JUDGMENT
1. This is a special appeal in Suit No. 111 of 1923 instituted by Guru Reoti Raman Acharya against Jaistha Madhav Acharya and seven others, and relates to the temple of Thakur Gat Shram Narainji Maharaj, situate in Muhallah Gat Shram Tila, in the city of Muttra.
2. The temple is said to have been founded by the great scholar and theologian Pandit Prannath Shastri in the early part of the 19th century. The history of the endowment is not preserved in any written record. The administration of the temple property was for a long time in the hands of Raja Pitambar Singh of Avagarh. On 26th March 1850 dispute having arisen amongst the heirs of the founder, the matter was referred to arbitration. An award was made on 26th March 1850 which directed that half the income of the temple property should be spent towards the expenses of the worship of the idol, the payment of the salary of the servants and the maintenance of vaisnava acharis, and that the other half of the income was divisible amongst the heirs of the founder. The terms 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 Shram 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 Shram Narainji.
5. The plaintiff alleges that the parties to the suit are the managers and mutwallis of this temple, that they or their predecessors had entrusted the management of the temple and its properties to one Pandit Kesho Das under a registered instrument dated 13th April 1895, that Kesho Das had to be removed from his office, and that from the date of his removal Jaistha Madhava Acharya, defendant 1, himself and through his brothers took the entire management of the temple and its properties into his hands that
defendant 1 alone had been the sole master so far as the management and the property of the temple were concerned, that he had the absolute control of the funds, that he never consulted the plaintiff in any matter, that he rendered no account, and that a large sum of money was due by the principal defendant to the Thakurji, and that the plaintiff who was a co-trustee was entitled to rendition of accounts from the year 1903 up to the date of the present suit, that is 24th November 1923.
6. The plaintiff claims a preliminary decree for accounts from 1903 up to the date of this suit against defendant 1, or against any other defendant or defendants and prays that the money found due be deposited in the coffers of the Thakurji together with usual interest and costs.
7. As to the array of the defendants the plaintiff states that defendants 1 to 6 formed a party by themselves of whom defendant 6 was also liable to the idol for large sums of money. Defendants 7 and 8 were co-trustees and had been impleaded merely as defendants pro forma.
8. The suit was contested by defendants 1 to 6 principally on the ground that the suit was barred by Sections 10, 11 and 92, Civil P. C, that with the exception of two years defendants 1 to 5 had not been collecting rent, that the accounts up to 1906 had already been rendered, and that a large sum of money was due to the temple from the plaintiff.
9. In the course of the argument before the trial Court, stress was laid on the fact that Thakur Gat Shram Narainji Maharaj had on 15th September 1920 instituted a suit under the superintendence and trusteeship of one Mt. Sundar Kuar (who was one of the sebaits) (a) for accounts from 15th September 1906 up to the date of the decree, and (b) for recovery of Rs. 5981 for the profits of a village named Khasrai Bhajanpur. This suit was directed against all the sebaits including Reoti Raman Acharya who is the plaintiff in the present suit. Mt. Sundar having 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 Rs. 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 A.I.R. 1924 All. 504. 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 Rs. 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 A.I.R. 1928 All. 134.
11. In the present suit, it was argued before the trial. Court that accounts up to 1906 had already been rendered by the defendant, that the claim was barred by Order 2, Rule 2, Civil P. C, that the relief claimed for a preliminary decree for accounts from 15th November 1906 right up to the date of the decree which had been preferred in suit No. 142 of 1920, having been unconditionally withdrawn and no permission to institute a fresh suit on the same cause of action having been asked for and obtained, the Thakurji could not maintain a second suit for accounts extending over the same period. The present suit being one of a representative character, instituted by the sebait for identical relief against the identical defendant was barred by Order 23, Rule 1, Sub-rule (3), Civil P.C.
12. This last plea was accepted by the learned Subordinate Judge, who granted the plaintiff a decree for rendition of accounts for a limited period commencing from 15th May 1921. On appeal, the learned District Judge modified the decree of the trial Court and granted the plaintiff a decree for accounts for the entire period claimed. He held that the proper issue before the Court was whether the suit was barred by Sections 10 and 11, Civil P. C, and remarked as follows:
As far as I understand Order 23, Rule 1, it does not purport to bar suits.
13. His judgment proceeds upon the following grounds:
(1) The parties to the two suits are different. The present suit is by a trustee (representing himself and not representing the idol) to enforce the performance of the duties due by the co-trustees.
(2) The subject-matter of the two suits is different, the object of the present suit being rendition of accounts to the plaintiff by the defendant 1, and not, as in the former suit a rendition of accounts to the idol by the trustees generally.
14. The learned Judge concludes his judgment with the following remarks:
I may point out that if the issues be held to be the same then any trustee who was sued for accounts by another trustee might bring another suit against the plaintiff-trustee and abandon it and thus get his suit complete first and then claim that the matter was res judicata and could not be reopened. This I think is the reductio ad absurdum of the law as laid down by the lower Court.
15. There is an obvious fallacy in this argument. On the learned Judge’s view of the law, any infant heir or idol figuring as plaintiff is exempt from this operation of Order 23, Rule 1, 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 all the other co-sebaits concerned.
16. In the case of G.H. Hook v. the Administrator-General of Bengal A.I.R. 1921 P.C. 11. Lord Buckmaster approved the following observation of Sir Barnes Peacock in Ram Kirpal Sukul v. Mt. Rup Kuari [1884] 6 All. 269, (at p. 41 of 11 I.A.):
The binding force of a decision of a question at issue between the parties to a suit does not depend upon the Code of Civil Procedure but upon general principles of law.
17. In Gokul Mandur v. Padmanand Singh [1902] 29 Cal. 707 (at p. 715), Lord Davey is reported to have said:
The essence of a code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.
18. The rule enacted in Order 23, Rule 1 is a statutory recognition of a legal principle barring the fresh institution of a claim unless certain conditions were fulfilled and the rule is imperative.
19. In original suit No. 142 of 1920 the claim for a rendition of accounts for a certain period having been deliberately withdrawn there was no decree affecting this portion of the claim nor any finding on an issue relating to the right of the plaintiff for accounts against any trustee or trustees. The bar of Section 11, Civil P.C., therefore, could not be raised. For obvious reasons the suit as now brought did not attract the operation of Order 2, Rule 2, Civil P. C, without straining the language of this order. In the suit as originally brought the claim for rendition of accounts was distinctly put forward but was subsequently abandoned.
20. The rule provided in Order 23, Rule 1, Sub-rule (3) is not a rule of res judicata as the learned District Judge seemed to think. It clearly provides that
where a plaintiff abandons a part of a claim without permission referred to in Sub-rule (2) he shall be liable for such cost as the Court may award, and shall be precluded from instituting any fresh suit in respect of such part of a claim.
21. Given certain conditions Order 23, Rule 1, distinctly bars the institution of any fresh suit qua the part of the claim that has been abandoned; and it is perfectly clear that the injunction is mandatory.
22. One of the points urged by the defendant-appellant is that the withdrawal of the claim for accounts from 15th November 1906, and ending with the date of the decree in 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 necessary. In many cases dedication is a matter of inference from a long course of conduct, from user, and from the application of the income of the property about which endowment is claimed. This test, however, is not always conclusive.
25. In Jagadindra Nath Roy v. Hemantha Kumari Devi [1905] 32 Cal. 129, Sir Arthur Wilson remarks (p. 140):
There is no doubt that an idol may be regarded a juridical person capable as such of holding property, though it is only in an ideal sense that the property is so held.
26. In Damodhar Das v. Lakhan Das [1909] 37 Cal. 885, their Lordships of the Privy Council observe (at p. 151 of 37 I.A.):
The learned Judges of the High Court have rightly held that in point of law the property dealt with by the ekrarnama was prior to its date to be regarded as vested not in the mahant but in the legal entity the idol, the mahant being only representative and manager.
Vidya Varuthi Thirtha v. Balusami Ayyar A.I.R. 1922 P.C. 123 contains the following observations by the Judicial Committee.:
Under the Hindu law, the image of a deity of the Hindu pantheon is, as has been aptly called a “juristic entity” vested with the capacity of receiving gifts and holding properties.
27. Again:
28. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol of the institution. In almost every case, he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usages and customs.
29. In Pramatha Nath Mullick v. Pradhyumna Kumar Mullick A.I.R. 1925 P.C. 139 the Judicial Committee observed as follows:
A Hindu idol is according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a “juristic entity.” It has a juridical status with the power of suing and being sued. Its interests are attended to by the person, who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir.
30. The position of a sebait with reference to the idol and its property is thus very peculiar. In an ideal sense, the entire estate vests in the idol, who, however, not being is sentient being, 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 obligations attending or resulting from his peculiar office.
32. Act 20 of 1863 may be responsible for the currency of the idea that the sebait is a trustee, In the said Act, the words “manager, trustee, or superintendent.” were used loosely to express the idea of management. This mischief may have been intended to be removed by the Indian Trust Act (2 of 1882) which excluded Hindu religious endowments from the operation and scope of the Act predicating thereby that Hindu endowments generally were not held in trust in its technical sense. It has been observed by the Judicial committee Vidya Varuthi v. Balusami Iyer A.I.R. 1922 P.C. 123 at p. 315 of 48 I.A.
Neither under the Hindu law nor in the Mahomedan system is any property ” conveyed to a sebait or a mutwalli, in the case of a dedication. Nor any property is vested in him; whatever property he holds for the idol or the institution, he holds as manager with certain beneficial interest regulated by custom and usage.
33. The above view is merely an amplification of what had been said by the Privy Council in an earlier case Jagdindra Nath Roy v. Hemantha Kumar [1905] 32 Cal. 129 at p. 141
But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the sebait. 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 sebait not in the idol.
34. In Maharani Shibeshwari Debya v. Mathura Nath Acharya (10) [1866] 13 M.I.A. 270 the Privy Council held that the sebait had not the legal property but only the title of the manager of a religious endowment. The same idea is continued in Prosunno Coomaree v. Golab Chand Babu [1874] 2 I.A. 145 at 152:
It is only in an ideal sense that property can be said to belong to an idol and the possession and the management of it must in the nature of things entrusted to some person as sebait or manager. It would seem to follow that the persons so entrusted must of necessity be empowered to do whatever may be required for the service of the idol, and for the benefit and preservation of its property at least to as great a degree as the manager of an infant heir.
35. In Norendra Nath v. Atul Chandra [1918] 27 C.L.J. 605 Mukerjee, J., is reported to have made the following statement of the law:
The 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 in the present suit), 2. Madsudan Acharya, 3. Revti Raman Acharya (plaintiff in the present suit), 4. Murli Dhar, 5. Madho Lal, 6, Sohan Lal, and 7. Mohan Lal.
38. The allegations in the plaint were that the plaintiff, through Mt. Sundar Kuer, had sued the defendants for accounts from the 5th November 1902 to the 15th November 1906, and had obtained a decree on the 8th December 1909, which was affirmed on appeal on 12th July 1910, that Mt. Sundar Kuer had taken the management in hand for only two years, and a detailed account of realizations and disbursements made by her was entered in the account books of the temple, that at the date of the suit defendant 1 carried on the management of the temple and the business of making collections and assessments, and that the defendants had rendered no account from 15th November 1906. The plaintiff, therefore, inter alia claimed that a decree be passed for rendition of accounts from 15th November 1906 to the date of decree, and that the amount found due might be awarded.
39. We have already noticed that this suit was instituted by the idol through Mt. Sundar Kuer a sebait. After the latter’s death, it was continued by Bhagirath Lal (defendant 8). The plaintiff was properly represented. There was no defect in the frame of the suit. The plaintiff, being in the position of an infant heir, was entitled in a properly constituted suit to ask the defendants, who were its sebaits and managers, to give an account of their stewardship. It was open to the plaintiff to withdraw unconditionally the entire suit or any portion of the claim under Order 23, Rule 1, Civil P.C. An application for withdrawal with reference to the claim for accounts was made, and granted. It is not pretended that the application for withdrawal was vitiated by fraud, or was the result of any negligence on the part of the sebait, who prosecuted the suit for the plaintiff. Nor it is argued that the withdrawal of the claim in part was the result of collusion between Bhagirath Lal and the other sebaits, The result of the unconditional withdrawal is the idol Gat Shram Narainji cannot institute a fresh suit against the sebaits including the defendant-appellant for a rendition of accounts between 15th November 1906 and 14th May 1921. The effect of the withdrawal would lead to either of these two conclusions. Either the claim for accounts was unfounded, 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 Shram 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. We do not accept the view of the Court below that the suit is not really between the same parties.
42. We may usefully quote the following passage from the judgment of Mukerjee, J., in Gopal Jew Thakur v. Radha Binode Mondal A.I.R. 1925 Cal. 996:
It is true, it was a suit by some of the shebaits against the other shebaits, for the proper management of the debutter property but it cannot be said as contended on behalf of the appellant that two sets of shebaits were fighting with each other about the management of the properties…. The two shebaits who instituted the suit represented the deities, as it was a suit for the benefit of the endowment. Reliance is placed on Underhill on Trusts, 7th edition, pp. 305 and 806, that where there are more trustees than one, all must act together. But the position of a shebait is not the same as that of a trustee in English law in whom the property is vested. The shebait is only a manager, the property being vested in the deity: Vidya Varuthi Tirtha, v. Balusami Ayyar A.I.R. 1922 P.C. 123. The possession and management remains with the shebait, and the right of suit is vested in the shebait, though the property is vested in the Thakur.
43. We fully endorse the above view.
44. We are not aware if the rights and liabilities of the shebait inter se were settled by any instrument in writing, which authorized a shebait to call for an account from the coshebaits, who happened to be in possession of the property. It is conceivable that such rights may exist as creatures of agreement, arrangement or custom. In the absence of any evidence to substantiate rights of this description, the plaintiff cannot be allowed to take his stand upon the general law which allows one trustee to call for an account from a co-trustee as much for his own protection as for the preservation of the trust. In the present case, the suit, being one of a representative character, must be deemed to be a suit by the idol. The plaintiff is not entitled to maintain the suit after the order dated 11th June 1921 under which the suit was unconditionally withdrawn. In agreement with the trial Court, we hold that the claim for rendition of accounts between 15th November 1906 and 14th May 1921. is barred by Order 23, Rule 1, Sub. Rule (3), Civil P.C.
45. It is next argued that the suit having been filed on 6th February 1924, the claim for accounts for the 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 A.I.R. 1928 All. 134. 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 there is no time limit for a suit for accounts against them under Section 10, Lim. Act. The plaintiff has failed to establish that the defendant appellant is
a person in whom property has become vested in trust for any specific purpose.
49. The words referred to above clearly connote an express trust. The plaintiff has not referred this Court to any evidence, written or verbal from which the existence of an express trust could be extracted. “Express trust” contemplates the vesting of the property in certain person on trust either declared in explicit terms or otherwise stated in language indicative of the fact that the legal and beneficial ownership is held by different juridical entities. Moreover, the shebaits are not trustees in the technical sense in which the word has been used in the Limitation Act, although their obligations to the idol are analogous to those of a trustee for certain purposes. Section 10, Lim. Act does not, therefore, help the plaintiff.
50. We hold that the plaintiff’s claim for accounts prior to 6th February 1921 is time barred.
51. As a result of our findings we allow the appeal, set aside the decree of the learned District Judge and restore the preliminary decree passed by the trial Court dated 31st October 1924.
52. The appellants are entitled to their costs of this court and of the Court below.
