JUDGMENT 1. THIS regrettable litigation has its origin in the following circumstances : 2. ONE Bamandas Mukherjee was a person of considerable wealth. With the stream of family traditions of like persons, he constructed a Devalaya or Thakurbatty in premises no. 85, Cossipore Road, in the suburb of Calcutta. On March 13, 1904 he consecrated and established in the said Devalaya, three Deities-"goddess Sree Sree Iswar Kripamoyee Thakuranee (Kalika Murti), Sree Sree Iswar Durgeswar (Sivalinga) and Sree Sree Iswar Kshetreswar (Sivalinga). '' By a Deed of Endowment, executed on September 27, 1909 from which the facts and the history of the foundation would appear, he dedicated several properties, both movable and immovable, valued at about 3 lacs of rupees, to the use and for the worship, sheba and services of the said deities. (The provisions of the Endowment re succession of she baits expenses for debsheba etc. omitted Ed.). 3. ON August 3, 1919 Bamandas executed a Will, by which he appointed his only son Manmatha Nath as the sole executor. He gave away all his movable and immovable properties of what so ever nature and where so ever situate, in clouding the rest and residue of the estate, to the use of the said son, Manmatha Nath, to be held and enjoyed by him. The aforesaid Deed of Endowment dated September 27, 1909 did not go unnoticed in the said Will but possibly he then could not imagine that within half a century, the Estate were going to be under the harrow of litigations of which this is just the beginning. 4. ON June 21, 1921 the said Bamar Das Mukherjee died, leaving him surviving his only son, the said Manmatha Nath who became the she bait and trustee of the said de butter estate. Manmatha, having himself acted as a sole she bait and trustee for about the whole of his natural life, appointed on May 17, 1966 by a registered document, his grandson Ashim Kumar, the petitioner in this rule, who is the only son of his eldest son Bhupati Nath, as the sole she bait of the deities and the trustee of the trust estate. The said Manmatha Nath declared in the said document that he had got absolute right and full power to appoint a she bait after him. The said Manmatha Nath declared in the said document that he had got absolute right and full power to appoint a she bait after him. Narendra Nath, the other son of the said Manmatha Nath, who is the real contestant opposite party No. 1 in the instant Rule, filed a suit in the First Court of the Subordinate Judge at Alipore just a month thereafter, to be precise on June 22, 1966 against his father Manmatha Nath, since deceased, being defendant No. 1; against his elder brother the said Bhupati Nath (defendant No. 2, opposite party No. 2 in the present Rule and against his nephew, the said Ashim Kumar, son of Bhupati Nath, who is the petitioner herein as already stated. These three persons were the principal defendants. Seven other persons were stated to be interested in the Endowment and were impleaded as pro forma defendants. 5. OMITTED. 6. THE plaintiff thus said openly that his father was senile. The plain tiff also charged his elder brother viz. Bhupati Nath, and stated that in the course of his management he, in collusion with his son Ashim, the petitioner, had committed several acts of misconduct, waste, mismanagement etc. in respect of the De butter Estate, which are catalogued in paragraph 8 of the plaint which is noticed later. The plaintiff, being Manmatha's youngest son, and as a prospective she bait of the said deities, had alleged to have a vested right in the discharge of the worship of the said deities and in the management and administration of the de butter estate. To him, a clear necessity had therefore arisen for interference, to save the endowed property and the plaintiffs right as well, by settlement of a scheme for the due worship, administration and management of the Debutter Estate. The plaintiff gave the date of cause of action of the suit, about eight years earlier i.e. it arose on and from December 1958, when Manmatha Nath became permanently disabled in the discharge of his duties and obligations; and thereafter on diverse dates, and finally an June 22, 1966, when the other defendants had committed the aforesaid illegal and wrongful acts as alleged in paragraph 8 of the plaint. (Prayers-omitted-Ed. ). 7. THE foregoing is the whole of the plaintiff's case. 8. (Prayers-omitted-Ed. ). 7. THE foregoing is the whole of the plaintiff's case. 8. IT appears from the records that the Thakurbari and the residence of the parties are located on a piece of land, containing an area of more than 33 bighas (11 acres), in Cossipore, a northern suburb of Calcutta. The plaint schedule contains several two and three storeyed houses and several plots of lands within Calcutta proper, which are mostly-tenanted. It contained several mouzas in the District of Burdwan and 16 mouzas appertaining to Lot Shampta in Jessore, now in Eastern Pakistan. Part II of the Schedule gives a list of ornaments made of diamond, emerald, ruby, pearl, gold etc. It contained a list of various articles made of silver, glass, copper and brass. Utensils of silver, bel-metal, marble, stone and iron were also listed therein. On September 4, 1966, Manmatha Nath, defendant No. 1, died, (The death of defendant No. 1 was noted. Defendants 4 to 8 fifed a written statement.) 9. ON November 26, 1966, the plain tiff filed an application for amendment of the plaint in the manner set forth in the schedule thereto. (Particulars of amendment-omitted). Prayer for the appointment of a Receiver, which is the subject-matter of the instant Rule, was added for the first time in the amendment application. There were amendments in the list of properties too. Whole of Part III showing the cash assets (G. P. Notes) of the face value of more than 8 lacs and valuables including Mother Kripamoyee's jewelleries, were added in the schedule of properties. The valuation was raised from ten thousand rupees to twenty-one thousand, possibly with a view to make it easy to go to the Supreme Court for getting that the parties would vanish and the worshippers would die and the prospective she baits would not procreate but the litigations are not likely to end till Lord Shiva manifests his real Self with the Trident, or Goddess Kripamoyee favours the family, with her blessings. 10. ON December 7, 1966 the defendant No. 3, Ashim, the petitioner here in, filed a suit, being Title Suit No. 143 of 1966 in the Alipore Court for a declaration that he was the sole she bait of the deities. It is pending. On December 12, 1966 the plain tiff Narendra Nath, filed an application for appointment of a Receiver out of which these two cases arise. It is pending. On December 12, 1966 the plain tiff Narendra Nath, filed an application for appointment of a Receiver out of which these two cases arise. It was inter alia pleaded therein that since the death of Manmatha Nath, the plaintiff had become a she bait of the deities. His further case was that Manmatha Nath, defendant No. 1, had become practically invalid for the last 8 years and that the defendant No. 2, Bhupati Nath, wrong fully usurped the office of the she bait of the said deities and started managing the de butter property as a de facto she bait. Paragraph 11 of the said application recited that in course of such management, the said defendant No. 2, Bhupati. in collusion with his son, Ashim, defendant No. 3, committed diverse acts of misconduct, waste, and mismanagement, default, malfeasance and misfeasance the particulars whereof are stated in sub-paragraphs (a) to (i) thereof. The principal allegations were that the defendant No. 2, Bhupati, had failed and neglected to perform any obligation and or duty as a she bait of the deities and he in collusion with his son, defendant No. 3, had been misappropriating the income of the estate and manipulating the accounts; that he in collusion with his son, defendant No. 3, had been creating long-term leases of the de butter estate; that both the defendants Nos. 2 and 3 induced the defendant No. 1, Manmatha Nath, to execute leases to different persons; that defendant No. 2 failed and neglected to cause necessary repairs to the portion of the premises in occupation of the petitioner and his family members; that damages had been caused to the roof of the bed rooms of the plaintiff by causing holes; that the defendants Nos. 2 and 3 were trying to oust and dislodge the plaintiff and his family members from the said portion of the Thakurbari in their occupation; that they are obstructing the plaintiff from having access to the temple of the deities, that the defendant No. 3 Ashim Ms since assumed the role of the sole she bait of the deities and applied for substitution in a suit pending at Sealdah Court and that he issued notices to different tenants for realising rents of the De butter Estate and in fact started realising the same. 11. 11. THE Deed of Appointment by Manmatha Nath in Ashim's favour was challenged and it was stated that the defendant No. 3, Ashim, was clearly an usurper, having absolutely no vesting of right, title or interest or authority to assume the role of a she bait or to function as such or to intermeddle with the De butter Estate. It was stated in paragraph 14 that a regular scramble had started and the entire Estate was in medio, facing dissipation, to the serious prejudice and detriment of the deities and it had thus become necessary just and convenient to appoint a Receiver to take charge of the administration and Management of the De butter Estate and the daily and periodical worship of the deities. 12. IT might be stated that the statements made in the entire paragraph 11 containing the sub-paragraphs and the annexures, were not properly verified by the plaintiff himself, who is an Advocate of this Court, who only stated them to be true, partly to his knowledge and partly to the informations received from two persons, without specifying which portion of the paragraph or paragraphs or the sub-paragraph or the sub-para graphs, is true to his knowledge or information or from whom those informations were received. On December 19, 1966 the petition of objection was filed, on behalf of the defendants Nos. 2 and 3 to the plain tiffs' application for the appointment of a receiver denying the material allegations made therein. It was inter alia answered in the said affidavit -in- opposition that the application for the receiver was misconceived being the outcome of erroneous appreciation of the legal effect of the directions contained, in the Deed of Trust and Endowment created by Bamandas, the founder of the de butter estate, as to the appointment of the she bait according to the seniority in the male line. It was averred that Manmatha Nath was within his rights to make the Deed of Appointment in Ashim's favour and the same is a valid document. He suffered from no senile debility and he took an active interest in the management and administration of the De butter Estate. It was asserted that the defendant No. 3, the petitioner herein, had already been acting as a she bait and performing the sheba puja of the deities and was managing the De butter Estate. He suffered from no senile debility and he took an active interest in the management and administration of the De butter Estate. It was asserted that the defendant No. 3, the petitioner herein, had already been acting as a she bait and performing the sheba puja of the deities and was managing the De butter Estate. The plaintiff had accepted the vakalatnama from his father Manmatha Nath, in withdrawing the interest, payable by the Calcutta Improvement Tribunal in respect of the monies payable on account of the De butter Estate, which demolished the case of senile debility. It was stated that Sudhir Kumar Banerjee, Advocate, ordinarily practicing in the Alipore Courts, the eldest son of Sm. Radha Rani Devi, defendant No. 9 and opposite party No. 7 herein, second daughter of Manmatha Nath and wife of Sri Sunil Kumar Banerjee, was one of the attesting witnesses to the said Deed of Appointment in Ashim's favour. It was asserted that there was no scramble over the property and there was no question of the Estate being in medio. The entire management of the de butter property sand the seba puja are being properly Looked after solely by Ashim, the defendant No. 3. Several letters written by Manmatha Nath, deceased defendant No. 1, and certain other documents were also annexed to the said affidavit -in- opposition. It might be noticed that the verification by Ashim, the petitioner himself, who is also an Advocate, suffered from the same defect as that of the plaintiff's, in the application for Receiver. Further affidavits were filed on both sides and several other documents were annexed to the said affidavits. The other defendants, including Sm. Annapurna's branch, did not file any return either supporting or objecting the application. (Particulars of W S. of Defendants 2 and 3 omitted-Ed.). 13. THE learned Subordinate Judge heard the receiver matter for several days, commencing from April 18, 1967 and he ultimately allowed the application for the appointment of receiver by his order No. 89 dated May 16, 1967. The parties were asked to suggest the name or names and preferably an agreed name of the receiver or receivers to be appointed within 15 days thereof. (Personnel of Receiver-omitted-Ed ). 14. ON May 26, 1967, Pramatha Nath Banerjee, proforma defendant No. 11, father of the defendants 4 to 8, filed his written statement. The parties were asked to suggest the name or names and preferably an agreed name of the receiver or receivers to be appointed within 15 days thereof. (Personnel of Receiver-omitted-Ed ). 14. ON May 26, 1967, Pramatha Nath Banerjee, proforma defendant No. 11, father of the defendants 4 to 8, filed his written statement. Though he put on a thinking cap but the stand taken by him was found to be not the same as taken by his children viz. the said defendants Nos. 4 to 8. After the learned Subordinate Judge appointed the Receiver, he pleaded that yes, it was necessary. Or. June 3, 1967, the learned Subordinate Judge by his order No. 94 appointed defendant No. 3, Ashim, the petitioner, a receiver in respect of the suit properties. On an application made on behalf of the plaintiff, the operation of the said order was however stayed by the learned Subordinate Judge on June 5. 15. THE defendant No. 3 Ashim, moved this Hon'ble court against the earlier order viz. Order No. 89 by which the learned subordinate Judge allowed the application for appointment of the Receiver, on which Civil Revision Case No. 2325 of 1967 arises. The plaintiff Narendra Nath moved this Court against the later order, viz. order No. 94, by which Ashim, defendant No. 3, was appointed a Receiver, on which Civil Revision Case No. 1959 of 1967 arises. Civil Revision Case No. 2325 of 1967. 16. THIS is the main Rule against the said earlier order, on which arguments were elaborately advanced on behalf of all the parties. The petitioner Ashim, defendant No. 3, challenges the order of the learned Subordinate Judge, appointing the Receiver to be erroneous. The grounds would appear from the discussion hereafter. 17. THE two questions, complementary to each other, were raised by Mr. Manindra Nath Ghosh, learned Advocate appearing for the petitioner, namely, whether, the application for the appointment of a Receiver was maintainable in the absence of the idols being made parties either to the suit or to the application for Receiver; and second, whether an order for appointment of a Receiver can at all be made in respect of a Hindu Religious Endowment. 18. WE may dismiss the preliminary abjections of Mr. J. K. Sengupta, taken On behalf of the plaintiff opposite party, that these points were not taken in the. Court below, being pure questions of law. 18. WE may dismiss the preliminary abjections of Mr. J. K. Sengupta, taken On behalf of the plaintiff opposite party, that these points were not taken in the. Court below, being pure questions of law. 40. But Mr. Prafulla Kumar Roy, the learned Advocate, appearing on behalf of some of the other opposite parties, submitted on the first question, relying on the dictum of the opinion of the Judicial Committee of the Privy Council, in the case of (1) Maharaja Jagadindra v. Rani Hemanta Kumari; 31 I. A. 203 = I. L. R. 32 Cal. 129 = 8 C. W. N. 809 (P. C.), to the effect that the night of management and possession of the de butter property being vested in the she bait and not in the Idol, it is not a necessary party to the suit. The Privy Council decision in the case of (2) Radha Binode Mondal v. Gopal Jieu Thakur, 54 I. A. 238 = I. L. R. 54 Cal. 770 = A. I R. (1927) P. C. 128; the full Bench decision of this Court in the case of (3) Bhupati v. Ramlal, I. L. R. 37 Cal. 128 (F. B.) = 14 C. W. N. 18 = 10 C. L. J. 355, and two Bench decisions of this Court viz., (4) Nirmal Chandra v. Jyoti Prasad, 45 C. W. N. 709 = A. I. R. (1941) Cal. 552 and (5) Boto Krishna v. Akshoy Kumar, 54 C. W. N. 660 = A. I. R. (1950) Cal. 111, were also cited in support of the said pro position. Mr. Roy further submitted that the Supreme Court, in the case (6) Kalipada v. Sm. Palani Bala, 1953 S. C. R. 503 = A. I. R. (1953) S. C. 125, approved by silence, that the deity was not a necessary party. In answer Mr. Ghosh cited the Privy Council decision of (7) Pramatha v. Pradyumna, 52 I. A. 245 = A. I. R. (1925) P. C. 139, and submitted that the principle therein laid down was a complete answer to Mr. Roy's submissions. Mr. Roy further pointed out that in some cases their Lordships of the Privy Council either passed them selves the order of appointment of the Receivers or affirmed such order passed by the High Court. The cases of (8) Niladri Sahu v. Mohant Chaturbhuj, 53 LA. Roy's submissions. Mr. Roy further pointed out that in some cases their Lordships of the Privy Council either passed them selves the order of appointment of the Receivers or affirmed such order passed by the High Court. The cases of (8) Niladri Sahu v. Mohant Chaturbhuj, 53 LA. 253 = A. I. R. (1926) P. C. 112; (9) Raja Peary Monan Mukherjee v. Monohar Mukherjee, 48 LA. 258 = A. I. R, (1922) P. C. 235 = I. L. R. 48 Cal. 1019, affirming the Bench decision of this Court by Sir Ashutosh Mookherjee and Panton JJ. in (10) Monohar v. Peary, reported in 24 C. W. N. 278, and the case of (11) Benoy Krishna Mukherjee v. Satish Chandra Giri, (Tarakeswar Case), 5 LA. 131 = I. L. R. 55 Cal. 720 = A. I. R. (1928) P. C. 49, affirming the order of the High Court reported in A. I. R. (1926) Cal. 1092, were also brought in aid. 19. REFINE arguments have been put forward, which have no doubt gained acceptance in some of the earlier cases but the nicety and subtlety of the interpretation of the several decisions have led to an uncertainty in the law itself, which would remind us that the law on the Hindu Religious Endowment, to a large extent, is a Judge-made law. They are also influenced to a very great extent by the ideas of the English Law. Abiding directions had been given for long, by the notable English Judges to the Indian Courts, to decide cases according to the principles administered by the Equity Courts in England. Their Lordships of the Judicial Committee, however, themselves gave warning in some cases, that the narrower peculiarities of the English law should not be imported into the Hindu system. In my opinion, a too rigid adherence to them, specially in cases arising out of Hindu Religious Endowments, is neither commendable nor just though their pronouncements, specially in Other branches of law, are of considerable assistance to us. 20. TURNING to the issue of the deity not being a party, by way of introduction, it might be stated that there are usually two classes of cases-one by the deity through the She bait or Manager and the other is by the she bait, the prospective she bait, the worshipper or the persons interested in the endowment but not in the name of the deity. At the outset it should be steadily borne in mind that the case in hand is not one in which the deity wants relief against the defendants and it is not ready the suit of the Idol. The plaintiff here is claiming only the benevolent interest in the affairs of the Idol and the order challenged here is an order for the appointment of a Receiver. In dealing with the cases, I may first refer to Jagadindra's case (supra). In that case a suit was instituted for recovery of the endowed property. It if not known as to who founded the endowment or as to the terms and conditions of the foundation. In the interest of the endowment and to save the suit from being barred by limitation, it was held by the Judicial Committee that the possession and management of the Idol's property was in the she bait; but it should not be lost sight of that the title to the properties still remained with the Idol and not with the she bait, though in an ideal sense. The personality of the idol cannot be said to have merged in that of the she bait. A suit lies at the instance of the she bait but it does not follow that the Idol is deprived of its right of suit. The exact scope of the doctrine laid down in the said decision that the right of suit is not in the Idol is, in my opinion, not free from doubt. Dr. Bijan Kumar Mukherjee himself doubted it, in his well-known Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (hereinafter referred to as Mukherjee's Lectures) and had observed that judicial opinion on this point was neither clear nor uniform. The Deity's right to sue, in my judgment, lies dormant, so long as the she bait functions normally, otherwise Deity's rights can be exercised independently of the she baits even against the she baits. The analogy of the Hindu Idol being a perpetual infant is not only incorrect but is positively misleading. To me, it is an extravagant doctrine. I therefore hesitate for the time being to build up a law of procedure upon the said fiction which leads to manifestly undesirable and anomalous consequences, at least in some cases. The analogy of the Hindu Idol being a perpetual infant is not only incorrect but is positively misleading. To me, it is an extravagant doctrine. I therefore hesitate for the time being to build up a law of procedure upon the said fiction which leads to manifestly undesirable and anomalous consequences, at least in some cases. Their Lordships of the Judicial Committee at page 210 of 31 I. A., themselves pointed out "we desire to speak with caution but it seems possible that there may be other cases". 21. IN the case of (2) Radha Binode Mondal (supra), the Judicial Committee considered the point of res judicata, namely as to whether a previous suit between the members of a Hindu family, where the plaintiff described both the plaintiff and the defendant as she baits of a family Idol, and prayed for a scheme for the management of properties stated to be De butter could be regarded as a suit, in which the Idol was a party defendant, so that the decision in the said suit would be binding on the Idol. It was held by their Lordships that the finding in the earlier suit that the property was not proved to be de butter, raised no ground for res judicata in the later suit, as the earlier suit was not on behalf of the Idols and therefore not between the same parties and consequently there would be no bar of res judicata. The instant question was not raised in the said decision. 22. COMING to the Full Bench decision of (3) Bhupati v. Ramlal (supra), the question as to whether the deity was a necessary party or not, was not raised. Chief Justice Jenkins mentioned the two points raised, at pages 134 and 135 of I. L. R. 37 Cal., which were to the effect following: "(i) Does the principles of Hindu Law, which invalidates a gift other than ho a sentient being capable of accepting it, apply to a bequest to trustees for the establishment of an image and the worship of Hindu Deity after the testator's death and make such a bequest void ? (ii) Whether the cases of Upendra v. Hem Chandra Boral, Rajomoyee Das see v. Troylukho Mohiney Das see and Nagendra Nandini Das see v. Benoy Krishna Deb, have been correctly decided, so far as they lay down the proposition that a gift to a Hindu Deity, whose image is to be established and consecrated in future is void ?" It would appear from the above, that the present question which we are now discussing, was not referred to the Full Bench. This Court in the case of Butto Krishna (supra), ultimately held that the facts of each case must have to be looked into closely. It stated that the true import was the decision in the case of (12) Bimal Krishna Ghosh v, She bait Gunendra Krishna Ghosh, 41 C. W. N. 728 = I. L. R. (1937) 2 Cal. 105, in which it was laid down that a deity was a necessary party where it was vitally interested. If the interest of the she bait or She baits is adverse to that of the deity, it is to be made a party but where the interest of the deity is not likely to be affected, in any possible way, the deity is not a necessary party. Vide the observations of B. K. Mukherjee J., sit ting singly, in the case of (13) Haripada v. Elokeshi 44 C. W. N. 357 = A. I. R. (1940) Call. 254 (255), to the effect that if the Court feels the necessity of having a deity before it, the deity should be specifically made a party. 23. MR. Roy, in my judgment, is not right in saying that the Supreme Court in the case of Palanibala (supra), had by implication laid down that the deity was not a necessary party. No expression in that regard, even by way of an obiter, has been made by their Lordships. The interest of the deity did not really arise in Palanibala's case. The main question there was on the turn of worship of the deity. On the case of Paramatta v. Pradumnya (supra), Mr. Roy submitted that the deity was made a party because a person was claiming the Idol itself as his own, which is against the interest of the deity. The main question there was on the turn of worship of the deity. On the case of Paramatta v. Pradumnya (supra), Mr. Roy submitted that the deity was made a party because a person was claiming the Idol itself as his own, which is against the interest of the deity. In other words it was an attempt at "establishment of individual right" on which their Lordships of the Judicial Committee thought that a next friend of the deity was to be appointed. This is not so in the instant case. Mr. Ghose pointed out that the plaintiff (opposite party in this Rule) had pleaded, that by the appointment of Ashim, (the petitioner) as sole she bait, the line of succession of she bait ship was going to be changed and accordingly on the principles laid down by P. B. Mukherji J. in the case of (14) Sri Mahadeo Jew v. Bal krishna A. I. R. (1952) Cal. 763 = 89 C. L. J. 224, the deity is a necessary party and it should have been added as such. He cites another Privy Council decision in the case of (15) Kanivalal v. Hamid Ali, 60 LA. 263 - A. I. R. (1933) P. C. 198, and its High Court judgment reported in A. I. R. (1930) Oudh 235. 24. ON the submission of Mr. Roy about the appointment of Receiver in certain cases, direct by the Privy Council, the first case that falls for consideration is the case of Niladri Sahu (supra ). It deals with an alienation by way of a mortgage of the endowed properties by the Mohant, for alleged necessity of the Institution, the famous Jagannath Temple of Orissa. It should be noticed that there the receiver was appointed in respect of only the beneficial interest of the Mohant. That interest is not the same as that of the deity's in the endowment. If the order was directed against the deity's interest, there was necessity for their Lordships of the Judicial Committee to specify the Mohant's share. It should be noticed that there the receiver was appointed in respect of only the beneficial interest of the Mohant. That interest is not the same as that of the deity's in the endowment. If the order was directed against the deity's interest, there was necessity for their Lordships of the Judicial Committee to specify the Mohant's share. The decree passed in the Privy Council was in substance a personal decree made against the mortgagor in the first place and in the event of his failing to pay, the main direction was that the receiver should be appointed to realise the rent and profits of the endowed estate; and the Mohants share, after payment of maintenance allowance, should be allocated for payment of the plain tiff's debt. In other words, only the Mohant's share in the income was to be appropriated for the payment of the dues. Their Lordships pronounced the decree in the form as adopted in the case of (16) Prosunno Kumari Debya v. Golab Chand, 2 I. A. 145 == 23 W. R. 253, "declaring that the debt should be paid by the she bait or else realised from the profits of de butter property". This view was expressed by myself sitting with Justice Bachawat (as his Lordship then was) in the case of (17) Brojorani v. R. G. Shaw and Sons. 67 C. W. N. 533 (542 and 546), the judgment of which has recently been affirmed by the Supreme Court, in Civil Appeal No. 633 of 1965 in March 1968, with only one clause added to the decree not relevant in the present con text. The same course was taken by the Privy Council by appointing a receiver in the ease of (18) Vibhudapriya v: Lakshindra. 54 LA. 228 = A. I. R. (1927) P. C. 131, but that again in respect of the rents and issues of the Muth property and the proceeds from the offerings, and the direction was that the balance after meeting the expenses was to be applied in discharge of the plaintiff's debt until such debt has been paid off. 54 LA. 228 = A. I. R. (1927) P. C. 131, but that again in respect of the rents and issues of the Muth property and the proceeds from the offerings, and the direction was that the balance after meeting the expenses was to be applied in discharge of the plaintiff's debt until such debt has been paid off. The Supreme Court in the case of (9) Union of India v. Him Debi 1952 S. C. R. 765 = A. I. R. (1952) S. C. 227 considered both the above decisions of Niladri Sahu and Vibhudapriya, and observed at page 773 of S. C. R. that the Mahunt had a beneficial interest in the properties being provided with maintenance and that a receiver could be appointed in respect of such a beneficial interest so that the decree obtained might be satisfied. In the case of (10) Monohar v. Peary (supra), the High Court (Mookherjee and Panton JJ.) appointed a receiver because of the assertion of a hostile title by Raja Peary Mohan to the endowment and because he kept the lawful she bait out of possession of De batter properties for a long time. It was also found that for the Raja's action the Estate was singularly unfortunate and a situation arose by which his duty and self-interest were in conflict. In this background their Lordships appointed a receiver and placed the management in the hands of a Receiver. The said order was not disturbed in the appeal by their Lordships of the Judicial Committee. 25. COMING to the last case in this connection viz. the Tarakeswar case (supra), the facts briefly were that within four days of the application for the appointment of a receiver, the Mohant of the Tarakeshwar Estate consented to the appointment of a receiver in respect of the temple, the offerings to the deity and in respect of certain other properties and also for management of the Dev-seba. In this case also, the Mohant set up a title, adverse to the trust, with respect to many of the debattar properties. There were again serious charges against the Mahunt for his misappropriation of a large amount of money and of the movables, belonging to the debuttar estate. Charges of mismanagement, waste and devastation of the properties by him were also made. The Mohunt was further charged with neglect in charities and the molestation of the worshippers. There were again serious charges against the Mahunt for his misappropriation of a large amount of money and of the movables, belonging to the debuttar estate. Charges of mismanagement, waste and devastation of the properties by him were also made. The Mohunt was further charged with neglect in charities and the molestation of the worshippers. And lastly, on account of serious breach of peace there was a good deal of popular excitement and disturbance of order in connection with the worship; and the Mohunt had to leave Tarakeshwar by abandoning this office and leaving the temple and the properties without proper care, direction and management. The Mohunt, it appears further, exposed the lands for being sold, due to his neglect to payment of rent. He abdicated the Mohunt ship, but before that, he introduced strangers in the Palace. As a matter of fact, the Congress Party, Mahabir Dal and certain Satyagrahis took possession of the temple and there was no responsible person to manage the estate or the Dev-seba; and the Mohunt could not administer the trust estate. "in the then chaotic condition of things", the Court could not but appoint a receiver; who reported later to the Court that pursuant to the decision arrived at by Mr. M. K. Gandhi and Mr. C. R. Das, he got possession. These circumstances, which justified the appointment of a Receiver in the Tarakeshwar case, are totally absent in the instant case. 26. M. K. Gandhi and Mr. C. R. Das, he got possession. These circumstances, which justified the appointment of a Receiver in the Tarakeshwar case, are totally absent in the instant case. 26. RELYING on the principles that the appointment of a Receiver does not affect the right to the property and on the facts of the instant case closely scrutinised, it appears that the interest of the deities is not in any way likely to be affected by the legation and both the plaintiff and the defendant No. 3 Ashim the petitioner are, at least up to this stage, claiming only the benevolent interest in the affairs of the Idol and not claiming against the interest if the deities and that the suit is not really the suit by the deities, as they are not vitally interested and further relying on the principle laid down by the Supreme Court in the case of (20) P. L. Reddy v. L. L. Reddy 1957 S. C. R. 195 A (1957) S. C. 314 and looking into the nature of the litigation and the interest of the endowment and as I am not as yet feeling the necessity and presence of the deities before the Court, I hold that the Court is not precluded in appointing a Receiver, in the absence of the deity in respect of the properties covered by a Hindu Religious Endowment, be it public or private, but of course only when the provisions of Order 40 of the Code of Civil Procedure are satisfied and if the facts of a particular case otherwise justify, in the interest of justice, the appointment of a Receiver. Accordingly Mr. Ghosh submissions on both the questions, namely, that the application for the appointment of a Receiver is not maintainable in the absence of the Idols being made parties and that no order 3or appointment of a Receiver in respect of a Hindu Religious Endowment can at all be made fail. It is convenient now to turn to the second of the legs on which the defendant No. 3 petitioner, sought to rest his first justification. He contended, through Mr. It is convenient now to turn to the second of the legs on which the defendant No. 3 petitioner, sought to rest his first justification. He contended, through Mr. Ghosh, indeed strongly reiterated, that the order of the Court below was vitiated because of two things first is its assumption that defendant No. 3 Ashim was an interloper and a trespasser in relation to the endowment; and second, the erroneous legal position namely, that Ashim's appointment as the sole she bait by Manmatha is invalid, in view of the principle laid down by the Privy Council in the case of (21) Jatindra Mohun Tagore v, Ganendra Mohun Tagore, I. A. (Supp.) 47 = 18 W. R. 359, herein after referred to as Tagore Case. 27. MR. P. K. Roy has addressed an elaborate and lengthy argument in sup port of the starling proposition that it is a settled law that a person (Ashim) in the circumstances, cannot but be regarded as an interloper so far as the de butter properties are concerned. For intensity of feeling, extent of interest and importance of results such an argument is advanced. He says that few among the members of the Settlor's family would accept Ashim as a she bait. 28. COMMONLY observed as a settled law, the proposition of interloper and/or trespasser, though established in English Law in other circumstances, is sought to be imported into India, a land with rich spiritual heritage, where tradition is ever present and sought to be applied to the Hindu Religious Endowments, which often operated as a surprise and hardship not only on the settlor if he would have been alive but also on the members of the family, as the same would easily result in most cases in inconvenient consequences. Its exact legal effect was not explained by the Court below. I see that the Court found it difficult to say what effect it would have, except to the effect of avoiding to answer the specific question. It can never be disputed that Ashim (defendant No. 3) is the grandson of Manmatha Nath (only son of the eldest son, Bhupati) and a member of the family and that is a worshipper of the deities. It is not also disputed that he is performing the duties of the she bait and that he is admittedly in possession of the endowed property. Accordingly Mr. It is not also disputed that he is performing the duties of the she bait and that he is admittedly in possession of the endowed property. Accordingly Mr. Ghosh submits that even assuming though not conceding, that Ashim is lacking the legal title, he must be regarded as a de facto she bait, on the principle laid down in the case of (22) Panchkari Roy v. Amode Lal Burmanya 41 C. W. N. 1349 = A. I. R. (1937) Cal. 559. In my opinion it would be very unjust to hold that the petitioner Ashim is an interloper or a trespasser in relation to the endowment. He stood upon an equal footing with the plaintiff at the date of the institution of the suit, that is, before its amendment on Manmatha's death. I have no sympathy with the lower Court's adopting the nomenclature that Ashim was a trespasser. Mr. Ghosh has supplied a mesh, which had separated the grain from the chaff of interloping, which created confusion and difficulty with the learned Judge in the Court below. The Court has forgotten the basic principle that there is a distinction between one who is an absolute stranger to a de butter estate and one, not a stranger, but who has claimed adversely to the interest of the deity. In the instant case Ashim does not belong to either category. The learned Judge of the Court below has also forgotten the warning, given by Mr. Bijan Kumar Mukherjee, in his Tagore Law lectures at page 289, which runs as follows: "in this connection, I desire to warn you that you must not regard a de facto she bait as a trespasser. . . . . . A de facto she bait is one who is in possession of the de butter as a she bait and manages me property as such though the legal title may be lacking. His position is quite different from that of a trespasser who asserts a title of his own adverse to the deity". In this case Ashim has not asserted any title of his own, adverse to the deity. In my opinion Dr. Mukherjee's Lectures made the position pellucidely dear. Regrettably however, they have not been remembered by the Court below in deciding the instant case. I, for the present, lift Ashim out of the category of the persons liable to be described as interlopers. In my opinion Dr. Mukherjee's Lectures made the position pellucidely dear. Regrettably however, they have not been remembered by the Court below in deciding the instant case. I, for the present, lift Ashim out of the category of the persons liable to be described as interlopers. The expression 'interloper' is not a happy one, even from the practical point of view and it can only be made to work, if it is patched by presumptions. The case has been argued in an atmosphere of phrases and presumptions, more picturesque than of easy practical application. It is not surprising to us that the basis of the said expression is rooted in the borrowed apparatus of legal jargon, already found obsolete in its land of origin but mainly cherished here, because an alternative might be disconcertingly open to rational review. 29. WITH all respect to the learned trying Judge, I think it convenient to notice that to approach the case by first forming a view upon the disputable question of she bait ship, which has been kept open by the learned Subordinate Judge by his earlier order, and then to decide the case on the said opinion, is a mistaken method. It cannot be called a correct method by way of sweet simplicity. I have not ranged far and wide in this case and I have not travelled an inch beyond that was necessary except on the urgency and importance of the issues raised, but the line of reasoning followed by the learned Judge that because Ashim was an interloper and so a Receiver need be appointed, is wholly unsound. He should have been impel led by the narrowest of margins to adopt a reasoning, as being that, which a legally trained Court on evidence should prefer. 30. ACCORDINGLY, the main finding that Ashim is an interloper, must be set aside. It is true that endeavour must in all cases, be made to protect the corpus of the endowed property and only when that is not possible, certain order of protection is necessary, but it would be a pity, if Ashim for that reason, would be turned a trespasser. On the next branch of the second leg of the argument, Mr. It is true that endeavour must in all cases, be made to protect the corpus of the endowed property and only when that is not possible, certain order of protection is necessary, but it would be a pity, if Ashim for that reason, would be turned a trespasser. On the next branch of the second leg of the argument, Mr. P. K. Roy, learned Advocate, could not do other than take the familiar line and say a good deal about the law relating to the line of succession to she bait ship and the principle laid down in Tagore case and finally submitting that on the said principle, the document of appointment by Manmatha in favour of Ashim is void and further that the heir of the founder has got no right to nominate a she bait. I express surprise that the Trial Court did feel no difficulty in readily accepting the said submission, though a reference to the very many cases, following the said Tagore case, shows that the problem has been much vexed by what I venture to call, quasi philosophical discussion leading to certain other and related questions and thereby to add greatly to its difficulty and uncertainty. The length and intricacy of the arguments presented before us, shows how important it is that the Court should not all at once give a final answer to this important question at this preliminary stage. It has been argued by Mr. Ghosh that the instant case would not fall very decidedly with in the principle of Tagore case, because the author of the document in question clearly gave out his intention in Ashim's favour and that the language of the instrument in Tagore case is not the same as that in the present one. 31. ONE is reminded of the observations of Sir Ashutosh Mookerjee in the Full Bench decision of Bhupati v. Ramlal (supra) at page 156 of I. L. R. 37 Cal. 31. ONE is reminded of the observations of Sir Ashutosh Mookerjee in the Full Bench decision of Bhupati v. Ramlal (supra) at page 156 of I. L. R. 37 Cal. "the conclusion is irresistible that the doctrine in Tagore case as to gifts in favour of sentient beings, has no application to directions for the dedication of property for the establishment of images and for the worship thereof"; and again at page 161: "to sum up, the second proposition that a dedication to the deity has the same characteristics and is subject to the same restrictions as a gift to a human being is inconsistent with the first principle of Hindu Jurisprudence". 32. A Division Bench of this Court in the case of (23) Mathura Nath Mukherjee v. Lakshmi Narayan Ganguli, I. L. R. 50 Cal. 426 = A. I. R. (1924) Cal. 68, ruled that there were exceptions to the Rule in Tagore case, and no doubt could be thrown upon the said fact. In the High Court judgment of Manohar v. Peary (supra), which was upheld by the Privy Council, Sir Ashutosh Mukherjee, in dealing with the plaintiff's right to she bait ship being the eldest male member among the descendants of Jugat Mohan, observed, that in certain events the founder or his heir has the right to nominate the she bait. Their Lordships of the Judicial Committee of the Privy Council in the case of Pramatha v. Pradumnya (supra), said at page 251 of 52 I. A. : "or the founder, any time before his death, or his successor likewise, may confer the office of she bait on another". Said their Lordships of the Privy Council in the case of (24) Gadadhar Mallick v. Official Trustee, 67 LA. 129 (147) = I. L. R. 1940 Cal. Said their Lordships of the Privy Council in the case of (24) Gadadhar Mallick v. Official Trustee, 67 LA. 129 (147) = I. L. R. 1940 Cal. 415 (P. C.) that; the facts of the Tagore case itself did not call for any more detailed treatment of executory bequests, and again at page 156 of the said Report, "that their lordships are of opinion that the rule which the Board in Soorjeemoney's case, 9 Moores I. A. 123, thought necessary to the existence of effective testamentary power, and which was explained in the Tagore case with reference to the Hindu Law of gift, is not restricted by further conditions intended to meet or to placate a theory which regards immediacy of effect as a necessary feature of every disposition of property. " their Lordships further observed at page 157 : "but if limited interests are to be recognised, their Lordships see no reason to hold that because a prior interest goes to the heir as such, a conditional limitation or any other limitation is bad at Hindu Law". 33. IN Dr. Mukherjee's Lectures, we find the treatment of Tagore case at several pages of the book. Dr. Mukherjee noticed that the principle laid down in the said case, had no application to a religious trust and to bequests in favour of a deity. Attention was also drawn by him to the difference between the "heirs of the founder" and the persons who have the right to succeed and of the position of an absolute she bait in whom the residuary she bait right had come to vest by devolution under the Hindu Law of inheritance 34. THEREFORE after setting aside the Trial Court's finding as to the invalidity of the deed of appointment, I desire to guard myself by saying that I must not be taken to express final opinion on this point at this stage, other than what has been just noticed. It has also been argued by Mr. Roy that in Hindu Law, it is the God personified : it is the purpose embodied. Let not there be a grand confusion and achievement of immobility by failure to realise that the Hindu Religious system is encyclopedic in character and it is a commonwealth of all faiths but it has little bearing on the point at this stage. Roy that in Hindu Law, it is the God personified : it is the purpose embodied. Let not there be a grand confusion and achievement of immobility by failure to realise that the Hindu Religious system is encyclopedic in character and it is a commonwealth of all faiths but it has little bearing on the point at this stage. In my opinion, it is not always safe to take an absolute word in its abstract sense, as there is no magic in the mounting of this phrase or that formula. 35. NOW coming to the text of the order itself, passed by the learned Subordinate Judge, which is the subject of challenge in this revision, the first thing that strikes me that the learned Judge did not enter into its merits of the allegations of mismanagement, mis-appropriation, waste etc. of the De butter property. But because of the "nature of allegations" and of the plaintiff's prima facie title", the learned Subordinate Judge thought that a Receiver need be appointed. In our opinion the mere "nature" of allegations should not have been acceptable to the Court for deciding on the question of appointment of a Receiver, without going into the merits of the allegations themselves. It was the Court's duty to consider, even prima facie, the allegations and the counter allegations made before the Court. The learned Subordinate Judge overlooked that the main allegations made in para graph 13 of the application for the appointment of a Receiver, including the sub-paragraphs therefore, are not even properly verified. The affirmation and/or verification has been made in general form, namely, that the statements are partly submissions and partly true to the plaintiff's knowledge. The Supreme Court had deprecated such forms of verification. The Court should not have acted on such allegations, for the authenticity of which, the plaintiff had not taken the responsibility. Secondly, it was also the duty of the Court below to consider the annexures filed on behalf of the respective parties which are evidence for the purpose of deciding the application for the appointment of a Receiver. The learned Subordinate Judge has by-passed most of them. 36. Secondly, it was also the duty of the Court below to consider the annexures filed on behalf of the respective parties which are evidence for the purpose of deciding the application for the appointment of a Receiver. The learned Subordinate Judge has by-passed most of them. 36. THE reason which weighed with the trial Judge for the appointment of receiver was that the property was vast in magnitude and that the same is in the hands of a person (meaning thereby the defendant No. 3 Ashim) who has not yet succeeded in proving his title. The learned Judge overlooks the fact that it is not Ashim's suit so that he needs to prove his title. The next reason which weighed with the learned Subordinate Judge was that Ashim's position as a she bait became shaky because the deed of appointment was challenged as having been obtained by undue influence and coercion and by his taking advantage of the senile debility of the last shebait, namely, his grandfather, Manmatha. The next reason of the Court was that Ashim had brought a suit for declaration of his title on the basis of the said deed, but as the same had not yet been decided, it should be held that the plaintiff Narendra must be taken to have succeeded in proving his prima facie title to the de utter property as a she bait. The above reasonings seem to us to be faulty and fallacious. The recent letter written by Manmatha which was made an annexure to the defendant No. 3's answer to the plaintiffs application for appointment of a receiver, has not even been noticed by the learned Subordinate Judge. Mr. Ghosh rightly points out that the learned Court below erred in leaving out of sight, the annexures altogether far less could present any destructive criticism thereof and failed to do its duty by not looking into the evidence, before coming to a decision regarding the appointment of a Receive. The learned Subordinate Judge forget about the earlier order passed on November 21, 1966 wherein he made a specific observation that the contention of defendant No. 3 that he was the sole she bait, went to the root of the dispute and could not be decided at that stage, i find the same assertion even by the plaintiff opposite party No. 1 in his affidavit -in- opposition in this Rule. 37. 37. BOTH Mr. P. K. Roy and Mr. J. K. Sengupta, learned Advocates seriously attempted to support the order of the Court below on the ground that the property really is "in medio in the instant case, which justified the appointment of a Receiver. The learned Sub ordinate Judge came to the conclusion that the property is "in medio" that is to say, that it is in nobody's possession because the defendant No. 3 is, "as yet nobody in this debuttar property. " 38. FOR the meaning of the expression "in medio", Mr. Roy cites a decision of this Court, namely, (26) Bhupendra v: Manohar 28 C. W. N. 86 = A. I. R. (1924) Cal. 456. In our opinion the instant case is not a case where everyone is struggling to possess the debuttar property and that nobody is in. actual possession of the same. If the full quotation of Lord Cranworth, refer red to in the above decision at page 90 of C. W. N. is carefully read, it relates to a state of things similar to that in the Tarakeshwar case (supra). The learned Subordinate Judge in the instant case however, himself finds that the defendant No. 3 Ashim is in possession of the entire debuttar property and there is no finding by the Court below that there is a scramble between the she baits or the parties for possession of the property. The facts in Bhupendra's case, therefore, are clearly distinguishable from the facts in the present case. Mr. Sengupta cites a decision of the Patna High Court, namely, the case of (26) Nilambar Das v. Mabal Behari Das, A. I. R. (1927) Pat. 220. In the said decision, various persons claimed to be the successors and demanded the possession of the property and as a matter of fact the trial court found in the said decision, that it was fraught with possibilities of waste of the property, which in the instant case, the learned Subordinate Judge did not as yet find. The fact and nature of possession were in doubt in the Patna case. It attempted to distinguish the Calcutta view laid down in the case of (27) Alkama Bibi v. Syed Istak Hossain, 29 C. W. N. 836 which, in our view, however could not be distinguished. In our judgment, the opinion of the Patna decision can utmost rank, not higher than an obiter. It attempted to distinguish the Calcutta view laid down in the case of (27) Alkama Bibi v. Syed Istak Hossain, 29 C. W. N. 836 which, in our view, however could not be distinguished. In our judgment, the opinion of the Patna decision can utmost rank, not higher than an obiter. Otherwise it goes direct against the Calcutta decision and with respect, we would be following the Calcutta view which had given cogent reasons. The learned Subordinate Judge made a mistake in thinking that the property was in medio. The submissions of both Messrs Roy and Sengupta are therefore overruled. 39. THE learned Subordinate Judge had also overlooked the patent fact that the defendant No. 3 Ashim is a member of the family and in any event is a worshipper and a prospective she bait, even if the deed of appointment for argument's sake, did not make him the present sole she bait of the deities. A prospective shebait also has an interest of his own, quite apart from that of the deity. The learned Subordinate Judge was not right in thinking him as "nobody". 40. IT seems to me that the reason of the learned Subordinate Judge leaves the difficulty of the case of the opposite parties mostly untouched. In dealing with the application for the appointment of a receiver, it was too hasty for the learned Judge, in the Court below and it was too early for him to decide almost finally the legal effect of the documents. The Court Mow, it seeing prejudged the main issues in the suit. The law and the principles which are "too obvious" to the learned Subordinate Judge, were not so to Dr. Bijan Kumar Mukherjee when he concluded his Tagore Law Lectures by observing : "that the materials for the law are very scanty and the whole structure of legal rules and principles that we see today has been practically built up by judicial decisions mainly on the basis of certain principles of the equity law in England and the customs and usages of our country. Some amount of complexity and want of uniformity are no doubt noticeable in the law as it now stands. Some amount of complexity and want of uniformity are no doubt noticeable in the law as it now stands. Judicial decisions on a subject, which is still in course of development, can seldom be uniform and what I have attempted to do, therefore, is to reconcile and harmonies the various decisions from the point of view of general principles as could be gathered primarily from the pronouncements of the Judicial Committee. " At the time when the aforesaid lectures were delivered by Dr. Mukherji, the last law on the subject was pronounced by the Judicial Committee. Though opinions of the Privy Council are treated with highest respect even now, the same had lost its supreme binding force as of the Supreme Court, which has not yet decided the point. I must say in this context however, that the result of re-reading the principles laid down in the ease of (28) Bhabatarini v. Ashalata, reported in 70 I. A. 57 - A. I. R. (1943) P. C. 89 has increased my admiration and if I may respectfully say so, for the masterly survey of the history of the matter and of the case law on the subject. In the range of reported decisions in cases relating to Hindu Religious Endowments, so cart-fully and usefully reviewed in some of them and in the difficult spheres covered by such cases, there has naturally been a desire to seek a principle; and in this search, dependence has often been placed on particular propositions employed by learned Judges expressing their conclusions in particular cases. In the result it has sometimes happened that an expression coined in one case has become doctrine in the next and the principles have been applied by some of the learned Judges in subsequent period, with a measure of tenacious fidelity. When the learned Subordinate Judge thought that it was too plain In coming to a decision on such an important issue, we need only remind him that he should not have hastened at this stage to find that the line of succession laid down by Baman Das is illegal and inoperative and by a Deed of Endowment no authority had been given to Manmatha to nominate or to appoint the successor she baits. The learned Subordinate Judge attempted to divide up or detach from each other the said two compartments, for the purpose of arriving at the said conclusion but such approach is, I think, dangerous and almost certainly wrong. The common area which we are called upon to decide at this stage is very small but the argument exposed the morass of difficulty in which the Court below became involved in applying the principles. 41. THE learned Subordinate Judge was again wrong in not considering the case from the standpoint of "just and convenient laid down under the provisions a Order 40 of the Code of Civil Procedure, in the matter of appointment of a Receiver. There was no finding as to the waste of the endowed property or any possibility of such waste, though it was argued before us without sufficient materials. 42. MR. Ghosh placed several passages from the well-known treaties on Receiver by Kerr and Woodruff as to the correct meaning of the expression "just and convenient". He cited the English case, (29) Talbot v. Hope 70 E. R. page 40 at page 48. Mr. Roy on the other hand cited another decision of the Court of Appeal in the case of John v. John reported in L. R. (1898) 2 C. H. 573 14 T. L. R 583 and placed the judgment of Lord Lindlay, Master of the Rolls and the judgment of Mr. Justice Chitty. Mr. Ghosh pointed out in reply that the decision in John's case arose out of a suit for ejectment and the learned Judge there passed the order considering all the circumstances, but in the instant case nothing like that has as yet happened and it would not be right to conclude at this stage that the same thing is sure to occur in future. The learned Subordinate Judge also failed to consider that the plaintiff prayed for the alternative relief by way of an injunction against Ashim the defendant No. 3, which has been granted against him and in favour of the plain tiff. According to Mr. Roy the said order of injunction would not be sufficient but whether that is so or not, it was the duty of the Court below to consider. 43. According to Mr. Roy the said order of injunction would not be sufficient but whether that is so or not, it was the duty of the Court below to consider. 43. THE learned Subordinate Judge again did not notice that the plaintiff did not seek for a declaration that the defendant No. 3 was not a she bait Simply, accounts were asked for from the defendants Nos. 2 and 3. It is pointed out by Mr. Ghosh that the suit as originally framed, was mainly directed against Manmatha, defendant No. 1 charging him that he did not act properly as a she bait of the deities and that he was senile. It is true that the plaint was amended on Manmatha's death which had undoubtedly varied the importance of dispute between the parties but we still feel that it is not perhaps too late even now for the plaintiff to listen to the suggestion of Mr. Ghosh, the learned Advocate for the petitioner, for further amendment if so advised and to the suggestion for even withdrawal of the suit, with liberty to file a fresh one. 44. FOR all these reasons, to approve of the discretion, exercised by the trial Court in appointing a receiver, particularly without considering the materials, is in some little danger. We are not forgetful that such a discretion is in the first instance that of the Court, in which the suit itself is pending; but it has become necessary for this Court to review, to consider whether the Court below had before it the necessary evidence and whether it had properly considered the evidence, required to support such an order and this Court is further to consider as to whether the principles on which the judicial discretion must be exercised, had been correctly applied or not. Closely examining the observations of the trial Judge, we are of opinion that the proper discretion had not been used by the Court below. Though we are free to exercise our own discretion in the matter of the appointment of the receiver, we thought it to be obviously undesirable, that we should do so in the present case. We should not say anything at this stage which could be quoted hereinafter so as to prejudice either side at the trial in any way. Though we are free to exercise our own discretion in the matter of the appointment of the receiver, we thought it to be obviously undesirable, that we should do so in the present case. We should not say anything at this stage which could be quoted hereinafter so as to prejudice either side at the trial in any way. We are not expressing any decided opinion at this stage but we find little difficulty in setting aside the order of the Court below on the grounds state above. The learned Subordinate Judge forgot to follow the basic principle that in an interim application for receivership, the Court has to consider whether special interference with the possession, of the disputed property is required and whether there is well-founded fear that the property in question will be dissipated or wasted or that irreparable mischief to the same may be done unless the Court gives its protection in the shape of appointment of a Receiver. Without running some risk of mis-application hereafter of what may be said now, which is contrary to our meaning and desire, we think it best merely to say that after fully considering the materials on record we cannot agree with the conclusions of the trial Judge. It would be right to add that as a general rule and in the absence of special circumstances or some unusual occasion, the power of making interlocutory orders such as appointment of a receiver, adds gravely to the procrastination of the hearing of suits, which is the bane of litigations. 45. I therefore conclude, though I confess with some hesitation, that some questions arose, which could not be answered by us because of the absence of proper materials and because of the non-consideration of the Court below of the relevant materials which are on record. I venture to think that the problems would be decided in the suit on complete materials and fuller arguments. Certain quasi-philosophical problems were also introduced leading to no little confusion and difficulty in clouding the law, but I have purposefully avoided their discussion on hypothetical cases, because I am of opinion that in doubtful cases they might have been decisive importance. 46. THE order of the learned Sub ordinate Judge has embarrassed Mr. Roy's courageous and praiseworthy efforts to get at the bottom of the case. 46. THE order of the learned Sub ordinate Judge has embarrassed Mr. Roy's courageous and praiseworthy efforts to get at the bottom of the case. In a case of this character, the question must be judged in the light of the whole record and we hope optimistically that it will work well now, after the case goes back to the Court below with the direction that it will deal with the application for the appointment of a Receiver afresh and according to law, after considering all the materials on record. Our judgment thus goes for the petitioner. The order of the Court below is set aside and the Rule is made absolute. We would however gladly relieve the opposite parties from the cost of this Court as well as of the Court below, in view of the nature of the litigation and in view of the relation ship between the parties. 47. LIBERTY is given to the plaintiff to apply anew, if so advised, before the Court below, for the appointment of a Receiver on appropriate and fuller materials and on the statements properly verified. Liberty is also given to the plaintiff to apply, if so advised, to the Court below for the withdrawal of the suit with liberty to file a fresh suit. Liberty is given for further amendment or remodeling of the plaint as suggested by Mr. Ghosh to the plaintiff through Mr. Sengupta. The Court below would deal with any such application if filed and moved again, according to 3aw and that after giving notice to the parties and the Court would overrule, if there be unreasonable wrong-headed opposition. If no such application is filed and if the suit is allowed to proceed as ft is, the Court below is directed to make every endeavour to decide the suit at its earliest and to answer the issues with prompt and assured confidence keeping in view the fact that the interest of the deity is the object of paramount consideration by the Court and is the only interest, which it is necessary to keep steadily in mind. Civil Revision Case No. 1959 of 1967 (On a preliminary objection that no revision lies against such an order his Lordship after referring to several cases proceeded) : 48. Civil Revision Case No. 1959 of 1967 (On a preliminary objection that no revision lies against such an order his Lordship after referring to several cases proceeded) : 48. GREAT stress has been laid at the Bar and well-known rules of law, with the wisdom of which nobody can question, are placed before us and we appreciated the arguments of both sides. It cannot however be said that the trial Court did not bestow, in examining as he did in the earlier revision case, his mind on the question of the personnel of the Receiver. Though the Court addressed itself in this case on the materials on record, we do not see in deciding, rather we think it unnecessary to discuss this topic further, as the main order for the appointment of the Receiver has just now been set aside by us in the other revision case. The order moved against in this revision viz. order No. 94, being an order consequential to the order of the appointment of the Receiver (order No. 89), must therefore automatically fad to the ground. Before passing the final order, it might be observed that the litigation showed the hostility between the members of the family. The other defendants besides the petitioner filed different written statements in the suit but their grounds in support of this revision are not different in this Court. Mr. P. K Roy, the learned Advocate appearing on behalf of some of the defendants, supports Mr. Sengupta but his clients did not file any objection in the Court below. For the parties so situated, to join in a single revision, so to say, in my opinion, would be irregular, which might easily result in inconsistent consequences. It strikes me highly inexpedient, that controversy should be allowed to be raised by affidavit before this Court for the first time without any application to the Court below. If this position stood alone, I would not have felt justified to treat this submission lightly. 49. HOWEVER, while for the reasons given above, there must be a formal order making the Rule absolute, it may very well be that the applicant and his supporters will nevertheless feel as they leave this Court today, that in truth theirs has not been a victory. 49. HOWEVER, while for the reasons given above, there must be a formal order making the Rule absolute, it may very well be that the applicant and his supporters will nevertheless feel as they leave this Court today, that in truth theirs has not been a victory. The success of the applicant is so minute in proportion to the whole controversy, that it ought not to weigh on the question of costs and I direct the parties should pay and bear their own costs throughout.