In Bishwanath v Sri Thakur Radha Ballabhji[1] Supreme Court was tasked with deciding whether a worshipper can maintain a suit for eviction on behalf of the idol if the shebait acts adversely to the interest of the idol. Chief Justice Subba Rao, speaking for a two-judge bench of the Court, held thus:
“10. 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 see 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 a 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 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 complicated 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…”
The suit in that case was instituted by Shri Thakur Radha Ballabhji, the deity represented by a next friend for possession of immoveable property and for mesne profits. The case of the plaintiff was that the second defendant, who was the Sarvarakar and manager, had alienated the property to the first defendant and the sale not being for necessity or for the benefit of the idol was not binding on the deity. Both the trial court and on appeal, the High Court held that the sale was not for the benefit of the deity and the consideration was not adequate.
But it was urged that the suit for possession could only have been filed by the shebait and none else could represent the deity. It was in that context, that this Court held that on principle there was no reason to deny to a worshipper a locus to institute a suit challenging the alienation when the shebait had acted adversely to the interest of the deity.
In B K Mukherjea’s “The Hindu Law of Religious and Charitable Trust”[2], the position of law has been thus summarised:
“A Hindu Idol is sometimes spoken of as a perpetual infant, but the analogy is not only incorrect but is positively misleading. There is no warrant for such doctrine in the rules of Hindu law and as was observed by Rankin, C.J.
In Surendra V. Sri Sri Bhubaneswari, it is an extravagant doctrine contrary to the decision of the Judicial Committee in such cases as Damodar Das Vs. Lakhan Das. It is true that the deity like an infant suffers from legal disability and has got to act through some agent and there is a similarity also between the powers of the shebait of a deity and those of the guardian of an infant.
But the analogy really ends there. For purposes of Limitation Act the idol does not enjoy any privilege and regarding contractual rights also the position of the idol is the same as that of any other artificial person. The provisions of the Civil Procedure Code relating to suits by minors or persons of unsound mind do not in terms at least apply to an idol; and to build up a law of procedure upon the fiction that the idol is an infant would lead to manifestly undesirable and anomalous consequences.”[3]
Over the years, Courts have elucidated on the juristic character of the idol as a minor and the consequences of this legal fiction.
In 1903-4, the Privy Council in Maharaja Jagadindra Nath Roy Bahadur v Rani Hemanta Kumari Debi[4] dealt with a case where the plaintiff, in his capacity as the shebait of an idol, had instituted suits for proprietary rights in certain property. The High Court held that the idol being a juridical person capable of holding property, limitation started running against him from the date of the transfer and hence the suit by the shebait was barred by limitation.
The Privy Council concurred with the judges of the High Court that being a juridical person, the idol was capable of holding property. However, limitation was saved because when the cause of action arose, the shebait to whom the possession and management of the dedicated property belonged, was a minor.
Hence, the Privy Council held that the right to institute a suit for the protection of the property vested in the idol could be brought within three years of the attainment of majority of the shebait. Sir Arthur Wilson observed:
“But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belong 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. And in the present case the right to sue accrued to the plaintiff when he was under age. The case therefore falls within the clear language of s. 7 of the Limitation Act, which says that, ‘If a person entitled to institute a suit… be, at the time from which the period of limitation is to be reckoned, a minor,’ he may institute the suit after coming of age within a time which in the present case would be three years.”
The basis for holding that suit to be within limitation was not that the idol was not subject to the law of limitation but that the shebait was a minor on the date of the accrual of the course of action. The suit could be instituted within three years of the shebait attaining majority.
In 1909-10 a judgment was rendered by the Privy Council in Mahant Damodar Das v Adhikari Lakhan Das[5] where there was a dispute between the senior chela and junior chela of a Mutt with regard to succession after the Mahant passed away. This was settled by an ikrarnama dated 3 November 1874. Under the ikrarnama, a math at Bhadrak was allotted in perpetuity to the senior chela and his successors, while a math at Bibisarai and the properties annexed to it were allotted to the junior chela in the capacity of an ‘adhikari’, subject to an annual payment of Rs. 15 towards the expenses of the Bhadrak math.
After the death of the senior chela, a suit was instituted by his successor for possession of the math at Bibisarai. It was contended that the property was dedicated to the worship and service of the plaintiff’s idol and was held by the junior chela in the capacity of an adhikari. The respondent set up limitation as a defence claiming that neither the plaintiff nor his predecessors had been in possession of the disputed property within twelve years prior to the institution of the suit. The trial court held that the suit was not barred by limitation, but the High Court reversed the decree on the ground that the respondent had held the disputed mutt adversely for more than twelve years.
The Privy Council rejected the plea of the senior chela that the cause of action arose on the death of the senior chela and affirmed the ruling of the High Court that the suit was barred by limitation, having been instituted within twelve years of the death of the senior chela, but twenty seven years after the ikrarnama. Sir Arthur Wilson held thus:
“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 Mohant, but in the legal entity, the idol, the Mohant being only his representative and manager. And it follows from this that the learned Judges were further right in holding that from the date of the ekrarnama the possession of the junior chela, by virtue of the terms of that ekrarnama, was adverse to the right of the idol and of the senior chela, as representing that idol, and that, therefore, the present suit was barred by limitation.”
In Chttar Mal v Panchu Lal[6], a Division Bench of the Allahabad High Court considered whether an idol suffers a disability of being a perpetual minor and hence a suit by an idol at any period of time after the date of the transfer would be saved from the bar of limitation under Section 7 of the Limitation Act. The argument was premised on the following opinion put forth in the fifth edition of Sastri’s ‘Hindu Law’[7]:
“As regards limitation it should be considered whether section 7 of the Limitation Act is not applicable to a suit to set aside an improper alienation by a sebait of the property belonging to a Hindu god. As the god is incapable of managing his property he should be deemed a perpetual minor for the purpose of limitation.”
The Division Bench, however, held:
“…With respect, it may be pointed out that in a transfer by a minor the question of a proper or improper alienation would not arise. Under the Contract Act a transfer by a minor would be void and not only voidable: Mohori Bibee v. Dharmodas Ghose [(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced the property of a god would not fetch any money in the market when need arose to transfer it for the benefit of the temple where the idol may be installed…We have clear authority, therefore, in refusing to accept the plaintiff’s argument.”
In adopting this view, the Division Bench of the High Court relied on the decisions of the Privy Council in Maharaja Jagadindra Nath and in Damodar Das.
The fiction of perpetual minority was adopted by a Division Bench of the Madras High Court in Rama Reddy v Rangadasan[8]. In that case, the plaintiff had instituted a suit in 1918 as the pujari and trustee of the suit temple to recover possession of property granted to an ancestor of the plaintiff as manager of the temple. The disputed property had been sold by defendant nos 1 and 2 (the father and uncle of the plaintiff) to defendant no 3 in 1893. It was the contention of the plaintiff that the property had been granted as service inam to their family for rendering service as a pujari and the alienation was not valid.
The District Munsif dismissed the suit as barred by limitation and on appeal, the Subordinate Judge reversed and remanded the suit. The District Munsif again dismissed the suit and on appeal, the District Judge confirmed the decree. The lower appellate court found that the plaintiff was the pujari or trustee of the suit property and held that the suit property was attached to the temple. The plaintiff preferred a second appeal, which was heard by a Single Judge, who held that the suit was not barred by limitation. In a Letters Patent Appeal preferred against the decree of the Single Judge, the Division Bench was to determine whether the suit was barred by Article 134 or 144 of the Limitation Act.
The High Court noted the decision in Vidya Varuthi Thirtha v Balusami Ayyar[9] where the Privy Council held that a permanent lease of mutt property could not create any interest in the property to subsist beyond the life of the grantor and consequently, Article 134 would not apply to a suit brought by the successor of the grantor for the recovery of the property.
The High Court held that a trustee cannot convey a valid title to the transferee, hence Article 134 would not apply. The High Court noted that the principle of adverse possession would apply to cases where a person who could assert his title does not do so within the period stipulated under Article 144 of the Limitation Act. With respect to the property of an idol, Justice Devadoss held thus:
“The legal fiction is that an idol is a minor for all time and it has to be under perpetual tutelage and that being so, it cannot be said that the idol can ever acquire majority, and a person who acquires title from a trustee of a temple cannot acquire any title adverse to the idol, for the idol is an infant for all time and the succeeding trustee could recover the property for the idol for any time.”
The High Court held that the manager cannot set up an adverse title to the property of the idol. It was concluded that in consequence, the manager by his act cannot allow a person who derives title from him to assert an adverse title.
In Surendrakrishna Roy v Shree Shree Ishwar Bhubaneshwari Thakuran[10], a Division Bench of the Calcutta High Court held that when the property dedicated to an idol has been held adversely to another and there is no fiduciary relationship with the idol, limitation would run and be governed by Article 144 of the Act. Chief Justice Rankin, on the issue of perpetual minority, held thus:
“21. The doctrine that an idol is a perpetual minor is, in my judgment an extravagant doctrine contrary to the decision of the Judicial Committee in such cases as Damodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA 5147 : 7 IC 240 (PC).] . It is open to shebaits or any person interested in an endowment to bring a suit to recover the idol’s property for debuttar purposes…”
The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari Bhubaneshwari Thakurani v Brojonath Dey.[11]
In The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar[12], the Privy Council considered whether a mosque can be considered a juristic person and can be subject to adverse possession. Sir George Rankin observed:
“That there should be any supposed analogy between the position in law of a building dedicated as a place of prayer for Muslims and the individual deities of the Hindu religion is a matter of some surprise to their Lordships. The question whether a British Indian Court will recognise a mosque as having a locus standi in judicio is a question of procedure. In British India the Courts do not follow the Mahomedan law in matters of procedure [cf. Jafri Begum v. Amir Muhammad Khan [I.L.R. 7 All. 822 at pp. 841, 842 (1885).] , per Mahmood, J.] any more than they apply the Mahomedan criminal law of the ancient Mahomedan rules of evidence.
At the same time the procedure of the Courts in applying Hindu or Mahomedan law has to be appropriate to the laws which they apply. Thus the procedure in India takes account, necessarily, of the polytheistic and other features of the Hindu religion and recognises certain doctrines of Hindu law as essential thereto, e.g., that an idol may be the owner of property. The procedure of our Courts allows for a suit in the name of an idol or deity though the right of suit is really in the sebait [Jagadindranath v. Hemmta Kumari [L.R. 31 I.A. 203 : s.c. 8 C.W.N. 609 (1605).] ].
Very considerable difficulties attend these doctrines ‘in particular as regards the distinction, if any, proper to be made between the deity and the image [cf. Bhupati Nath v. Ram Lal [I.L.R. 37 Cal. 128, 153: s.c. 14 C.W.N. 18 (1910).] , Golapchandra Sarkar, Sastri’s ―Hindu Law,’ 7th Ed., pp. 865 et seq.]. But there has never been any doubt that the property of a Hindu religious endowment— including a thakurbari—is subject to the law of limitation [Damodar Das v. Lakhan Das [L.R. 37 I.A. 147 : s.c. 14 C.W.N. 889 (1810).] and Sri Sri Iswari Bhubaneshwari Thakurani v. Brojo Nath Dey [L.R. 64 I.A. 203 : s.c. 41 C.W.N. 968 (1937).] ]. From these considerations special to Hindu law no general licence can be derived for the invention of fictitious persons…”
It was concluded thus:
“The property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Art. 144 of the Limitation Act and the title derived under the dedication from the settlor or wakif became extinct under sec. 28. The property was no longer, for any of the purposes of British Indian Courts, ―a property of God by the advantage of it resulting to his creatures…”
In a decision of a Division Bench of the Calcutta High Court in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur[13], Nasim Ali J noted the similarities and points of distinction between the position of a minor and an idol in Hindu Law:
“The points of similarity between a minor and a Hindu idol are:
(1) Both have the capacity of owning property.
(2) Both are incapable of managing their properties and protecting their own interests.
(3) The properties of both are managed and protected by another human being. The manager of a minor is his legal guardian and the manager of an idol is its shebait.
(4) The powers of their managers are similar.
(5) Both have got the right to sue.
(6) The bar of S. 11 and Order 9, R. 9, Civil P.C., applies to both of them.
The points of difference between the two are:
(1) A Hindu idol is a juristic or artificial person but a minor is a natural person.
(2) A Hindu idol exists for its own interest as well as for the interests of its worshippers but a minor does not exist for the interests of anybody else.
(3) The Contract Act (Substantive law) has taken away the legal capacity of a minor to contract but the legal capacity of a Hindu idol to contract has not been affected by this Act or by any other statute.
(4) The Limitation Act (an adjective law) has exempted a minor from the operation of the bar of limitation but this protection has not been extended to a Hindu idol. From the above it is clear that there is some analogy between a minor and a Hindu idol but the latter is neither a minor nor a perpetual minor.”
Before the Orissa High Court in Radhakrishna Das v Radharamana Swami[14], a suit had been instituted by the next friend of the deity for a decree directing the restoration of the plaintiff deity to its original place of consecration. The Division Bench of the High Court held that an idol cannot be regarded a perpetual minor for the purposes of limitation and rejected the contention of the plaintiff that the deity‘s right to be located at its temple is a continuing right on account of the incapacity of the deity to act on its behalf. The Division Bench held:
“…An idol is no doubt in the position of an infant as it can act only through a sebayat or a manager. But no authority has been cited to us for the proposition that he is to be regarded as a perpetual infant, so that transactions by or against him will not by governed by the Limitation Act.
The doctrine that an idol is a perpetual minor is an extravagant doctrine as it is open to the sebayat, or any person in an endowment, to bring a suit to recover the idol‘s property for devottar purposes. An idol, therefore, is as much subject to the law of limitation as a natural person and cannot claim exemption on the ground that he is a perpetual infant. Nor is a Hindu deity to be regarded as a minor for all purposes. An idol cannot, therefore, claim exemption from the law of limitation.”
The legal fiction of a deity as a minor has been evolved to obviate the inability of the deity to institute legal proceedings on its own. A human agent must institute legal proceedings on behalf of the deity to overcome the disability. However, the fiction has not been extended to exempt the deity from the applicability of the law of limitation.
[1] (1967) 2 SCR 618
[2] B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern Law House, (1983)
at pages 256-257
[3] Ashim Kumar v. Narendra Nath 76 CWN 1016
[4] (1903-04) 31 IA 203
[5] (1909-10) 37 IA 147
[6] AIR 1926 All 392
[7] Chapter XIV, 5th edition at page 726.
[8] AIR 1926 Mad 769
[9] AIR 1922 PC 123
[10] AIR 1933 Cal 295
[11] (1936-37) 64 IA 203
[12] AIR 1940 PC 116
[13] AIR 1942 Cal 99
[14] AIR 1949 Orissa 1