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TMI Blog1928 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the award were substantially confirmed by a later agreement amongst the heirs, dated 2nd November 1874, whereby the secular interest of the heirs in half of the income was differentiated from the rights of the presiding deity in the remaining moiety of the income. 3. It has been settled by judicial decisions that the property appertaining to this temple is endowed property, held for the benefit of Thakur Sri Gat Ashram Narainji and that the temple and its properties are managed by a number of sebaits who are the descendants of the founder. 4. It is a matter of regret that the affairs of this temple should, at frequent intervals, be dragged into the Court of law. The consequent result is mismanagement and a waste of time and money. The temple is held in great veneration by the Hindu public. Legends have clustered round the name of the titular deity, and they are sung in prose and verse how the infant Lord Krishna after slaying the demon king Kansa retired within the precincts of this temple to take rest after his labours. This explains why the idol is known as Thakur Gat Ashram Narainji. 5. The plaintiff alleges that the parties to the suit are the managers and mutwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving died, the suit was continued by Bhagirath defendant 8. An important thing happened during the progress of the suit before the original Court. An application was made by the plaintiff that he withdraw his claim for rendition of accounts and that his suit was confined to the specific item of ₹ 5981. On 11th June 1921 this application was allowed and the relief as to the rendition of accounts from 15th November 1906 was struck out. 10. This suit of 1920 had a chequered history. The Subordinate Judge dismissed the suit on 20th July 1921 on a technical ground. The High Court on appeal reversed this decree and remanded the case for trial on the merits and its judgment is reported in Ashram Narainji v. Jaisth Madho Acharia. After remand the Subordinate Judge decreed the claim in its entirety. The High Court, on appeal, modified the decree of the trial Court and gave the plaintiff a decree for ₹ 412-8-0 only, and it held that the rest of the claim was time barred. The judgment of the High Court is reported in Jaishth Madho v. Ashram Narainji AIR1928All134 . 11. In the present suit, it was argued before the trial. Court that accounts up to 1906 had already been rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Civil P.C. This the Code does not provide. If the trustees band together to defeat the interest of the idol by fraud or by mutual concert, any decree obtained by them is not, and cannot be, binding upon the idol. Moreover, no such consideration emerges in this case, for no fraud or collusion has been pleaded or proved. The application withdrawing a portion, of the claim for rendition of accounts was a conscious act on the part of the plaintiff. The residue of the claim was persisted in and was fought to the bitter end. The finding of the trial Court that no taint of negligence or fraud attached to the application of withdrawal, has not been displaced by the learned District Judge. The application was moved openly in Court in the presence of the present plaintiff or his counsel and although the latter could not prevent the withdrawal of the suit he could certainly lodge his protest against the withdrawal if the claim for accounts was just and proper, or if there was any thing unseemly in the application for withdrawal. The sebait prosecuting the case for the plaintiff must be taken to have acted in the best interest of the idol, and his action appears to have been acquiesced in by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit No. 142 of 1920 is an effective bar to the claim now instituted by Guru Revti Raman Acharya for the same period under Order 23, Rule 1, Civil P.C. It would be necessary for the appellant to establish the identity of the parties and the identity of the causes of action in the two suits before this plea could succeed. 23. The idol of a temple derives its legal existence from the time of vivification and consecration. Pandit Prannath Saraswati says at p. 127 of his Tagore Lectures for 1892: The books of rituals contain a direction that before removing the image into the temple the building itself should be formally given away to the God for whom it is intended. The sankalpa or formula of resolve makes the Deity himself the recipient of the gift which as in the case of other gifts, has to be made by the donor taking in his hands water, sesamum, the sacred kusha-grass, and the like. It is this ceremony which divests the proprietorship of the temple from the builder and vests it in the image, which by the process of vivification, has acquired existence as the juridical personage. 24. In order to constitute a valid dedication the execution of an instrument in writing is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing, has to act through human agency. A person, founding a deity, becomes clothed with certain duties to the idol and as such is the de facto sebait and in common parlance is called by that name. After his death his heir or heirs in the absence of a special devolution to the contrary takes his place. The sebait is not only the ministrant of the worship, but is the vehicle through whom the will of the deity manifests itself in its contract with material and mundane ideas. But he is not in a fiduciary position with reference to the temple property nor is he a trustee in the full sense in which the term is employed in English jurisprudence. 31. It may be possible to create a trust so as to vest the legal ownership in the sebait and the beneficial ownership in the idol. But in the absence of an instrument of this description, generally, if not universally, the property belongs to the idol, and the sebait is merely the manager of the idol. He is not a trustee in the technical sense of the term though not infrequently the word trustee is used in a loose, vague or general sense and applied to a sebait as a convenient and compendious expression to connote a conception of the obligati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sebaits are not cosharers but co-worshippers and any family arrangement at which they may have arrived amongst themselves cannot entitle them to treat the debutter property as personal property and to sue personally for their share of the rent payable to the idol. 36. In Kokilasari Dasi v. Rudranand Mohu Rudranand Goswami [1907] 5 C.L.J. 527 Mukerjee, J., would treat the several sebaits (whom he calls trustee ) as one collective unit. The following propositions must be taken to be firmly established. 1. The idol of a Hindu temple is a juridical entity. 2. It holds and owns the property dedicated to it in an ideal sense. 3. It can sue and can be sued through its manager and its estate is represented by the sebait who manifests the will of the deity and represents its dealings with the outer world. 4. The sebait is not a trustee for the idol and no legal estate vests in him. 37. We have already set out in an earlier part of this judgment that on 15th September 1920 a suit was instituted by the idol under the superintendence and guardianship of Mt. Sundar Kuer and was directed against the following 7 persons: 1. Jaistha Madhav Acharya (the defendant appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that the idol, who was entitled to certain sums of money upon rendition of accounts for a certain period, released the defendants from their liability to the idol. If the sebaits as a body are released from the liability to the idol, it is not open to one of the sebaits to enforce the said liability against another sebait. The present suit is a revival of the old suit in disguise, but the mask is transparent. To allow such a claim to proceed would lead to most incongruous results. 40. It is true that in the former suit the idol was suing as the plaintiff through one of the sebaits, and in the present suit the idol has been carefully excluded from the array of the parties. But the plaintiff in the present suit does not found his claim upon a cause of action personal to himself. He sues as a sebait or manager of the idol. The object of this suit is to afford protection to the idol. The relief claimed is significant: A decree for the amount that may be found due to Thakur Gat Ashram Narainji Maharaj may be passed, and the amount recovered may be deposited in the Bhandar of the Thakurji. 41. All these facts conclusively show that this suit was of a representative character. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period anterior to 6th February 1921 was barred by time under Article 62, Lim. Act, which prescribes a period of three years from the date of the receipt of the money. 46. The plea of limitation was not taken either before the trial Court or the Court of appeal. Where the facts necessary to support a plea of limitation are either admitted or are apparent on the face of the record, this Court will not be justified in refusing to entertain the plea, even if raised for the first time in a second appeal. 47. The defendant or defendants collect the rents and profits of the estate for the benefit of the idol, and the money received by the defendants belongs to the idol, and is payable to him. Article 62, Lim. Act is clearly applicable, and the contention of the defendants is supported by a ruling of this Court reported in Jaishth Madho v. Sri Gat Ashram Narainji AIR1928All134 . It is true that the plea rests upon the assumption that the present suit has been instituted really by the titular deity through the shebait. We have already held that this is a representative suit. 48. In avoidance of the plea, the plaintiff urges that the defendants are 'express' trustees, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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