The rights of a de facto shebait to institute suits on behalf of the deity can be traced to two early decisions of the Privy Council: Mahant Ram Charan Das v Naurangi Lal[1] and Mahadeo Prasad Singh v Karia Bharti[2] .
In Mahant Ram Charan Das, the Mahant of a Paliganj mutt executed a lease for 70 acres of the mutt’s land and subsequently executed a sale deed subject to the lease. Upon his death, another person claiming to be Mahant took possession and subsequently surrendered all his rights by way of a registered sale deed to the plaintiff who was the Mahant of another mutt (of which the Paliganj mutt was a subordinate).
The plaintiff instituted a suit claiming that there was no necessity warranting the execution of the lease deed and the subsequent sale deed. On the question of maintainability of the suit at the behest of the plaintiff, the Privy Council, speaking through Lord Russell, held:
“…Their Lordships, however are not now concerned with any question of title because both the Courts below have found that the plaintiff is the person in actual possession of the Paliganj mutt and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the mutt.”
In Mahadeo Prasad Singh, a village which formed part of the estate annexed to a mutt was sold by the Mahant in 1914. Upon his death in 1916, the suit in question was instituted in 1926 challenging the alienation by a person alleging to be the Mahant of the mutt. One objection to the suit was that the respondent was not entitled to maintain the suit as he was neither the chela of the previous Mahant, nor was he entitled to be the Mahant in any other capacity. Rejecting this contention, the Privy Council, speaking through Sir Shadi Lal held:
“There can be little doubt that Karia has been managing the affairs of the institutions since 1904, and has since the death of Rajbans been treated as its mahant by all the persons interested therein. The property entered in the revenue records in the name of Rajbans was, on his death, mutated to Karia, and it is not suggested that there is any person who disputes his title to the office of the mahant.
In these circumstances their Lordships agree with the High Court that Karia was entitled to recover for the benefit of the math the property which belonged to the math and is now wrongly held by the appellants. They are in no better position than trespassers. As observed by this Board in 1933 PC 75 (1), a person in actual possession of the math is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the math.”
The Privy Council noted the following:
(i) Karia was recognised as a mahant by the villagers;
(ii) The revenue record reflected Karia’s name; and
(iii) It was not suggested that there existed any dispute to his title to the office of the Mahant.
It is on the basis of these considerations that the Privy Council held that the rights exercised by Karia were in the nature of a Mahant. The considerations outlined above weighed with the Privy Council in its analysis of whether the rights exercised were in the nature of those exercised by a Mahant.
Though both the decisions of the Privy Council adverted to above were in the context of the right of a Mahant to bring an action on behalf of a mutt, the position in law that a de facto Mahant is entitled to institute an action on behalf of the mutt for its benefit has equally been applied to a de facto shebait of an idol and its properties. [3]
De facto shebait
In Panchkari Roy v Amode Lal Burman[4], Ramdas Mohunt, by virtue of a will, dedicated property to certain idols and appointed his widow as the manager of the property till the attainment of the age of majority of their daughter, at which point, she would take over as a shebait. The widow sold the property as secular property and the daughter, upon attaining majority, alleged that though the property was secular, it devolved upon her by the virtue of the will. She sold the property to another party.
The plaintiff, claiming to be the religious preceptor of the debutter instituted a suit alleging that the idols were handed over to him. The question before the court was whether the plaintiff, who was not a member of the family or named in the will, could validly institute a suit in a private endowment. The relevant question before the Calcutta High Court was whether the plaintiff was a de facto shebait. Justice BK Mukherjea (as he then was) held:
“The Judicial Committee in the case of Ram Chandra v. Nourangi Lal (4) and again in Mahadeo Prosad Singh v. Karia Bharti (5) laid down that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Math…There may be and, in fact there is difference between a Math and an idol but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debottar….
In order to make a person a de facto shebait it is necessary, however, that he should be in actual possession of the office and the debottar estate….The de facto shebait would, in my opinion, be one who exercises all the functions of a shebait and is in possession of the debottar property though the legal title may be lacking.”
Where a person claims to be a shebait despite the lack of a legal title, the relevant enquiry before the Court is whether the person was in actual possession of the debutter property and was exercising all the rights of a shebait. The paramount interest in the protection of the debutter property underlines the recognition of a de facto shebait.
Where there is no de jure shebait, the court will not countenance a situation where a bona fide litigant who has exercised all the managerial rights over the debutter property cannot be recognised in law as the protector of the property. It is only for the paramount interest of the institution that the right to sue is conceded to persons acting as managers though lacking a legal title of a manager.[5]
This rationale was outlined by the Madras High Court in Subramania Gurukkal v Abhinava Poornapriya A Srinivasa Rao Sahib[6]. The Court of Wards dismissed the ‘archaka’ in possession of lands belonging to a temple on the ground that he had failed to render services and account for certain charges made on the property. A suit was then filed by the Jagirdar represented by his next friend the manager of the estate under the Court of Wards as a trustee of the temple to recover possession.
The order of dismissal was passed after the death of the previous Jagirdar. It is after the suit was instituted and before the decision in the suit that a notification was passed making the new Jagirdar a ward under the Act.
The question arose as to whether the order of dismissal was validly passed. The Court held that where the successor of the Jagirdar took no step to assume control, the Court of Wards assumed the position of a de facto trustee. Justice Wodsworth held:
“It is the duty of the Court to protect trust property from misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title to take those actions which are necessary to safeguard the objects of the trust.”
This observation of the Madras High Court merits a closer look for two reasons:
First, the Court held that the right to bring an action to protect the interest of the trust vests in a person who is ‘recognised as being in charge of the institution and actively controlling its affairs’.
A single or stray act of management does not entitle a person to be determined as a de facto shebait.
Second, the de facto shebait is vested with a right to bring an action only in the absence of a person with a better title i.e. the de jure shebait.
With the above conditions, the Court held:
“…I am moreover inclined to think, quite apart from these statutory provisions, that a de facto trustee of a Hindu temple in actual management of that temple and acting bona fide in the interests of the institution can validly pass an order dismissing a temple servant or officer, provided that the dismissal is for good grounds and that the procedure is one to which no objection can be taken…
There is moreover no doubt as to the capacity of a de facto trustee in possession and management of a temple to bring a suit for the recovery of temple lands.”
In this view, a person in actual management and acting bona fide for the interests of the institution can bring a claim for the recovery of temple property as a de facto shebait[7].
It is relevant here to advert in some detail to the Full Bench judgment of the Madras High Court in Sankarnarayanan Iyer v Sri Poovananathaswami Temple[8].
In this case, the de jure trustee alienated the properties of a temple and his whereabouts were not known. The succeeding trustee appointed under a compromise decree passed by the court instituted a suit for the recovery of possession of the suit property as the property of the temple.
It was contended that independent of the compromise decree, he was vested with the right to institute a suit for the protection of the debutter properties as the de facto manager. Chief Justice P V Rajamannar held:
“In the case of these endowments the so-called trustee is not really a trustee, in the technical sense, in whom the property is vested. He is really a manager (even in cases where he also has a beneficial interest in the usufruct) and the title always is vested in the idol or the institution. In either case, the analogy is to that of an individual having a manager to carry on the administration of his affairs and properties.
Viewed in this light, the position reduces itself to this. In some cases, the manager has a rightful claim to the office of manager, in other cases, his only claim is that he is in actual possession of the office. ‘De facto‖ means’ ‘by the title of possession’, in antithesis to ‘de jure’ i.e., ‘by the title of right’.
So long as the action is for the benefit of the real owner, namely, the idol or the mutt, and the person bringing the action is the only person who is in management of the affairs of the idol or the mutt for the time being, there is no reason why such person should not be allowed to maintain the action on behalf of the idol or the mutt.”
The above observations clarify that a person claiming to be de facto shebait must be in exclusive possession of the debutter property and must be the only person in management of the property.
In his separate opinion, Justice Viswanatha Sastri clarified the grounds of challenge to the exercise of the power of management by a de facto shebait in the following terms:
“…If a de facto trustee is guilty of any breach of trust, he can be removed like a de jure trustee. The law fixes him with the responsibility for the proper administration of the trust and also gives him the power to act on behalf of and in the interests of the trust, until a lawful trustee emerges…
A person who asserts his own title to the property of a religious endowment, who does not sue as a trustee or manager of the endowment and who claims to recover the property for himself and not for the trust, can never be allowed to sue as a de facto trustee. He is entirely in the position of a trespasser so far as the trust is concerned and cannot be considered to be one who has taken upon himself the duties and obligations of a trustee.”[9]
Consistent with the jurisprudence on the rights of a shebait with respect to the properties of an endowment, a de facto shebait is entrusted with the power and the duty to carry out the purpose of the debutter in respect of the idol and its properties. Though the shebait may have an interest in the usufruct of the debutter property, the de facto shebait is not vested with an independent right of title over the debutter property.
Thus, where a de facto shebait raises an independent claim to the debutter property to the idol, it assumes the position of a trespasser and no action at its behest is maintainable. A claim raised by a shebait adverse to the idol defeats the very purpose for which shebaits are vested with the right to manage the idol and its properties.
It is of crucial importance to advert to the standard laid by the learned judges in their separate opinions as to when a person may be deemed to be a de facto shebait. Justice Viswanatha Sastri held:
“A fugitive or isolated act of a person with regard to the property of a religious endowment would not make him a de facto trustee. One swallow does not make a summer. There must be a continuous course of conduct, the length of the same depending on the facts and circumstances of the case. The possession of the office or the institution which is the object of the trust and the exercise of the rights pertaining to the office, would be important indicia of a de facto trusteeship.”
Similarly, Justice Raghava Rao held:
“I must confess, however, that I should have experienced greater difficulty in the determination of the point in controversy… whence comes the right of the de facto manager to sue? There again, where and how are we to draw a line between a managers de facto and a manager ad hoc exercising isolated acts on particular occasion? I respectfully agree with my learned brother Viswanatha Sastri, J. in his picturesque observation that one swallow does not make a summer; but the practical question still remains, how many do?.
…how best to make sure that the person suing on behalf of the institution does not enter into improper agreements or compromises pre-decretal and post-decretal. Or walk away with the monies representing the fruits of a particular decree obtained on behalf of the institution? If that is not possible, is it any consolation that at the hands of a de jure manager too the institution may sustain sometimes a similar detriment?”
All the above observations are of crucial importance. For, in Sankarnarayanan Iyer and in the consistent jurisprudence of our courts thereafter,[10] it has been held that a stray act or intermittent acts of management do not vest a person with the rights of a de facto shebait.
Both Justices Viswanatha Sastri and Raghava Rao in Sankarnarayanan Iyer unequivocally held that isolated acts do not vest a person with the rights of a de facto shebait. The conduct in question, must be of a continuous nature to show that the person has exercised all the rights of a shebait consistently over a long period of time. The duration of time that would satisfy this requirement would, by necessity, be based on the facts and circumstances of each case.
Justice Raghava Rao endorsed the view of Justice Viswanatha Sastri but went a step further to outline the practical difficulties in laying down a standard against which the acts of a person claiming to be a de facto shebait must be tested. The caution against adopting a low legal threshold to confer on a person who merely has possession of the debutter property and exercises intermittent managerial rights the position of a de facto trustee is well founded.
A de facto shebait is vested with the right to manage the debutter property and bring actions on behalf of the idol. A bona fide action for the benefit of the idol binds it and its properties. As compared to a de jure shebait whose rights can legally be traced to a deed of endowment, a de facto shebait is vested with the right by mere possession and exercise of management rights. The protection of the idol’s properties is at the heart of this extraordinary conferral of rights.
If courts were to adopt a standard that is easily satisfied, large tracts of debutter property may be left at the mercy of persons claiming to be in possession of and managing such properties. It is the duty of the court in every case to assess whether there has been not just exclusive possession but a continuous and uninterrupted exercise of all management rights which are recognised by the beneficiaries of the trust property before conferring on a person a right to which they have no legal title.
The duties that bind the exercise of powers of a de jure shebait apply equally to a de facto shebait. Thus, no action can be brought by the de facto shebait which is not in the beneficial interest of the idol or its properties. However, the position of a de facto shebait and a de jure shebait is not the same in all respects.
In Sankaranarayanan Iyer, Justice Viswanatha Sastri held:
“It should be observed that the rights of a de facto trustee are not in all respects identical with those of a de jure trustee. A de jure trustee of a public religious endowment can be removed only for misconduct and that only in a suit instituted with the sanction prescribed by Section 92, Civil Procedure Code or section 73 of Madras Act II of 1927.
Where, however, there is only a de facto shebait functioning as such, it is open to persons interested in the trust to bring a suit under the above provisions alleging a vacancy in the office and requiring that it should be filled up by the appointment of a trustee by the court. This would entail the removal of the de facto trustee without any misconduct on his part…
The de facto trustee so long as he is functioning as such, has, from the necessities of the situation, the right to bring suits on behalf of and in the interests of the trust for evicting trespassers claiming adversely to the trust. In this respect and for this purpose, his rights and powers are the same as that of a de jure trustee…”
A de jure shebait can be removed from office only on the grounds of mismanagement or claiming an interest adverse to the idol. However, no such averment is required to remove a de facto shebait. A de jure shebait may, unless the right of the de facto shebait has been perfected by adverse possession, displace a de facto shebait from office and assume management of the idol at any point.
Further, where there is a de facto shebait, a suit may be instituted under Section 92 of the Civil Procedure Code 1908 requiring the court to fill up the vacancy by the settling of a scheme. It is for the limited purpose of bringing an action for the protection of the idol that the rights and powers of the de facto shebait are the same as that of the de jure shebait.
The position of law that a person in continuous and exclusive possession of the debutter property who exercises management rights in the interests of the idol can bring actions on its behalf has found recognition by the Court in Vikrama Das Mahant v Daulat Ram Asthana[11]. The appellant was confirmed as a manager by virtue of a judgment of the Privy Council (on the ground that the previous Mahant had transferred the property to him). Prior to the date of the judgment of the Privy Council, another compromise decree was entered into by the then Mahant with certain persons who instituted a proceeding to have him removed.
While some of the persons who brought the actions took over as trustees under the terms of the compromise, one of them took over as the Mahant and entered into possession of the property. Three of the trustees and the successor of the previous mahant filed a suit against the appellant. Both lower courts held against the appellant. The High Court held that even if the compromise decree is set aside, the plaintiffs are entitled to maintain the suit by virtue of being de facto trustees whose possession has been clear and undisputed.
Both courts below recorded that pursuant to the compromise decree, the plaintiffs and the appointed Mahant entered into possession and the properties were mutated in the name of the Mahant, and had been in possession since then. Justice B Jagannadhadas, speaking for a Constitution Bench of this Court held:
“33…the question before us is whether a person who has been in de facto possession and management of the Asthan and its properties from 1934 to 1941 (and thereafter up-to-date) claiming to be its trustee under the decree of a court, valid or invalid has not sufficient interest to maintain proceedings for the warding off of a cloud cast by the defendant‘s actions against the interests of the Asthan…”
“34..where public trusts are concerned, courts have a duty to see that their interests and the interests for whose benefit they exist are safeguarded…We consider that, in view of Ram Sarup Das’s long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interest, it is proper that he should be allowed to continue to act on behalf of the trust until his title in investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust.”
The Court affirmed that it is only for the paramount interest of the institution that the right of suit is conceded to persons acting as managers though lacking a legal title of a manager. The long management and possession of the claimant in the case vested in him a right to act on behalf of the deity to protect its interests.
In Sree Sree Kalimata Thakurani of Kalighat v Jibandhan Mukherjee[12], a suit was instituted under Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the proper management of the vested properties. A scheme was framed and subsequently challenged on the ground that the inclusion of de facto shebaits in the management committee in the scheme was impermissible.
Justice JR Mudholkar, speaking for a Constitution Bench of this Court rejected this contention and held:
“Whatever that may be, we cannot ignore the fact that the present predecessors have been functioning as shebaits for a very long period and their rights in that regard have not been called into question ever before. In these circumstances we cannot accept the contention of the learned counsel that they should be completely excluded from the management of the temple.”
In crafting the relief, the Court was mindful of the long exercise of rights by those acting as shebaits. The initial scheme framed by the High Court comprised eighteen members on the managerial board of which twelve were shebaits. The Court modified this to a Board of eleven members, with five shebaits and a majority of Hindus who were not shebaits.
The protection of the trust property is of paramount importance. It is for this reason that the right to institute proceedings is conceded to persons acting as managers though lacking a legal title of a manager. A person claiming to be a de facto shebait can never set up a claim adverse to that of the idol and claim a proprietary interest in the debutter property.
Where a person claims to be the de facto shebait, the right is premised on the absence of a person with a better title i.e. a de jure manager. It must be shown that the de facto manager is in exclusive possession of the trust property and exercises complete control over the right of management of the properties without any hindrance from any quarters.
The person is, for all practical purposes, recognised as the person in charge of the trust properties. Recognition in public records as the manager would furnish evidence of being recognised as a manager. Significantly, a single or stray act of management does not vest a person with the rights of a de facto shebait.
The person must demonstrate long, uninterrupted and exclusive possession and management of the property. What period constitutes a sufficient amount is determined on a case to case basis. The performance of religious worship as a pujari is not the same as the exercise of the rights of management. A manager may appoint one or several pujaris to conduct the necessary ceremonies.
In the ultimate analysis, the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case. The acts which form the basis of the rights claimed as a shebait must be the same as exercised by a de jure shebait.
A de facto shebait is vested with the right to institute suits on behalf of the deity and bind its estate provided this right is exercised in a bona fide manner. For this reason, the court must carefully assess whether the acts of management are exclusive, uninterrupted and continuous over a sufficient period of time.
[1] AIR 1933 PC 75
[2] AIR 1935 PC 44
[3] M Siddiq (D) Lrs v. Mahant Suresh Das & Ors. (2019)
[4] (1937) 41 CWN 1349
[5] M Siddiq (D) Lrs v. Mahant Suresh Das & Ors. (2019)
[6] AIR 1940 Mad 617
[7] M Siddiq (D) Lrs v. Mahant Suresh Das & Ors. (2019)
[8] AIR 1949 Mad 721
[9] Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra Vasudeo Kittur AIR 1956
Bom 615
[10] Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen Khan v Ganikhan AIR 1956 AP
19; Vankamamidi Balakrishnamurthi v Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu
Religious and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji Dharamsey v
Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s of Prem Dass (2009)
1 RLW (Rev) 523
[11] AIR 1956 SC 382
[12] AIR 1962 SC 1329