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TMI Blog1941 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... eba) in future dedicate my interest in the above property for the services of the idol (Deb Sheba) and appoint Biswanath Basu, the shebait (thereof). All the properties appertaining to the 16 annas comprised of the respective share of both of us, mentioned above (1,2, 9 and 10 Karim Buksh Lane) are dedicated entirely for Deb Sheba (services of the idol). Of us, (illegible), I, Biswanath Basu, having appointed me and being appointed to do services to the idol we both hereby promise as follows : That I, Biswanath Basu shall henceforth reside etc, in the said house and hold possession of the estate etc., and shall collect rent from tenants and make arrangement of collection and repair houses and do all acts in respect of the aforesaid estate dedicated by us as well as get the same done and appropriate (illegible) the profits etc., and shall devote myself to the services to the deity (Deb Sheba) with the help of those profits and shall perform the prescribed acts (illegible) repairs etc., and (illegible) of the estate. After my death my full-sister Srimatya Nilmany Dasi and my wife Srimaty Thakur Dasi Dasi, if they survive me, shall both like myself jointly do services to the deity as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 172 of 1925) in the Court of the Subordinate Judge at 24-Parganas for a declaration that the properties covered by the arpannama (Ex. 5 and Ex. 7) were secular properties and were his absolute properties (Ex. 13). In this suit his four sons, his wife, the wife of his eldest son and two sons of his eldest son were impleaded as defendants. The idol in whose favour the arpannamas (Ex. 5 and Ex. 7) were executed was not made a party to this suit. On 12th November 1925 the defendants in that suit filed their written statement (Ex. B). On 14th November 1935 the suit was decreed by consent and the properties were declared to be secular and absolute properties of Jogesh (Ex. 12A). 3. On 9th June 1927, Jogesh mortgaged one of the properties (9 and 10, Karim Buksh Lane) covered by the arpannama (Ex. 5) by a mortgage deed (EX. C1) to one Sailendra Chandra Chandra Dutt (defendant 15 in the present suit). On 23rd July 1930 Sailen, sub-mortgaged Nos. 9 and 10, Karim Bux Lane to Tarit Bhusan Roy and Pulin Krishna Roy (defendants 16 and 17 in the present suit) by a deed of sub-mortgage (EX. C). On 30th July 1932, defendants 16 and 17 brought a suit (title Suit No. 209 of 1930) in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued, parties to come ready accordingly." On 25th August 1934, the suit was transferred to the Additional Subordinate Judge for disposal. On 6th September 1934, plaintiff prayed for an adjournment. Thereupon the Court ordered: "Time allowed. Suit adjourned to 14th November 1934, for peremptory hearing. The parties do come ready on that date." On the last mentioned date plaintiff again prayed for an adjournment. The Court thereupon made the following order: Heard both sides. Sreemati Anupama prays for an adjournment on the ground that her husband being ill, steps could not be taken on her behalf. She had prayed for too many adjournments and all necessary papers ought to have been produced long ago. The husband is also present in Court today. I grant adjournment cost of ₹ 4 to each of defendants 16 and 17 as a condition precedent to the hearing of the suit. 6. On 19th November 1934, plaintiffs' pleader applied for time on the ground that the parties were about to come to terms. The Subordinate Judge however rejected the prayer and dismissed the suit for default and awarded cost to the mortgagee and the sub-mortgagees who were ready on that day to go on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff deity in that suit as his next friend and that the said next friend was further guilty of gross negligence and laches in not preferring an appeal against the order of the Subordinate Judge dated 31st August 1935, dismissing the application under Order 9, Rule 9, Civil P.C. That there was good ground of appeal against the same. The present suit is therefore not barred by Order 9, Rule 9, Civil P.C. Defendant 15 is about to sell wrongfully municipal premises No. 9 and 10, Karim Bux Lane, in execution of the mortgage decree obtained by him on the basis of the mortgage executed in his favour by Jogesh on 9th July 1927 (Ex. C1) in Execution case No. 107 of 1935. The said mortgage constituted a breach of trust by Jogesh who was in possession of the mortgaged properties as shebait on the basis of an arpannama Ex. 5. The mortgage as well as the decree passed on the mortgage are not binding on the plaintiff deity. On these allegations the deity prays for a declaration that the properties which were the subject-matter of Title Suit No. 196 of 1933 are absolute debutter properties of the plaintiff deity and that municipal premises Nos. 9 and 10, Karimbux Lane are not liable to be sold i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the previous day's offerings of flowers, the presentation of fresh flowers, the respectful oblation of rice with flowers and water, and other like practices. It is sufficient to state that the deity is, in short, conceived as a living being and i8 treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy : the vivified image is regaled with the necessaries and luxuries of life in due succession even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest. 11. These observations were approved by the Judicial Committee in Pramatha Nath v. Pradyumna Kumar. In view of the religious customs of the Hindus which have been recognized by Courts of law a Hindu idol like a juristic person under the English system has been vested with the capacity of holding properties and with the powers of suing or being sued (Ibid). A juristic person under the English system has no body or soul. It has no rights except those which are attributed to it on behalf of some human beings. The lump of metal, Stone, wood or clay forming the image of a Hindu idol is not a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the infant. The shebait of a Hindu idol is its manager in law. On the analogy of the power of the legal guardian of an infant the shebait of a Hindu idol has the right to sue on behalf of the idol, for the protection of its interests. In this sense it may be said as was said by the Judicial Committee in Jagadindra Nath Roy v. Hemanta Kumari Debi ('04) 32 Cal. 129 that the right of suit vests in the shebait. It has been Held by this Court that a suit for a declaration that illegal alienations of private debutter properties by a shebait are invalid is maintainable at the instance of a prospective shebait, Girish Chandra v. Upendra Nath AIR1931Cal776 , or any member of the founder's family who is entitled to worship the idol: Panchkari Roy v. Amode Lal Burman AIR1937Cal559 , Sashi Kumari Devi v. Dhirendra Kishore Roy AIR1941Cal248 and Nirmal Chandra v. Jyoti Prosad AIR1941Cal562 . 16. A Hindu idol as has been already stated is a juristic person having its own interests apart from the interests of its worshippers. Jagadindra Nath Roy v. Hemanta Kumari Debi ('04) 32 Cal. 129 and Pramatha Nath v. Pradyumna Kumar are authorities for the proposition that its power of sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said, therefore, that the cause of action in the present suit is identical with the cause of action in the previous suit. In this view of the matter, Order 9, Rule 9 is not a bar to the present suit. When a suit is dismissed under Order 9, R. 8 of the Code the suit can be restored under Order 9, Rule 9 if there was sufficient cause for the non-appearance of the plaintiff. Where the suit is dismissed under R. 8 for default of the plaintiff owing to gross want of care and diligence on his part the suit cannot be restored under Rule 9. In view of the decision of the Judicial Committee in Chajju Ram v. Neki ('22) 9 A.I.R. 1922 P.C. 112, it is doubtful whether the order of dismissal can be set aside by an application for review under Order 47, Rule 1, Civil P.C. 18. There is a divergence of opinion among the Judges of High Courts in India as regards the substantive right of a minor to bring a separate suit for setting aside the decree passed against a minor owing to the negligence of the next friend or guardian ad litem of the minor in the conduct of the suit. The reasons given by the Judges who are in favour of the view that such a suit is maintainable by a minor are these : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decree is not binding on the minor. 21. The power of the shebait of a Hindu idol to institute a suit on behalf of the idol is analogous to the power of the legal guardian of an infant to institute a suit on behalf of the minor. Anupama was not the shebait of the idol. Her power to bring the suit on behalf of the idol cannot be higher than that of the shebait of the idol. The idol therefore cannot be in a worse position than it would have been if the suit had been brought by the shebait. Analogy is a source of judicial principles and can be lawfully followed only as a guide to the rules of natural justice in the absence of any statutory prohibition. If the view taken by the majority of the Judges of the High Courts in India namely that Order 9, Rule 9, Civil P.C., is no bar to a fresh suit by a minor when' the previous suit by his next friend was dismissed for default owing to the negligence of the next friend in the conduct of the previous suit is correct there is no reason why this protection should not be extended to a Hindu idol in this country as I am aware of no statutory law in this country prohibiting the extension of such protection. 22. The Subordinate Judge has fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family deity of Bhagavan Chandra and Biswa Nath. The property in suit originally belonged to Bhagavan Chandra Basu and Biswa Nath Basu. They dedicated the same to the deity on 6th October 1869. By the deed of dedication the following scheme for the shebaitship of the deity was made. Biswa Nath Basu was to be the first shebait. After his death his full-sister, Nilmani Dasi, and his wife, Thakurdasi Dasi, would be the joint shebaits. After their death his two daughters, Bhuban Mohini and Patit Pabani, would be the joint she- baits. After their death their heirs should be appointed shebaits. On 20th August 1925, Jogesh Chandra Chandra, the then shebait, and father of the present next friend of the deity, instituted the Title Suit No. 172 of 1925 in the Court of the 2nd Subordinate Judge District 24-Parganas, making his wife, adult son, minor sons and daughters, son's wife and son's minor children parties defendants. Jogesh Chandra had three more daughters, viz., the present defendants 7 to 9. They were not made parties to this suit, perhaps because, being married, they ceased to be members of his family. The suit was for a declaration that the properties described in the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d can never be a shebait. Her only probable interest was that of a worshipper. In fact in para. 12 of her plaint the only interest claimed by her was that of a worshipper of the deity. 28. This suit was instituted when Jogesh was still alive. He was made defendant 1 in the suit. His children, wife, son's wife and son's children were all made defendants in this suit. They were defendants 2 to 14. The mortgagee and the sub-mortgagees were made defendants 16 and 17 and 18 respectively. It may be mentioned here that defendants 16, 17 and 18 were interested only in item 1 of the properties mentioned in the plaint. An application for a temporary injunction for restraining defendant 16 from selling the property in item 1 in Execution Case No. 109 of 1933 was made in that suit. On 22nd November 1933, the Court refused the prayer for injunction, being of opinion that " the intended sale will not by itself prejudice the rights, if any, of the plaintiff." He, however, directed that the property should be sold subject to a declaration that it was the subject-matter of a suit in that Court and the doctrine of dependent would apply and that the purchaser would purchase the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for non-prosecution. A fresh Execution Case No. 107 of 1935 for the execution of the decree in Title Suit No. 209 of 1930 was started after the dismissal of the aforesaid Title suit No. 196 of 1933. 31. On 13th June 1936, the present suit was instituted by the deity, this time by its next friend, Krishna Chandra Chandra, a son of Jogesh Chandra. This next friend was defendant 6 (minor) represented by his mother as guardian in his father's suit of 1925, where he supported his father's claim. He was defendant 5 (major) in the previous suit of 1933 (Title suit No. 196 of 1933). By the terms of the deed of dedication, he is one of the present shebaits of the deity, the other shebaits being defendants 1 to 3. The idol in the present suit through its present next friend alleges that the previous suit was dismissed by the gross negligence of the then next friend. Various questions of law and fact were raised in this case in the Court of first instance. The learned Subordinate Judge found: (1) that the arpannama (the deed of dedication) and the other deeds referred to in the plaint were genuine and bona fide and that they were intended to be given effect to and were given effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of the worship. He does not direct any additional ceremonies. He shows no intention save that which may be reasonably attributed to a devout Hindu gentleman, viz., to secure that his family worship shall be conducted in the accustomed way, by giving his property to one of the Thakurs whom he venerates most. But the effect of that when the estate is large is to leave some beneficial interest undisposed of, and that interest must be subject to the legal incidents of property. 33. There the property was of such a magnitude that after meeting all the charges directed by the will there would still be a very large surplus. In fact the testator directed that out of the surplus each adopted son would receive ₹ 1000 monthly. But of the residue after that he said nothing. The dedication was by will. The testator began by saying: I do while of sound mind dedicate and give to Sree Sree Isshur Annapoorna Thakooranee...all the ancestral and self acquired movable and immovable properties, zamindaries, and putnee...to which I am entitled and of which I am in possession. 34. Later on he proceeded to give directions regarding the disposal of the income of the same property. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the entire provisions of the document. In the present case the deed of dedication on the face of it purports to convey the whole property absolutely to the deity and no circumstances have been established which would entitle us to apply the principles laid down in the above cases to the facts of the present case. 37. The only other substantial point urged in the appeal is that the present suit is precluded by Order 9, Rule 9, Civil P.C., in view of the order of dismissal under Order 9, Rule 9, Civil P.C, made in the previous suit No. 196 of 1933. The learned Subordinate Judge overruled this contention for the reasons that may be summarised thus : (1) Under the Hindu law the idol is a juridical person, in perpetual minority and capable of holding property through his manager (shebait). The general principles of law which are applicable to suits by minors through next friend are applicable to the case of such an idol. (2) It is the duty of the Court, as far as possible to prevent the minor being injured by fraud, laches or negligence of his next friend or guardian for the suit. Though a minor be properly represented by a next friend and though there be no fraud or collusion on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the case laws which introduced the special protection for persons under disability. The appellants assail these reasons as untenable. Order 9, R. 8, Civil P.C, lays down: Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted shall dismiss the suit so far as it relates to the remainder. 38. It may be noticed here that in the previous suit No. 196 of 1933 the then defendants 4 to 14 (the present next friend and defendants 3 to 8 and 10 to 13 of the present suit) filed their written statement on 3rd May 1934 and this was accepted by the Court on 7th May 1934. It is, however, not in evidence in the present case what was their defence in that suit and whether they admitted the claim of the plaintiff deity. The other contesting defendants 16, 17 and 18 (present defendants 15, 16 and 17) were concerned only with one item of property in that suit, viz., item (a) of Schedule Ka of that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. 41. It is not alleged in the present case that the order was obtained by any fraud or collusion. The only allegation is that the order was the result of gross negligence on the part of the then next friend of the idol. The question therefore is (1) whether this negligence of the next friend affected the jurisdiction of the Court so as to render it "a Court not competent to deliver the order" within the meaning of Section 44, Evidence Act; (2) whether apart from the provisions of Section 44, Evidence Act, there is any principle of law by which gross negligence on the part of the next friend would affect the consequent order of dismissal so as to render it inoperative as a bar to a fresh suit under Order 9, Rule 9, Civil P.C. 42. In my judgment, however, the cause of action in respect of which the present suit has been brought is not the same as that in respect of which the previous suit was instituted. As has been stated above, the present appellants confined their appeals to item 1 of the properties in suit. So far as this item is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint it is stated why the previous suit No. 196 of 1933 was instituted by the plaintiff "through defendant 9 Sm. Anupama Dasi as the next friend" and in para. 24 it is stated how the said suit was dismissed for default under Order 9, R. 8, Civil P.C, through the gross negligence of the then next friend. Then in para. 25 the fresh occasion for the present suit is given and it is stated thus: That, though defendant 15 got the said Execution Case No. 109 of 1933 referred to in paras. 18 and 21 above dismissed for non-prosecution since and after the institution of the said Title Suit No. 196 of 1933 on behalf of the plaintiff Deity, the plaintiff has come to learn through its next friend that the said defendant 15 has again put his said mortgage decree in Title Suit No. 209 of 1930 in execution, in Execution Case No. 107 of 1935 in the second Court of the Subordinate Judge at Alipur and is about to sell wrongfully the property described in item 1, Schedule 'A' below which constitutes one of the absolute debutter properties of the plaintiff deity and which cannot be lawfully sold in the said execution case and that 15th day of January next is fixed for auction sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along been in undisputed possession and enjoyment of the properties has been established in this case and is not in dispute in this appeal. The idol's right was more effectively invaded when execution against the property was taken out in 1933. This execution case having ultimately been abortive, the threat, if any, to the idol's right was also gone. Then, again, when the present execution was taken out against what the idol claims to be its property a fresh invasion of its right took place giving rise to a fresh cause of action for it to come and seek the help of the Court. No doubt, though not necessary, the idol came to Court as a matter of fact on the occasion of the previous invasion of its right. Had there been any adjudication in respect of any matter in issue there that fact might affect it in the subsequent suit. But till barred by any such adjudication it is entitled to seek the help of the Court upon each successive invasion of its right. Each such invasion will give rise to a fresh cause of action and a suit in respect of such an invasion will be a suit in respect of a fresh cause of action and not "in respect of the same cause of action" within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged this heavy burden of proof to the satisfaction of the Court below and this could not be assailed in this appeal. 46. In my judgment the cause of action in respect of which the present suit has been brought is not the same on which the previous suit by the idol was founded and consequently the rule of bar laid down in Order 9, R. 8, Civil P.C, is not at all applicable to it. In this view, no other consideration does really arise in this case. The other questions would arise for consideration only if the present suit could be said to be in respect of the same cause of action as in the suit of 1933--only if the bar imposed by Order 9, R. 8, Civil P.C, was otherwise available to the defence. Though in the plaint itself the plaintiff states that the suit of 1933 was its own suit, all the relevant facts for the purpose of determining how and by whom that suit was instituted and in what right the then next friend purported to act as the next friend of the idol have been given in the plaint. There is no dispute about these facts, and, in my judgment, in view of them the then next friend had no right to represent and cannot be said to have represented the idol at all. 47. Before p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as there was no public officer in this country endowed with the power of enforcing the due administration of charitable or religious trusts by information at the relation of some private individual, as is possessed by the Attorney-General in England, and as it would lead to great abuse in trusts of this nature unless some person was able to bring them under the control of the Court, the representatives of a testator, who had created such a trust, were the persons who would be entitled, if a proper case were made out, to institute proceedings for the purpose of having abuses in the trust rectified. In Bimal Krishna v. Iswar Radhaballav Jiu AIR1937Cal338 (M.C. Ghosh and Mukherjea JJ.) it was observed: In India, the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement or maladministration of the deity's estate and to have a proper scheme of management framed which would end the disputes amongst the guardians and prevent the debutter estate from being wasted or ruined. This principle was reiterated in Rabindra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual. It would therefore be reasonable to expect that the law which recognised its personality must have made some provision for supplementing this perpetual incapacity. As has been pointed out above, the law recognises the shebaits for this purpose and appoints them, as it were, to be the persons who are to represent the idol for all juridical purposes. In fact, though the idol is recognised as the owner, it is owner only in an ideal sense. The right of suit is really in the shebait. 50. As has recently been observed by the Judicial Committee in Masjid Shahidganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar, the procedure of our Courts allows for a suit in the name of an idol or deity though the right of suit is really in the shebait. No doubt an idol is recognized as a, juridical person capable of having interests demanding legal protection. But this is so only in an ideal sense. Strictly speaking, the law of the present age at least does not concern itself with anything outside human interest and all the recognitions and protections accorded to the idol must have been thought necessary because of the existence of some ultimate human interests. In the recent case in Panch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the juristic owner of the property, the person benefited by it. The authority in Girish Chandra v. Upendra Nath AIR1931Cal776 cited in support of the proposition also points to the same thing. That also was a case where the persons interested instituted the suit not on behalf of the idol in form but in their own name though the interest claimed was the benefit of the idol. 54. In my judgment there is a very substantial distinction between a suit by certain interested persons as such in their own name, and, at least in form, on their own behalf, and a suit by a person in the name of the idol and as its next friend. In the former case the consequences of the suit will be binding only on the persons suing or on the persons whom they represented in form (Order 1, R. 8, Civil P.C). In the latter case the idol itself will be affected as a juristic person and it is therefore a question fraught with grave consequences demanding serious consideration as to who should be allowed to represent the idol in such a suit. No doubt now under Order 32, Civil P.C, very wide scope is afforded in this respect to the case of an infant. Rule 4 of Order 32, Civil P.C, lays down: Any person who is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagendranath AIR1927Cal244 , Chotzner J. held that a right of suit is vested in the shebait and not in the idol. In the absence of refusal by the shebait to institute a suit for the protection of the property of an idol, neither a worshipper nor an idol is competent to maintain a suit. The suit in question was for a declaration that a certain deed of revocation of the dedication and mortgage of the dedicated property by the settlor was not binding on the idol. The suit was instituted by a worshipper in her own name as also in the name of the idol represented by herself as its next friend. The dedication in question was made by one Suresh Chandra Chakrabarty in 1922 whereby he appointed himself and his brother Nagendra to be the shebaits of the deity. On 6th June 1923, Suresh and Nagendra executed the deed of revocation in question. Thereafter on 20th June 1923 Suresh executed the mortgage in question. 57. Nagendra and other members of the founder's family were made defendants in this suit. The mortgagee defendants contested the claim. Their defence inter alia was that the suit was not maintainable at the instance of the present plaintiffs. Nagendra was the only surviving sheba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such agency. Until the shebait is removed or controlled by the Court he alone can act for the idol. (2) Apart from the idol's right of suit, a shebait as such has a right of suit and may be sued. Normally he is the human agency through which the idol holds, enjoys, and manages the property and the right of suit vests in him and not in the idol: Jagadindra Nath Roy v. Hemanta Kumari Debi ('04) 32 Cal. 129. (3) Worshippers and members of the family have interest in the debuttar and a right of suit is given to them also to protect the interest of the debutter. (a) This does not mean that these persons can as of right represent the deity in a legal proceeding, (b) They can sue in their own name and on their own behalf for the benefit of the debutter. (4) In exceptional circumstances, a deity can be represented in a legal proceeding by a person other than a shebait only by the special appointment of the Court: Pramathanath v. Pradyumna Kumar; Kanhaya Lal v. Hamid Ali. (a) In such a case such person may be under the control of the Court in the manner in which and to the extent to which a next friend or a guardian of a minor is under such control under the provisions of Order 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nundamoni Dasi ('84) 10 Cal. 357 (Sir Richard Garth, C.J., and Cunningham, J.); Raghubar Dyal v. Bhikya Lal ('86) 12 Cal. 69 (Field and O' Kinley, JJ.); Lalla Sheo Churn Lal v. Ram-nandan Dobey ('95) 22 Cal. 8 (Treve-lyan and Ameer Ali, JJ.); Ram Sarup Lal v. Shah Latafat Hossein ('02) 29 Cal. 735 (Pratt and Mitra, JJ.); Abdul Karim v. Thakur Das AIR1928Cal844 (Rankin C.J. and C. C. Ghosh J.); Mahesh Chandra v. Manindra Nath AIR1941Cal401 ( Mukherjea J). The following opinions showing a certain amount of conflict can be gathered from these cases: 1. The bar imposed by Section 7 of Act 8 of 1859 (corresponding to Section 48 of Act 14 of 1882 and Order 2 Rule 2 of the present Civil Procedure Code) was not available against a minor when the omission in the previous suit was due to the negligence of his next friend. There is no law which prevents a minor, when he conies of age, suing in his own name for anything that his guardian, either through ignorance or negligence, has omitted to prosecute. Kylash Chunder Sirkar v. Gooroo Churn Sirkar ('65) 3 W.R. 43 at p. 46. 2. Where a Court has reason to believe that a suit is lawfully brought by a party who has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heo Churn Lal v. Ram-nandan Dobey ('95) 22 Cal. 8. The views of the Madras High Court will appear from the following cases : Subbanna v. Narasamma ('15) 2 A.I.R. 1915 Mad. 384 (Sankaran Nair and Spencer JJ.), Chunduru Punnayyah v. Rajam Viranna ('22) 9 A.I.R. 1922 Mad. 273, Kari Bapanna v. Yerramma ('23) 10 A.I.R. 1923 Mad. 718, Anada Rao v. Venkatadri Appa Rao AIR1925Mad258 and Mahammad Shadak v. Venkata Komaraju The Madras High Court has taken the same view as in Lalla Sheo Churn Lal v. Ramnandan Dobey ('95) 22 Cal. 8. The Allahabad High Court also has taken the same view as in Lalla Sheo Churn Lal v. Ramnandan Dobey ('95) 22 Cal. 8 in Mt. Siraj Fatma v. Mahmmed Ali AIR1932All293 . In an earlier case in Daulat Singh v. Raghubir Singh ('94) 1894 A.W.N. 141 the Court observed: But short of fraud being established and fraud not only on one side but on both, i.e., on the part of the then plaintiff and on the part of the present plaintiff's then guardian, we know of no right which the present plaintiff can now have to dispute the validity of the decree which became final... Even if that guardian was negligent and through her negligence did not properl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus becomes removable by the Court under Order 12, Rule 9 or Rule 11, Civil P.C, he ceases to represent the minor in that suit, though an order removing him is not actually made; (2) that, at any rate, as soon as by failing to do his duty a next friend or a guardian ad litem renders himself liable to be removed it becomes the duty of the Court to proceed in a particular manner in that suit and the Court is not competent to proceed in any other way in that suit and therefore any order made thereafter without removing the next friend or guardian ad litem is an order "delivered by a Court not competent to deliver it" within the meaning of Section 44, Evidence Act. 65. Sulaiman J. in Mt. Siraj Fatma v. Mahmmed Ali AIR1932All293 seems to have taken the view that the next friend or the guardian ad litem ceases to represent the minor as soon as he renders himself removable by his negligence or failure to do his duty. In my opinion, this is taking an extreme view of the case and, if introduced is likely to create an appalling confusion. This may be a very good ground for reopening any decision or order consequent upon the negligence of the guardian or next friend by an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treated as such an application. As regards the third case, namely when the infant applies in the previous suit itself for a review of the adverse decision, I am inclined to the view that negligence of the next friend should afford a good ground for the purpose. 67. A reading of the relevant Indian decisions above referred to will show that they are ultimately based on the pronouncement of Sir R. Malins, V.C. in In re Hoghton; Hoghton v. Fiddey (1867) 18 Eq. 573. In that very case it was observed that an infant can be guilty of no negligence and cannot be answerable for the negligence of his next friend. No negligence can be imputed to an infant. It might very well be said that when a suit by a minor by his next friend is dismissed for default of the next friend due to the negligence of such next friend, the minor will always hate a sufficient cause for non-appearance and will thus be entitled to have the order of dismissal set aside. The next question is to what extent this should be extended to the case of an idol which as a juristic person is from its very nature under perpetual incapacity to look after its own interests, if any. It is now well settled that an idol is recogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some human being; otherwise it is difficult to see why law should concern itself with the matter. In Jagadindra Nath Roy v. Hemanta Kumari Debi ('04) 32 Cal. 129, their Lordships observed: There is no doubt that an idol may be regarded as a juridical person capable as such of holding property though it is only in an ideal sense that property is so held....The possession and management of the dedicated properties belong 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. 70. It may be noticed that in this case the suit was not by the idol represented by its shebait but by the shebait himself as shebait in enforcement of his right as shebait. The right to sue accrued, to the plaintiff when he was under age and this saved the limitation. In Masjid Shahidganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar their Lordships of the Judicial Committee observed that the procedure in India takes account necessarily of the polytheistic and other features of the Hindu religion and recognises certain doctrines of Hindu law as essential thereto, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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