LexBISWANATH AND ANR. versus SHRI THAKUR RADHABALLABHJI & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
BISHWA!'IATH A'.'iD ANR.
\'
SHRI THAKt;R RADHABALLABHJI & ORS.
February 6, 1967
[K. ScDBA RAO, C.J. A~D J.M. SHELAT, J.]
Code of Cii·i/ Prvced11rc (Act 5 of 190~). s. 92-Shebait of Hindu
idol alienating idots proper1y-Srdt by \\'ors/zipper on behalf of iclol for
declaration of title and recovery of said properry-Suit 'k·hether governed
hy .<, 92.
Hindu Lall'-Shehait acting adversely ·to interests of idol or not Pro-
tecting ils intere.Hs-Right of H:or.<::hipper 10 file
.~uil.
The :\fanagcr o[ a temple alienated the idol's property.
A worshipper
of the idol who f.llso assisted the Manager in his duties, filed d suit as next
friend of 1he idol challenging the alienation.
The
reliefs sought were a
declaration that the property belonged 10 the idol and recovery of posses·
sion.
The trial court's decree in favour
of the plaintiff was upheld by
the High Court. ·me defendants came to this Court, with certificate.
It was urged on behalf of the
appellants that s. 92 of the Code of
Civil Procedure was a har lo the suit, and that no one hut 1he
Shehait
was entitled to file 1hc suit and represent the deity.
HELD : (i) The suil was filed by the idol for possession o[ iL< pro-
pcny from the person who was in illegal possession
thereof and there·
. fore it was a suit by the idol to enforce its private right.
The suit also
was for a declaration of the plaintiffs title and for possession thereof, and
was not therefore a suit for
one of the reliefs mentioned in s. 92.
In
either view this was a suit outside the purview of s. <J2 of the Code and
therefore ,.,_, said section was not a bar to its maintainability. [621 D-EJ
Abdur Rahim v. Barkat Ali, (1928) L.R. 55 I.A. 96 and Mahant Pra11-
dasji Guru Bhagwundasji v. Patel lshwarlalbhai Narsibhai, (1952) S.C.R.
513, relied on.
Mukhda
Mannuda.r
Bairagi v. Chagan
Kisan
Blrawasar.
1.L.R.
1957 Dom. 809, Danhan Lal v. Shibji Maharaj Birajman, (1922) I.L.R.
45 All. 215 and Mad/iavrao Anandrao Rtstc v. Shri Omkareshvar Gh111,
(1928) 31 Born. L.R 192, referred to.
(ii) An idol is in the position of a minor; when a person representing
it leaves it in the lurch, a person interested in
the v.·orship of the idol
can certainly be clothed with an ad hoc JlOWer of representation
to pro--
tect its interest.
It is a pragmatic, yet a legal solution to a difficult situa·
tion.
Should it be held that a Shebail, who transferred the property, can
only bring a suit f1Jr recovery, in most of the cases it will be an indirect
approval of the dereliction of the Shebait's du!y, for more often than not
he will no! admit his default and take step~ to recover the property apan
from other technical pleas that may be open
10 the transferee in a suit.
Should i1 be held that a wol'ihipper can file only a suil for the removal
of a Shebait and for the appointment of another in order to enable him
to take step.~ to recover the property. such a procedure will be rather a
prolon~ed and complicated one and the inte"Cest of the idol may irrcpara·
bly suffer.
That is why a worshipper is permitted in such circumstances
to represent the idol and 10 recover 1he properly for the idol. [622 G-
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BISHWANATH v. RADHABALLABHJI (Subba Rao, C.J.)
619
Kun; Behari Chandra v. Sri Sri Shyam Chand Thakur,
A.l.R. 1938
Pat. 394 and Artatran Alekhagadi Brahma v. Sudersan Mohapatra, A.I.R.
1954 Orissa II, disapproved.
Pramatha Nath Mullick v. Pradyumna Kumar Mullick, (1925) L.R.
52 I.A. 245 and Kanhaiya Lal v. Hamid Ali,
(1933) L.R. 60 I.A. 263,
applied.
In the present case the suit was brought on behalf of the idol by a
worshipper and therefore in the circumstances of the case the High Court
rightly held that it was maintainable. [624 DJ
C!vrL APPELLATE JURISDICTION : Civil Appeal No. 780 of
1964.
Appeal from the judgment and decree dated December 21
19~9 of the Allahabad High Court in First Appeal No. 87 of 1948.
M. S. Gupta, La/it Kumar and S. N. Varma, for the appellants
J. P. Goyal and Raghunath Sinf{h, for respondent No. I.
The Judgment of the Court was delivered by
Sobba Rao, C.J. This appeal by certificate is preferred against
the decree of the High Court of Judicature at Allahabad decreeing
the suit filed by the respondents for possession of the plaint
schedule property.
Shri Thakur Radhaballabhji, the deity, represented by Yaso-
danandan as next friend, filed O.S. No. 61 of 1946 in the Court of the Excerpt shown. Read the full judgment & AI analysis in Lexace.