Chaudhuri Bamdeb Das vs Collector of Cuttack

Dhavle, J.—This is an application in revision against an order of the District Judge of Cuttack, directing certain co-shebaits of dedicated properties, u/s 105, Orissa Tenancy Act, to appoint a common manager. These properties were dedicated by the well-known Chaudhuri family of Bhingarpur (in the Cuttack District) to their family gods, and twenty-three members of the family are recorded in the Collector''s Registers as the co-shebaits. On an application made by the Collector u/s 104 of the Act, the District Judge issued notices to them. Twenty one of the shebaits said in response to the notices that a common manager should be appointed, but the remaining two raised objections, which were overruled by the District Judge. These two shebaits then made the present application to this Court.

It came in the first instance before my Lord the Chief Justice and Rowland J., when it was argued for the petitioners that the District Judge had no jurisdiction to pass any order u/s 105 of the Act because the co-shebaits cannot be regarded as the co-owner--within the meaning of Sections 104 and 105--of the properties vested in the various idols. As the point was of public importance, it was directed that the matter should be laid before a Bench of three Judges for disposal.

The case thus came before this Bench, and when it was first argued before us, the Advocate-General of Orissa who appears for the petitioners stated that none of the dedicated properties was held by more than one idol D.N. Mitter who appears for the opposite party contended on the other hand, that we had here a group of family deities with a common fund; and this seemed to be supported by the fact that the person appointed by the District Judge had, in fact, executed a security bond on his appointment as a common manager of "the Bhingarpur debottar estate." It thus became necessary to know precisely how the properties are owned, as the case would present little difficulty if the properties are owned jointly by more than one deity. We were informed by counsel that there were three documents relating to the dedication of these properties, one in the possession of the petitioners and two in the possession of the opposite party; and in order to ascertain the true position, we directed that these documents should be translated and copies prepared for the use of the Bench. When this was done, the parties were heard finally.

The earliest of these documents purports to be a deed of partition executed in 1847 by Choudhuri Lokenath Das of Bhingarpur and his three brothers. It does not however effect any partition of the family, but provides that in the event of a partition of the secular property of the family, an extra share (Jesthansa) should be provided for the eldest branch and that certain properties should not be partitioned because their profits (munafa) have been "dedicated" the profits of one mauza for the bhog of Sri Jagannath Mahaprabhu, the profits of a mukuddami share in another mauza for the jani-jatra (festivals) etc., of Sri Bakreshwar Deb, the profits of one mauza for the bhog etc., of the family deity Sri Gopinath Deb and the profits of two taluks for the expenses of jani-jatra of the same deity and of guests and wayfarers, the balance to be deposited "in the fund of the installed deity" for the purchase of lakheraj land, mukuddamis and zamindaris in the name of the said deity.

Whether the dedication of these properties for religious and charitable purposes was of a complete character may possibly be doubted on the terms of this ancient document, for it also provided for allowances to the poor members of the family in certain events. The seba and management of Sri Gopinath Deb, apparently the principal deity, was not to be partitioned at any time, and on a partition of the secular properties of the family, the deity Kanak-Durga Thakurani, then in the temple Of Sri Gopinath Deb, was to be installed in a separate building in the same compound. A deity of this name appears later on as the separate proprietor of a small property--a lakheraj bajiafti--in a taluk of Sri Gopinath Deb. The next document is called a deed of agreement for partition and was executed in 1900 by 15 members of the family, including four minors represented by their guardians. It is stated in para. 4 of this document that some of the properties shown as dedicated in the deed of 1847 had by mistake been entered in the Collector''s registers in the names of the ancestors of the executants, but that the executants had "only joint shebaiti and marfatdari right in the debottar properties." The deed provided for the partition of 20 mauzas out of the joint secular properties, and stated in para. 9 that:

The debottar properties dedicated to any god or goddess will be confirmed as dedicated to him or her and will be included in one debottar fund.

Provision was made for the management of those secular properties that were to remain joint for the time being; and then para. 36 dealt with the executants'' "joint debottar properties," an expression on which some stress has been laid by the opposite party but which does not really throw any doubt on the dedicated character of the properties: see, for example, Asita Mohan Ghosh v. Nirode Mohan Ghosh AIR (1920) PC 129. The debottar moneys were under para. 37 to remain in the charge of a mukhtearkar and a naib in the temple of Sri Gopinath Deb and were referred to in paras. 40 and 46 as "the fund" and "the said fund." Para. 44 provided that if out of the money, deposited in "the said fund," anybody took a loan, the bonds thereof, and if any property is purchased, the documents thereof, in the names of the gods and goddesses for whom purchase is made, "will form the joint properties of all shebaits and marfatdars,"--a provision which seems to mean no more than that the income of the dedicated properties was also to remain joint in the hands of the executants as shebaits and marfatdars, whereas the secular properties were liable to partition.

Except for the references to the debottar fund, this document does not seem to me to suggest that any of the dedicated properties were held by more than one idol; and the provision that all the moneys of the various deities--the petition before us puts the number at 25--shall be kept in one fund in the temple of Sri Gopinath Deb does not preclude the separate ownership of these deities and make them joint owners of the fund.

The third and last document to which we have been referred purports to be a deed of declaration of trust, and was executed in November 1912, by 18 members of the family (including three minors) in favour of 15 deities. It recites the dedication to these deities and declares more than once that the "debottar property will remain under debottar khanja (dedication)," and that the deities are the "rightful owners" of the properties while the executants are "only shebaits and marfatdars." It provides for the management of what in para. 5 is called the debottar estate.

By para. 15 the properties of all the gods and goddesses are named the "Bhingarpur debottar estate property," and the koth (joint) treasury and papers of the dedicated properties are to remain in the temple of Sri Gopinath Deb. In the next paragraph, however, it is provided that separate papers and accounts, etc. will be kept of the income and expenses of the respective properties of the aforesaid installed deities. Dr. Mitter has stated that this was, in fact, never done, and the Advocate General has pointed out that this deed of 1912 was itself never given effect to as the Bhingarpur properties, dedicated as. well as secular, came under common management under Chap. 10, Orissa Tenancy Act, in 1913 and were only released in 1928 Although in para. 22 of the deed provision is made for a koth bhog (joint offering) instead of duar bhog at separate places at different times in connexion with the jani-jatra of the installed deities, this appears to be too slight a circumstance to establish such a mingling of the funds of the various deities as to entitle us to deal with the dedicated properties on the footing that they were, any of them, really vested in more than one deity.

For the detailed schedules attached to this deed do not indicate the dedication of any property to more than one deity, while para. 16 points to an. intention at any rate to keep the dedications to each deity separate from those of others. It is true that in their application for revision the petitioners have themselves spoken of "Sri Gopinath Deb, Sri Dadhibaban Deb and 23 other deities," and that this number is much in excess of what is specified in the deed of 1912. But the excess may quite possibly be due to some minor, deities being placed by the side of the principal deities and counted among the rightful owners of the dedicated properties. No oral evidence has yet been taken, and the actual number of the family deities is not known. Upon the whole there is, in my opinion, no zeal ground for holding on present materials that any of the dedicated properties are held by more than one deity; the bulk of them certainly are not. The question must therefore be answered whether co-shebaits of dedicated properties can be dealt with u/s 104 and succeeding Sections of the Orissa Tenancy Act. Section 104 runs as follows:

When any dispute exists between co-owners of an estate sub-proprietary interest or tenure as to the management thereof and in consequence there has ensued or is likely to ensue,

(a) inconvenience to the public, or

(b) injury to private rights,

the District Judge may, on the application in case (a) of the Collector, and in case (b) of any person having an interest in the estate, sub-proprietary interest or tenure, direct a notice to be served on all co-owners, calling on them to show cause why they should not appoint a common manager....

The next Section provides:

If the co-owners fail to show cause as aforesaid within one month after service of a notice u/s 104, the District Judge may make an order directing them to appoint a common manager....

The jurisdiction of the District Judge is thus based in the first place on the existence of a dispute "between co-owners of an estate, sub-proprietary interest or tenure as to the management thereof." The word "co-owners," or "owner," is not defined either in the Orissa Tenancy Act or in the Bihar and Orissa General Clauses Act, Act 1 of 1917. The word "proprietor," however, of which "owner" is a synonym according to the dictionaries, is defined in Clause 14 of Section 3, Orissa Tenancy Act, as meaning "a person owning, whether in trust or for his own benefit, an estate or a part of an estate," and including also the sub-proprietary interests referred to in Clause 2 of the Section. In the present case there is no dispute that the dedicated properties are recorded in the names of the deities, while the petitioners and the opposite party are recorded as their shebaits and marfatdars. Entries of this kind prima facie do not show any separation of the legal from the equitable title, and the recorded shebaits and marfatdars, whatever their rights may be, cannot, in the strict and precise sense which the word conveys in law, be said to "own" the dedicated properties, whether in trust or for their own benefit.

Dr. Mitter has endeavoured to make out that shebaits are trustees in the general sense, and he has referred in support to such cases as Ramanathan Chetti v. Murugappa Chetti (1906) 29 Mad 283, where Lord Macnaughten observed that

the manager of the temple is by virtue of his office the administrator of the property attached to it; as regards the property the manager is in the position of a trustee,

and Ram Parkash Das v. Anand Das AIR (1916) PC 256, in which Lord Shaw spoke of the whole assets of an asthal being vested in the mahant "as the owner thereof in trust for the institution itself." But such observations were explained by their Lordships of the Judicial Committee in the later case in Bidya Varuthi Thirtha Swamigal v. Balusami Ayyar AIR (1922) PC 123, when Mr. Ameer Ali said that in Ram Parkash Das v. Anand Das AIR (1916) PC 256.

the decision related to the office of mahant, but in the course of their judgment their Lordships conceived it desirable to indicate inter alia what, upon the evidence of the usages and customs applicable to the institution with which they were dealing and similar institutions, were the duties and obligations attached to the office of superior; and they used the term "trustee" in a general sense as in previous decisions of the Board by way of a compendious expression to convey a general conception of those obligations (p. 838)....Galled by whatever name, (i.e. mahant, shebait, etc.) he is only the manager and custodian of the idol or the institution....In no case was the property conveyed to or vested in him, nor is he a "trustee" in the English sense of the term, although in view of the obligations and duties residing on him, he is answerable as a trustee, in the general sense, for maladministration (p. 840).

Later on, dealing with the Religious Endowments Act, 20 of 1863, Mr. Ameer Ali pointed out that

the Act contains no definition of the word ''trustee''; it uses indifferently and indiscriminately the terms "manager, trustee or superintendent," dearly showing that the expressions were used to connote one and the same idea of management.

Finally, it was definitely laid down in that case that

neither under the Hindu law nor in the Mohammedan system, is any property "conveyed" to a shebait or a mutwalli in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage.

Dr. Mitter has endeavoured to distinguish this as a decision with reference to Article 134 of Schedule 1, Limitation Act, and has argued that being a trustee in the general sense, the shebait should be regarded as the owner of the dedicated property for the purposes of Section 104, Orissa Tenancy Act. The entry of the deities in the Collector''s registers as proprietors, when read with the definition of "proprietor" in Section 3(8), Bengal Land Registration Act, 1876, imports their possession as owners, while it is clear from such Sections as 38, 42 and 46 of the same Act that the co-shebaits must be recorded only in. the capacity of managers of the estates. Section 104, Orissa Tenancy Act, however, does not speak of proprietors. Section 93, Bengal Tenancy Act, from which the Section was borrowed, was an adaptation of Section 26 of Regin. 5 of 1812, which provided for the appointment of managers of joint undivided estates on sufficient cause shown because inconvenience to the public and injury to private rights had been experienced from disputes subsisting among the ''proprietors'' of such estates.

Like our Section 104, Section 93 of the Bengal Act speaks not of "proprietors" but of "co-owners of an estate or tenure," but the change from "proprietors" to "co-owners" was merely due to the fact that while the former word refers to estates, the appointment of a manager was extended to disputes regarding the management of tenures as well as estates. Even so, the word "owner," or rather "co-owners," used in Section 93, Ben. Ten. Act, or Section 104 of our Act is not a term of art, and the verb to "own," according to Webster''s Dictionary and the Oxford English Dictionary, is not confined to the sense of "be proprietor of" but also means "possess."

Though there is a distinction in the language of jurisprudence between mere possession and ownership, possession is taken to follow the title, where nothing else is known, and this tends to reduce the practical distinction between ownership and possession, especially in the case of persons with a hereditary right to manage property on behalf of juristic entities like idols.

The property dedicated to an idol, strictly speaking, is vested in the idol,

though it is only in an ideal sense that the property is held by the idol, it still remains that the possession and management of the dedicated property belongs to the shebait, and this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol.

It was for this reason that their Lordships of the Judicial Committee held in Jagadindra Nath Roy v. Hemanta Kumari Debi (1905) 82 Cal 129 that a shebait suing to recover possession of property on behalf of the idol was entitled to the benefit of Section 7, Limitation Act. The shebait''s right of management of dedicated property on behalf of the idol, coupled with the incapacity of the idol itself to manage the property, has also given rise to peculiar problems under the Tenancy Act. In Mabatulla Nasya v. Nalini Sundari Gupta (1905) 2 CLJ 377, the question arose whether a suit brought by a shebait for rent of a holding situated within a dedicated patni was liable to be dismissed u/s 16, Ben. Ten. Act, because the shebait had not on her succession as she-bait given the notice prescribed by Section 15. Section 16 (with which we may compare Section 16(4) Orissa Tenancy Act), provides that a person becoming entitled to a permanent tenure by succession shall not be entitled to recovery by suit any rent payable to him as the holder of the tenure in default of such notice.

Reading the word ''holder'' with the word ''entitled'' in this Section, it would seem that the Section deals with the owner in possession of the tenure. The shebait was not the holder of the patni tenure, in the strict sense, for the tenure was the legal property of the idol. And yet, relying on 32 Cal 1295 and after refer-ring to earlier Privy Council decisions in which it was laid down that the shebait has not the legal property but title as manager of the religious endowment, Rampini and Mookerjee, JJ. held that Section 16 was a bar to the recovery of the rent claimed, since the right to bring the suit for rent was vested in the shebait and not in the idol. This decision thus, in effect, treated the shebait as a person who for the purpose of Section 16 had become "entitled" to the patni and was "the holder" of it.

The learned Judges referred to the reason of the rule requiring the notice, and observed that there ought not to be any distinction between secular and dedicated properties in this respect, and they considered that "the language of Section 16, Bengal Tenancy Act, and the reason for the rule contained therein were both in favour of the view" that Section 16 applied to the shebait no less than to the ordinary holder i.e. owner of secular tenures.

Where, as in the present case, a property dedicated to a single idol has descend-ed to a number of co-shebaits, a similar line of reasoning leads to the conclusion that these co-shebaits, though they are not "co-owners" of the endowed property in the strict sense of the word, ought to be regarded as such for the purpose of Section 104, Orissa Tenancy Act.

While on the one hand, the proprietor idol being a mere "juristic entity," the management is necessarily in the hands of the co-shebaits, we have on the other hand in Section 104 a public means of dealing with disputes not as to title but as to the management of the property, in the shape of appointment of a common manager under the District Judge, and as such appointment is to be made in cases of inconvenience to the public no less than of injury to private rights, there is even less reason to construe the word "co-owners" strictly so as to exclude these hereditary co-shebaits than in Mabatulla Nasya v. Nalini Sundari Gupta (1905) 2 CLJ 377. The Section deals with disputes as to management among those who are entitled to manage the endowed property (whether an estate, sub-proprietary interest or a tenure) as distinguished from those who pay rents to them, and the co-shebaits certainly pay no rents except what may be payable by the deities.

The principal ground on which the order of the District Judge has been assailed, namely that the District Judge had no jurisdiction because co-shebaits are not within the Section, must therefore, in my opinion, be overruled. It has also been contended on behalf of the petitioners that no order should have been made u/s 105 of the Act without giving them an opportunity of showing that there was no inconvenience to the public nor injury to private rights on account of any dispute between co-shebaits. It appears that this objection was specifically taken in the lower Court by at least one of the petitioners before us.

The learned District Judge however dealt with the question ''''whether the appointment of a common manager is warranted by the circumstances of the present case" entirely on the basis of a report submitted to the Collector by a Deputy Collector after making an enquiry on the spot. It has been urged that the petitioners were no parties to this enquiry and had no notice of it. The learned District Judge treated the report of the Deputy Collector as if it was evidence in the case like the report of a Commissioner for local investigation, appointed under Rule 9 and submitting a report under Rule 10 of Order 26, Civil P.C.

But the Deputy Collector had no such authority, and the District Judge ought to have had before him materials which could properly be taken into account as against these petitioners before coming to the conclusion that they had failed to show cause within the meaning of Section 105, Orissa Tenancy Act. The application of the Collector u/s 104, which was based on this report of the Deputy Collector, gave the District Judge jurisdiction to proceed under the Section and call on the co-shebaits to show cause why they should not appoint a common manager; but he arrived at the conclusion that the petitioners had failed to show cause, without giving the petitioners an opportunity to show that the report was wrong, and in doing so, he plainly acted in the exercise of his jurisdiction with material irregularity.

On this ground therefore I would set aside the order complained of and remand the case to the District Judge for dealing with in accordance with the law.

The Advocate-General also urged that the proceedings below were irregular, in that the separate properties of so many idols were dealt with on one application made to the District Judge by the Collector. The point does not appear to have been taken below, and in any case it will not be wrong in the view that I have taken of the position of these co-shebaits, with their one "debottar fund," to deal in one case with a group of properties jointly managed by them: see Kumar Saradindu Roy v. The Collector, Rungpur 11 CWN 1143 for an instance where the appointment of a common manager for a group of properties was contemplated. It has also been urged that some of the dedicated properties are outside the jurisdiction of the District Judge of Cuttack. This point does not appear to have been pressed below; but the petitioners should, in my opinion, be at liberty to take it in the lower Court when the case is dealt with there on remand.

The only other point urged before us is that there are 64 co-shebaits, though only 23 are recorded in the Collector''s registers. It does not seem to me however that the petitioners can now be allowed to make any grievance of this point in revision. I would however leave it open to the District Judge, if he should think fit, to have the minor members of the family brought on the record under proper guardianship before proceeding further, in case any adult members should appear to be bent upon creating needless difficulties, whatever the cost to themselves, in order to harass the enemy or hamper the authorities.

Rowland, J.

I agree.

Harries, C.J.

I agree with Dhavle J. that in the strict sense of the terms a she-bait is neither the owner nor trustee of dedicated property. Section 104, Orissa Tenancy Act, is concerned with the management of property and there can be no doubt that the powers of management of property are vested in the shebaits. For the purposes of management co-shebaits are in the position of co-owners and I also agree with Dhavle J. that they must be regarded as such for the purposes of this Section.