged breach of an obligation said to exist between the two groups of shebaits. The plaint in parts is not happily, worded but this is really the nature of the suit. In Baraboni Coal Concern Ltd. V/s. Gokulananda Mohant Thakur , which was relied on by the learned advocate for the appellants in support of his argument that the suit was not maintainable, the Privy Council did not prohibit a suit like the present one nor did they lay down any principle, which would be offended by the institution of such a suit. I hold therefore that the objection to the frame of the suit cannot be supported.