A.P. Sen, J.
This was a suit brought by Shrideo Janki Raman through its Mohatminkar for eviction of the defendant u/s 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1931. The Courts below have decreed the suit. The appeal came up for hearing before Naik J., and he referred the case to a larger Bench for examining the correctness of the view expressed by Bhargava J., in Agarwal Hosiery Shop v. Deity Radhakishan etc. 1963 MPLJ 46. One of the questions that arose in the appeal was whether in a suit by a public trust registered under the Madhya Pradesh Public Trusts Act, 1951 all the trustees must join in filing the suit or whether the suit by one of the trustees was competent. Bhargava J., in Agarwal Hosiery Shop''s case (supra), after making a contrast between rules 1 and 2 of Order XXXI of the Code of Civil Procedure, held that a trustee could represent the beneficiaries and it was, therefore, not necessary to join all the trustees.
With great respect to the learned Judge, the view that all trustees need not join in a suit can hardly be supported. In President Badri Narayan v. Gulam Rasool Fakhruddin 1969 MPLJ 77, one of us (Sen J.,) had occasion to deal with the question. There, the suit was brought by one of the trustees as representing "Shri Rajulal Trust" which was registered under the M.P. Public Trusts Act, 1951 for reimbursement. It was pleaded by the defendants that the suit, as framed, was not maintainable. Due to this, the trustee applied under Order 1, rule 10 of the Code of Civil Procedure, for permission to continue the suit in a representative capacity as representing all the trustees. That application, however, was rejected on the ground that no prior permission of the Court had been obtained. But while refusing the application, the Court observed that the trustee could apply under Order 1, rule 10 of the Code for impleading other trustees as co-plaintiffs in the suit. While dealing with the question, it was observed:
The Trust admittedly is a Public Trust, and the suit could have been instituted in its name, if there was a provision in the M.P. Public Trusts Act enabling a Public Trust to sue in its name. Perhaps, the plaintiff felt that in the absence of such a provision the suit had to be brought in his own name. In making that assumption, the plaintiff committed an honest mistake. The suit had to be brought under Order 1, rule 8 or in the name of the co-trustees as in the case of a private trust.
There is obviously a lacuna in the M. P. Public Trusts Act in that unlike other enactments, it nowhere provides that upon registration of a Public Trust under the provisions of the Act, the Trust will have a legal personality, capable of instituting and defending suits and other legal proceedings in its name..........
It is true that section 32 of the Madhya Pradesh Public Trusts Act, 1951 forbids trial of a suit on behalf of a public trust, which expression by the definition of "public trust" contained in section 2(4) includes a temple, unless the public trust is registered. It is common ground that the temple in which the idol of Shrideo Janki Raman is installed together with all its endowed properties, is registered as a public trust. But the temple is not a legal person and is incapable of suing. The suit had to be instituted and prosecuted in the name of a legal person capable of suing. The plaintiff-deity in whom the property was vested alone could have brought the suit. No doubt, the idol is itself a juridical person with the power of suing and sued. See Pramatha Nath Mullick v. Pradyumna Kumar Mullick and another ILR 52 Cal. 809. In Jagadindra Nath v. Hemanta Kumari Debi ILR 32 CAL. 129 PC, their Lordships stated the legal postion as follows:
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.
Dealing with the position of the shebait of such an idol, their Lordships proceeded to state:
It still remains that the possession and management of the dedicated property 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.
In Kisan and others v. Shree Maroti Sansthan, Mohori and others 1947 NLJ 527 : ILR 1947 Nag. 819, Vivian Bose J., stated:
Now it is beyond dispute that ordinarily an idol must be represented by its duly appointed manager or shebait. No other person has a right to sue on its behalf any more than in the normal course a third person can sue on behalf of a minor or a lunatic. In either case it must be the proper guardian or committee. But this rule is subject to exceptions, one of which is when the legal or de facto guardian has an adverse interest. In that event, a third party appointed by the Court is permitted to sue with its permission which permission has in every case to be properly obtained and when the right to sue is challenged the matter has to be investigated and decided. The same rule obtains in the case of an idol except that there the person suing must show that he had a personal interest in the idol, as for example, that he is a worshipper or a donor of the property in question or a settler of the trust which embraces the subject-matter of the suit. But once that is established, and it is shown that the shebait or manager who would ordinarily represent the idol has an adverse interest, then the suit lies. These rules are founded on good sense and have long been accepted by the Courts. They will be found set out in Mayne''s Hindu Law, 10th Edition, page 927, and have been applied by the Courts in the following, among other cases : Pramatha Nath Mullick v. Pradyumna Kumar Mullick, Pashupatinath Seal v. Pradyumna Kumar Mallik ILR 64 Cal. 454 ,
In the ultimate analysis, Bose J, held that though ordinarily, an idol must be represented by its duly appointed manager or shebait, a worshipper in that suit may be permitted under the circumstances there, to sue on behalf of the idol as its next friend and the plaint should be amended showing the idol to be the plaintiff and adding a prayer that the endowed property should be placed in the possession of the wahiwatdar for and on behalf of the idol.
Their Lordships of the Supreme Court in
(i) 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.
(ii) 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 interest 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.
When a suit is brought on behalf of the deity either to recover possession of property held adversely by a stranger or for recovery of money payable to the Debutter estate, all the shebaits must join as plaintiffs. See: Mukherjea''s Hindu Law of Religious and Charitable Trusts, 3rd Edn. p. 198. Dr. Mukherjea states:
One of the co-shebaits cannot maintain a suit for recovery of rent to the extent of his share. In Burabani Coal Co. v. Gokulanand LR 61 IA 35, four shebaits of a family deity had executed a mining lease of the idol''s interest in a Mouza. A suit being instituted by one of the shebaits against the lease for a four-anna share in the royalties, it was held that a such a suit was not maintainable and that the irregularity was not cured by making the other shebaits parties defendants.
When there are mote shebaits than one, they constitute one body, in the eye of law, and all of them must act together. The management of the trust properties may be for practical purposes, in the hands of one of the shebaits who is called the managing shebait or the shebaits themselves may exercise their right of management by turns, but in neither case it is competent for one of the shabaits to do anything in relation to the Debutter estate without the concurrence either express or implied by his co-shebaits. This is, of course, subject to any express direction given by the grantor. Mukherjea''s Hindu Law of Religious and Charitable Trusts, 3rd Edn. p. 197-196.
By parity of reasoning, when there are more trustees than one, the trustees must act together. In
..In this connection attention may be drawn to the following statement of law from Lewin on Trusts, Edn. 14, page 196:
In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee, but the Court knows no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuse or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved.
In view of this, the decision of Bhargava J., in Agarwal Hosiery Shop (supra), taking a view to the contrary must be overruled as not laying down good law. In our opinion, the learned Judge was not right that any one of the trustees without reference to the other trustees, may maintain a suit in the name of the idol or in invoking Order XXXI, rules 1 and 2 of the CPC which, in terms, are not applicable to a suit of this kind. Rule 1 deals with a suit between the beneficiaries and a third person, while Rule 2 pertains to a suit against the trustees. The correct legal position may be stated thus
When a temple where an idol is installed is registered, together with its endowed properties, as a public trust under the Madhya Pradesh Public Trusts Act, 1951, the suit must be brought in the name of the idol, by all the trustees acting together. However, such a suit may be brought by one trustee with the sanction and approval of his co-trustees. But sanction or approval must be strictly proved.
But the suit must also fail on another ground. The Madhya Pradesh Accommodation Control Act, 1961 makes a distinction between "residential" and "non-residential" accommodations. The claim as laid in the plaint pleads a need u/s 12(1)(e) of the Act, i. e., the residential need of the deity. It is alleged therein that the temple where the deity is now installed is in a delapidated condition, and therefore, the demised premises are needed for consecrating the deity. That obviously is a residential purpose. In common parlance, "residence" means dwelling in a place. In Jowitt''s Dictionary of English Law, Vol. II, it is stated:
In the case of a person, residence connotes the idea of home, or at least of habitation, and need not necessarily be permanent or exclusive. The word denotes the place where an individual eats, drinks, and sleeps, or where his family or his servants eat, drink and sleep. R. v. North Curry (Inhabitants) (1825) 4 B & C at p. 959.
Admittedly, the demised premises were initially let to the defendant for a nonresidential purpose, i. e., for business purposes. That being so, the demised premises having been let for a non-residential purpose, the accommodation cannot be got vacated for a residential purpose u/s 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1961.
In the result, the appeal succeeds and is allowed. The judgment and decree of the Courts below are set aside and the plaintiff''s suit is dismissed. But, in the circumstances of the case, there shall be no order as to costs
