# Bairagi v. Chagan

- **Citation:** [1967] 2 S.C.R. 618
- **Court:** Supreme Court of India
- **Decided:** 1967-02-06
- **Bench:** K. ScDBA RAO, C.J. A~D J.M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bairagi-v-chagan-4165
- **Pages:** 7

## Headnote

Code of Cii·i/ Prvced11rc (Act 5 of 190~). s. 92-Shebait of Hindu
idol alienating idots proper1y-Srdt by \\'ors/zipper on behalf of iclol for
declaration of title and recovery of said properry-Suit 'k·hether governed
hy .<, 92.
Hindu Lall'-Shehait acting adversely ·to interests of idol or not Protecting ils intere.Hs-Right of H:or.<::hipper 10 file
.~uil.
The :\fanagcr o[ a temple alienated the idol's property.
A worshipper
of the idol who f.llso assisted the Manager in his duties, filed d suit as next
friend of 1he idol challenging the alienation.
The
reliefs sought were a
declaration that the property belonged 10 the idol and recovery of posses·
sion.
The trial court's decree in favour
of the plaintiff was upheld by
the High Court. ·me defendants came to this Court, with certificate.
It was urged on behalf of the
appellants that s. 92 of the Code of
Civil Procedure was a har lo the suit, and that no one hut 1he
Shehait
was entitled to file 1hc suit and represent the deity.
HELD : (i) The suil was filed by the idol for possession o[ iL< propcny from the person who was in illegal possession
thereof and there·
. fore it was a suit by the idol to enforce its private right.
The suit also
was for a declaration of the plaintiffs title and for possession thereof, and
was not therefore a suit for
one of the reliefs mentioned in s. 92.
In
either view this was a suit outside the purview of s. <J2 of the Code and
therefore ,.,_, said section was not a bar to its maintainability. [621 D-EJ
Abdur Rahim v. Barkat Ali, (1928) L.R. 55 I.A. 96 and Mahant Pra11dasji Guru Bhagwundasji v. Patel lshwarlalbhai Narsibhai, (1952) S.C.R.
513, relied on.
Mukhda
Mannuda.r
Bairagi v. Chagan
Kisan
Blrawasar.
1.L.R.
1957 Dom. 809, Danhan Lal v. Shibji Maharaj Birajman, (1922) I.L.R.
45 All. 215 and Mad/iavrao Anandrao Rtstc v. Shri Omkareshvar Gh111,
(1928) 31 Born. L.R 192, referred to.
(ii) An idol is in the position of a minor; when a person representing
it leaves it in the lurch, a person interested in
the v.·orship of the idol
can certainly be clothed with an ad hoc JlOWer of representation
to pro--
tect its interest.
It is a pragmatic, yet a legal solution to a difficult situa·
tion.
Should it be held that a Shebail, who transferred the property, can
only bring a suit f1Jr recovery, in most of the cases it will be an indirect
approval of the dereliction of the Shebait's du!y, for more often than not
he will no! admit his default and take step~ to recover the property apan
from other technical pleas that may be open
10 the transferee in a suit.
Should i1 be held that a wol'ihipper can file only a suil for the removal
of a Shebait and for the appointment of another in order to enable him
to take step.~ to recover the property. such a procedure will be rather a
prolon~ed and complicated one and the inte"Cest of the idol may irrcpara·
bly suffer.
That is why a worshipper is permitted in such circumstances
to represent the idol and 10 recover 1he properly for the idol. [622 G-
(,Z3 Bl
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BISHWANATH v. RADHABALLABHJI (Subba Rao, C.J.)
619
Kun; Behari Chandra v. Sri Sri Shyam Chand Thakur,
A.l.R. 1938
Pat. 394 and Artatran Alekhagadi Brahma v. Sudersan Mohapatra, A.I.R.
1954 Orissa II, disapproved.
Pramatha Nath Mullick v. Pradyumna Kumar Mullick, (1925) L.R.
52 I.A. 245 and Kanhaiya Lal v. Hamid Ali,
(1933) L.R. 60 I.A. 263,
applied.
In the present case the suit was brought on behalf of the idol by a
worshipper and therefore in the circumstances of the case the High Court
rightly held that it was maintainable. [624 DJ
C!vrL APPELLATE JURISDICTION : Civil Appeal No. 780 of
1964.
Appeal from the judgment and decree dated December 21
19~9 of the Allahabad High Court in First Appeal No. 87 of 1948.
M. S. Gupta, La/it Kumar and S. N. Varma, for the appellants
J. P. Goyal and Raghunath Sinf{h, for respondent No. I.

## Text

BISHWA!'IATH A'.'iD ANR.
\'
SHRI THAKt;R RADHABALLABHJI & ORS.
February 6, 1967
[K. ScDBA RAO, C.J. A~D J.M. SHELAT, J.]
Code of Cii·i/ Prvced11rc (Act 5 of 190~). s. 92-Shebait of Hindu
idol alienating idots proper1y-Srdt by \\'ors/zipper on behalf of iclol for
declaration of title and recovery of said properry-Suit 'k·hether governed
hy .<, 92.
Hindu Lall'-Shehait acting adversely ·to interests of idol or not Protecting ils intere.Hs-Right of H:or.<::hipper 10 file
.~uil.
The :\fanagcr o[ a temple alienated the idol's property.
A worshipper
of the idol who f.llso assisted the Manager in his duties, filed d suit as next
friend of 1he idol challenging the alienation.
The
reliefs sought were a
declaration that the property belonged 10 the idol and recovery of posses·
sion.
The trial court's decree in favour
of the plaintiff was upheld by
the High Court. ·me defendants came to this Court, with certificate.
It was urged on behalf of the
appellants that s. 92 of the Code of
Civil Procedure was a har lo the suit, and that no one hut 1he
Shehait
was entitled to file 1hc suit and represent the deity.
HELD : (i) The suil was filed by the idol for possession o[ iL< propcny from the person who was in illegal possession
thereof and there·
. fore it was a suit by the idol to enforce its private right.
The suit also
was for a declaration of the plaintiffs title and for possession thereof, and
was not therefore a suit for
one of the reliefs mentioned in s. 92.
In
either view this was a suit outside the purview of s. <J2 of the Code and
therefore ,.,_, said section was not a bar to its maintainability. [621 D-EJ
Abdur Rahim v. Barkat Ali, (1928) L.R. 55 I.A. 96 and Mahant Pra11dasji Guru Bhagwundasji v. Patel lshwarlalbhai Narsibhai, (1952) S.C.R.
513, relied on.
Mukhda
Mannuda.r
Bairagi v. Chagan
Kisan
Blrawasar.
1.L.R.
1957 Dom. 809, Danhan Lal v. Shibji Maharaj Birajman, (1922) I.L.R.
45 All. 215 and Mad/iavrao Anandrao Rtstc v. Shri Omkareshvar Gh111,
(1928) 31 Born. L.R 192, referred to.
(ii) An idol is in the position of a minor; when a person representing
it leaves it in the lurch, a person interested in
the v.·orship of the idol
can certainly be clothed with an ad hoc JlOWer of representation
to pro--
tect its interest.
It is a pragmatic, yet a legal solution to a difficult situa·
tion.
Should it be held that a Shebail, who transferred the property, can
only bring a suit f1Jr recovery, in most of the cases it will be an indirect
approval of the dereliction of the Shebait's du!y, for more often than not
he will no! admit his default and take step~ to recover the property apan
from other technical pleas that may be open
10 the transferee in a suit.
Should i1 be held that a wol'ihipper can file only a suil for the removal
of a Shebait and for the appointment of another in order to enable him
to take step.~ to recover the property. such a procedure will be rather a
prolon~ed and complicated one and the inte"Cest of the idol may irrcpara·
bly suffer.
That is why a worshipper is permitted in such circumstances
to represent the idol and 10 recover 1he properly for the idol. [622 G-
(,Z3 Bl
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ff
BISHWANATH v. RADHABALLABHJI (Subba Rao, C.J.)
619
Kun; Behari Chandra v. Sri Sri Shyam Chand Thakur,
A.l.R. 1938
Pat. 394 and Artatran Alekhagadi Brahma v. Sudersan Mohapatra, A.I.R.
1954 Orissa II, disapproved.
Pramatha Nath Mullick v. Pradyumna Kumar Mullick, (1925) L.R.
52 I.A. 245 and Kanhaiya Lal v. Hamid Ali,
(1933) L.R. 60 I.A. 263,
applied.
In the present case the suit was brought on behalf of the idol by a
worshipper and therefore in the circumstances of the case the High Court
rightly held that it was maintainable. [624 DJ
C!vrL APPELLATE JURISDICTION : Civil Appeal No. 780 of
1964.
Appeal from the judgment and decree dated December 21
19~9 of the Allahabad High Court in First Appeal No. 87 of 1948.
M. S. Gupta, La/it Kumar and S. N. Varma, for the appellants
J. P. Goyal and Raghunath Sinf{h, for respondent No. I.
The Judgment of the Court was delivered by
Sobba Rao, C.J. This appeal by certificate is preferred against
the decree of the High Court of Judicature at Allahabad decreeing
the suit filed by the respondents for possession of the plaint
schedule property.
Shri Thakur Radhaballabhji, the deity, represented by Yasodanandan as next friend, filed O.S. No. 61 of 1946 in the Court of the
2nd Civil Judge, Kanpur, against the appellants for a declaration
that the deity was the proprietor of house No. 49/54 situate in Ban
Bazar in the City of Kanpur, for possession thereof and for mesne
profits-. The case of the plaintiff (!st respondent herein) was that
Lala Jagan Prasad, the 2nd defendant to the suit, was the manager
llnd Sarvarakar of the deity, that the said manager executed a sale
deed dated January 13, 1942, conveying the said property to one Lala
Behari Lal, the 1st defendant to the suit, for a consideration of
Rs. 10,000 and that the sale, not being for necessity or for the
benefit of the idol, was not binding on the deity. It was further
alleged that, as the 2nd defendant had taken no steps to recover the
property, in order to safeguard the rights of the idol the suit was
filed through Jagan Pr:asad, who was one of the devotees and worshipper of the deity and who had been taking keen interest in the
management of the temple where the deity is installed. To that
suit the alienee was made the !st defendant and the manager, the
2nd defendant.
The 1st defendant set up the case that the suit property die!
not constitute the property of the idol but was the property of the
2nd defendant purchased by him out of his own funds.
He further
alleged that the suit house was in a dilapidated condition, that its
rebuilding would involve the idol in heavy and unprofitable expen-
620
SUPll.IMI OOtaT RBPOltTS
(1967] 2 s.c..a.
diture, that therefore the second defendant as its manager, acting
as a prudent man, sold the same for a good price to the I st defendant and that. as the sale transaction was for the benefit of the idol,
it would be binding on the plaintiff. He also questioned the right
of Yasodanandan to represent the idol and to bring the suit on its
behalf.
Both the learned 2nd Civil Judge, Kanpur, in the first
instance, and. on appeal, the High Court concurrently held that the
sale was not for the benefit of the deity and that the consideration
was not adequate. They also held that in the circumstances of the
case the idol had the right to file the suit represented by Yasodanandan, who was a worshipper of the deity and was helping the
second defendant in the management of the temple.
In the result
the trail court gave a decree for possCS6ion and for recovery of Rs.
1,400 as past mense profits against the 1st defendant on condition
that the plaintiff returned a sum of Rs. 10,000 to the 1st defendant
within two months from the date of the decree and also that the
plaintiff would be entitled to future mesne profits at Rs. 45 p.m.
till the date of delivery of possession of the property. The High
Court confirmed the same.
Hence the present appeal.
Mr. M. S. Gupta, learned counsel for the appellant, canvassed
the correctness of the findings of both the courts on the questions
of fact as well as of law. On the questions of fact, namely, whether
the impugned transaction was binding on the idol and was supported
by consideration, we do not think we would be justified to permit the
appellant to question their correctness, because the said findings
are concurrent and are based upon appreciation of the relevant
evidence.
We accept the said findings .
..
The only outstanding question, therefore, is whether the suit is
maintainable by the idol represented by Yasodanandan, who is a
worshipper as well as a person who had been assisting the 2nd'
.; defendant in the management of the temple.
Two obstacles are raised against the maintainability of the suit,
namely, (I) s. 92 of the Code of Civil Procedure is a bar to the
maintainability of the suit, and (2) a suit for possession of the
property of the idol, after setting aside the alienation, could only be
filed by the Shebait and none else could represent the deity.
It is settled law that to invoke s. 92 of the Code of Civil Procedure, 3 condit'ons have to be satisfied, namely, (i) the trust is
created for public purposes of a a charitable or religious nature;
(ii) there was a breach of trust or a direction of court is necessary
in the administration of such a trust; and (iii) the relief claimed is
one or other of the reliefs enumerated therein.
If any of the 3
conditions is not satisfied, the suit falls outside the scope of the said
section. A suit by an idol for a declaration of its title to property
and for possession of the same from the defendant, who is In possession thereof under a void alienation, is not one of the ntliefs
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BISHWANATH v. RADHABALLABHJI (Subba Rao, C.J.)
621
found in s. 92 of the Code of Civil Procedure. That a suit for
declaration· that a property belongs to a trust is held to fall outside
the scope of s. 92 of the Code of Civil Procedure by the Privy Council
in Abdul. Rahim v. Barkat Ali(') and by this Court in Mahant
Pragdasji Gu;u Bhagwandasji v. Patel Ishwarlalbhai Narsibhai(2)
on the ground that a relief for declaration is not one of the reliefs
enumerated in s. 92 of the Code of Civil Procedure. So too, for
the same reason a suit for a declaration that certain properties
belong to a trust and for possession thereof from the alience has also
been held to be not covered by the provisions of s. 92 of the Code
of Civil Procedure: See Mukhda Mannudas Bairagi v. Chagan Kisan
Bhawasar( ). Other decisions have reached the same result on a
different ground, namely, that such a suit is one for the enforcement
of a private right. It was held that a suit by an idol as a juristic
person
against
persons who interfered unlawfully with the
property of the idol was a suit for enforcement of its private right
and was, therefore, not a suit to which s. 92 of the Code of Civil
Procedure applied: see Darshan Lal v. Shibji Maharaj Birajman(4);
and Madhavrao Anandrao Raste.v. Shri"Omkareshvar Ghat('). The
present suit is filed by the idol for possession of its property from the
person who is in illegal possession thereof and, therefore, it is a suit by
the idol to enforceits private right. The suit also is for a declaration
of the plaintiff's title and fqr possession thereof and is, therefore,
not a suit for one of the reliefs mentioned in s. 92 of the Code
of Civil Procedure. In either view, this is a suit outside the purview
of s. 92 of the said Code and, therefore, the said section is not a
bar to its maintainability.
The second question turns upon the right of a worshipper to
represent an idol when the Shebait or manager of the temple is.
acting adversely to its interest. Ganapathi Iyer in his valuable
treatise on "Hindu and Mahomedan Endownments", 2nd edn.,
at p. 226, had this to say in regard to the legal status of an idol in
Hindu law:
"The ascription of a legal personality to
the
deity supposed to be residing in the image meets with all
praGtical purposes. The deity can be said to possess
property only in an ideal sense and the theory is, therefore,
not complete unless that legal personality is linked to a
natural per sun."
It would be futile to discuss at this stage the various decisions
which considered the relationship between the idol and its Shebait
or Manager qua the management of its property, as the Privy
Council in Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta
Kumari Debi(') has settled the legal position and stated thus:
(I) [1928] L. R. SS I. A. 96.
(3) I. L .. R. 1'157 Bombay 809.
(5) (1928] 31 Born L. R. 192.
(2) (1952] S.C.R. 513.
(4) [1922] I. L. R. 45 AU. 215.
(6} [19J4] L. R. 31 I. A. 203, 209, 210
G22
SUPREME COURT REPOll.TS
[ 1967) 2 S.C.R..
.. There is no doubt that an id<>l may he regarded as a
juridical person capable as such of hold111g property,
though it is only in an ideal sense that property is so held."
Dealing with the position of the Shebait of such an idol, the
Privy Council rroceedcd to state:
A
. . . . . 1t still remains that the po;sessio11 and
e
management of the dedicated property belong to the
Shehait. And this carries with it the right to hring whatever
suits are necessary for the protection of the property. Every
such right of suit is vested in the Shebait, not in the idol."
This was a case where the Shehait filed a suit for eviction from
the dedicated property within three years after attaining majority
and the Board held that, as he had the right to bring the suit for the
protection of the dedicated property. s. 7 of the Limitation Act,
1877, would apply tu him. The present question, namely, if a
Shebait acts adversely to the interests of the idol whether the idol
represented by a worshipper can maintain a suit for eviction, did
not arise for consideration in that case. That question falls to be
decided on different considerations.
Three legal concepts are well settled : (I) An idol of a Hindu
temple is a juridical person; (2) when there is a Shehait, ordinarily
no person other than the She bait can represent the idol; and (3)
worshippers of an idol arc its beneficiaries, though only in a spiritual
sense.
It has also been held that persons who go in only for the
purpose of devotion have, according to Hindu
law and religion.
a greater and deeper interest in temples than mere servants who
serve there for som! pecuniary advantage : sec Ka/yana Venkataramana Ayyangar v. Kasr11ri Ranga Ayya!!gar(').
In the present case.
the plaintiff is not only a mere worshipper but is found to have been
assisting the 2nd defendant in the management of the temple.
The question is, can such a person represent the idol when the
Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not sec any justification
for denying such a right to the worshipper. An idol is in the position
of a minor; when the person representing it leaves it in the lurch,
a person interested in the worship of the idol can certainly be
clothed with an
ad hoc
power of representation to protect its
interest.
It is a pragmatic, yet a legal solution to a difficult situation.
Should it be held that a Shebait, who transferred the property,
can only bring a suit for recovery, in most of the cases it will be an
indirect approval of the dereliction of the Shebait's duty, for more
often than not he will not admit his default and take steps to recover
the property. apart from other technical pleas that may be open
to the transferee in a suit. Should it be held that a worshipper can
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(I) (1916) l.L.R. 40 Mad. 212, 225.
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BISHWANATH v. RADHABALLABHJI (S11bha Rao, C.I.)
623
file only a suit for the removal of a Shebait and for the
appointment of another in order to enable him to take steps
to recover the property, such a procedure will be rather a prolonged
and a complicaied one and the interest of the idol may irreparably
suffer. That is why decisions have permitted a worshipper in such
circumstances to represent the idol and to recover the property
for the idol.
It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf
of an endowment: see Radlwbai Ko111 Chi11111(1ji Safi v.Chimnaji Bin
Ramjil ') Za/aarab Ali v. Bakhta1l'ar
Singh('\ Chidambaranat
Tlwmhiran
fli
Sirngnana
Desika
G11anasa111banda
Pandora
Sa1111ml/;i '" P. S. Nallasfra(3) Muda/iar, Dasondhay v. Muhammad
Abu Nasar(4 ), Kalavana Venkataramana Aiyangar v. Kasturi Ranga
Aiyangarl') Sri Radha Kirshnaji v. Rameshwar Prashad Singh(6)
Manmo/wn Haldar v. Dibbendu Prasad Roy Choudhury.(7)
There are two decisions of the Privy Council, namely Pramatha
Nath Mullick v. Pradyun:na Kumar Mullick(') and Kanhaiya Lal
v. Hamid Ali (9) wherein the Board remanded the case to the High
Court in order that the High Court might appoint a disinterested
per>on
to represent
the idol. No doubt in both the cases no
question of any deity filing a suit for its protection
arose,
but the decisions are authorities for the position that apart from a
Shebait, under certain circumstances, the idol can be represented
by disinterested persons. B. K. Mukherjea in his book "The
Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions,
among others, at p. 249.
"(!)An idol is a juristic person in whom the title to
the properties of the endowment vests.
But it is only in
an ideal sense that the idol is the owner. It has to act
through human agency, and that agent is the Shebait, who
is, in law, the person entitled to take proceedings on its
behalf. The personality of the idol might therefore be said
to be merged in that of the Shebait.
(2) Where, however, the Shebait refuses to act for
the idol, or where the suit is to challenge the act of the
Shebait himself as prejudicial to the interests of the idol,
then there must be some other agency which must have the
right to act for the idol. The law accordingly recognises
a right in persons interested in the endowment to take
proceedings on behalf of the idol.
(1) [1878] I. L. R. 3 Bom. 27.
(2) [1883} I. L. R. 5 All. 497.
(3) (1911) 6 Law Weekly, 666.
(4) [1911} I. L. R. 33 All. 660, 664.
H
(5) A. I. R. 1917 Mad. 112.
(6) A. I. R. 1934 Pat. 584.
(1) A. I. R. 1949 Cal. 199.
(8) [1925} L. R. 52 l.A. 245.
(9) [1933] L. R. 60 I. A. 263.
~24
SUPIUIMB COUJ. T llJIPOl!.TS
(1967] 2 S.C.R.
This view is justified by reason as well as by decisions.
A
Two cases have been cited before us which took a contrary
view.
In Kunj Behari Chandra v. Sri Sri Shyam Chand Thakur(')
it was held by Agarwala, J., that in the case of a public endowment,
a part of the trust property which had been alienated by the Sheliait
or lost in consequence of his action could be recovered only in a suit
instituted by a Shebait. The only remedy which the memb~rs of the
B
public have, where the property had b~n alienated by a person who
was a Shebait for the time being was to secure the removal of the
Shebait by proceedings under s. 92 of the Code of Civil Proc.:dure
and then to secure the appointment of another She bait who would
th~n have authority to represent the idol in a suit to recover the
idol properties. So too, a division Bench of the Orissa High Court
C
in Artatran A/ekhagadi Brahma v. Sudersan Molzapatra (2) came to
the same conclusion. For the reasons given above, with great
respect. we hold that the said two decisions do not represent the
correct law on the subject.
In the result, agreeing with the High Court, we hold that the
suit filed hy the idol represented by a worshipper, in the circumstanD
ces of the case is maintainable. The appeal fails and is dismissed
with costs.
G.C.
Appeal dismissed.
(ll A. I. R. 1938 Pat. 394.
(2) A. J. R. 1954 Orissa, 11.