Norris and Macpherson, JJ.
1. The facts out of which this appeal arises as gathered from the evidence upon the record, and the statements of the learned pleaders for the parties, are these.
2. In the town of Sylhet there is an akhra of the idol Narsingha. This akhra is very old, but when it was founded or established, or by whom, does not appear.
3. The mohunt of the akhra has, up to the date of the institution of this suit, always been a Baisnab of the Ramayat sect; but every Hindu who pleases can worship in the akhra and render service to the idol, and many persons residing in the neighbourhood of the akhra other than the plaintiffs and the forty-two persons on whose behalf the suit is brought, do as a matter of fact worship therein and render service to the idol.
4. In the year 1268 (B. S.) one bala Bhadra Das was mohunt of the akhra, and on the 6th Chaitra, of that year, corresponding to 18th March 1862, he made a will which is in the following terms: “This will is executed by Bala Bhadra Das, mohunt of the akhra of the idol Sri Sri Narsing, inhabitant of Kasha, Sylhet, Mahala Kalighat, in favour of you Ram Krishna Das Baisnab and Ram Govinda Das Baisnab, inhabitants of the same to the following effect: That being in possession of the land of the akhra of the aforesaid idol and of the land on the side of the river Sarama and of the undermentioned rent-paying and rent-free lands, appertaining to taluk Sonandpuran and others. in pargana Banant, and pargana, Bade Diorain, and pargana Ichhamati, and the moveable properties of the akhra under the deed of hiba executed without any consideration on the 23rd Aswin 1260 B.S., and signed by my guru, Doyal Das Mohunt, and also of the lands purchased by me and of the self-acquired moveable properties I have been managing the sheba and puja of the idol. As I am old and infirm and as you, Ram Krishna Das, are my dear and great friend, and as you Ram Govind Das are my favourite disciple, and quite competent to perform the puja and sheba, I of my own accord bequeath to you to-day for the due performance of the sheba and puja in future, all the lands mentioned in the said hiba and my self-acquired lands as per schedule mentioned below, and all the moveable properties lying in the akhra on this condition, that on my demise you shall take possession of all the moveable and immoveable properties, and you and your disciples in succession shall perform the sheba and puja of the idol, and being entitled to and possessed of the jamas of the rent-paying taluks, after having them transferred to your names, you will manage the sheba and the puja of the idol established in the said akhra with the profits thereof. None of my other disciples shall have any claim thereto. I duly make over to you all the deeds and documents I have regarding the said lands, etc. To this effect I execute this will, dated the 6th Chaitra 1268 B. S.”
5. Amongst the properties mentioned in the schedule are taluk No. 224, hissa Suna Ram Rupram, pargana Ichhamati; taluk No. 221, Sananda Puran, pargana Ichhamati; taluk No. 223, Doyal Singh, pargana Ichhamati; taluk No. 222, Mukta Haris, pargana Ichhamati; and taluk No. 75, Baranari, pargana Ichhamati.
6. The hiba alluded to by Bala Bhadra Das in his will as having been executed by his guru, Doyal Das Mohunt, is not on the record, and whether the above-mentioned properties were comprised therein or were the self-acquired lands of Bala Bhadra Das, does not appear. The defendant No. 1 succeeded to the mohuntship of the akhra on the death of Bala Bhadra Das. On 4th Chaitra 1289, corresponding to 17th March 1883, the defendant No. 1 sold to the defendant No. 2 a portion of taluk No. 224, hissa Suna Ram Rupram, for Rs. 600; and on the same day he mortgaged portion of taluks No. 221 Sananda Puran, No. 223 Doyal Singh, No. 222 Mukta Haris, and No. 75 Baranari, to defendant No. 2 to secure Rs. 800; and on the 1st Aswin 1291, corresponding to 16th September 1884, he mortgaged further portions of taluks No. 221 Sananda Puran and No. 223 Doyal Singh to defendant No. 2 to secure Rs. 600.
7. The defendant No. 2 sued on his mortgage-bonds and obtained an ex parte decree on 31st May 1887.
8. On 14th August 1889, defendant No. 2 applied for execution of his decree, and on 20th September 1889, sale proclamation was directed to be issued, fixing 3rd November 1889 as the date of sale of the mortgaged premises; the sale was subsequently, on the application of the judgment-debtor, defendant No. 1, postponed until 4th January 1890; and on 6th January 1890, after the filing of the plaint in this suit, a temporary injunction was granted staying the sale for a further period of three months, or until disposal of the suit,
9. The plaint in this suit, which we think we must hold to have been filed on 6th January 1890, after leave obtained under Sections 30 and 44 of the Code of Civil Procedure, alleged that the plaintiffs and forty-two other persons, whose names and addresses are set out in schedule I, are in the habit of worshipping the idol Narsingha or of contributing to the worship and service thereof; that the immoveable and moveable properties specified in schedules II and III belong to the idol; that the defendant No. 1 is the mohunt of the akhra, and as such mohuntis in possession of the said properties on behalf of the idol; that although he had no right of his own to any of the said properties, yet he had executed a kobala (the kobala of 4th Choitro 1289) in favour of the defendant No. 2 in respect of some of the immoveable properties, and the mortgages (those of 4th Choitro 1289 and 1st Assin 1291) in respect of others; that a decree (that of 31st May 1887) had been obtained on the mortgages and execution taken out and a sale proclamation issued; that if the kobala was allowed to stand and the mortgaged properties to be sold, the service and worship of the idol would be stopped; it was alleged, too, that the defendant No. 1 was not a fit person to be continued in the office of mohunt.
10. The relief claimed was a declaration that the immoveable and moveable properties specified in schedules II and III were the property of the idol; a declaration that the kobala and the mortgages executed by defendant No. 1 in favour of defendant No. 2, and the execution proceedings taken upon the decree obtained upon the mortgages, were inoperative as against the idol; the dismissal of defendant No. 1 from the office of the mohunt of the akhra and from the management of the property of the idol, and the appointment of some competent person as mohunt of the akhra and trustee of the property of the idol in the place of defendant No. 1, and an order for the transfer of the property covered by the kobala and mortgages from the defendants to the person who might be appointed mohunt and trustee.
11. The defendant No. 1 did not defend the suit.
12. The defendant No. 2 pleaded that neither the plaintiffs nor the forty-two persons named in schedule I of the plaint had any right of suit; that the suit was not one to which the provisions of Section 30 of the Code of Civil Procedure were applicable; that if its provisions were applicable, leave had not been obtained under it, nor was the suit brought on behalf of all the parties interested therein; that leave to bring the suit ought to have been obtained under Section 539 of the Code of Civil Procedure and under the provisions of Act XX of 1863; that the plaintiffs were benamidars of defendant No. 1; that there was misjoinder of parties and causes of action; that defendant No. 1 had rights of his own in the taluks Nos. 224, 221, 223, 222, and 75; that the said taluks did not belong to the idol; and that defendant No. 1 had upwards of 12 years before suit sold portions of the said taluks to other purchasers who were in possession.
13. Upon these pleadings the following issues, inter alia, were framed:
1 Whether the plaintiff’s and the persons framed in schedule No. 1 of the plaint are competent to bring this suit? ”
2. “Whether the persons named in schedule No. 1 of the plaint are the persons contemplated under Section 30, Civil Procedure Code?”
3. “Whether plaintiff’s claim is tenable without obtaining permission under Section 539, Civil Procedure Code, and under the provisions of Act XX of 1863?”
4. “Whether the plaintiffs are benamidars of Ram Govind Baisnab, defendant No. 1, the judgment-debtor?”
5. “Whether the suit should fail for misjoinder of parties and causes of action?”
6. “Whether the plaintiffs or the persons alleged by them are the only persons entitled to worship or help in the worship of the idol Narsingha?”
7. “Whether the properties mentioned in Schedules II and III of the plaint belonged to the idol Narsingha, and whether defendant No. 1 held them as trustee”
8. “Whether the disputed lands appertaining to taluks Nos. 221, 222, 223, 224 and 75 belonged to defendant No. 1?”
9. “Whether defendant No. 1 by mismanagement and waste of the property has rendered himself liable to be removed from office?”
14. All these issues were found in favour of the plaintiffs, and the suit was decreed in their favour.
15. The Subordinate Judge’s decision on the first and second issues is as follows:
The plaintiff’s have obtained permission of the Court, under Section 30 of the Civil Procedure Code, to prosecute this suit. This, I think, is a case which comes under that section. Numerous are the parties who have interest in the subject-matter of the suit. I see no incompetency in the plaintiff’s to bring and maintain this suit. They are Hindus of the sect who frequent the akhra and worship Narsingha Debta and offer prayer in the temple, and are interested in the preservation of the property dedicated to the idol out of the rents and profits of which their place of worship is kept in repair and order, and numerous rites and ceremonies and festivals are performed.
16. Upon the third issue the Subordinate Judge says: “Act XX of 1863 was passed to enable the Government to divest itself of the management of the religious endowments that were vested in them by Regulation XIX of 1810 of the Bengal Code, and Section 539 of the Civil Procedure Code relates to trust properties created for public charitable or religious purposes. These properties are private debutter properties.”
17. Upon the sixth issue the Subordinate Judge found that “it has been proved that the plaintiff’s worship and help in the worship of the idol Narsingha Debta; there is no satisfactory proof of others being like them worshippers of the said idol.”
18. The finding of the seventh issue is as follows: “Schedule III of the plaint enumerates utensils, instruments, and chests, and almirahs for keeping them. The utensils and the musical instruments are used for the worship of the idol. Defendant No. 1 does not claim them as his own. Nor does defendant No. 2. set up any right in them. From the will of Bala Bhadra Das Mohunt, it appears that the properties of Schedule No. II belonged to him and he dedicated them to the idol Narsingha Debta. Ram Kishen and Ram Govind, chelas of Bala Bhadra, were appointed shabaits. They were enjoined and directed by the will to manage the property for the idol and devote the income to the worship of the idol. They are to hold it as trustees for the Dehta. Defendant No. 1 has sued for rent of those properties as shebait, trustee or mohunt of the akhra Narsingha Debta, and he has dealt with the properties as such.”
19. With regard to the eighth issue the Subordinate Judge says: “Defendant No. 2 could not show how defendant No. 1 got the taluks 221, 222, 223, 224, and 75. He might have sold some share in this as his own private property. It does not estop plaintiff from proving that Ram Govind got them by will from Bala Bhadra, and that he was merely a trustee or shebait of the idol Narsingha Debta.”
20. Upon the ninth issue the Subordinate Judge finds that defendant No. 1 has been guilty of waste, and points out that he has made no objection to being removed from office.
21. It appears that one Gour Mohan Das Baisnab has applied to be appointed mohunt in the place of defendant No. 1. The plaintiffs said that he was a fit person, and the decree of the Subordinate Judge appointed him.
22. The defendant No. 2 appealed. On the hearing of the appeal the main grounds urged by Dr. Rash Behari Ghose were first, that the provisions of Section 30 of the Code of Civil Procedure were not applicable” to a suit of this nature and character. Second, that even if such provisions were applicable, leave under Section 30 was not obtained before the institution of the suit. Third, that if they were applicable, yet the suit ought to be dismissed, as the evidence conclusively shows that it was not brought on behalf of all the parties interested. Fourth, that the will of Bala Bhadra Das did not operate as a valid dedication of the lands mentioned in the schedule thereto to the use of the idol; that upon a true construction of the will it ought to be held that they were given to the defendant No. 1 free from any trust or subject only to a charge for the expenses of the worship. Fifth, that even if the will operated as a valid dedication of the lands to the use of the idol, there was no evidence that the lands comprised in the appellants kobala and mortgages formed part of the lands so dedicated. Sixth, that the suit was not maintainable without leave obtained under Section 539 of the Code of Civil Procedure or under Act XX of 1863, or both. Seventh, that the evidence established collusion between the plaintiffs and defendant No. 1; that on a proper consideration of the evidence the lower Court ought to have held that the suit was really brought by defendant No. 1 with the object of defrauding his creditors and defeating the just claims of defendant No. 2.
23. In support of his second contention Dr. Rash Behari calls attention to the fact that the plaint purported to have been filed on the 4th January 1890, and that leave under Section 30 was not granted until 6th January 1890. No doubt there is an impressed stamp at the top of the first page of the plaint bearing these words: “Sub-Judge’s Court, Sylhet, filed 4th January 1890,” and underneath are the initials “J.K.C.” which are those of the Subordinate Judge. A reference to the order sheet, however, shows that when the plaint was first presented there was a deficiency in the Court-fee of Re. 1-14; this deficiency was made good on the 6th January, and then it was ordered “that permission he given to the plaintiffs under Section 30 to bring this suit for themselves and on behalf of the persons mentioned in schedule I;” and on the same day there is another order relating to an application for a temporary injunction to stay the auction sale in execution of defendant No. 2’s decree of 31st May 1887, which recites –” As the plaintiffs after filing this suit to-day.” It appears, too, that this point was not taken in the lower Court, where, if it had been taken, it could have beer decided upon the evidence. We are of opinion that we cannot give effect to it here.
24. We are, however, of opinion that the appellant is entitled to our judgment on other of the grounds urged by Dr. Rash Behari Ghose.
25. We are of opinion that the “numerous parties” mentioned in Section 30 of the Code of Civil Procedure means parties capable of being ascertained; this seems clear from a reference to the provisions for service of notice at the plaintiff’s expense upon “all such parties.”
26. In Adamson v. Arumugam I.L.R. 9 Mad. 463 it was said that Section 30 “is rather designed to allow one or more persons to represent a class having special interests than to allow such persons to sue on behalf of the general public to which the notices prescribed by that procedure would be inapplicable.” The evidence on the record clearly establishes that “every Hindu who pleases can give puja or render service (sheba) to the idol Narsingha of the akhra; every Hindu can go into the said akhra and perform puja, sandhya, or say prayers;” in other words, the evidence shows that the whole Hindu community are interested in this suit, which has for its object, amongst other things, the preservation and continuation of the worship of the idol.
27. The whole Hindu community is incapable of ascertainment; and if it had been ascertained, it is clear that the notices required by Section 30 have only been served upon forty-two of the community which probably consists of five million times that number. On these grounds, therefore, we are of opinion that this is not a suit to which the provisions of Section 30 of the Code of Civil Procedure are applicable.
28. The cases relied on by the learned pleader for the respondent [Radhabai kom Chimnaji Sali v. Chimnaji bin Ramji Sali I.L.R. 3 Bom. 27 and Kalidas Jivram v. Gor Parjaram Hirji I.L.R. 15 Bom. 309] do not appear to help him.
29. In the first case, the two plaintiffs sued (for themselves alone) to recover possession of a field which they alleged belonged to a certain idol, and which they said defendant No. L had alienated to defendant No. 2, who had sold it to defendant No. 3–no question as to the applicability of the provisions of Section 30, Code of Civil Procedure. In the second case, the 13 plaintiffs sued on behalf of themselves and 195 others, but it appears that 208 persons comprised the whole number interested in the suit.
30. We are further of opinion that this suit is one to which the provisions of Section 539, Civil Procedure Code, apply. The suit is based upon the existence of a trust (which if it exists at all, is clearly one “for public religious purposes”) and upon a breach of that trust; the relief sought is the appointment of a new trustee and an order vesting property improperly alienated in the new trustee.
31. The plaintiffs do not sue for the establishment of their own right as worshippers or devotees of the idol. The suit seems to be one clearly contemplated by Section 539, Code of Civil Procedure.
32. Suits under that section must be brought in the District Court after leave to institute them has been obtained from the Collector.
33. This suit was instituted in the Court of the Subordinate Judge and without leave obtained from the Collector, and it therefore cannot be sustained.
34. We are supported in the conclusions at which we arrive by the following cases, viz., Wajid Ali Shah v. Dianat-Ul-lah Beg I.L.R. 8 All. 31 and Raghubar Dial v. Kesho Ramanuj Das I.L.R. 11 All. 18.
35. In this view of the case it is unnecessary to express any opinion on the other points raised by Dr. Rash Behari Ghose.
36. The appeal is allowed with costs.