Pradip Kumar Chakraborty Vs. Jamila Khatun Bibi, 51 DLR (AD) (1999) 156

Case No: Civil Appeal No. 36 of 1996

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Mr. SS Halder,,

Citation: 51 DLR (AD) (1999) 156

Case Year: 1999

Appellant: Pradip Kumar Chakraborty

Respondent: Jamila Khatun Bibi

Subject: Hindu Law, Family Law,

Delivery Date: 1999-5-5

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mustafa Kamal J
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
AM Mahmudur Rahman J
 
Pradip Kumar Chakraborty
 …………….Appellant
Vs.
Jamila Khatun Bibi & ors
…………………Respondents
 
Judgment
May 5, 1999.
 
Hindu Law
In the prevailing circumstance most of the shebaits are not available due to death or leaving the country and most of whom available are dormant and not been taking any interest, in that position a devoted pujari and worshipper of the deity who offered himself as a next friend can not be precluded from representing the deity……..(17) 
 
Cases Referred to-
Pran Gopal Jiew Bigraha vs. Malika Begum &others, 25 DLR 387; Kishore Joo vs. Guman Behari Joo Deo, AIR 1978 All 1; Radhabai vs. Chimnaji, (1878) ILR 3 Born 27; Zafaryab Ali vs. Bakhtawar Singh (1883) ILR 5 All 497; Chidarnbaranatha Thambiran vs. PS Nallasiva Mudaliar, AIR 1918 Mad 464; Dasondhay vs. Muhammad Abu Nasar (1911) ILR 33 All 660 at page 664 (AIR 1917 Mad 112) (FB); Radha Krishnaji vs. Rameshwar Prasad Singh, AIR 1934 Pat 584; Manmohan Halder vs. Dibbendu Prosad Roy, AIR 1949 Cal 199; Pramatha Nath Mullick vs. Pradyunrnna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139); Kanhaiya Lal vs. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198); Bishwanath vs. Thakur Radha Balladhji, AIR 1967 (SC) 1044; Tarit Bhusan vs. Sreedhar Salagram, 45 Cal. WN 932: (AIR 1942 Cal 99); Sreedhar Jew vs. Kanto Mohan, 50 Cal WN 14: (AIR 1947 Cal 213); Sushama Roy vs. Atul Krishna Roy, 59 Cal WN 779: (AIR 1955 Cal. 624); Sri lswar vs. Gopinath Das, AIR 1960 Cal 741.
 
Lawyers Involved:
SS Halder Senior Advocate, instructed by SR Karmakar, Advocate-on-Record—For the Petitioner
MA Wahab Mia, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record —For the Respondent.
 
Civil Appeal No. 36 of 1996
(From the judgment and order dated 28 July 1993 passed by the High Court Division, Dhaka in Civil Revision No. 7343 of 1991).
 
JUDGMENT
Bimalendu Bikash Roy Choudhury J.
 
1. The decision in this appeal turns upon the question whether any person other than a she bait can prosecute a suit as a next friend of the deity.
 
2. The question has arisen in this way:
There is a temple where the deity of Sree Dasha Bhuja Mata, commonly known as Sree Sree Dhakeswari Mata, had been installed from the days of antiquity. It lies within the city of Dhaka. The votaries of the deity are the members of the Hindu community at large spread all over the country.
 
3. The said deity sued forma pauperis through her managing shebait and a next friend, Hem Chandra Chakraborty who in his turn figured as plaintiff No.2 for declaration of her title to item No. 1 of the ‘ka’ schedule of the plaint, for recovery of possession in item No. II thereof and for mesne profits etc on the allegations, inter alia, that Paramananda Giri Goshwami who was one of the dormant shebaits of the deity executed and registered on 22 August 1952 a deed of Kayemi Mokarari Mirashj Patta in favour of one Nasu Mia, predecessor of defendant Nos. 1-7 purporting to lease out the suit property described in item No.1 of schedule ‘Ka’ to the plaint. The lease, not being for legal necessity or for the benefit of the deity was not binding on her and the deity was still the owner thereof. It was further alleged that Hem Chandra Chakraborty had alone been looking after the affairs of the deity and performing her seva puja, but most of his co-shebaits had left for India and those who were still residents at Dhaka had not been taking any step to recover the said endowed property, in order to safe-guard the rights of deity.
 
4. During the pendency of this suit Hem Chandra Chakraborty died on 7 September 1981 leaving behind his heirs. From amongst them his son Pradip Kumar Chakraborty along with predeceased son’s son and widow made an application for substitution of Pradip Kumar Chakraborty in place of Hem Chandra Chakraborty as the next friend of the deity and for substitution of all of them in place of the deceased Hem Chandra Chakraborty, plaintiff No.2.
 
5. By an order dated 17 July 1991 the learned Subordinate Judge rejected the prayer for substitution of Pradip Kumar Chakraborty as the next friend of the deity while allowing substitution of the heirs in place of the deceased plaintiff No.2.
 
6. Being aggrieved by this order Pradip Kumar Chakraborty moved the High Court Division in revision, Civil Revision No. 7343 of 1991. A learned Single Judge of the High Court Division, by judgment and order dated 28 July 1993, discharged the Rule holding that in the instant case Hem Chandra Chakraborty is shown to be litigating as the Shebait in his official capacity and if this claim to the office as Shebait falls through, his heirs are not entitled to be substituted. Hem Chandra Chakraborty having no 157 right to represent the deity, his heirs, on his death cannot succeed or be substituted in that capacity as the plaintiff in the suit”.
 
7. Against the said judgment of the High Court Division Pradip Kumar Chakraborty has preferred this appeal for the deity with the leave of this Court.
 
8. SS Halder, learned Counsel for the appellant, submits that both the trial Court and the High Court Division upon a misconception as to the status of the deity and the prayer for her representation in the suit on the death of Hem Chandra Chakraborty illegally disallowed the prayer of Pradip Kumar Chakraborty to represent the deity as a next friend. He submits that both the Courts below failed to realise that in a case of appointment of a next friend of a deity upon the death of the existing shebait /next friend any person interested in the  endowment for the deity could be considered in the absence of a managing shebait or a shebait acting adversely to the interest of the deity.
 
9. There are a number of illuminating decisions of the superior Courts of this sub continent over the subject. In Sri lswar vs Gopinath Das, AIR 1960 Cal 741, the Calcutta High Court had the occasion to consider a case of similar nature. After review of a considerable number of cases Mallick, 3 speaking for the Court said at P. 748:
 
“According to Hindu Law, shebait represents the deity and he alone is competent to institute a suit in the name of the deity. In exceptional circumstances, however, where the shebait does not, or by his own act deprives himself of the power of representing the deity, a third party is competent to institute a suit in the name of the deity to protect the debutter property.”
 
He further said:
 
“As I understand the law, the person entitled to act next friend is not limited to the members of the family or worshiper, Anybody can act as such next friend, but the law requires that anybody other than shebait instituting a suit in the name of the deity must be appointed as such by an order of the Court. That is the law as recognised by this Court. Reference may be made to the case of Tarit Bhusan vs. Sreedhar Salagram, 45 Cal. WN 932: (AIR 1942 Cal 99), Sreedhar Jew vs. Kanto Mohan, 50 Cal WN 14: (AIR 1947 Cal 213), and Sushama Roy vs. Atul Krishna Roy, 59 Cal WN 779: (AIR 1955 Cal. 624)”
 
10. In fact, much earlier, the Judicial Committee of the Privy Council pronounced in Pramatha Nath Mullick vs. Pradyunrnna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139) and Kanhaiya Lal vs. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198) that apart from a shebait, under certain circumstances, the idol can be represented by disinterested persons.
 
11. In Bishwanath vs. Thakur Radha Balladhji, AIR 1967 (SC) 1044 the Supreme Court of India, while considering whether a mere worshipper can represent the idol when a shebait acts adversely to the interest of the idol, has this to say:
 
“The question is, can such a person represent the idol when the shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle, we do not see any jurisdiction for denying such a right to the worshipper. An Idol is in the position of a minor and when the person representing it leaves in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the shebait’s duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be held that a worshipper can file  only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol."
 
12. Their Lordships for such view have relied upon the decisions in Radhabai vs. Chimnaji, (1878) ILR 3 Born 27, Zafaryab Ali vs. Bakhtawar Singh, (1883) ILR 5 All 497, Chidarnbaranatha Thambiran vs. PS Nallasiva Mudaliar, AIR 1918 Mad 464, Dasondhay vs. Muhammad Abu Nasar, (1911) ILR 33 All 660 at page 664 (AIR 1917 Mad 112) (FB), Radha Krishnaji vs. Rameshwar Prasad Singh, AIR 1934 Pat
 584 and Manmohan Halder vs. Dibbendu Prosad Roy, AIR 1949 Cal 199 in addition to those of the Privy Council mentioned hereabove.
 
13. In this context, reference may also be made to the following observations of Sapra, J in Kishore Joo vs Guman Behari Joo Deo, AIR 1978 All 1:
 
“It was submitted that it was only the Maharaja of Charkhari who, in his capacity as a Shebait could file the suit on behalf of the Idol. It is settled law that normally it is the shebait alone who can file a suit on behalf of the Idol, but it is also equally well settled that in exceptional circumstances persons other than a shebait can institute a suit on behalf of an Idol”.
 
14. For this view the learned Judge got inspiration from the following excerpt of BK Mukherjea book on “The Hindu Law of Religious and Charitable Trust”:
 
“The deity as a juristic person has undoubtedly the right to institute a suit for the protection of its interest. So long as there is a shebait in office, functioning properly, the rights of the deity as stated above practically lie dormant and it is the shebait alone who can file suits in the interest of the deity When, however, the shebait is negligent or is himself the guilty party against whom the deity needs relief, it is open to worshipper or other persons interested in the endowment to file suits for the protection of the debutter. It is open to the deity also to file a suit through some person as the next friend for recovery of possession of property improperly alienated or for other relief. Such a next friend may not unoften be a person who as a prospective shebait or a worshipper is persona1ly interested in the endowment”.
 
15. Our High Court Division referring to several decisions of Indian jurisdiction held in Pran Gopal Jiew Bigraha vs Malika Begum &others, 25 DLR 387:
 
“On the authorities cited above, I can safely conclude that a person other than the Shebait or a member of the family, if the Deity is private but worshipper can apply to the Court for being appointed as the next friend or guardian ad-litem of the Deity as the case may be, to protect the interest of the Deity.”
 
16. We fully endorse the above views and take them as settled principles of law.
 
17. In the instant case, most of the shebaits have already left the country or have since died. A few who are in this country are dormant and have not been taking any interest in the cause of the deity and play its next friend. In the circumstances Pradip Kumar Chakraborty who is admittedly a pujari and a worshipper of the deity and has offered himself to act, as next friend of the deity can by no means be precluded from representing the deity as such.

Accordingly, the appeal be allowed and the impugned orders of the Courts below be set aside. The prayer of Pradip Kumar Chakraborty to represent the deity as next friend in place of the deceased be allowed. No order as to costs.
 
Ed.