Whether a de facto shebait can claim a right to continue indefinitely in office. A de jure shebait and a de facto shebait exercise similar rights in the limited sense of acting for the benefit of the idol. Even absent an averment of mismanagement by the shebait, a person may institute proceedings under Section 92 of the Code of Civil Procedure 1908 against a de facto shebait for the settling of a scheme.

In this view, legal certainty and the sustained interest of the deity would be served by circumscribing the claim of a de facto shebait to continue, as a matter of right, in perpetuity.

In Gopal Krishnaji Ketkar v Mahomed Jaffar Mohamed Hussein[1] the plaintiffs instituted a suit praying for a declaration that the second plaintiff is the guardian and ‘vahivatdar’ of the Dargah. The defendant claimed to be its rightful manager and Mutawalli. The plaintiffs’ family were managers since 1817.

Since 1902-03, the defendant was given the right to manage prayers during a certain period every year in the temple and collect the offerings for his upkeep. Upon alleged interference with the plaintiffs’ right to manage and collect offerings, the suit was instituted. The Court found that the plaintiffs and their family had been managing from at least the year 1886.

The Court held that as the right claimed by the defendant was not that of a hereditary trustee, the right dies with him and the only question was whether or not the plaintiffs were entitled to management and the offerings. Justice Vivan Bose, speaking for a three-judge Bench of Supreme Court held:

“30. Now a ‘de facto manager or a trustee de son tort’ has certain rights. He can sue on behalf of the trust and for its benefit to recover properties and moneys in the ordinary course of management. It is however one thing to say that because a person is a ‘de facto’ manager he is entitled to recover a particular property or a particular sum of money which would otherwise be lost to the trust, for and on its behalf and for its benefit, in the ordinary course of management; it is quite another to say that he has the right to continue in ‘de facto’ management indefinitely without any vestige of title, which is what a declaration of this kind would import. We hesitate to make any such sweeping declaration…

That being so, we think it undesirable that things should be allowed to drift in this uncertain way, no one knowing where the legal rights of management lie or of what they consist; no one knowing how the rights are to devolve or how the large charitable offerings which are collected are to be distributed and used.”

The Court drew a distinction between a claim in law to be vested with the right to bring an action on behalf of the deities and a claim to continue indefinitely as a de facto shebait which, for all purposes, would be equating a de facto shebait with a de jure shebait and conferring upon the former a legal title where it has always been absent. Legal certainty and the ultimate protection of the trust properties underlie Section 92 of the Code of Civil Procedure 1908.

Under this provision, the Court is, upon an application by the Advocate-General or two or more persons having an interest in the trust and having obtained the leave of the court, vested with wide powers to replace trustees and settle a scheme with respect to the trust property. Keeping this in mind, the Court framed directions in accordance with the above observations:

“32. We are told by the learned Solicitor-General that a suit under Section 92, Civil P.C. is under contemplation. Without in any way prejudicing matters which will arise there, we make the following order. We direct-

1. That the present arrangement regarding the collection and disposal of the offerings continue for a period of six months from the date of this judgment.

2. That in the interval the offerings so collected, as well as those already in deposit, he not handed over to the second plaintiff except to the extent necessary for meeting the expenses. The legal representatives of the defendant have no right at all to those offerings.

3. If such a suit is instituted within the said period, then the said offerings and collections be disposed of in accordance with such scheme as may then be framed, and in accordance with such directions as may be given in that suit.

4. If no such suit is instituted within the said six months, then the second plaintiff, as the person in ‘de facto’ management of the Darga from 13-11-1938, the date of his adoption, till the date of suit, 7-10-1946, will be entitled to receive the offerings now lying in deposit in the Treasury for and on behalf of the Darga and for its benefit and in future to collect all the offerings all the year round for and on behalf of the Darga and for its benefit until he is displaced by a person with better title or authority derived from the Courts.”

In Vikrama Das Mahant v Daulat Ram Asthana[2], the compromise decree on the basis of which the Mahant claimed a right and entered into possession was not given effect. The decree of the trial court giving effect to the compromise decree was set aside. Though the court sustained the rights of the Mahant to continue as a de facto manager, the Court held:

“19. But this is only a stop gap expedient. We cannot shut our eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body.

But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under S. 92, Civil P. C., or take other appropriate steps. Let a copy of this judgment be sent to him.”

[1] AIR 1954 SC 5

[2] AIR 1956 SC 382