JUDGMENT Das, J. - The parties to this suit other than the deities and the Defendants Naraindas, Arun Chandra Rose and Sm. Sova Dutt wrongly named in the plaint as Sm. Sovana Dutt claim their descent from one Adhar Singh, a Hindu Sikh governed by Mitakshara School of Hindu law. Their relationship appears from the genealogical table annexed to the plaint. Sreegopal, the third son of Nanna Singh, who was the eldest son of Adhar Singh, on September 29, 1926, executed a deed of trust which has been marked as Ex. B in this suit. After reciting, amongst other things, that Sreegopal and his three brothers Madangopal, Ramgopal and Hargopal had separated about 5O years prior to that date and that.011 such partition premises Nos. 73 and 120, Cotton Street and No. 3, Moirahatta Street had been allotted to Sreegopal and Hargopal jointly and that after the death of his brother Hargopal in 1916 Sreegopal had separated from his nephews Bonwari, Madho, Mohon, Baldeo, Bhag-wan, Ramnarain, Harnanain and Shib-narain being the eight sons of "Hargopal about four years prior to that date and that he was desirous of making provisions for himself and his wife and daughter and the latter's family and the deity Sri Sri Gopal Jiu established by him. Sreegopal, as settlor, granted, assigned and transferred unto himself, as the trustee, his undivided half-share in five several items of immovable properties including the three Calcutta properties I have mentioned, upon the trusts, covenants and conditions mentioned therein. By this deed the trustee was directed, after payment, out of the rents to be collected, of revenue, rates, taxes and other outgoings and of certain monthly stipends to the settlor's wife, daughter and son-in-law and after setting apart Rs. 5O per month for repairs and improvements, to have the seba and periodical festivals of Sree Sree Gopal Jiu performed in the same manner and on the same scale as the same were then performed and to distribute the bhog amongst the shebaits who should be entitled to be maintained there out. Provision was made for payment, out of the income of the business, of Re. 1 per day for the expenses of the bhog of the deity Radhakrishna established by the settlor's uncle Lachman Singh at Benares which bhog was to be distributed amongst Sadhus, of a sum of Re. Provision was made for payment, out of the income of the business, of Re. 1 per day for the expenses of the bhog of the deity Radhakrishna established by the settlor's uncle Lachman Singh at Benares which bhog was to be distributed amongst Sadhus, of a sum of Re. 1 and 4 annas in preparing offering of Kara Prosad to the Granth Saheb located at Benares and for distribution of certain quantities of food-stuff amongst Brahmins and poor needy persons. By clause 8 Sreegopal appointed himself as the shebait of the deity during his life and directed that after his death such persons would be shebaits as he should by deed or will appoint. Clause 12 of the deed provided that after the death of Sreegopal his nephews Bonwari, Madho and Mohon should be the trustees and on the death or retirement of any trustee his male descendants in the male line, if of full age and of capable understanding, should be the trustee 6r trustees in the place of the deceased or retiring trustee. 2. Sreegopal died on October 16, 1926, leaving him surviving his widow Bittoo Bibi, his daughter Mahadeyi who was married to one Naraindas and had by him a daughter Tara Bai. 3. It will be noticed that the first three sons of Hargopal, namely, Bonwari, Madho and Mohon were made trustees after the death of Sreegopal to the exclusion of the five younger sons of Hargopal, a fact which naturally caused considerable resentment in their minds. Accordingly on the 8th December, 1926, Baldeo, Bhagwan, Ram-narain, Harnarain and Shibnarain, the five younger sons of Hargopal along with Surajnarain (son of Baldeo), Kuarnarain (son of Ramnarain), the three last named being then minors, filed Suit No. 2313 of 1926 against Ramgopal and his three sons, viz., Shyam Singh, Hiru Singh and Kissen Singh, Bittoo Bibi (widow of Sreegopal), Bonwari and his son Gobind (minor), Madho and his son Rajendra (minor), Mohan and his son Jagannath (minor), Mahadeyi, Naraindas, Tara Bai (minor) and Sree Sree Gopal Jiu by his shebait Bittoo Bibi. In that suit Madho, Bonwari and Mohon were sued in their respective individual capacity as well as trustees under the said deed of trust. In that suit Madho, Bonwari and Mohon were sued in their respective individual capacity as well as trustees under the said deed of trust. The plaint set out the relationship between the parties by tracing their descent from Adhar Singh and it was alleged that the descendants of Adhar Singh at all material times constituted a joint Hndu family possessed of various joint family properties acquired from time to time. The deed of trust executed by Sreegopal was impugned on the following grounds: (1) That the family being joint and the properties being joint family properties Sreegopal had no right to deal with or disposes of his undivided share or create any trust in respect thereof. (2) That Sreegopal had lost boa understanding and ceased to exercise any independent will and was completely under the domination of his brother Ramgopal shortly before his death and the said Ramgopal used that position to obtain an unfair advantage and put in various false recitals in the deed and that Sreegopal was led toy Ramgopal to deal with the said joint family properties with the object of defrauding the Plaintiffs and without knowing or considering its consequences. 4. The Plaintiffs prayed for a declaration that the properties were joint family properties and the said deed of trust was void and inoperative, for cancellation thereof, for a declaration of the respective shares of the parties in the joint family properties and partition thereof by metes and bounds, for accounts and for other reliefs. 5. Ramgopal Singh filed a written statement alleging that Nanna Singh and Lach-man Singh, the two sons of Adhar Singh, had separated in food and estate about 5O years prior to the date of that suit, that there had been a partition amongst the sons of Nanna Singh and that he, Ramgopal, had after such separation acquired separate properties which had been wrongly claimed in the plaint as joint family properties. He disclaimed all interest in the properties covered by the said deed of trust and repudiated all charges of undue influence imputed to him and asserted that Sreegopal executed the deed of his own free will and was competent to do so. Sham Singh, Hiru Singh and Kissen Singh adopted the written statement of their father Ramgopal. He disclaimed all interest in the properties covered by the said deed of trust and repudiated all charges of undue influence imputed to him and asserted that Sreegopal executed the deed of his own free will and was competent to do so. Sham Singh, Hiru Singh and Kissen Singh adopted the written statement of their father Ramgopal. Bonwari, Madho and Mohon filed a joint written statement alleging that Nanna Singh and Lachman Singh had separated in 1858 and that the sons of Nanna Singh separated from each other about 40 years prior to the date of that suit and that premises Nos. 73 and 120, Cotton Street and 3, Moirahatta Street had been allotted to Sreegopal and Hargopal jointly and that in or about October, 1924, Sreegopal had separated from the sons of Hargopal. They also repudiated the charges of undue influence and upheld the validity of the deed of trust. 6. Although Madho and Mohon had got themselves appointed by an order of Court as the guardian-ad-lit em of their respective sons Rajendra and Jagannath in place of Mr. H. K. Dutt, an attorney, who had been previously appointed by the Court, no written statement appears to have been filed by them as such. Nor does it appear that any written statement was filed by the other Defendants, namely, Bittoo Bibee, Mahadeyi and Naraindas. Mr. H. K. Dutt as the guardian-ad-litem of Tara Bai filed a voluntary statement leaving the interests of Tara Bai to the protection of the Court. 7. After various proceedings which included an application for the appointment of a receiver, Ramgopal died in 1928. Thereafter the parties arrived at certain terms of settlement. Accordingly, a petition of compromise was presented before the Court. By clause 1 of the terms of settlement the deed of trust dated 21st September, 1926, executed by Sreegopal was declared null and void and it was agreed that the same would be treated as cancelled. By clause 2 the eight sons of Hargopal were declared entitled to nine several items of properties including premises Nos. 73 and 120, Cotton Street and 3, Moirahatta Street. By clauses 3 and 4 it was agreed that the income of the several properties except Items Nos. 4 and 5 should be divided into eight shares and each of the eight sons of Hargopal should get one share. Clause 5 made provision for payment of Rs. 73 and 120, Cotton Street and 3, Moirahatta Street. By clauses 3 and 4 it was agreed that the income of the several properties except Items Nos. 4 and 5 should be divided into eight shares and each of the eight sons of Hargopal should get one share. Clause 5 made provision for payment of Rs. 6 per month by each of the sons of Hargopal to Bonwari for the maintenance of Bittoo Bibi and her daughter Mahadeyi and her costs and for payment, after the death of Bittoo Bibi, of Rs. 3 per month by each of them to Mahadeyi for life and 10 as. per month by each to Naraindas for life. Clauses 6 to 21 laid down the scheme of management of those properties and for separate occupation of portions of the dwelling-house No. 73, Cotton Street for the residence of the eight sons and of Bittoo Bibee and the location of the deity Sri Sri Gopaljiu. By clause 22 the parties agreed that Iswar Britti which would be realised by the sons of Hargopal should be utilised for the purpose of Pujas of Sri Sri Gopaljiu, Guru Granth Saheb, Kula Debi and for Durga Puja. Provision was made for payment of all debts of Sreegopal by the sons of Hargopal. Certain properties were declared to belong absolutely to the sons of Ramgopal, some properties were declared to belong absolutely to Shyam Singh and some properties in Benares and one Calcutta property said to have been acquired out of debutter funds were declared debutter, the sons of Ramgopal and Hargopal being the shebaits in respect thereof. The rest of the terms are not material for the purposes of the present suit. On September 3, 1928, a decree was passed in accordance with the aforesaid terms of settlement and the Court certified the terms to be for the benefit of the minors. 8. It appears from the evidence of Bonwari that an attempt was subsequently made by Naraindas, the son-in-law of Sreegopal to set aside the decree but apparently he was bought off or otherwise prevailed upon to give up such attempt. The sons of Hargopal after the consent decree began collecting the rents of the three Calcutta properties according to the shares and in the manner prescribed by the terms of settlement and continued to do so for over ten years. 9. The sons of Hargopal after the consent decree began collecting the rents of the three Calcutta properties according to the shares and in the manner prescribed by the terms of settlement and continued to do so for over ten years. 9. Towards the middle or end of 1939 the shares of Shibnarain and Harnarain in the premises Nos. 73 and 120, Cotton Street were sold in execution of decrees and bought by the Defendant Sm. Sova Dutt. In January, 1940, the shares of Madho and Mohon in those properties were also sold in execution of decrees and purchased by the Defendant Arun Bose. It just happened that in 1940, Rajendra, the eldest son of Madho, attained majority. Rajendra alleges that finding that outsiders were seeking to get possession of the dwelling-house he started making enquiries and as a result of such enquiries discovered that his father and his uncles had done a grievous wrong to the deity and that he thereupon took charge of the sheba of the deity Sri Sri Gopal Jiu and the management of its properties in his own hand and on 11th November, 1940, that is to say, on the reopening of the Court after the annual vacation of that year, filed the present suit. 10. The suit was originally filed only in the name of Sri Sri Gopal Jiu as the sole Plaintiff by his next friend and shebait Rajendra Narain Singh." The Defendants were and are Baldeo, Bhagwan, Ramnarain, Harnarain and Shibnarain (the five younger sons of Hargopal), Surajnaran (the eldest son of Baldeo), Kuarnarain (the eldest son of Ramnarain), Sham Singh and Hiru Singh (the surviving sons of Ramgopal), Bonwari, Madho and Mohon (the three elder sons of Hargopal), in their respective personal capacity and as trustees under the deed of trust, dated 29th September, 1926, Jagannath (the eldest son of Mohon), Mahadeyi, Naraindas and Tara Bai (the daughter, the son-in-law and the daughters of the daughter of Sreegopal), Radhakissen Jiu and Granth Saheb (deities located at Benares), Arun Chandra Bose and Sm. Sova Dutt (wrongly named as Sovana Dutt). Harrai and Charrai, the two sons of Bonwari, the younger sons of Madho, Mohon, Baldeo and Ramnarain and the sons of Harnarain and Shibnarain were impleaded as parties to this suit. 11. Sova Dutt (wrongly named as Sovana Dutt). Harrai and Charrai, the two sons of Bonwari, the younger sons of Madho, Mohon, Baldeo and Ramnarain and the sons of Harnarain and Shibnarain were impleaded as parties to this suit. 11. After referring to the pedigree of the family and tracing the descendants of Adhar Singh and pleading the establishment of the Plaintiff deity Sri Sri Gopal Jiu by Srigopal in or about the year 1920, the execution of the deed of trust, dated the 29th September, 1926, the institution on 8th December, 1926, of Suit No. 2313 of 1926 and the consent decree passed therein on the 3rd September, 1926, it was contended that the said decree was not binding on the Plaintiff deity for reasons set forth in paragraph 7 of the plaint, viz., that the Plaintiff was not at all or properly represented, and did not consent to the said decree, no guardian-ad-litem having been appointed by the Court, that the said decree was illegal and void and had been obtained by fraudulent description of the Plaintiff's rights and without any consideration, that the properties comprised in the deed of trust were not joint family properties, that there was no legal necessity for the alienation of the said properties, that a public charity for Brahmins and poor needy persons was set aside without the consent of proper parties, that the said decree and the said terms were not for the benefit of the Plaintiff and there was no finding of the Court to that effect, and that the trust was irrevocable and the beneficiaries could not and did not join in the cancellation thereof. Then after pleading the fact of purchase of the right, title and interest of Harnarain and Shibnarain in premises Nos. 73 and 120, Cotton Street, by the Defendant Sm. Then after pleading the fact of purchase of the right, title and interest of Harnarain and Shibnarain in premises Nos. 73 and 120, Cotton Street, by the Defendant Sm. Sova Dutt and the fact of the purchase of the right, title and interest of the Defendant Madho and Mohan in the said premises by the Defendant Arun Bose,the Plaintiff deity claimed cancellation and setting aside of the said decree dated 3rd September, 1928, a declaration that the said decree was not binding on the Plaintiff, declaration that the said deed of trust was binding on the parties, payment of the beneficial interest in the land, possession, if 1 necessary, the framing of a scheme, necessary enquiries and accounts, following of the trust properties and cancellation of all alienations including those to the Defendants Sm. Sova Dutt and Arun Bose, the removal of the present shebaits and the appointment of a proper shebait and other reliefs. 12. By an order made in this suit on 20th March, 1942, the cause title was amended by adding Rajendra as a Plaintiff and striking out the words "a minor under the age of 18 years " appearing after each of the names of Surajnarain Jagannath and Tara Bai. No other amendment consequential or otherwise has been made in the body of the plaint. Although there are now two Plaintiffs in the suit, the word "Plaintiff" in the singular remains throughout in the plaint. There is no specific averment as to the interest of Rajendra as a Plaintiff in his own rights. The pedigree annexed to the plaint only shows that he is the son of Madho and as such a member of the family. 13. Of the Defendants only Radhakissen Jiu (Defendant No. 17) has filed a written statement supporting the Plaintiff. The suit is contested by the Defendants Baldeo, Bhagwan and Ramnarain who have filed a joint written statement and by the Defendants Shyam Singh, Hiru Singh, Arun Bose and Sm. Sova Dutt who have filed separate written statements. The Defendants Bonwari, Madho, Mohon, Shibnarain, Harnarain, Mahadeyi, Naraindas and Tara Bai have not entered appearance at all. 14. The maintainability of this suit has been questioned on various grounds. Mr. S. C. Mittcr appearing for the Defendant Sm. Sova Dutt has raised the point-and it is issue 9-that this suit is hit by the provisions of sec. The Defendants Bonwari, Madho, Mohon, Shibnarain, Harnarain, Mahadeyi, Naraindas and Tara Bai have not entered appearance at all. 14. The maintainability of this suit has been questioned on various grounds. Mr. S. C. Mittcr appearing for the Defendant Sm. Sova Dutt has raised the point-and it is issue 9-that this suit is hit by the provisions of sec. 92 of the Code of Civil Procedure.. The point was not raised by way of demurrer before evidence was called but has been dealt with by Mr. Mitter in his final address. My attention has been drawn to certain paragraphs of the plaint and particularly paragraphs 7 (f) and 8B where the trust in question has been described as a public trust. Mr. Mitter has urged that the averments contained in the plaint directly bring the case within the purview of sec. 92, C. P. C, and the leave of the Advocate-General which is a condition precedent under the section not having been obtained this suit is incompetent. Mr. Mitter relying on the case of Abdur Rahim v. Mahomed Barkat All L. R. 55 I. A. 96: (1927) 32 C. W. N. 482 as indicating the scope of sec. 92, has urged that having regard to the reliefs claimed in this suit, it is hit by sec. 92. The wording of the above paragraphs of the plaint referred to by Mr. Mitter is no doubt unfortunate. Those paragraphs, however, purport to summarise certain provisions of the deed and the effect thereon of the consent decree in the 1923 suit as conceived by the Plaintiff. The deed is specifically referred to in the plaint, and is an exhibit (Ex. B) in this ease. Reading the deed I am quite satisfied that the provisions for distribution of the Bhog amongst Brahmins or Sadhus and the poor are only ancillary to the Deb Seba and do not constitute an independent public charity [see Prosad Das Pal v. Jagan-nath Pal I. L. R. 60 Cal. 538: (1932) 37 C. W. N. 181]. The allegation that a public charity was put an end to was no doubt introduced to emphasize the misconduct of the Defendants and if possible to enlist the sympathy of the Court. In my opinion see 92 has no application and issue 9 must be answered in the negative. 15. 538: (1932) 37 C. W. N. 181]. The allegation that a public charity was put an end to was no doubt introduced to emphasize the misconduct of the Defendants and if possible to enlist the sympathy of the Court. In my opinion see 92 has no application and issue 9 must be answered in the negative. 15. The next ground of objection to the maintainability of this suit has been formulated in Issues Nos. 1 and 2. It is alleged that Rajendra is not a shebait and therefore the Plaintiff deity cannot maintain this suit by and through Rajendra. As I have already stated there was originally one Plaintiff in the suit, viz., Sri Sri Gopal Jiu suing by his next friend and shebait Rajendra and that subsequently Rajendra was added as the second Plaintiff. Issues Nos. 1 and 2 are directed to the maintainability of the suit in so far as it is a suit by the Plaintiff deity. The contesting Defendants have not raised any specific issue challenging the maintainability of the suit in so far as it is a suit by Rajendra personally. The arguments of learned Counsel, however, have covered both aspects of the matter and in the premises I do not think it will be right to hold the contesting Defendants precluded by reason of the omission to raise a specific issue in that behalf, from contesting the right of Rajendra as distinct from the right of the Plaintiff deity, to maintain this suit. I, therefore, renumber Issues Nos. 1 and 2 as Issues Nos. 1 (a) and 1 (b) and add the following as Issue No. 2: 2. Is this suit in so far as it is a suit by the Plaintiff Bajandra maintainable? 16. The present suit is primarily for the re-establishment of the deed of trust which has been, by the consent decree in the 1926 suit, declared null and void. The deed of trust is in the form of an English deed of trust, that is to say, the properties are not directly dedicated to the deity but are conveyed and vested in trustees upon certain trusts in favour of certain persons including the deity as beneficiaries. The Plaintiff deity is but one of the beneficiaries under the said deed of trust. Ordinarily, it is for the trustees and not for the beneficiaries to take legal proceedings to protect the trust. The Plaintiff deity is but one of the beneficiaries under the said deed of trust. Ordinarily, it is for the trustees and not for the beneficiaries to take legal proceedings to protect the trust. James, L. J., enunciated the general rule in Sharpc v. San Paulo Railway Co. (1873) L. R. 8 Ch. App. 597 at pp. 609 -610. cited by Mr. S. C. Mitter, in the following words: a person interested in an estate or trust fund could not sue a debtor to that trust fund, merely on the allegation that the trustee would not sue; but that if there was any difficulty of that kind, if the trustee would not take the proper steps to enforce the claim, the remedy of the cestui que trust was to file his bill against the trustee for the execution of the trust or for the realisation of the trust fund and then to obtain the proper order for using the trustee's name, or for obtaining a Receiver to use the trustee's name, who would, on behalf of the whole estate, institute the proper action, or the proper suit in this Court. 17. In special circumstances, however, e.g., where the trustee is unwilling or refuses to sue or has precluded himself, by any act, omission or conduct, from suing, a cestui que trust may himself institute the action adding as Defendants every trustee and every other cestui que trust as the cases cited in the notes in Halsbury's Laws of England, 2nd Edn., Vol. 33, paragraph 5O5 at pages 288 and 289 will show. The question then is, is the present case an exceptional case where a cestui que trust can file this suit? In other words is it clear that the trustees are unwilling or have refused to take this proceeding or have, by their act or conduct, rendered themselves incompetent to do so? 18. In the 1926 suit the deed of trust was challenged. The then trustees were parties Defendants in that suit and filed their written statement upholding the validity of the deed. In the end, however, by the consent decree of 1928 they not only got the deed declared null and void but obtained considerable personal advantage by getting the trust properties declared as their own. After the decree they and their brothers enjoyed and dealt with the properties as their own. In the end, however, by the consent decree of 1928 they not only got the deed declared null and void but obtained considerable personal advantage by getting the trust properties declared as their own. After the decree they and their brothers enjoyed and dealt with the properties as their own. In fact Bonwari says that he has sold one-anna share out of the two-annas share he got under the decree to his wife. The interests of the other two trustees, Madho and Mohon, have passed out of their hands, having been sold in execution of decrees against them. The interests of two of their brothers, Harnarain and Shibnarain, have likewise been sold to another outsider at Court sales. Can it be expected, in the circumstances, that the trustees, who perpetrated the fraud on the deity, will themselves come forward to take proceedings to get the consent decree set aside on the ground of their own fraud? It may be that in law there is nothing to prevent the defaulting trustees from filing a suit as Plaintiffs, but from a practical point of view will not their presence in the category of Plaintiffs seriously jeopardise the chances of success of such a suit ? Will it not be said that the solicitude now shown by them for the beneficiaries including a deity whose interests they had not thought of for all these years is a mere pretence. One of the major beneficiaries is a deity of whom after the death of the daughter and grand daughter of Sreegopal the trustees and their brothers and|or their sons will be the shebaits. Will not the trustee-, if they themselves bring a suit, lay themselves open to a double charge of fraud, fraud on the deity in the first instance and fraud on the purchasers now? Is there no risk of their being personally made liable for costs? The trustees may be penitent, as both Bonwari and Madho say or pretend they are, or they may be unrepentant sinners as the Defendants maintain they are; but will not the considerations mentioned above weigh with them equally in either case? However genuinely repentant they may be, they may yet be not willing to face the Court as Plaintiffs for fear of being made to pay the costs or of prejudicing the deity. However genuinely repentant they may be, they may yet be not willing to face the Court as Plaintiffs for fear of being made to pay the costs or of prejudicing the deity. They may be willing or even anxious to render assistance to the beneficiaries, yet they may be reluctant to figure as Plaintiffs. On the other hand, if they are unrepentant and their sole object is to benefit themselves they will out of policy keep themselves behind the scenes. In either case they cannot for a moment be expected to take proceedings in their own name. Is the deity who is one of the beneficiaries to suffer? The law recognizes the deity as a juridical entity capable of having legal rights. If a fraud has been perpetrated on the deity and its rights, such as is alleged in this suit, the deity is entitled to be reinstated in its original rights. Such reinstatement may indirectly benefit the wry persons who perpetrated the fraud on the deity. It may be-indeed, I am strongly inclined to think it is-that the defaulting trustees are behind this litigation and have set up a son of one of them to file this suit for their own ends but their evil motive or rascality cannot affect or extinguish the deity's rights. As long as the deity is recognized as a legal entity capable of holding properties, its right must necessarily be recognized on its own merits. The Court cannot ignore the deity's rights or deny protection to the deity merely because of the misconduct of its unmeritorious trustees or shebaits or of the possibility of those very unmeritorious persons indirectly reaping the benefit of such that the deity may be again defrauded can be no ground for declining to remedy the fraud that has already been perpetrated on its rights. In my judgment, in the exceptional circumstances of the present case and in view of the allegations in the plaint it must be held that the trustees are unwilling or have refused or at any rate by their act or conduct rendered themselves incompetent to maintain a suit for setting aside the decree in 1926 and the beneficiaries themselves must be allowed to take legal proceedings. 19. The deity is a juristic person capable of holding properties, but in the nature of things cannot act personally. 19. The deity is a juristic person capable of holding properties, but in the nature of things cannot act personally. How, then, are proceedings to be taken to protect its rights? What will be the form of the proceedings raid who will initiate the same? 20. In the rase of Maharaja Jagadindra Nath Roy v. Rani Hemanta Kumari L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 their Lordships of the Judicial Committee after reiterating that an idol must be regarded as a juridical person capable as such of holding property, though it was only in an ideal sense that property was so held, made the following observation at p. 210: But assuming the religious dedication to have been of the strictest character it still remains that the possession and management of the dedicated property belong to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol. 21. A Full Bend' of the Allahabad High Court in Jodhi Rai v. Basdeo Prosad I. L. R. (1911) All. 735 held that inasmuch as an Idol was a juristic person capable of holding property, a suit respecting property in which an Idol was interested was properly brought or defended in the name of the Idol, although ex necessitate re the proceedings in the suit were to be carried on by some person who represented the Idol, usually the manager of the temple in which the Idol was located. 22. In Manohar Mnkherjee v. Raja Peary Mohon Mnkherjee (1919) 24 C. W. N. 478. which went up to the Privy Council and is reported as Raja Peary Mohan Mukherji v. Monohar Mukerji L. R. 48 I. A. 258: I. L. R. 48 Cal. 1019 : (1921) 26 C. W. N. 133 it was held that in respect of a debutter in this country the founder or his heir might invoke the assistance of the Court for the proper administration thereof on the allegation that the trusts were not properly performed and that the case was stronger when the management would, under the terms of the trust, vest in the Plaintiff as the founder's heir on a vacancy caused by the removal of the actual incumbent for misconduct. 23. 23. The next case to be noted is that of Darshan Lal v. Shibji Maharaj Birajman I. L. R. (1922) All. 215. Piggot and Walsh, JJ. made the following observations: The Plaintiff claims, as we understand, to be entitled to represent the idol because he is the priest of the temple, independently altogether of the endowment made in favour of the idol by the original trust deed on which the claim is based. He says also that he looks after the management of the temple, by which we presume him to mean that he conducts the worship there and dispenses such charities, if any, as are customary at this particular shrine. If this is what the Plaintiff means, then this allegation does set up prima facie a case entitling Swami Lachhmi Nand to bring this suit as the next friend of the idol. The fact that he is not the manager or trustee under the particular deed of endowment which he desires to set up for the. benefit of the aforesaid idol, would not prevent him from having a right to act ON behalf of the idol in this litigation if he occupied a position of manager or trustee qua the performance of those ceremonies of worship or charities for the benefit of which the trust moneys were directed to be applied. It will, however, be for the trial court to fix an issue on this point and to determine it after evidence has been taken. There is, in the judgment of the lower appellate court, a suggestion that an idol, who is being defrauded by his lawful guardian or trustee might be treated by a court of law on the footing of an infant, and that any person claiming a benevolent interest in the fortunes of the said idol, would be permitted to maintain a suit in the name and as the next friend of the injured idol. We think it sufficient to say that we should not be prepared to affirm it as a correct proposition of law. It will be for Swami Lachmi Nand to make out that he has a right to act on behalf of the Plaintiff idol, otherwise the suit will fail on the mere ground that the Plaintiff, considered as a juristic personality, is not legally before the Court. 24. In Administrator-General of Bengal v. Balkissen Misser I. L. R. (1924) Cal. It will be for Swami Lachmi Nand to make out that he has a right to act on behalf of the Plaintiff idol, otherwise the suit will fail on the mere ground that the Plaintiff, considered as a juristic personality, is not legally before the Court. 24. In Administrator-General of Bengal v. Balkissen Misser I. L. R. (1924) Cal. 953 Page, J., expressed the view that although after the appointment of a shebait the right to sue belonged to the shebait and not to the deity, it was permissible to file a suit for possession of debutter properties in the name of the deity, where a shebait had not been appointed and that in such a case the Court would appoint some person to act as " agent ad litem" for the deity. 25. Lord Shaw in delivering the judgment of the Board in Pramatha Nath Mullick v. Pradyumna Kumar Mullick L. R. 52 I. A. 245: (1925) 30 C. W. N. 25 ob-seved : a Hindu idol is, according to long established authority, founded upon the religious custom of the Hindus and the recognition thereof by Courts of law, a juristic entity. It has a juridical status with the power of suing and being sued 26. As, however, the deities were not separately represented in the proceedings and the female members of the family who had a right of worship had not been made parties their Lordships remitted the case to the High Court with a direction that the deities should appear by a disinterested next friend appointed by the Court and that the female members of the family should also be joined and a scheme should be framed for the regulation of the worship of the deities. 27. In Sri Sri Kalimata Debi and Another Vs. Nagendra Nath Chuckerbutty and Others, AIR 1927 Cal 244 . the suit was instituted in the name of the deity by her next friend Basanta Kumari and by Basanta Kumari herself as one of the worshippers for a declaration that a certain deed executed by shebaits, Suresh, Nagendra and others revoking a deed of trust executed by Suresh whereby the properties had been dedicated to the deity, and the subsequent mortgage by Suresh were not binding upon the deity. Basanta Kumari was a widow of a member of the family and as such a worshipper of the deity. Basanta Kumari was a widow of a member of the family and as such a worshipper of the deity. Chotzner, J., dismissed the suit with the following remarks at pp. 525-526: It would appear therefore that the proper person to have instituted the suit was the shebait and nobody else. Had the position been that Nagendra in his capacity of shebait had definitely declined to institute the suit, it might perhaps have been open to Basanta as the next friend of the idol to have taken his place but in the absence of such refusal it seems to me that neither Basants nor the idol are competent. The suit is therefore bad. 28. The judgment of Suhrawardy, J., in Giris Chandra Saw v. Upendra Nath Giri-das (1931) 36 C. W. N. 768 recognised the right of suit of a prospective shebait and even of a member of the founder's family entitled to worship the deity. 29. Then comes the case of Sharat Chandra Shee v. Dwarkanath Shee I. L. R. (1931) cal. 619. One Baidya Nath Shee founded the endowment. He appointed himself as the first shebait and provided that after his death his mother and after her death his youngest brother Dwarkanath (the first Defendant) and after his death his eldest lineal male descendant would be shebaits successively. The deed provided that if any shebait caused harm to the debutter estate then the founder's other brothers and brother's sons would be entitled to remove such shebait and appoint another member of his family as shebait. Dwarkanath in course of time became shebait. It was alleged that he, with the connivance of his son Kanailal, was wasting the debutter estate. The other brothers of the founder and their sons who were empowered to remove a defaulting shebait were all dead. In these circumstances two grandsons of Dinonath, a brother of the founder, filed that suit for removal of Dwarkanath. There were three Plaintiffs, namely, the two grandsons in their own names and the deity by one of them as the next friend. Objection was taken to the competency of the suit in the name of the deity. Lort-Williams, J., after referring to Jagadindra's case L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 and Sri Sri Kalimata Debi and Another Vs. Objection was taken to the competency of the suit in the name of the deity. Lort-Williams, J., after referring to Jagadindra's case L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 and Sri Sri Kalimata Debi and Another Vs. Nagendra Nath Chuckerbutty and Others, AIR 1927 Cal 244 and Mullick v. Mullick L. R. 52 I. A. 245: (1025) 30 C. W. N. 25, considered it necessary that the deity should appear in the suit by a disinterested next friend appointed by the Court and appointed Sharat, the first Plaintiff who was also already the next friend of the deity, as the next friend. 30. The Judicial Committee in Kanhaiya Lal v. Hamid Ali L. R. 60 I. A. 263: (1933) 38 C. W. N. 151 felt that they could not deal with the appeal in the absence of the deity and accordingly adopted the same course as they had previously done in Mullick v. Mullick L. R. 52 I. A. 245: (1925) 30 C. W. N. 25 and remitted the case to the Chief Court with directions for a new trial with the appropriate parties added. 31. In Mahanth Ram Charan Das v. Nanaji Lal L. R. 60 I. A. 124: (1933) 37 C. W. N. 541. a de facto Mohant of a Math in actual possession of the Math was held entitled to maintain a suit to recover property belonging to the Math, not for his own benefit but for the benefit of the Math. 32. The same principle was again adopted by the Judicial Committee in Mahadeo Prosad v. Karia Bharti L. R. 62 I. A. 47: (1934) 39 C. W. N. 433. 33. In Panchkori Roy v. Amode Lal Barman (1936) 41 C. W. N. 1349 Mukherjee, J., after quoting the relevant passage from the judgment of Sir Arthur Wilson in Jagadindra's case L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 made the following observations: When the shebait himself is negligent or alienates debutter property in breach of trust, not only a prospective shebait under the terms of the grant but any member of the family in case of a family endowment may maintain the suit on behalf of the deities to recover that property from a trespasser [Vide Girish v. Upendra (1931) 35 C. W. N. 768.] 34. Then the learned Judge expressed the view: .... Then the learned Judge expressed the view: .... in cases of private debutter or family endowment all members of the family, either male or female, who are entitled to participate in the worship, can (be said to be persons interested. 35. As regards the right of a de facto shebait to maintain a suit his Lordship applied the principles of the two Privy Council cases of de facto Mahants with the following observations : There may be and, in fact, there is differencs between a Math and an idol but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debutter. The powers of a de facto shebait to act on behalf of the idols has been recognised in many cases of which the case of Giris v. Upendra (1931) 35 C. W. N. 768. referred to above may be cited as an instance. 36. In Sri Sri Iswar Ram Chandra Bigraha v. Bengal Duars Bank (1940) 45 C. W. N. 497., however, the Judicial Committee referred to the difference between a Math and a private debutter but left the question of a de facto shebait's right of suit undecided, as in that case there was neither pleading nor proof that the Appellant was a de facto shebait. 37. In Masjid Shahidganj Mosque v. Shiro-moni Gurdzvara Parbandhak Committee L. R. 67 I. A. 251: (1940) 44 C. W. N. 957. it has been recognised by the Judicial Committee that the procedure of our Courts allows for a suit in the name of an Idol or deity though the right of suit is really in the shebait. 38. Sashi Kumari Debi v. Dhirendra Kishore Ray I. L. R. [1941] Cal. 309 has to be next considered. In that case Lodge, J., with the concurrence of Khundkar, J., held that a member of the family of the founder or a worship as such had no unqualified right to bring a suit in respect of the debutter but that his right arose when the shebait declined to bring such a suit or had, by his conduct, placed himself in such a position that he could not be expected to bring such a suit. 39. In Nirmal Kumar Banerjee v. Jyoti Pro-sad Banerjee I. L. R. [1941] Cal. 39. In Nirmal Kumar Banerjee v. Jyoti Pro-sad Banerjee I. L. R. [1941] Cal. 128 the judgment of Mukherjea, J., in which Biswas, J., concurred, laid down that the right of suit was vested in the shebait or if more than one in all the she baits forming, as it were, but one body who must ordinarily act jointly and that if a shebait was unwilling to join as Plaintiff or had by some act precluded himself from being Plaintiff he should be made a Defendant. The learned Judge further held that a deity could sue through any person as next friend to get a shebait guilty of misappropriation removed by the suit. It was also held that any person interested in the endowment could bring a suit to recover the deity's properties for debutter purposes and that in the case of a private endowment, a co-shebait or one who was entitled to become a shebait after the then shebait or a member of the family could sue to set aside an alienation of the office or of the endowed property illegally made. 40. The next important case to be noted is that of Tarit Bhusan Roy v. Sri Sri Iswar Sridhar Salgram Sila I. L. R. [1941] Cal. 477: 45 C. W. N. 932.. That was a case of a suit by a deity by a shebait as its next friend for a declaration that certain properties were absolute debutter properties and for an injunction restraining the mortgagees from a shebait and their sub-mortgagees from selling the same in execution of mortgage decrees. It appeared that on a previous occasion when the properties were threatened to be sold in a previous execution proceeding under the same mortgage decrees a suit had been filed in the name of the deity by a mere worshipper as the next friend for similar relief but had been dismissed for default under Or. r. 8 on account, it was alleged, of gross negligence of the worshipper next friend in that suit. The suit came up for hearing before a Division Bench consisting of Nasim Ali and Pal, JJ. Two grounds were urged on behalf of the Appellants, namely, (1) that the properties were not absolutely dedicated to the deities and the (2) that the suit was barred under Or. The suit came up for hearing before a Division Bench consisting of Nasim Ali and Pal, JJ. Two grounds were urged on behalf of the Appellants, namely, (1) that the properties were not absolutely dedicated to the deities and the (2) that the suit was barred under Or. 9, r. 9, C. P. C. Both the learned Judges repelled the first ground on a construction of the deed. As regards the second ground Nasim Ali, J., held: (a) that a suit for a declaration that illegal alienations by shebaits were invalid were maintainable at the instance of a prospective shebait or any member of the founder's family entitled to worship the idol, this right of suit being founded on their respective interest in the endowment quite apart from the interest of the idol; (b) that a Hindu idol being a juristic person having its own interest apart from the interests of its worshippers had a right of suit which were to be exercised by it through its de jure or de facto shebait; (c) that mere worshippers who had a right of suit of their own had no right to exercise the idol'S power of suing and consequently the first suit was not the idol'a suit and or. 9 rule 9 was not a bar to the second suit; (d) that the causes of action In the two suits were not the same for they were founded on different threats of invasion of the deity's rights and therefore Or. 9, r. 9, had no application; (e) that a suit was maintainable for setting aside a decree passed against a minor due to the negligence of the next friend or the guardian-ad-litem of the minor in the conduct of the previous suit in which the decree had been passed and there was no reason why this protection given to a minor should not, by analogy, be extended to a Hindu idol. 41. On the second ground Pal, J., agreed with Nasim Ali, J, that the actions in the two suits were not the same and consequently Or. 9, r. 9 was no bar to the second suit. 41. On the second ground Pal, J., agreed with Nasim Ali, J, that the actions in the two suits were not the same and consequently Or. 9, r. 9 was no bar to the second suit. As regards the right of suit of the idol and other persons interested in the endowment the learned Judge at pages 512-513 made the following observations : Before proceeding further it would be advisable to keep in mind that as the rule of law now stands there are several distinct rights of suit in respect of the endowed property viz: (i) the Idol itself as a juristic person has the right of suit like all other owners; (ii) the shebait, the recognised human agency through which the Idol must, from its very nature, act, has a distinct right, distinct from and, tin normal cases in supersession of the idol's right of suit; Jagadindra Nath Boy v. Hemanta Kumari Debi I. L. R. [1941] 2 Cal. 477: 45 C. W. N. 932. (iii) the prospective shebaits as persons interested in the endowment have a right of suit; (iv) worshippers and members of the family have right of suit. 42. The question before us is not who else can sue in his own right, but who else, other than a shebait, can represent the idol when the suit is in enforcement of the idol's right of suit. Ordinarily, the shebaits alone will have the right to represent the idol. In special cases, the Court may appoint some one to represent it. The rules of law that can be gathered from the decided cases in this respect appear to be- 1. That normally a shebait alone can represent an idol in a suit or proceeding- (a) that where there are several shebaits, the entire body of them Will represent the idol; (b) that under some special circumstances even a co-shebait can represent the idol: Nirmal Kumar Barterji v. Jyoti Prasad Banerji I. L. R. [1941] 2 Cal. 128 2. That it is only under some special circumstances that the idol may be represented by- (a) a prospective shebait; (b) a worshipper or any person interested in the endowment; 3. That when persons other than the shebaits come to represent the idol, they can represent the idol only by an appointment by the Court. The learned Judge summed up his views at pages 521-522 as follows: 1. That when persons other than the shebaits come to represent the idol, they can represent the idol only by an appointment by the Court. The learned Judge summed up his views at pages 521-522 as follows: 1. (a) The idol is a juristic person and as such it may SUE and be sued. (b) From its very nature it must act through some human agency-shebait is such agency. Until the shebait is removed or controlled by the Court he alone can act for the idol. 2. Apart from the idol's right of suit, a shebait as such has a right of suit and may be sued. Normally he is the human agency through which the idol holds, enjoys, and manages the property and the right of suit vests in him and not in the idol. 3. Worshippers and members of the family have interest in -the debuttar and a right of suit is given to them also to protect the interest of the debuttar. (a) This does not mean that these persons can as of right represent the deity in a legal proceeding. (b) They can sue in their own name and on their own behalf for the benefit of the debuttar. 4. In exceptional circumstances, a deity can be represented in a legal proceeding by a person other than a shebait only by the special appoint, ment of the Court: Pramatha Nath Mullick v. Pradyumna Kumar Mullik L. R. 52 I. A. 245: (1925) 30 C. W. N. 25 and Kanhaiya Lai v. Hamid Ali L. R. 60 I. A. 263: (1933) 38 C. W. N. 151. (a) In such a case such person may be under the control of the Court in the manner in which and to the extent to which a next friend or a guardian of a minor is under such control under the provisions of or 32 of the Code. 43. Pal, J., then went on to consider the maintainability of a suit for setting aside a decree against a minor on the ground of negligence or misconduct of the next friend or guardian-ad-litem which are not material for my present purpose. The learned Judge concluded that the analogy of a minor in respect of such suit was not applicable to a Hindu idol. 44. The learned Judge concluded that the analogy of a minor in respect of such suit was not applicable to a Hindu idol. 44. The next case on the point is that of Thakur Sree Sree Annapurna Debi v. Shiba Sundari Dasi I. L. R. [1944] 2 Cal. 144, In that case the suit was instituted by one Pramila Sundari as next friend of the Plaintiff deity against the shebaits and certain transferees from them for a declaration that the property was debutter property. Promila Sundari having died, another lady of the name of Karunamoyee Dasi who was a daughter-in-law of the family applied to Court for being appointed as the next friend of the Plaintiff deity for the purpose of proceeding with that suit. The application was opposed on the ground that the suit was ab initio bad inasmuch as Pramila Sundari who was not a shebait and had not been appointed as next friend by the Court had no right to constitute herself as next friend and as such to institute the suit. The suit not being properly constituted the application of Karunamoyee could not be entertained. After considering the case of Tarit Bhusan Ray I. L. R. [1941] 2 Cal. 477: 45 C. W. N. 932., Sen, J., expressed the view that where all shebaits by reason of their act or conduct could not be expected to institute a suit to protect the property of the deity, any person might come forward and institute a suit in the name of the deity with himself as its next friend and further that it would be permissible for the Defendants to contest the fitness of the next friend and that the Court would then investigate the matter and decide upon the fitness of the next friend. Sen, J., did not see any ground for holding that the next friend must be appointed as such by the Court before he could institute a suit. The learned Judge referred to the provisions of or 32 and Chapter 19 of the Original Side Rules and considered them as safe guides although the in terms did not apply to a deity. 45. The learned Judge referred to the provisions of or 32 and Chapter 19 of the Original Side Rules and considered them as safe guides although the in terms did not apply to a deity. 45. The last case to be noted is that of Sree Sree Sreedhar Jew v. Kanto Moho Mullick (1945) 50 C. W. N. 14 There in a suit for partition amongst five co-sharers who were also the co-shebaits of the Plaintiff deity a scheme of partition had been adopted whereby, amongst other things, a dwelling-house was partitioned into six lots, out of which five lots were allotted for the residence of those five co-sharers and the remaining lot was reserved for the location of the deity who was not a party to that partition suit. Some of the co-sharers being dissatisfied with the division and allocation of the dwelling-house took exceptions to the report of the Commissioner. One of the grounds urged in support of the exceptions was that the dwelling-house had been dedicated to the deity and the deity could not be shifted from the portion where it had been located and the scheme was not binding on the deity. Those exceptions, as far as I remember, were discharged by me. Thereupon a suit was filed in the name of the deity by the wife of one of the five co-shebaits and co-sharers against all of them for a declaration of the deity's rights. The suit came up for hearing before Gentle, J. The learned Judge held that there had been no dedication of the dwelling-house to the deity but that the deity was entitled to remain in the house, although it had no right to any particular part of the house. The learned Judge also found as a fact that the suit had been instituted really at the instance of some of the shebait Defendants. The learned Judge also found as a fact that the suit had been instituted really at the instance of some of the shebait Defendants. As regards the maintainability of the suit by the lady as the next friend the learned Judge after stating the general principles laid down by the earlier decisions as to the preferential right of the shebait or the whole body of shebaits if more than one to institute a suit in his or their own name or in the name of the deity and the right of a worshipper to file a suit in his own name as to which there is not much dispute held that when a shebait failed or refused to exercise his right of suit the Court might appoint a person as next friend of the deity to sue as well as to defend a suit on its behalf and that without such appointment by the Court as next friend, no person other than a shebait could sue on behalf of the deity professing to do so as its next friend. In this Gentle, J., followed Tarit Bhusan Ray's case I. L. R. [1941] 2 Cal. 477: 45 C. W. N. 932. and dissented from the decision of Sen, J., to which I have referred. This decision of Gentle, J., was referred to by me in The Official Receiver v. Jogmaya Dassi (1945) 50 C. W. N. 272. only as one of the authorities establishing that all the shebaits must act jointly. 46. As regards the necessity for the appointment by the Court of a person other than a shebait as the next friend, I have before me three decisions of three learned Judges, namely, Lort-Williams, J., Gentle, J. and Sen, J., in three cases decided by them while sitting on the Original Side, all of whom are entitled to my respectful consideration. 47. From the authorities cited above it may, I think, be safely deduced that each of the following classes of persons has a right of suit in respect of debutter properties, namely, (1) shebaits (2) prospective shebaits and (3) members of the founder's family entitled to worship the deity. Whether de facto shebaits have a similar right is perhaps not quite settled. In three cases it has been said they have but the Judicial Committee have left the question open. Whether de facto shebaits have a similar right is perhaps not quite settled. In three cases it has been said they have but the Judicial Committee have left the question open. It is also clear, on the authorities, that when there are several shebaits they must act in a body and exercise the right of action jointly, unless one or more of them is or are unwilling or has or have refused by act or conduct rendered himself or themselves unfit to do so, in which case he or they should be joined as Defendants. As regards the nature of the right of action of the above three classes of persons and the genesis thereof it is not easy to reconcile the judicial views. It has been said that, each of these three classes of persons has a distinct right of suit in respect of the endowed property founded on their own interest, namely, their own right of worship and this right of action is apart from and independent of the deity's own right of suit to protect its own interests and properties. If this right of suit is independent, and founded on their own interest it is difficult to see why this right should be, as held by Lodge, J., in the case noted above, a qualified right exercisable only if the shebait is unwilling or unfit to sue. On the other hand if each of these classes of people have an independent right of suit, does it not follow that there may be as many suits as there may be persons of each of those classes? It has been said in some cases and particularly in Tarit Bhusan Ray's case I. L. R. [1941] 2 Cal. 477: 45 C. W. N. 932 that these suits by these persons cannot be regarded as the deity's suit. Does it not follow that a decision in such a suit cannot operate as res judicata or be otherwise binding on the deity? If this be so, will not the position of a Defendant be intolerable, in that he may have to face as many suits as there may be shebaits, prospective shebaits and members of the family and finally by a suit in the name of the deity? If this be so, will not the position of a Defendant be intolerable, in that he may have to face as many suits as there may be shebaits, prospective shebaits and members of the family and finally by a suit in the name of the deity? How is this theory of independent right of suit compatible with the theory of the shebait having normally the primary right of suit which is even superior to that of the deity itself? Does not the superior right of a shebait in this behalf support the views of Lodge, J., that the right of the others I subordinate or qualified? Will it not be more consistent and logical to hold that there is one right of action and that right belongs to the deity but that that right of action is to be exercised first by the shebaits and failing them by the other persons? The questions will then arise, in what order of priority will the prospective shebaits or members of the family exercise this right. These are a few of the many questions that may arise. In the case before me it is not necessary for me to determine whether there is but one right of action exercisable by several classes of persons in certain order of priority or there are as many independent rights of action as there are shebaits, prospective shebaits and worshippers and I reserve consideration of these matters if and when they come up before me in a concrete form. 48. Apart from the right of suit of the several classes of persons I have mentioned, it is now well settled that the deity has a right of action of its own to protect its own interests and properties and that the procedure of our Courts allows for such a suit. If the deity has a right of suit in its own name it must follow that it may also be sued in its own name. The deity is a juristic person and must of necessity act by or through some human agency. If the deity has a right of suit in its own name it must follow that it may also be sued in its own name. The deity is a juristic person and must of necessity act by or through some human agency. It is accepted on the authority of the Judicial Committee in Jagadindra's case L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 Mullick v. Mullick L. R. 52 I. A. 245: (1925) 30 C.W. N. 25 and in Shahid-gunge Mosque case L. R. 67 I. A. 251: (1940) 44 C. W. N. 957 and of other decisions that the shebait is the person obviously and primarily entitled to exercise this right of the deity. Gentle. J., has expressed the view that the principle that the shebaits must act jointly in a body in bringing a suit in their own names is also applicable when they as next friends bring a suit in the name of the deity. It is in the first place unusual to have more than one next friend and secondly the course suggested will make the record cumbrous and necessitate application for substitution in case of death of one of the shebait's next friends which again is unusual. If it be permissible to apply the analogy of the next friend of a minor Plaintiff one next friend ought to suffice. Be that as it may, it is quite clear on the authorities that a shebait may, acting as next friend, institute a suit in the name of the deity. It is not suggested by any learned Judge that in such a case the shebait or shebaits have to get themselves appointed as next friend by an order of Court. What is to happen if the shebaits are unwilling or by their act or conduct unfit to do so? The prospective shebaits, the members of the family entitled to worship have, as we have seen, a right to sue in their own names. Can any of them acting as next friend file the suit in the name of the deity? If none of them comes forward can any member of the public who has no independent right to sue in his own name in respect of the doubter properties act as next friend and as such institute the suit in the name of the deity? If none of them comes forward can any member of the public who has no independent right to sue in his own name in respect of the doubter properties act as next friend and as such institute the suit in the name of the deity? The observations of Mukherjea, J., in some of the cases noted above suggest that any person may come forward and file a suit as next friend of the deity. It is to be noted, however, that those observations were obiter, because in the cases before Mukherjea, J., the suits were not in the name of the deity and the question of competency of a person to act as next friend did not directly arise. In Tarit Bhusan Ray's case I. L. R. [1941] 2 CaL 477: 45 C. W. N. 932., Nasim Ali, J., at pages 490-491 expressed the view that the deity's power of suing was to be exercised by it through its de jure or de facto shebait and that worshippers of the deity, although they had an independent right to sue in their own names had no right to exercise the deity's power of suing. Nasim Ali, J., did not say what was to happen if the shebait was unwilling or unfit to act as next friend or anything about the necessity of appointment of a next friend of the deity by the Court. The observations of Pal, J., at page 513 appear to suggest that normally a shebait alone can represent the deity and that where there are several shebaits the entire body of them will represent the idol and that under special circumstances even a co-shebait may represent the deity. His view seems to be that it is only under special circumstances that the deity may be represented by a prospective shebait, a worshipper or any person interested in the endowment. According to Pal, J., the shebait can act as next friend without being appointed as such by the Court but when in exceptional circumstances a prospective shebait, a worshipper or any person interested in the endowment may represent the deity, such person can represent the deity only by an appointment by the Court, Pal, J., does not appear to favour the filing of the suit in the name of the deity by any other person acting as the next friend. Sen, J., disagreed with Pal, J., while Gentle, J., has preferred to adopt the views of Pal, J. 49. The suggestion of appointment by the Court of a person was first made as far as I could find out by Page, J., in Administrator-General of Bengal v. Balkissen Misser I.L. R. (1924) Cal. 953 at 959 where the learned Judge opined that there was no doubt the Court would appoint some person to act as "agent-ad-litem" for the deity. Apart from the novelty of the nomenclature adopted by Page, J., there is no indication in his judgment as to under what provi-sions of the law of procedure such appointment can be made by the Court. Were the observations of Page, J., based on analogy of the provisions of or. 32, C. P. C.? Or. 32 and the rules of this Court contemplate the appointment, of a guardian-ad-litem of a Defendant under particular disabilities but do not contemplate the appointment by the Court of a next friend when such a person is the Plaintiff except on the death or removal of the next friend who had already filed a suit. Was Page, J., contemplating inventing a new rule of procedure under the inherent powers of the Court? The next case where appointment by the Court is mentioned is that of Mullick v. Mullick L. R. 52 I. A. 245: (1925) 30 C. W. N. 25 where the Judicial Committee remitted the case to this Court with a direction that the deities should be added as parties and separately represented by a disinterested next |friend. Gentle, J., thinks, and I respectfully agree with him, that their Lordships meant that the deities should be added as Defendants, for the Court does not, except with the consent of the Plaintiff, add anybody as Plaintiff. Gentle, J., however, goes further and says in view of the expression "next friend" used by their Lordships that even when deities are made or added as parties Defendants in a suit nevertheless they as such Defendants are to be represented by a "next friend." The expression "next friend" is peculiarly associated with a Plaintiff under disability and the expression "guardian-ad-litem" with a Defendant in similar predicament. I am inclined to think that the expression "next friend" was not used by their Lordships in the technical sense but in the general sense of a representative for the deities and as the deities were to be added as Defendants their Lordships presumably meant the appointment of a guaxdian-ad-litem. Their Lordships were understood by this Court in that way for I find on the reference to the records of that suit that the deities were added as Defendants and by an order made on 30th July, 1929, Mr. A. D. Banerjee, a Hindu attorney of this Court, was appointed, not the next friend but the guardian-ad-litem for the deities and that he filed a written statement and appeared throughout the further proceedings as such guardian-ad-litem. So understood, the case of Mullick v. Mullick L. R. 52 I. A. 245: (1926)30 C. W. N. 25. is no authority for sanctioning a novel rule of procedure requiring the appointment of a next friend for a Plaintiff deity. That case is quite consistent with the view that their Lordships directed that the deities be added as Defendants and a guardian-ad-litem be appointed and in this view it is permissible to conclude that their Lordships were proceeding on the analogy of the provisions of the CPC which require the appointment by the Court of a guardian ad-litem for a Defendant under disability. The Privy Council case of Kanhaiyadal v. Hamid Ali L. R. 6O I. A. 203: (1933) 38 C. W. N. 151 carries the matter no further. Sri Sri Kalimata Debi and Another Vs. Nagendra Nath Chuckerbutty and Others, AIR 1927 Cal 244 was dismissed by Chotzner, J., not because the next friend there had not been appointed by the Court but because it had not been shown that the shebait was unwilling to institute the suit. Indeed Chotzner, J., not only did not say anything about the appointment of Basanta Kumari as the next friend by the Court but stated that if it could be shown that the shebait was unwilling to sue, the suit would be perfectly maintainable by Basanta Kumari as the next friend. That case, therefore, cannot be taken as an authority for the proposition that a person has to be appointed as next friend by the Court in order to entitle him to file a suit in the name of the deity. That case, therefore, cannot be taken as an authority for the proposition that a person has to be appointed as next friend by the Court in order to entitle him to file a suit in the name of the deity. In Slice v. Shee (13), Lort-Williams, J., appears to have taken the line of least resistance and proceeded on the assumption that Mullick v. Mullick L. R. 52 I. A. 245: (1926) 30 C. W. N. 25. had sanctioned or required the appointment by the Court of a next friend of a Plaintiff deity, which assumption, I venture to suggest, is not warranted by what their Lordships really meant and what actually took place in that suit after it came back on remand. Further, in Shee v. Shee I. L. R. (1931) 58 Cal. 619 the line of succession of shebaits prescribed by the founder was not in accordance with law and two members of the family who joined as co-Plaintiffs in their own right could maintain the suit run without the deity, so that the appointment of the next friend was not vital or indispensable. In this state of the authorities the observations of Pal, J., to which I have referred, do not appear to me to be supported by the earlier decisions. Pal, J., was averse to extending the analogy of Order 32 to a Hindu deity for he felt oppressed by the wide language of or. 32, r. 4 which allows any member of the public to institute a suit in the name of the minor. Pal, J., was, however, willing to adopt the nomenclature commonly used in suits by or against the minor and he was even prepared, as he said at page 522, to hold that the person to be appointed by the Court might be brought under the control of the Court in the manner in which and to the extent to which a next friend or a guardian-ad-litem was under such control under Or. 32, C. P. C. It seems to me that Pal, J. while disowning it was in reality extending the analogy of the minor to a Hindu deity. 32, C. P. C. It seems to me that Pal, J. while disowning it was in reality extending the analogy of the minor to a Hindu deity. I find it more logical and more convenient, for purposes of pro-cedure, to extend the analogy of the minor to a Hindu deity than to invent a rule of procedure which is ostensibly original and novel but it is in reality based on the analogy of the rules relating to a minor. I do not share Pal, J.'s feeling of oppression, because I do not, as he did, read or. 32, r. 4 as an open invitation to busy bodies to come and intermeddle in the affairs of a minor. That rule was designed in the best interests of the person under disability and to ensure that his interest should not suffer by reason of oversight or negligence on the part of those who are prima facie expected to look after and protect the same. The Court is not powerless to discourage or prevent intermeddling for it has power to remove a next friend or guardian-ad-litem if he does not do his duty properly. It can stay the suit if it is not for the benefit of the Plaintiff under disability. Jt can itself enquire or direct an enquiry as to the propriety of the suit as is and has been done on the Original Side. It can penalize the next friend by making him to pay the cost of the suit if it is improperly brought. It can put him on terms as to security for costs of the Defendant. It can prevent a fraudulent or improvident settlement by withholding its sanction. Finally if an adverse decree has been passed in such a suit due to the fraud and possibly also the gross negligence of the next friend or the guardian-ad-litem it can rectify it in a subsequent suit. With all these safeguards I do not see why the analogy of the minor together with these benefits should not be extended to a Hindu deity. Without these safe-guards the appointment of a next friend by the Court would be disastrous to the deity. If, therefore, the Court takes upon itself the responsibility to appoint a next friend of the deity it must also insist on all the powers and authority I have mentioned over the person so appointed. Without these safe-guards the appointment of a next friend by the Court would be disastrous to the deity. If, therefore, the Court takes upon itself the responsibility to appoint a next friend of the deity it must also insist on all the powers and authority I have mentioned over the person so appointed. In such a case if the Court is to adopt the same nomenclature, namely, next friend or guardian-ad-litem in relation to a deity and to assume the same powers for safeguarding the interest of the deity against the misconduct of the person appointed by the Court as are, in relation to a minor, given to the Court expressly or impliedly by Or. 32 or otherwise, it is just as well for the Court to openly acknowledge that, for the purposes of procedure, it is proceeding on the analogy of the provisions of Or 32 rather than inventing a novel procedure according to the exigencies of the particular cases. With the utmost respect to Pal, J., and Gentle, J., I find no reason to exclude the applicability of a rule analogous to or. 32, r. 4 (I) to the case of a Hindu deity, for the same consideration on which that rule is founded may conceivably arise in the case of a Hindu deity. I do not consider, as Pal, J., did, that an order of appointment of a next friend made by the Court on an ex prate application on a one-sided version set forth in a petition is really effective, from a practical point of view, in protecting the interest of the deity against an improper suit brought in its name. On a consideration of the general principles of law and procedure I have come to the conclusion that the rules of procedure relating to a minor should, for the purposes of procedure, be applied by analogy as far as possible to a Hindu deity. 50. The question then arises whether, in view of the fact that the right of suit is primarily vested in the shebaits, the shebaits can be regarded as certificated guardian so as to attract the provisions of Or. 32, r. 4 (2) by analogy. If that sub- rule applies by analogy then nobody other than the shebaits can act as next friend unless the Court for reasons to be recorded permit him to act as such. 32, r. 4 (2) by analogy. If that sub- rule applies by analogy then nobody other than the shebaits can act as next friend unless the Court for reasons to be recorded permit him to act as such. In my opinion it is by applying the analogy of or. 32, r. 4 (2) that it may be said that in the case of a person other than shebaits appointment by Court of such person as next friend is necessary and the actual decisions in the three cases I have mentioned may be supported only on that analogy. It has, however, been held in Budhi Lal v. Morarji(1907) I. L. R. 31 Bom. 413 by Jenkins, C. J., that that sub-rule does not apply to a testamentary guardian. If a testamentary guardian or a natural, guardian is not a guardian appointed by a competent authority within the meaning of that sub-rule, it is difficult to hold that shebaits can come within that description. Further, if the members of the family entitled to worship have an independent right of action in their own name it is still more difficult to apply the sub-rule when such a member files a suit in the name of the idol. If sub-r. 4 (2) cannot, by reason of its position and explicit language be extended by analogy and applies to shebaits then I am inclined to think that the appointment of a person other than a shebait as next friend of a deity Plaintiff by the Court is not a pre-requisite for the institution of a suit by such person in the name of the deity. On the whole it seems to me to be better to give full and free play to sub-r. 4 (I) rather than curtail it by bringing the case of a Hindu deity within sub-r. 4 (2). I am content to rely on the other safeguards I have mentioned. 51. In the light of the judicial decisions and general principles explained above I do not see why this suit is not maintainable. It is true that Rajendra is not at present a shebait under the deed of trust but he is a prospective shebait on the removal of the present shebait and the sons of Ramgopal and Hargopal and is certainly a member of the family and entitled to worship. It is true that Rajendra is not at present a shebait under the deed of trust but he is a prospective shebait on the removal of the present shebait and the sons of Ramgopal and Hargopal and is certainly a member of the family and entitled to worship. True, in the plaint it has not been alleged that he is an actual worshipper or that he has filed this suit in that capacity. I am free to confess that I have, in the circum-stances of this case, a certain amount of sympathy for the purchaser Defendants and a corresponding amount of prejudice against the members of the family. That being the state of my mind I have to scrutinize the evidence much more closely and critically than I would do in an ordinary case. Approaching this case in that critical state of mind, I do not, in the absence of corroboration by independent evidence, accept the story that Rajendra has been since his childhood actually worshipping or that he now worships the Plaintiff deity or looks after its affairs as stated by Bonwari, Madho and Rajendra himself. No tenant has been called and no account book or rent receipt or counterfoil has been filed showing collection of rent by Rajendra on behalf of the deity. I think it more likely that rents are being collected by Bonwari, Madho, Mohon and other brothers as before but that the names of the deity and the sons are now being used since the execution sales. I do not believe that Bonwari, Mohon, Harnarain or Shibnarain or their sons actually make over any portions of their collection of rent to Rajendra as alleged by him. I am not prepared, on the uncorroborated testimony of these three witnesses, to treat Rajendra as a de facto shebait or an actual worshipper. This, however, does not dispose of the case, for I cannot get away from the fact that he is a member of the family as is shown by the pedigree annexed to the plaint as part thereof and as such entitled to worship the deity. He is a prospective shebait and may come into office on the removal of the present shebait or shebaits. He is a prospective shebait and may come into office on the removal of the present shebait or shebaits. In the circumstances disclosed in this case it cannot be expected, as I have already explained, that the present trustees or the present shebait or shebaits under the deed will institute the suit. It is clear, therefore, that Rajendra as a prospective shebait or as a member of the family has a right of suit in his own name. Rajendra is a Plaintiff in his own right and this suit, in so far as it is one by Rajendra, who is a prospective shebait or at any rate a member of the founder's family, is certainly maintainable. If Rajendra is entitled to maintain this suit in his own name he is also entitled in my opinion, in the circumstances, to act as the next friend and Or. 32, r. 4 (2) being inapplicable even by analogy it was not necessary for him to get himself appointed as such by the Court. In my view in the circumstances of this case Rajendra even as an outsider will be entitled to act as next friend if the analogy of the minor is extended to the deity as I think it should be as regards matters of procedure and if Or. 32, r. 4 (2) is inapplicable for reasons stated above. If the facts alleged in the plaint be true this suit is pre-eminently for the benefit of the Plaintiff deity and there is no reason why Rajendra should not be allowed to act as next friend. As I have said, I do not consider the appointment by the Court of a person other than a shebait as the next friend of the deity as a condition precedent for the institution of a suit in the name of the deity. 52. There is one other matter to which I should refer. When this suit was first instituted Rajendra along with the plaint filed an affidavit stating that he was a shebait and that he had no adverse interest and that he was a fit and proper person to act as the next friend and was willing to act as such and that he knew the facts of the case. He asked for leave under clause 12 of the Letters Patent to institute this suit. The Court granted the leave prayed for. He asked for leave under clause 12 of the Letters Patent to institute this suit. The Court granted the leave prayed for. Is not this circumstance tantamount to approval by the Court of the filing of this suit by Rajendra as the next friend? I think it clearly is. If an appointment of Rajendra as next friend by the Court were necessary, which I do not think it was, I am prepared to hold that by admitting the plaint and particularly by giving him leave under clause 12 to institute this suit the Court must be deemed to have approved of the institution of this, suit by the Plaintiff deity by its next friend Rajendra and to have impliedly appointed Rajendra as the next friend for the purposes of this suit so as to satisfy even the requirements laid down by Pal, J. and Gentle, J. This aspect of the matter was not raised or adverted to in the cases of Sri Sri Kalimata Debi and Another Vs. Nagendra Nath Chuckerbutty and Others, AIR 1927 Cal 244 , Shee. v. Shee I. L. R. (1931) 58. Cal. 619 and Sree Sree Srcedhar Jiu v. Kanta Mohon Mullick (1945) 50 C. W. N. 14 which were all suits filed on the Original Side of this Court and in which, I have no doubt, similar affidavits had been filed. 43. For reasons stated above I answer the issues resettled and re-numbered by me as 1 (a), 1 (b) and 2 in favors of the Plaintiffs. 53. It will be now convenient to take up and deal with, issue 6 which raise the question of the competency of Sreegopal to execute the deed of trust. * * ** * [Upon a consideration of the evidence, his Lordship came to the conclusion that the founder had separated from his family which was governed by the Mitakshara Law, when he executed the deed of trust and that he executed it of his own free will and with full understanding.] 54. I now take up issue 3 which raises the question of the effect of the consent decree in the 1926 suit on the rights of the parties thereto and on the present proceedings. The contesting Defendants urge that this suit is barred by reason of that consent decree. This issue will have to be dealt with in two parts. I now take up issue 3 which raises the question of the effect of the consent decree in the 1926 suit on the rights of the parties thereto and on the present proceedings. The contesting Defendants urge that this suit is barred by reason of that consent decree. This issue will have to be dealt with in two parts. The Plaintiffs contend that the consent decree does not operate as res judicator and is not binding on them for two reasons, namely, (i) because they were not properly represented in the 1926 suit and (ii) because it was brought about by fraud and collusion between the parties thereto other than themselves. 55. As to (i): In the first place it is said that the deity Plaintiff is not bound because no guardian-ad-litem had been appointed for it at all. The deity was impleaded as Defendant No 14 in that suit. In the cause title of the plaint in that suit it was clearly mentioned that its shebait was Bittoo Bibee, the widow of Sreegopal. In fact Bittoo Bibee was the shebait of the deity under clause 8 of the deed of trust. Bittoo Bibee was also a Defendant in that suit. It is true that no order of Court was made appointing Bittoo Bibee as the guardian-ad-litem of the deity in that suit. But Bittoo Bibee put her mark on the terms of settlement. She had an attorney who signed the petition of compromise with the following reservation, "I consent on behalf of the Defendant Sm. Bittoo Bibee to a decree being made in terms of the prayer of the foregoing petition, should it please your Lordships to grant the same." This reservation was wholly unnecessary if the consent was only on behalf of Bittoo Bibee personally. This form of consent with reservation clearly implies that sanction of the Court was being sought. Sanction of the Court was necessary only in so far as Bittoo Bibee was acting as guardian-ad-litem of the deity. The position, therefore, is that Bittoo Bibee was described as the shebait of the deity in the cause title and she purported to act as its guardian-ad-litem although no formal order was made appointing her as such. Sanction of the Court was necessary only in so far as Bittoo Bibee was acting as guardian-ad-litem of the deity. The position, therefore, is that Bittoo Bibee was described as the shebait of the deity in the cause title and she purported to act as its guardian-ad-litem although no formal order was made appointing her as such. She put her mark on the terms of settlement simpliciter as she would do for herself as one of the parties and did not put her mark over again as shebait or guardian-ad-litem of the deity, Her solicitor signed the petition subject to the sanction of the Court. As regards Rajendra who was a party to that suit, Mr. H. K. Dutt was appointed as his guardian-ad litem by the Court. An application for the appointment of Madho as the guardian-ad-litem of Rajendra was made. The summons (Ex. 0000/c) was taken out in the name of the Defendant Rajendra. The petition was " of Rajendra by his father and natural guardian the Defendant Madho." Madho was a Defendant and had already got a firm of attorneys to represent him. This application was made through the same attorneys, although no fresh warrant appears to have been given or filed as it should have been under our Rules. The attorneys (K. M. Rakshit & Co.) signed the petition of compromise as attorneys for Bonwari, Madho, Mohon and for the respective guardians-ad-litem for the infant Defendants Rajendra and Jagannath. Their consent, so far as these infants were concerned, was subject to the sanction of the Court. In the cases of other minors, e.g., Tara Bai or Jagannath, their respective guardians-ad-litem signed the petition as guardians-ad-litem but Madho signed the terms of settlement simpliciter as he would do for himself as one of the parties. He did not sign twice or sign expressly for himself and as guardian-ad-litem. But his attorneys signaled for him as well as for Rajendra subject to the sanction of the Court. The Court passed a decree in accordance with the terms of settlement and certified the same for the benefit of the minors. There was, however, no certificate for the benefit of the deity. 'The question of adverse interest has been raised. It is said that the interest of Bittoo Bibee was adverse to that of the deity and the interest of Madho was adverse to that of Rajendra. There was, however, no certificate for the benefit of the deity. 'The question of adverse interest has been raised. It is said that the interest of Bittoo Bibee was adverse to that of the deity and the interest of Madho was adverse to that of Rajendra. If the properties were the separate properties of Sreegopal and the deed of trust was upheld, Bittoo Bibee only had Rs. 10 per month under cl. 2, a share of food offerings under cl. 7, a provision for medical expenses under cl. 14 and the expenses of pilgrimage and right of residence under cl. 17. In this contingency she had no adverse interest. If, however, the properties were separate but the deed of trust was set aside on the ground of incapacity of Sreegopal, Bittoo Bibee would inherit the whole of Sreegopal's estate as a Hindu widow. In this contingency she may be said to have an adverse interest. If the properties were joint family properties and the deed of trust was bad, then Bittoo Bibee would only have been entitled to maintenance and the nephews of Sreegopal would take the properties by survivorship. In such a contingency the interests of the deity and of Bittoo Bibee may not be conflicting. In view of these contingencies it is very difficult to say that Bittoo Bibee, by reason of adverse interest, was not a fit and proper person to act as the guardian-ad-litem of the deity ab initio. Under the terms of settlement, however, Bittoo Bibee got Rs. 6 from each of the sons of Hargopal, i.e., Rs. 48 per month and a charge on the family dwelling-house under cl. 5 and right of residence under clause 19 read with the schedule thereto. In this settlement she may have got something more than she could get under the deed of trust. This extra advantage may to a certain extent make Bittoo Bibee's interest adverse to that of the deity m the matter of the settlement. If Sreegopal was joint with his nephews then the properties were still joint family properties and the sons of the nephews had also shares in those properties. The terms of settlement declared that only the sons of Hargopal were the owners of the probities. In this sense the interest of Madho was adverse to that of Rajendra. If Sreegopal was joint with his nephews then the properties were still joint family properties and the sons of the nephews had also shares in those properties. The terms of settlement declared that only the sons of Hargopal were the owners of the probities. In this sense the interest of Madho was adverse to that of Rajendra. There can be no doubt that there were serious breaches of our Rules and noncompliance or even violation of the rules relating to minors and persons under disability which, by analogy, applies to a deity. Some of these breaches may, taken alone, be considered as mere irregularities on the principle of substantial representation. The mark of Bittoo and the signature of Madho may on the principle referred to in Madhgouda Babaji v. Halappa Balappa (1933) I. L. R. 68 Bom. 348 be taken as their respective mark and signature in both capacities. The cumulative effect of these breaches and illegalities or at the lowest irregularities makes it difficult to ignore them altogether. While I consider these irregularities complained of and the question of adverse interest taken together to be very serious I would yet, in the circumstances of this case and in view of the lapse of about 12 years before the institution of this suit and the genesis of this litigation, be somewhat reluctant to hold that the decree in the 1926 suit, on these grounds alone, is a nullity. In the view I have taken on the question of fraud it is not necessary for me to express any more definite opinion on this aspect of the matter. 56. As to (ii):-The consent decree in the 1926 suit is impugned in this suit as having been brought about by fraud and collusion of the parties other than the Plaintiffs in this suit. It is impossible to contend that the very decree which is challenged on the ground of fraud operates as resjudicata in a subsequent suit. The issue whether that decree in the 1926 suit was the outcome of fraud cannot possibly be said to have been in issue in that suit and consequently from this point of view that decree cannot possibly operate as a bar to the present suit on the ground of resjudicata or principles analogous thereto and issue 3 must be answered in the negative. 57. 57. No substantive issue was raised by the contesting Defendants challenging the Plaintiff's plea of fraud vitiating the consent decree. In view of the allegations in paragraph 7 of the plaint I am not prepared to say that the fraud has not been sufficiently pleaded. There should have been a substantive issue on this point. The question of fraud was, however, taken to be in some way involved in the issues 3, 6 and 7 and has been argued by learned Counsel on both sides and I do not think it will be right to hold that the contesting Defendants are precluded from raising the question. The gravamen of the charge is that although Sreegopal had separated from his nephews and as such was quite competent and well within his rights to execute the deed of trust in respect of his properties and that although the fact of separation appeared on the then Plaintiff's own letter referred to in the petition in the Receiver application in the 1926 suit and could be easily proved by calling tenants who paid rent separately the trustees and shebaits who were parties to that suit did not make any the least attempt to fight out that case but consented to the deed being cancelled outright and thereby obtained an advantage for themselves personally. It is difficult to ascertain with any degree of certainty the state of evidence available to the parties as far back as 1926 or 1928. The lapse of time has certainly created considerable difficulty for evidence then available may not be now available. The Plaintiffs in the 1926 suit who are some of the present Defendants might have then proved joint ness of Sreegopal with his nephews by calling tenants who have since left and cannot be traced. Likewise the trustees and shebaits might have called more tenants to prove separation but those tenants cannot now be found to give evidence on behalf of the Plaintiff deity. The disadvantage is on both sides. While, therefore, I am prepared to make some allowance for the present contesting Defendants as well as for the present Plaintiffs I cannot but hold, on the evidence now before me that there was no justification for the trustees and shebaits to give up the fight at all. Mr. Sett has urged that the fact that Mr. While, therefore, I am prepared to make some allowance for the present contesting Defendants as well as for the present Plaintiffs I cannot but hold, on the evidence now before me that there was no justification for the trustees and shebaits to give up the fight at all. Mr. Sett has urged that the fact that Mr. J. N. Basu was alive in 1926-1928, yet the trustees and shebaits did not contest the case shows that they had really no case. I do not accept this argument. The fact relied on by Mr. Sett appears to me to lead to an opposite conclusion and only aggravates the misconduct of the trustees and shebaits. Mr. Basu could have presumably proved how and when Sreegopal gave instructions, what his mental capacity was, how the recital as to the separation came into the deed, how and in what circumstances the letter of the 9th June, 1926, came to be written, what happened to that letter and so forth. The settlement of the suit in such circumstances cannot be explained on any hypothesis except that the parties chose to further their own selfish interests in utter disregard for the interest of the deity. Bonwari and Madho maintained that they compromised that suit for pleasing their brothers. I do not believe that explanation at all and that explanation did not gather substance by endless repetition by both of them. I am convinced that in the process of pleasing their brothers, they pleased themselves and secured their personal ends. In fact everybody gained at the expense of the inarticulate deity who mutely witnesses the depredations by its own protectors and servants on its rights. 58. Mr. J. C. Sett has advanced an argument founded on the principle that a bona fide settlement of disputed rights must be held binding on the parties thereto even if it subsequently transpires that the right asserted by one party was not well founded although no substantive issue was raised. Learned Counsel has referred me to the cases of In re Houghton [1904] 1 Ch. 622. James Eaton v. John Mcgreg or Buchanan [1911] A. C. 253 and Jayawickrcme v. Amarasuriya [1918] A. C. 869 and several other cases. He argued that if the Court is satisfied that there was any the least bona fide doubt in the minds of the parties it should uphold the settlement. 622. James Eaton v. John Mcgreg or Buchanan [1911] A. C. 253 and Jayawickrcme v. Amarasuriya [1918] A. C. 869 and several other cases. He argued that if the Court is satisfied that there was any the least bona fide doubt in the minds of the parties it should uphold the settlement. On the evidence before me it is impossible to say that the trustees and shebaits could have any reasonable doubt at all. There was separate collection of rent as is now proved. There was the demand for partition by two of the sons of Hargopal which is referred to in the receiver petition. There was the letter by Ramnarain's pleader to the tenants, there were the different criminal cases. How could anybody have any doubt as to separation? The change of case from undue influence of Ramgopal to that of Bonwari leads to an inference that this was not bond fide at all. Mr. Sett has urged that there must have been some doubt, for how or why other wise should Bittoo Bibee, Mahadeyi, Tara Bai and Naraindas consent to the settlement. If Sreegopal was separate, the deed would stand and Bittoo, Mahadeyi, Tara Bai and Naraindas would get only what was reserved for them in the deed. If Sreegopal was joint with his nephews then Bittoo would get maintenance only as a Hindu widow and Mahadeyi who was married and her daughter and husband would not get anything. Why, asks Mr. Sett, did they not uphold the deed? Mr. Sett concludes that they must have been convinced that there was difficulty in proving separation or the mental capacity of Sreegopal. It does not follow. It may well be that they got by the settlement more than they would get under the deed. They might have easily been got at by the sons of Hargopal. I agree with Mr. Arun Sen that when trustees enter into a settlement and by that settlement gains a personal ad-vantage the Court will not enquire further or look into the good faith of the transaction. The case of Cordova v. Cordova [1879] 4 A. C. 792 and the other cases cited by Mr. Arun Sen appears to be in point. In my opinion the consent decree cannot be supported on this ground of bond fide settlement of disputed rights. 59. The case of Cordova v. Cordova [1879] 4 A. C. 792 and the other cases cited by Mr. Arun Sen appears to be in point. In my opinion the consent decree cannot be supported on this ground of bond fide settlement of disputed rights. 59. I proceed to take up the 4th issue raising the question of limitation. The consent decree in the 1926 suit was passed on September 3, 1928. If this suit could be treated as a suit for possession only then it will be in time, for the 12 years expired on September 3. 1928 when the Courts were closed for the Annual Vacation and the present suit was filed on November 11, 1940, i.e., on the date of the re-opening of the Court. But there is the decree in the 1926 suit to which both the Plaintiffs were parties. They are prima facie bound by the decree and so long as the decree is subsisting they cannot, by suing ostensively simply for possession ignore that decree and thereby evade the operation of Article 95 of the Limitation Act. They must first get the decree out of the way. Whether this suit is governed by Article 120 or Article 95, the suit, it is contended, is barred by limitation. First of all, it is doubtful whether Rajendra was a party to the 1926 suit in the same capacity in which he is a party to the present suit. Assuming that he was a party to the 1926 suit in the same capacity in which he is a party to the present suit, it is clear on the evidence and indeed it is not seriously disputed that Rajendra attained majority in 1940. In so far as this suit is one by Rajendra in his capacity as a member of the founder's family entitled to worship the deity it has been filed well within three years after his attaining majority and consequently is not hit by either Article 95 or Article 120. The position as regards the deity Plaintiff had next to be considered. The position as regards the deity Plaintiff had next to be considered. Under Article 95 of the Limitation Act the period begins to run from the date when the fraud becomes known to the party wronged and under Article 120 wen the right to sue accrues hen a fraud is practised on the deity it ordinarily brought home to the deity by means of shebait's knowledge and the deity can normally re-act to it by the shebait. [See per Rankin, C. J., in Bhubaneswari's case I. L. R. (1932) Cal. 54 at 77]. It has been held in Jagadindra's case L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 that if the shebait is under a disability, e.g., a minor, he is entitled to exemption of the period of his minority under the provisions of the Limitation Act when he brings a suit in his own name. This principle, I apprehend, will also apply when the shebait on attaining a majority brings the suit as the next friend of the deity. When, as in this case, all the trustees and shebaits under the said deed of trust are parties to the fraud complained of, how is the fraud to be brought home to the deity? Obviously by and through the knowledge of the person who, next after the defaulting trustees and shebaits, is entitled to come in and protect the interest of the deity either in his own name or in the name of the deity with himself as its next friend. If such a person himself is a minor the principle in Jagadindra's case L. R. 31 I. A. 203: (1904) 8 C. W. N. 809 I apprehend, should also apply to him. Rajendra is a member of the founder's family. He is a prospective shebait, for on the death or removal of Tara Bai and the sons of Hargopal he may become a shebait. Of all the living sons of each of the sons of Hargopal, Rajendra appears to be the oldest. It has not been shown that any of the grandsons of Hargopal, other than Gobind who was a party to the 1926 suit and the consent decree and therefore disqualified had attained majority before Rajendra attained majority. Of all the living sons of each of the sons of Hargopal, Rajendra appears to be the oldest. It has not been shown that any of the grandsons of Hargopal, other than Gobind who was a party to the 1926 suit and the consent decree and therefore disqualified had attained majority before Rajendra attained majority. In these circumstances if Rajendra has the right to maintain this suit, as I think he has, I do not see why he should not get an exemption of the period of his minority in both cases, namely, when he brings the suit in his own name or as the next friend in the name of the deity. Mr. Sen relied on the case of Mohant Ram Charan Das v. Munshi Non-rangilal L. R. 60 I. A. 124: (1933) 37 C. W. N. 541 but there may be some doubt whether that case which was in respect to alienation of Math property by a Mohant is strictly applicable to the case of a shebait in a private endowment. There is, however, another aspect of the matter which seems to me to be decisive also. The properties had been conveyed to trustees upon express trust for, amongst others, the deity. The trustees fraudulently put an end to the trust and divided the properties amongst themselves and their brothers. The consent decree being, as I have held, vitiated by fraud there was no consideration which the Court can recognize. In these circumstances sec. 10 of the Limitation Act directly applies and there can be no question of limitation at all. As long as the properties or part thereof remain in the hands of the trustees or the shebaits or those who got them by arrangement fraudulently arrived at with the trustees no question of adverse possession against the deity can arise and there can be no difficulty in following the trust properties in their hands. The execution sales were held in 1939 and in 1940. When the purchasers at Court sales paid valuable consideration limitation may start but the present suit was filed in 1940. In my judgment issue 4 must be answered in the negative and it must be held that this suit is not barred by limitation. 60. Issue 5 has net been very seriuusly argued. All the trustees and shebaits and others who were parties to 1926 suit are also parties to this suit. In my judgment issue 4 must be answered in the negative and it must be held that this suit is not barred by limitation. 60. Issue 5 has net been very seriuusly argued. All the trustees and shebaits and others who were parties to 1926 suit are also parties to this suit. The suit has been brought by the deity and a member of the family against those who were parties to the decree which is challenged as fraudulent. It is not shown how the sons of Baldeo and Ramnarain are necessary parties. No evidence has been led to show who the purchasers of the Moirahatta property are. In this connection reference may be made to Or. 1, r. 9, C. P. C. In these circumstances I am not of opinion that this suit can be thrown out on the mere ground of non-joinder of parties. If and when the deity seeks to recover possession of the Moirahatta properties the purchasers, if any of that property will not be bound by this decree. I do not see any difficulty in adjudicating the rights of the parties who are before me. I do not consider the parties, whose nonjoinder is relied on, as necessary parties in the sense that a co-sharer or a partner is a necessary party to a partition suit or a partnership action or that the suit cannot go on without them. 1 therefore, answer issue 5 in favors of the Plaintiffs. 61. The beneficiaries under the deed of trust of Sreegopal were parties to the 1926 suit and the 1928 decree. None of the beneficiaries other than the Plaintiff deity has sought to challenge the decree by taking proceedings of their own. I am. There fore only concerned with the Plaintiff deity's rights. I declare that the consent decree in Suit No. 2313 of 1926 dated September 3. 1928, is not binding on the Plaintiff deity and does not affect its rights under the deed of trust executed by Sreegopal on September 29, 1926. I refer it to the Registrar or such other officer as he may appoint to ascertain what amount was spent for the seba of the Plaintiff deity by Sreegopal at the date of the deed. The Plaintiff deity will have a charge on the properties in suit, i.e., on Sreegopal's half-share for such amount. It was contended by Mr. I refer it to the Registrar or such other officer as he may appoint to ascertain what amount was spent for the seba of the Plaintiff deity by Sreegopal at the date of the deed. The Plaintiff deity will have a charge on the properties in suit, i.e., on Sreegopal's half-share for such amount. It was contended by Mr. J. C. Sett that the amount should be apportioned between all the trust properties and only a proportionate amount referable to the two properties in suit should be paid out of the rents of these two properties. I do not see on what sound principle this claim for marshalling is founded. Here there is no contest between different sets of mortgagees on different properties. I remove the present she bait or she baits whoever he or she or they may be namely, I remove Tara Bai and the sons of Hargopal and Ramgopal who were all parties to the consent decree. I appoint the sons of the sons of Ramgopal and Hargopal as the she baits. I direct the officer to frame a scheme for the seba of the Plaintiff deity. In framing the scheme the officer will divide the turn or pala amongst the eight branches of Hargopal and two branches of Ramgopal per stripes save as aforesaid this decree does not affect the respective rights of the Defendants in the properties in suit in any way. In other words, the Defendants shall hold the properties in suit according to their respective right, title and interest but subject to the rights of the Plaintiff deity declared above. This decree does not affect their respective rights in Hargopal's share in the properties. As regards costs, the Plaintiffs will get the costs including reserved costs from the contesting Defendants (other than the Defendants Arun Bose and Sm. Sova Dutt and the deity Defendant) on appropriate scales. Certified for two Counsel Arun Bose and Sm. Sova Dutt will pay no costs and get no costs. The Plaintiffs will pay the costs of the guardian-ad-litem of the deity Defendant and add the same to their own. I was pressed by Mr. Arun Sen that as the Plaintiffs have succeeded in restoring the trust they should in the first instance get the costs out of the trust estate. Ordinarily this should be the position. The Plaintiffs will pay the costs of the guardian-ad-litem of the deity Defendant and add the same to their own. I was pressed by Mr. Arun Sen that as the Plaintiffs have succeeded in restoring the trust they should in the first instance get the costs out of the trust estate. Ordinarily this should be the position. But in this case I am only restoring the deity's rights the other beneficiaries who were sui juris are bound by the decree. Further, I am convinced that the defaulting trustees and she baits are at the back of this litigation and an order for payment of costs out of the estate will really ensured or their benefit. I am not prepared to assist them. The costs of the reference will be reserved. The parties will have liberty to apply from time to time.