1941 Supreme(Cal) 308

CALCUTTA HIGH COURT
Pal, J., Nasim Ali, J.
Tarit Bhusan Rai & Anr. - Appellant
Versus
Sri Sri Iswar Sridhar Salagram Shila Thakur by Krishna Chandra Chandra & Ors. - Respondent
Decided On : 16-06-1941

Headnote:

Debutter - Property Dedication - [Transfer of Property Act 1882, Section 129], [Civil Procedure Code 1908, Order 9, Rule 9], [Evidence Act 1872, Section 44] - The court examined the legal status of a Hindu idol as a juristic person and its capacity to hold property. It analyzed the relationship between the idol, its shebait (manager), and worshippers, concluding that the idol's right to sue is exercised through its shebait. The court held that a suit by a worshipper as next friend of the idol was not the idol's suit and therefore Order 9, Rule 9, Civil P.C. was not a bar to a subsequent suit by the idol. The court also found that the cause of action in the subsequent suit was distinct from the previous suit, as it involved a fresh attempt to sell the debutter property. The court further discussed the analogy between a minor and a Hindu idol, noting that while both have the capacity to own property and require management, the idol is a juristic person with its own interests, unlike a minor. The court concluded that the idol was entitled to the protection given to minors against the negligent acts of their guardians, and the dismissal of the previous suit due to the negligence of the next friend did not bar the subsequent suit.

Fact of the Case:

The case involved a dispute over the ownership of properties dedicated to a family deity. The original owners had executed a deed of dedication, outlining a scheme for the shebaitship of the deity. A subsequent shebait, Jogesh, filed a suit claiming the properties as secular and absolute, which was decreed by consent. Jogesh then mortgaged the property, and the mortgagee and sub-mortgagee obtained decrees against him. A daughter of Jogesh, Anupama, filed a suit on behalf of the deity, claiming the properties as debutter and seeking to invalidate the mortgages. This suit was dismissed for default. After Jogesh's death, the deity, represented by a different next friend, filed the present suit, seeking a declaration that the properties were debutter and not liable to sale in execution of the mortgage decrees.

Finding of the Court:

The court found that the properties in question were absolutely dedicated to the deity and were debutter properties. It held that the decree in the previous suit, obtained by Jogesh, was not binding on the deity because the deity was not a party to that suit. The court also found that the mortgages and mortgage decrees were not binding on the deity. The court further found that the dismissal of the previous suit was due to the gross negligence of Anupama, the next friend of the deity, and that the deity was entitled to the protection given to minors against the negligent acts of their guardians. Therefore, the court held that the present suit was not barred by Order 9, Rule 9, Civil P.C.

Issues: The main issues in the case were: (1) Whether the properties in question were absolute debutter properties of the deity or were only charged with the expenses of the deity's worship; (2) Whether the present suit was barred by Order 9, Rule 9, Civil P.C. in view of the dismissal of the previous suit for default; (3) Whether the deity, as a juristic person, was entitled to the protection given to minors against the negligent acts of their guardians.

Ratio Decidendi: The court's decision was based on the following legal principles: (1) A Hindu idol is a juristic person with the capacity to hold property and sue or be sued, but its right to sue is exercised through its shebait. (2) A suit by a person other than the shebait as next friend of the idol is not the idol's suit and therefore Order 9, Rule 9, Civil P.C. is not a bar to a subsequent suit by the idol. (3) The cause of action in a subsequent suit must be distinct from the previous suit. (4) A Hindu idol, like a minor, is entitled to the protection given by law against the negligent acts of its guardian. (5) The dismissal of a previous suit due to the negligence of the next friend does not bar a subsequent suit by the idol.

Final Decision: The court dismissed the appeals filed by the mortgagee and sub-mortgagee, holding that the properties in question were absolute debutter properties of the deity and were not liable to be sold in execution of the mortgage decrees.