The question of who can sue on behalf of the idol arises due to the unique nature of the idol. The idol is a juristic person and the owner of the debutter property, but (as we have discussed earlier) only in an ideal sense. In law, the idol is capable of suing and being sued in its own name. However, for all practical purposes any suit by the idol must necessarily be brought by a human actor.
In Maharaja Jagadindra Nath Roy Bahadur v Rani Hemanta Kumari Debi the plaintiff instituted a suit as shebait of an idol alleging dispossession of certain lands by the defendant. The defendant resisted the suit on the ground of limitation. The shebait alleged that at the time of the dispossession, he was a minor and therefore the period of limitation did not begin against him until he attained majority. The Privy Council, speaking through Sir Arthur Wilson held:
“But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs 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. 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 sec. 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 Privy Council examined whether, at the time of the dispossession, limitation began running against the shebait. In doing this, the Privy Council located the right to sue as vested in the shebait and not the idol. Ultimately, the Privy Council held that the suit was not barred by limitation as the shebait was a minor at the time of the dispossession. Thus, it was not relevant whether or not limitation ran against the deity‘s right to sue as such right vested in the shebait.
Ordinarily, the right to sue on behalf of the idol vests in the shebait. This does not however mean that the idol is deprived of its inherent and independent right to sue in its own name in certain situations. The property vests in the idol. A right to sue for the recovery of property is an inherent component of the rights that flow from the ownership of property. The shebait is merely the human actor through which the right to sue is exercised. As the immediate protector of the idols and the exclusive manager of its properties, a suit on behalf of the idol must be brought by the shebait alone.
Where there exists a lawfully appointed shebait who is able and willing to take all actions necessary to protect the deity‘s interests and to ensure its continued protection and providence, the right of the deity to sue cannot be separated from the right of the shebait to sue on behalf of the deity. In such situations, the idol’s right to sue stands merged with the right of the shebait to sue on behalf of the idol. This understanding is summarised by Justice B K Mukherjea in ‘The Hindu Law of Religious and Charitable Trusts’ in the following manner:
“This decision [in Jagadindra Nath], therefore, establishes three things: –
(1) That the right of a suit in respect of the deity’s property is in the Shebait;
(2) this right is a personal right of the Shebait which entitles him to claim the privilege afforded by the Limitation Act; and
(3) the Shebait can sue in his own name and the deity need not figure as a plaintiff in the suit, though the pleadings must show that the Shebait is suing as such.”
A suit by a shebait on behalf of an idol binds the idol. For this reason, the question of who can sue on behalf of an idol is a question of substantive law. Vesting any stranger with the right to institute proceedings on behalf of the idol and bind it would leave the idol and its properties at the mercy of numerous individuals claiming to be ‘next friend’. Therefore, the interests of the idol are protected by restricting and scrutinising actions brought on behalf of the idol.
For this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When a lawful shebait sues on behalf of the deity, the question whether the deity is a party to the proceedings is merely a matter of procedure. As long as the suit is filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and for the benefit of the idol.
A suit by a worshipper or person interested
There may arise a situation where a shebait has been derelict in the performance of duties, either by not taking any action or by being complicit in the wrongful alienation of the endowed property. In such a situation, where a suit is instituted for the recovery of the deity‘s property, the action is against both the shebait and the person possessing or claiming the property in a manner hostile to the deity.
The remedy for an action against mismanagement simpliciter by a shebait can be found in Section 92 of the Civil Procedure Code 1908. However, where an action against a stranger to the trust is contemplated, the remedy is not a suit under Section 92 of the Civil Procedure Code 1908 but a suit in general law
In Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy, the plaintiffs accused the defendants, who were the managers of the temple and its properties, of mismanagement. Subsequently, a compromise decree was executed between the defendants and the Hindu Religious Endowments Board which inter alia declared the temple properties as the personal property of the defendants.
The plaintiffs sought a declaration under Section 42 of the Specific Relief Act 1963 that the provision of the compromise decree stating that the temple properties were the absolute personal properties of the defendant was not binding on the temple. The defendants resisted this contention on the ground that the plaintiffs had no legal interest in the temple or temple property and were mere worshippers whose suit could not bind the temple. Justice V Ramaswami, speaking for a two judge Bench of this Court held:
“13. … As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that the property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait but where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties.
It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is worshipper a of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend, nominated by the court…”
A necessary adjunct of managing of the temple properties is the right to sue for recovery of the said properties. Ordinarily a shebait alone will be entitled to bring a suit on behalf of the idol. In addition to being convenient and providing immediate recourse for the idol, it also provides a valuable check against strangers instituting suits, the outcomes of which may adversely impact the idol without the knowledge of the idol or the shebait. But there may be cases where the conduct of a shebait is in question.
In certain cases, where the shebait itself is negligent or sets up a claim hostile to the idol, it is open for a worshipper or a next friend interested in protecting the properties of the idol to file a suit to remedy the situation. In the above case, by entering into the compromise decree declaring the temple properties as personal properties of the defendant shebaits, the defendants set up a title contrary to the title of the idol itself. This Court held that it was hence permissible for the plaintiffs, who were worshippers, to maintain a suit invalidating the compromise decree.
However, in Vemareddi Reddy, the suit was not instituted on behalf of the deity. The suit was instituted in a personal capacity by the worshipper seeking a declaration that the property in question was debutter property. In this context, the court held:
“11. … If a shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession.
Worshippers of a temple are in the position of cestuui que trustent or beneficiaries in a spiritual sense. … Since worshippers do not exercise the deity‘s power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity…”
The significance of the distinction between suing on behalf of the deity and the institution of a suit in a personal capacity for the benefit of the deity will be adverted to shortly.
In Bishwanath v Sri Thakur Radha Ballabhji a next friend of the idol challenged the alienation of its properties by the defendant shebait. One of the defences taken by the shebait was that the next friend was not capable of maintaining a suit on behalf of the deity. Justice Subba Rao, speaking for a three-judge Bench of this Court affirmed the principle that ordinarily a shebait possesses the exclusive right to sue on behalf of the idol:
“9. Three legal concepts are well settled:
(1) An idol of a Hindu temple is a juridical person;
(2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and
(3) worshippers of an idol are 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 some pecuniary advantage…”
The learned judge then evaluated when persons other than a shebait may be entitled to maintain a suit on behalf of the deity:
“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 the 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 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 decision reiterates the holding in Vemareddi Reddy that where a shebait refuses to act for the benefit of the idol, or where the shebait’s actions are prejudicial to the interest of the idol, an alternative method must be provided for protecting the idol‘s interests.
In such cases, a next friend interested in the protection of the endowed properties is vested with the right to institute a suit. Where an action prejudicial to the interests of the idol is taken by the shebait, it is unlikely that the shebait will institute a suit challenging its own actions. Therefore, it becomes necessary to confer on a next friend the right to bring an action in law against the shebait and the stranger who threatens the idol’s interests.
It is important to note that unlike in Vemareddi Reddy, this Court in Bishwanath permitted worshippers to sue on behalf of the idol. The suit in Bishwanath was not instituted by a worshipper in their personal capacity, but rather as a representative of the idol to the exclusion of the shebait. The next friend stepped into the shoes of the shebait for the limited purpose of the litigation.
The position in law with respect to when a worshipper may institute proceedings is settled. A worshipper can institute a suit to protect the interests of the deity against a stranger where a shebait is negligent in its duties or takes actions that are hostile to the deity. The question whether the remedy available to the worshipper is a suit in a personal capacity or a suit on behalf of the idol (as next friend) is one which must be answered.
The suit in Vemareddi Reddy was a suit filed by worshippers in their personal capacity and the court had no occasion to determine whether a suit by a next friend on behalf of the idol itself would be maintainable.
In Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur, as a member of a Division Bench of the Calcutta High Court. The case arose from a rather unique factual background. A suit was instituted by Anupama, who was not the shebait but the daughter of the then shebait. Anupama sought to stay the sale of certain property on the ground that the property was absolute debutter property. Anupama’s suit was subsequently dismissed and fresh proceedings were instituted by the shebaits proper.
Justice Nasim Ali and Justice Pal both held that Anupama was not a shebait and thus the dismissal of her suit was irrelevant for the purposes of deciding the fresh suit. However, Justice Pal further observed:
“Persons having individual rights under such endowments can bring suits to enforce such individual rights by an ordinary suit in their own name without being obliged to bring a suit in the name of the idol. This right reserved to the worshippers sufficiently safeguards the interest of the worshippers or other persons interested in the debutter. At the same time it obviates the risk of jeopardising the interests of the idol by allowing it to be affected by the intermeddling of persons whose fitness has never been enquired into and adjudicated upon.”
Justice Pal opines that even in situations where the shebait acts contrary to the interests of the idol, a worshipper cannot sue on behalf of the idol, but only in a personal capacity. This stems from the concern that persons whose fitness or bona fides has not been enquired into or adjudicated upon by the courts may be able to adversely bind the idol and its properties. In this view, the worshipper does not sue on behalf of the deity, but may, at the very highest, obtain a declaratory decree challenging the shebait’s actions as not binding on the deity.
Where a shebait acts prejudicially to the deity‘s interests, there thus exist two views on the remedies available to the interested worshipper. The position taken by this Court in Bishwanath is that a worshipper can sue as a next friend on behalf of the deity. As next friend, the worshipper directly exercises the deity‘s right to sue.
The alternative view taken by Justice Pal in Tarit Bhushan Rai and as observed by this Court in Vemareddi Reddy is that a worshipper can file a suit in a personal capacity to protect the deity‘s interests but cannot sue directly on behalf of the deity although the suit may be for the benefit of the deity.
In this view, the deity is not bound by the suit of the worshippers unless the remedy provided is in rem in nature. The matter raises two questions: First, is a suit filed by a worshipper in a personal capacity a sufficient and expedient method to protect the interests of the deity? Second, does allowing a next friend to sue on behalf of the deity without establishing the bona fide intentions and qualifications of the next friend put the deity‘s interest at risk?
A suit by a worshipper in their personal capacity may be an appropriate remedy in certain cases. For example, where a shebait denies worshippers access to the idol, a suit by the worshipper in a personal capacity to grant access to the idol may constitute a suitable remedy against the shebait. A further benefit of confining the suits of worshippers to suits filed in a personal capacity is that in cases concerning the recovery of property, a suit by a worshipper in a personal capacity does not raise the question as to whom the possession of the land would be given.
However, where a suit is filed by a next friend on behalf of the deity itself, a problem arises: in a suit for the recovery of property on behalf of the idol, the court cannot deliver possession of the property to the next friend. The next friend is merely a temporary representative of the idol for the limited purposes of the individual litigation. Where a worshipper can only sue in their personal capacity, the question of the delivery of possession does not arise.
A suit by a worshipper in their personal capacity cannot however canvas the range of threats the idol may face at the hands of a negligent shebait and it may be necessary for the court to permit the next friend to sue on behalf of the idol itself to adequately protect the interests of the idol. For example, where a shebait fails to file a suit for possession on behalf of a deity, a suit by a worshipper in their personal capacity is inadequate. Rather, what is required is a suit by a next friend on behalf of the idol for the recovery of possession of the property.
It is true that possession will not be delivered to the next friend. However, the court can craft any number of reliefs, including the framing of a scheme upon an application by the Advocate General or two persons under Section 92 of the Civil Procedure Code 1908 , to ensure that the property is returned to the idol. Where the inaction or mala fide action of the shebait has already been established, such a scheme may be the appropriate remedy, however this will necessarily depend on the facts and circumstances of every case.
In view of these observations, it is apparent that where the interests of the idol need to be protected, merely permitting interested worshippers to sue in their personal capacity does not afford the deity sufficient protections in law. In certain situations, a next friend must be permitted to sue on behalf of the idol – directly exercising the deity‘s right to sue. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.
This, however, brings us to the second question whether allowing a next friend to sue on behalf of the idol puts the idol at risk. The idol and its properties must be protected against the threat of a wayward next friend. Where the shebait acts in a mala fide manner, any person claiming to be a next friend may sue. Such a person may in truth have intentions hostile to the deity and sue under false provenance.
Even a well-intentioned worshipper may sue as a next friend and purely due to financial constraints or negligence lose the suit and adversely bind the deity. A solution offered by Justice Pal in Tarit Bhushan Rai, is that only court appointed next friends may sue on behalf of the idol. No doubt this would satisfy the court that the next friend is bona fide and can satisfactorily represent the deity.
It is true that unless the fitness of the next friend is tested in some manner, an individual whose bona fides has not been determined may represent and bind the idol to its detriment. However, it would be unnecessarily burdensome to require every next friend to first be appointed by a court or for a court to find a disinterested person to represent the deity.
The deity’s interests would be sufficiently protected if, in cases where the bona fides of the next friend are contested by another party, the court substantively examines whether the next friend is fit to represent the idol. In an appropriate case, the court can do so of its own accord where it considers it necessary to protect the interest of the deity.
In the absence of any objection, and where a court sees no deficiencies in the actions of the next friend, there is no reason why a worshipper should not have the right to sue on behalf of the deity where a shebait abandons his sacred and legal duties. Very often, worshippers are best placed to witness and take action against any maladministration by a shebait.
Therefore, where a shebait acts adverse to the interests of the deity, a worshipper can, as next friend of the deity, sue on behalf of the deity itself, provided that if the next friend‘s bona fides are contested, the court must scrutinise the intentions and capabilities of the next friend to adequately represent the deity. The court may do so of its own accord, ex debito justitiae.
 (1903-04) 31 IA 203
 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at pages 257-258
 1966 Supp SCR 270
 (1967) 2 SCR 618
 AIR 1942 Cal 99