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1976 DIGILAW 88 (CAL)

Iswar Buro Shib Thakur v. State of West Bengal

1976-03-04

CHITTATOSH MOOKERJEE

body1976
JUDGMENT The judgment of the Court was as follows :- Sri Sri Iswar Buro Shib Thakur, a Hindu deity, represented by four reasons described as it s shetaits, obtained the present Rule against the order of the leanred Munsif, 1st Court, Arambagh, rejecting an, application of the said deity for adding the heirs and legal representatives of the deceased proforma defendant no. 8. The said application was made more than a year after the death of the proforma defendant No.8, who was described in paragraph 4 of the plaint as one of the shebaits' of the deity who was not allegedly discharging his duties and who did not agree to join with the other shebaits in instituting the instant suit. The learned Munsif rejected the above application made on behalf of the plaintiffs on the ground that the entire suit had abetted by the failure on the part of the plaintiffs to make within time any application for substitution in place of the deceased defendant No.8. 2. Mr. Nirendra Krishna Mitra, learned Advocate for the petitioners, has submitted before me that the suit in question was instituted by the deity itself and the proforma defendant No. 8 was impleaded in the suit to remove any possible objection to the representation of the deity who by its very nature is required to act through its sheblits. Mr. Mitra further submitted that in the instant case Rules 3 and 4, Order 22 of the Code of Civil Procedure have no manner of application because really there was merely devolution of the office held by the proforma defendant No.8, and, therefore there could be no question of abatement. According to Mr. Mitra in a suit brought on behalf of the deity, when a shebait, who has been impleaded as a proforma defendant dies, at the highest it might be contended that the representation of the deity is not complete until the successor of the deceased defendant is brought on record so that the entire body of shebaits might be on record. Mr. Mitra. further Contended that in the instant suit no relief was claimed by the plaintiffs against the proforma defendant. There was no issue between the parties to be tried. Therefore, in any event, there could be no question of abatement of the entire suit on the death of the said proforma defendant. 3. Mr. Mitra. further Contended that in the instant suit no relief was claimed by the plaintiffs against the proforma defendant. There was no issue between the parties to be tried. Therefore, in any event, there could be no question of abatement of the entire suit on the death of the said proforma defendant. 3. In my view, the contentions, raised on behalf of the petitioners, should prevail. Therefore, it is not necessary for me to consider the further submission of Mr. Mitra that even after an abatement takes place the Court may under Order 1, Rule to of 10 Code add the heirs of the deceased defendant as parties in the suit. 4. Upon a conspectus of the various decisions cited at the Bar, I find that in order to decide whether a suit abates by the death of one of the shebaits, the deciding factor would be the from of the suit itself. It is now well-settled that although ordinarily the right of suit is vested in the sbebaits as laid down by the Privy Council Case in (1) Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemallta Kumari Debi, reported inLR 31 IA 203 , ILR 32 Cal. 129 (1904), the deity itself has power of sueing and of being sued (See in this connection the discussion in the judgment of Pal, J. in (2)Tarit Bhusan Roy . Sree Sree Iswor Sridhar Salgram Sila Thakur, reported in ILR (1941) Cal. 447 at page 53t). In the event a Hindu deity. who is a jurisdiction person itself brings a suit or is impleaded as a defendant, it is required to be represented by competent persons who are ordinarily the shebaits of the said deity. Law, however, does not completely rule out the possibility of a deity being represented by some of the shebaits or even by a stranger. The said contingencies, however, are not present in the instant case. In the Instant case, the deity represented by some of the shebaits, had brought the suit. In a suit of the present kind the real plaintiff is the deity itself and the shebaits, whose names appear in the cause title of the plaint either in the category of plaintiffs or of the defendants are in the position of representatives of the deity. With regard to the suit of the present kind Nasim Ali and Biswas, 11. In a suit of the present kind the real plaintiff is the deity itself and the shebaits, whose names appear in the cause title of the plaint either in the category of plaintiffs or of the defendants are in the position of representatives of the deity. With regard to the suit of the present kind Nasim Ali and Biswas, 11. in the case of (3) Sri Sri Iswar Sridhar Jiew v. lahar Lal Mukhopadhya and Ors., reported in 49 CWN 37, had observed as follows: "There is no absolute rule of law that all the co-shebaits must join in representing the deity and circumstances may exist in which the deity may be represented by some only of its shebaits or even by a person who is not a shebait. Where a suit is a suit by the deity. represented by some of its shebaits, the question whether the other shebaits should be joined as parties is often a question of mere procedure or expediency, the test being whether in all the circumstances of the case the interest of the deity can be said to be sufficiently represented. A suit by a deity, represented by two of its three shebaits, without the third whose title the other two denied being made a party, is a good suit and cannot be said to become a properly constituted suit by the deity only on the third being added as a co-plaintiff." In the above view, their lordships declined to apply the principles of section 22 (1) of the Limitation Act to the appeal before them. I respectfully agree with I he above proposition of law. 5. Mr. Mitra, learned Advocate for the petitioners, in this connection has also placed strong reliance upon the observations of Mitter and Bartley, n. in the case of (4) Keshab Rai lieu Thakur v. Jyoti Prasad Singha Deo and others, reported in AIR 1932 Cal 783 to the effect that where a suit was instituted by a deity represented by its Mohunt and shebait for declaration of title etc. Rules 2, 3 and 4 of Order 22 would be inapplicable in the event of the death of the said Mohunt and shebait. The Mohunt in such a suit must be deemed to have sued in representative capacity and in such case rule 2 of Order 22 should be deemed to be inapplicable. Rules 2, 3 and 4 of Order 22 would be inapplicable in the event of the death of the said Mohunt and shebait. The Mohunt in such a suit must be deemed to have sued in representative capacity and in such case rule 2 of Order 22 should be deemed to be inapplicable. Their lordships in Keshab Rai lieu Thakur's case (supra) referred in this connection to a decision of the learned Single Judge of Madras High Court in the case of (5) Ratham Pollai v. Nataraja Desikar, reported in AIR 1924 Mad. 615 = 84 IC 200. A Division Bench of Nagpur High Court in the case of (6) Gajanan Maharaj Sans than, Shegaon v. Ramrao Kashinath, reported in AIR 1954 Nag. 212: ILR 1954 Nag 302 following the above decision of Keshab Rai lieu Thakur v. Jyoti Prosad Singh a Deo and ors (supra) held that a religious institution is a juridical person, but it can act only through a sentient person. The position of such a person would be analogous to that of 3 next friend of a minor although it would not be quite appropriate to hold that the position of an idol was identical with that of a minor. In the event such a representative dies, the Division Bench held that Order 22, Rule 3 would be inapplicable and the suit would not abate on account of the said death. The proper course would be to order substitution under Order 22, Rule 10. Their lordships also made an analogy with a case where the guardian of the minor plaintiff dies after the institution of the suit. In such Case the suit might be stayed until appointment of a next friend in his place. The above decision of the Division Bench of Nagput High Court has been referred to in Dr. B.K. Mukherjea 'On the Hindu Law of Religious and Charitable Trusts', 3rd Edition. The instant suit was by the deity and the defendant no. 8 was impleaded to oviate any objection regarding representation of the plaintiff deity. 6. In the above view, I conclude that the instant suit out of which this Rule arises did not abate by failure on the part of the plaintiffs to make any application for substitution within the period prescribed by Art. 120 of the Limitation Act, 1963 for bringing the heirs of the deceased defendant No.8 on record. 7. 6. In the above view, I conclude that the instant suit out of which this Rule arises did not abate by failure on the part of the plaintiffs to make any application for substitution within the period prescribed by Art. 120 of the Limitation Act, 1963 for bringing the heirs of the deceased defendant No.8 on record. 7. Another reason why there is no question of abatement would be that, AS submitted by the learned Advocate for the petitioners, there was no lis between the plaintiffs and the proforma defendant No.8 inasmuch as no relief was claimed in the plaint against him. In this connection reference may be made to the decisions reported in the cases of (7) Sabitribai Devi v. Jugal Kishore Das and others, reported in 43 CWN 41 and (8) Smt. Rani and another v. Smt. Santa Bala Debnath and others, reported in AIR 1971 SC 1028 . 8. In the above view, I make the Rule absolute and set aside the order complained of. The application for amendment of the plaint for bringing on record the heirs and legal representatives of deceased defendant No.8 is allowed. The trial Court will now further proceed with the suit in accordance with law. There will be no order as to costs. Let the records be sent down expeditiously.