The main legal point established is that a next friend for a deity may be appointed by the Court in exceptional circumstances, and the next friend need not have a direct interest in the property involved in the suit.

ORDER

Sen, J. - This is an application by the petitioner to be appointed next friend of the plaintiff Thakurani Sri Sri Annapurna Debi in this suit. The suit was instituted on 24th August 1938 by one Sreemati Pramila Sundari Laha as next friend of the plaintiff deity against certain persons whom she describes as the sebaits of the idol and certain transferees from them. Broadly speaking, the suit is for a declaration that the property transferred was debutter property and incapable of being dealt with by the defendants as secular property. Pramila Sundari Laha died on 2nd February 1943. The present applicant Sreemati Karunamoyee Dassi in a daughter-in-law of the family, and she wishes to be appointed next friend of the plaintiff deity for the purpose of proceeding with the suit.

2. On behalf of the respondents the application is opposed on certain grounds with which I shall now deal. It is argued that this suit was not properly constituted inasmuch as Pramila Sundari could not be a next friend of the idol as she was not appointed as such by the Court. The argument is this. Ordinarily the proper person to sue on behalf of an idol is the sebait. In certain circumstances it may be that somebody else could be appointed to look after the interests of an idol in a suit. "When these special circumstances arise it is for the Court and the Court only to appoint such person other than the sebait. In the present case Pramila Sundari did not apply to Court to be appointed next friend but constituted herself next friend. This, it is argued, Pramila Sundari was not competent to do. On this ground it is contended that the suit is not properly framed, and that the present application by the petitioner to be appointed as a next friend in the place of Pramila Sundari should be refused. In support of the proposition that the next friend of an idol must be appointed by the Court my attention was drawn to the case in Tarit Bhusan Rai and Another Vs. Sri Sri Iswar Sridhar Salagram Shila Thakur by Krishna Chandra Chandra and Others, AIR 1942 Cal 99 . There is a passage at page 957 which is as follows :

In exceptional circumstances, a deity can be represented in a legal proceeding by a person other than a sebait only by the special appointment of the Court: Pramatha Nath Mullick v. Pradyumnakumar Mullick and AIR 1933 198 (Privy Council) .

3. It must be said that if the view expressed in this passage is to be taken to be of general application, then there can be no suit by a next friend unless such next friend is specially appointed by the Court. I am not, however, inclined to hold that the view expressed in this passage is of general application. The exact point which has now been raised was not a point for decision in that ease. It is obvious that circumstances may well arise when it would be impossible to expect any of the sebaits to institute a suit; for instance, all the sebaits may be misappropriating debutter property and secularizing it; the idol may be despoiled by all the sebaits acting in concert. In such a case, it is not possible to expect any of the sebaits to institute a suit to protect the property of the idol. In those circumstances what is to happen? It seems to me that the only course open would be for some person to come forward and institute a suit as the next friend of the idol. The matter would first come up before the Court by a suit being instituted by a person claiming to be next friend of the idol. It would be permissible for the defendants thereafter to come up before the Court and contest the fitness of the next friend to act as such. The Court would then investigate the matter and decide upon the suitability of the persons instituting the suit to act as next friend, but I do not see any ground for holding that the next friend must be appointed as such by the Court before he can institute a suit. In the rules of this side of the Court there is provision for a similar matter. It is to be found in chap. 19 of Original Side Rules