Saji Koduvath, Advocate, Kottayam.

Jurisdiction of Courts

Court is the Ultimate Protector of Charities[5]

Courts have jurisdiction and duty[6] to administer and enforce public trusts.[7]  As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[8] It is the guardian of the public charitable trusts/institutions[9] and its property.[10]   

In legal theory the Court is the guardian of charity, as it is of an infant.[11]  In P.  Elumalai Vs. Pachaiyappa’s Trust Board[12] the Madras High Court while passing an order exercising the ‘Parens Patriae’ jurisdiction over the trust held that as ‘Parens Patriae’, the Courts were empowered to protect the sanctity of public trust in case of breach of trust on account of irregularities committed in trust. In this decision it was held that the Court could not remain a mute spectator when illegality had been committed against a public Trust in front of its own eyes.[13]

See Blog: What is Trust in Indian Law?

Trust Cannot Sue in Its Own Name; Trustee Has to Sue

A trust, not being a legal person, is not entitled to sue in its own name. And, trustee being the legal owner of the trust property he has to sue or be sued for and on behalf of the trust[14] (actually refers to beneficiaries). The Code of Civil Procedure does not provide any enabling provision for the trust to sue or for being sued in its name, as allowed in the case of firms (Order XXX, CPC).[15] Trust need not be arrayed as an eo-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustee who is to be impleaded to represent the trust.[16]  

Representation of Beneficiaries, Under O XXXI  R 1 CPC

Order XXXI, Rule 1 CPC deals with the representation of beneficiaries in suits concerning property vested in Trustees.  It lays down that the beneficiaries shall be represented by trustee.[17]

Suits Must Be By All Trustees

Rule 2 of Order XXXI CPC says that where there are several Trustees, ‘they shall all be made parties to a suit against one or more of them’.[18]  Therefore, when a suit is filed against the ‘trust’, all the trustees must be joined as defendants.

It is important to consider the effect of the provisions of the Indian Trusts Act in this regard.

Section 47 of the Indian Trusts Act, 1882, reads:

• 47. Trustee cannot delegate.  A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the declaration is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.”

Section 48 states:

• 48. Co-trustees cannot act singly.  When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.”

Our courts found it legitimate to bring the principles in these provisions to the matters of Public Trusts also. It is held that those principles will not become untouchable for it is incorporated in the Trusts Act.[19]  And, it must be remembered that that the Trusts Act of 1882 embody nothing more or less than the principles which have been applied to all trusts in all countries. [20]

Same will be the position even if the suit is filed by the Managing Trustee. [21] The argument that he was unanimously chosen by the co-trustees will not satisfy the requirement. If any one or more of them are unwilling or, for some reason or the other, if it is not possible to join them as plaintiffs, they must be impleaded as defendants.[22]  But, if the instrument of trust so provides, all co-trustees need not join in filing a suit  to recover possession of the property from the tenant after  determination of the lease. [23]  It may also be possible if the delegation is in the regular course of business or the delegation is necessary; or the beneficiary being competent to contract, consents to the delegation.[24]

Suit by One of its Trustees: Effect

The trustees altogether constitute one body in the eye of law and all must act together. A suit against a trust is not maintainable without impleading all its trustees. However, suits can be filed by any one (or more) of the trustees, when so authorised in that behalf by the rest.[25] But such sanction or approval must be strictly proved.[26]  It is doubtful whether it can be by a resolution, otherwise than executing powers of attorney. Similarly, all co-trustees together should determine the tenancy by issuing notice;[27] and all together should file the suit for eviction.[28]  In J.P. Srivastava and Sons (P) Ltd. Vs. Gwalior Sugar Co. Ltd. (2005)[29] it is held by the Supreme Court as follows:

• “Therefore, although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all
• (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees;
• (2) where there is express sanction or approval of the act by co-trustees;
• (3) where the delegation of power is necessary;
• (4) where the beneficiaries competent to contract consent to the delegation;
• (5) where the delegation to a co-trustee is in the regular course of the business,
• (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly. “

Our Apex Court, in Kanakarathanammal Vs. Loganatha  Mudaliar (1965),[30]  has observed that where all the trustees were not joined as parties the omission was fatal and that in appropriate cases it was not impermissible for the Court, to permit the impleading of the other Trustees in exercise of its powers under Order I Rule 10 (2) of the CPC, 1908. The Apex Court cautioned that this should be done at the stage of trial and that too, without prejudice to the plea of the parties as to limitation.

But it is held otherwise by Bombay High Court in Namdeo Vs. Shahi Gupta Masjid Chandrapur,[31]  pointing out that the trust represented by one of the co-trustees itself was the ‘landlord’ and that the ‘landlord’ was entitled to file a petition for eviction under the Rent Control Act and also referring the definition of ‘landlord’ mentioned in the Act.

Dr. BK Mukherjea, J. on The Hindu Law of Religious and Charitable Trusts speaks in this regard as under:

• “When there are more Shebaits than one, they constitute one body in the eyes of law, and all of them must act together. The management 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 Shebaits to do anything in relation to the Debutter estate without the concurrence either express or implied of his co-Shebaits. This is of course, subject to any express direction given by the grantor.”[32]

Shebait  to Institute Suits; Not Idol

Though Idol or deity is regarded in law as a juristic person, the suit by or against a deity has to be represented necessarily by a natural person.[33]  Shebaits[34] are the proper persons to represent a deity. It had been held by the Calcutta High Court in AG of Bengal Vs.  Balkissen[35] that after the appointment of Shebait the right to sue for possession of the property, with which the idol is endowed, belongs to the Shebait and not to the idol.[36]

The Privy Council, in Jagadinadra  Nath Vs.  Hemanta  Kumari Debi (1904),[37] declared the legal position as under: 

• “… 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 and not in the ‘idol’…”[38]

Our Apex Court, in Vemareddi  Ramaraghava  Reddi Vs. Kondaru  Seshu  Reddi,[39] Bishwanath Vs. Sri Thakur Radha Ballabhji[40] and M Siddhiq, it was held that 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.

Inherent Right of Idol to Sue for Recovery of Property

In Siddiq (D) Thr.  Lrs.  Vs. Mahant Suresh Das[41]  our Apex Court pointed out that the idol is not deprived of its inherent and independent right to sue in its own name in certain situations. It reads as under:

• “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.”

The Supreme Court quoted Justice BK Mukherjea in “The Hindu Law of Religious and Charitable Trusts”. It says as under:

• “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.”

Can an Idol Sue as an Indigent Person

Order XXXIII, CPC does not suggest that the word ‘person’ in is exhaustive; and it does not exclude categories of Juristic Persons. Therefore a company or corporation can invoke provisions of Order XXXIII CPC.[42] The same principle applies to suits filed by Idol through its human representative.[43]

Should Idol be a Necessary Party to Suits?

When Trust Admitted, Deity Not a Necessary Party

Trust property being vested in the Shebaits, ordinarily, the right to sue on behalf of the idol vests in the Shebait.[44] Therefore, the Idol is not a necessary party in such suits. Similarly, when the trust is admitted by both sides, in a suit for removal of a trustee on the ground of breach of trust, the Deity is not a necessary party.[45] In Monindra Mohan Vs. Shamnagar Jute Factory[46]  the Calcutta High Court held that the deity was not a necessary party in a suit filed on behalf of the Hindu public for declaration that the land in question was a Debasthan of the idol and that it was a public place of warship.

If it comes necessary to sue against a Shebait, the Idol should, usually, be made a party to the suit.[47] The Patna High Court, in Sri Ram Vs. Chandeswar Prasad,[48] took the view that when the Shebait denied the right of the idol to the dedicated properties, it was desirable that the idol should file a suit through a ‘disinterested’ next friend appointed by the court. As to the right to maintain the suit in respect of endowed property it was held by Calcutta High Court in Tarit  Bhushan  Rai Vs.  Sri Iswar Sridhar Saligram  Shila[49] as under:

• “(1) the idol itself, as a juristic person, has the right of suit;
• (2) the Shebait, the human agency through whom the idol must act, has a distinct right, distinct from and in normal cases in supersession of the idol’s right of suit; it is this right of suit which has been said to be vested in the Shebait and not in the idol;
• (3) the prospective Shebait, as persons interested in the endowment, have a right of suit.”[50]

In  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case)[51]  our Apex Court explained the position and held as under:

• “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.”

In The Banaras Bank Ltd. Vs. Bhagwan Das,[52] Allahabad High Court, pointing out that the necessary party was not defined in the Code of Civil Procedure, it was observed that there were two tests by which the question as to necessary party could be determined. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and secondly it should not be possible to pass an effective decree in the absence of such a party. In  Upendra  Nath  Vs. Nilmony[53] it was held that in a suit for framing a scheme[54] as between co- Shebaits a deity was not a necessary party unless its interests were likely to be affected by the scheme proposed.[55]   

In Doongarsee  Shyamji  Vs.  Tribhuvan Das[56] it was pointed out that where the Shebait of a temple had done something which was obviously adverse to the interest of the institution, court would allow a disinterested third party to file a suit, but such a suit should have been filed in the interest of the foundation or the deity.

But, when the right or title over the property is in dispute or when the Shebaits raise claim adverse to Idol,[57] the Deity should be a necessary party. Likewise, the Deity should be a necessary party in a suit for declaration that the Deity and the property are not a public trust, but are private property.[58]

The decree for recovery of possession can be passed in a suit, if only the plaintiff has a present right to be in possession of the properties. If the deity was represented by a duly appointed next friend or the Shebait/trustee was made a party to the suit, if the alienation was found to be bad, the court could direct delivery of possession of the trust property to the trustee after declaring the alienation invalid. [59]   But, in a case where neither the deity nor the trustee is a party, the court cannot pass a decree permitting the worshipper to recover possession; for, if such a decree is passed, only the plaintiff therein could execute the same; in such an event, the property may not inure to the benefit of the temple; and if the property does not go to the hands of the trustee, the trustee may have to file a suit again for the same. This appears to be the logic and reason, as pointed out by the Kerala High Court in Chandrasekhara Menon Vs. Divakaran Namboodiri,[60] behind the principle that a decree for recovery of possession cannot be granted in a suit filed by a worshipper without the deity or the trustee is in the array of parties.

Right to file Suits – Other Than Shebaits

On the basis of Section 63 of the Indian Trusts Act (applicable to private trusts) it is observed by the Bombay High Court in Bomi Munchershaw Mistry Vs. Kesharwani Co-operative Housing Society Ltd.,[61] as to the authority of the beneficiaries to file a suit, as under:

• “A gradual loosening of the old rigidity is visible in later decisions: Janakirama Iyer Vs. Nilkanth Iyer, AIR 1962 SC 633, lays it down that Section 63 of the Indian Trusts Act is not exhaustive of remedies available to a beneficiary, where the trustee has improperly alienated trust property. … What Janakirama (supra) specifies is that the beneficiary can sue third parties for more effective reliefs than those contemplated by Section 63.”

Sec. 63 of the Indian Trusts Act reads as follows:

• 63. Following trust property into the hands of third persons.—Where trust property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.
• Into that into which it has been converted.—Where the trustee has disposed of trust property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust property.
• Illustrations
• (a) A, a trustee for B of Rs. 10,000, wrongfully invests the Rs. 10,000 in the purchase of certain land, B is entitled to the land.
• (b) A, a trustee, wrongfully purchases land in his own name, partly with his own money, partly with money subject to a trust for B. B is entitled to a charge on the land for the amount of the trust money so misemployed.

In Bomi Munchershaw Mistry Vs. Kesharwani Co-operative Housing Society Ltd. after referring various decisions the position in this point is summarised by the Bombay High Court as under:

•  “(a) A beneficiary can in certain circumstances sue a third party for an injury or threatened injury to trust property.
•  (b) In certain suits depending on circumstances the beneficiaries need not establish collusion between trustee and third party.
•  (c) The beneficiary definitely has the capacity to sue a third party when the trustee is unwilling, refuses or has precluded himself from suing.
• (d) Where the trustees collude, whether overtly or covertly, with the third party a beneficiary can obviously sue.
•  (e) The beneficiary suing need not ask for displacement of the trustee and his replacement by a new trustee in a suit to recover alienated or adversely affected property in the hands of a third party.
• (f) A reversioner or the remainder man can sue even if he be a beneficiary at the date of suing.
• (g) Section 40 of the T.P. Act aids plaintiff as a reversioner to enforce his rights against defendant 1 under section 40 of the T.P. Act.”

Our courts unhesitatingly apply the general principles come out from the Trust Act in the matters of public trusts also.

An idol of a Hindu temple is a juridical person. A Shebait or a trustee tmanages its affairs. Ordinarily no person other than the Shebait or trustee can represent the idol in legal proceedings. Under Indian law, a trustee is regarded as the sole (legal) owner of the trust property;[62] for, the ‘beneficial ownership’ with beneficiaries is not recognised by Indian law.[63]  But any person who is interested in the matters of a trust can bring a suit for preservation and maintenance of the dedicated property.[64] It can be:

• a prospective Shebait,[65]
• de-facto  Shebait,
• de facto manager,[66]
• worshipper,[67]
• beneficiary
• who has made large donations [68] or
• a contribution.[69]

In Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy[70]  our Apex Court  held as under:

• “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.[71] 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 a worshipper of the deity or is a prospective Shebait 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…”[72]

Dr. BK Mukherjea, J. on The Hindu Law of Religious and Charitable Trusts reads:

• “The trust itself does not fail. …. The property does not revert to the representatives or the heirs of the settlor testator who has already divested himself of the title and interest in the property by creating a valid and complete trust. ….. That is, the beneficiaries can enforce it, or the object of the trust can be enforced where beneficiaries are not capable of suing”[73]

Right of Defacto Shebait to File Suits

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.  Justice Viswanatha Sastri of the Madras High Court considered who is a de facto trustee, in Sankar-narayanan Iyer Vs. Sri Poovananatha-swami Temple. He had held as under:

• “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.”

The rights of a de facto trustee to institute suits on behalf of the deity can be traced to the Privy Council decisions in Mahant Ram Charan Das Vs. Naurangi Lal (1933)[74] and Mahadeo Prasad Singh Vs. Karia Bharti (1933)[75]. Relying on the first decision it was held in the latter decision 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. [76]  

The Supreme Court in Vikrama Das Mahant Vs. Daulat Ram Asthana (1956)[77] held that a person who has been in de facto possession and management of the Asthan and its properties from 1934 onwards, claiming to be its trustee under the decree of a Court, valid or invalid, had sufficient interest to maintain proceedings for the warding off of a cloud cast by the defendant’s action against the interests of the Asthan. The Court relied on, Mahadeo Prasad Singh vs. Karia Bharti[78] and Ram Charan Das vs. Naurangi Lal.[79]

Recognition of De facto Shebait – Principle:  Paramount Interest of the Debutter

It is held in  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case)[80] that these principles relating to a defacto Mahanth can be applied to a de facto Shebait of an idol and its properties also; and that the paramount interest in the protection of the debutter property underlines the recognition of a de facto Shebait. The Supreme Court relied the following passage from the judgment of Madras High Court in Subramania Gurukkal Vs. Abhinava Poornapriya A Srinivasa Rao Sahib (1940)[81]

• “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.”

Shebaits Neglect Duties: Suit for Proper Administration of Trust

If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. A suit can also be filed for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. [82]

In Aurobindo Ashram Trust Vs. S Ramanathan[83] it is held by Madras High Court that there was no breach of trust on the part of trustees of Sri Aurobindo Ashram if one of the inmates published a book containing derogatory remarks about Sri Aurobindo, and no action had been taken by the trustees, since the Ashram has nothing to do with it. But, the court observed that plaintiffs have made out a case to bring the suit within the ambit of Sec. 92 CPC.  The Court held as under:

• “Nevertheless, having regard to the prayer in the suit viz., steps to be taken to ensure withdrawal of the book, the plaintiffs seek a direction of the court for the administration of the trust. Therefore, having regard to the intention of the plaintiffs in directing a ban on the book which contained derogatory remarks against Sri Aurobindo and having regard to the fact that no action has been taken by the trustees to secure the ban or take any action against the author of the book, in my opinion, the plaintiffs have made out a case to bring the suit within the ambit of Section 92 of the Code of Civil Procedure and therefore, the court below has rightly rejected the application to revoke the leave.”

Right of a Worshipper to file Suit for Recovery: Principles

Right to worship is a civil right.[84] A worshipper of an idol being its beneficiary in a spiritual sense, he is entitled to represent the idol when the Shebait or trustee acts adverse to its interest or fails to take action to safeguard its interest. When the person who is duty-bound to and empowered to protect the idol leaves the idol in a lurch, a person interested in the worship of the idol can certainly be clothed with the authority to protect the interests of the idol. The principle being that, such suits are in effect, suits on behalf of the trust and the worshippers must be deemed to be invoking the right of the trustee. Therefore, the worshippers are entitled to institute a suit even for a mere declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple.[85]

When the Shebait acted adversely to the interest of the idol and fails to take action to safeguard its interest, it is held by our Apex Court in Bishwanath  Vs. Thakur Radha  Ballabhji[86] that there was no justification for denying the right to a worshipper to file suit to seek appropriate reliefs. It is also observed that an idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol could certainly be clothed with an ad hoc power of representation to protect its interest.[87] The Supreme Court observed that it had been held in a number of decisions[88] that worshippers may file a suit praying for possession of a property on behalf of an endowment. 

In Ramchand  Vs. Janki  Ballabhji  Maharaj[89] the Supreme Court held that a person, who has made large donations for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession of the temple and its property against the Pujari or Manager, on behalf of the deity to protect the property from mismanagement or misappropriation.

Own Right of Worshipper to file Suit for Protection and Recovery

It is now a settled law that a worshipper has his own right to institute a suit to protect his right to worship and for that purpose to protect the debuttar property and that he can do so in his personal capacity as worshipper and not as a next friend of the deity.[90]

In  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case)[91] it was pointed out that Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy[92]  was arisen from a suit not instituted on behalf of the deity. But, it was instituted in a personal capacity by the worshipper seeking a declaration that the property in question was debutter property. In this context, in Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy, it had been held:

• “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 trust 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…”[93]

The right of worshippers to file suits, for reliefs outside S. 92 CPC, is well accepted.[94] It has been clearly laid down by the Supreme Court in Deoki  Nandan  Vs. Murlidhar[95]  that the worshippers have ‘beneficial interest’.[96]  Where the Shebait functions normally, the deity’s right to sue lies dormant; but as soon as the Shebait is unable to act, or his own act is questioned, certainly a person who has a beneficial interest should be allowed to take steps to prevent the idol’s interest being jeopardised.[97] Where a Shebait or even a de facto Shebait is absent, a person who has beneficial interest will be permitted to come forward.[98]

It is clear, in peculiar circumstances, the Idol can sue or be sued through persons, other than Shebaits. It may be a beneficiary, that is, a worshipper (in case of a public temple) or a member of the family (in case of a private temple). Apart from representing the deity they have the authority to institute a suit in their own name for seeking certain reliefs. It includes suits for protection and recovery of property belonging to the deity. It is observed by Delhi High Court in Vaidyaratnam PS Variers Arya Vaidyasla Vs. KC Vijaikumar[99]  that there is no reason why a suit by one co-trustee should not be maintainable against a trespasser.

The beneficiary of the trust in respect of a Muhammadan Wakf, interested in the maintenance of a mosque or other charitable institution, may, without having recourse to Order 1 Rule 8 of CPC and without suing in a representative capacity, on behalf of the other beneficiaries, sue for recovery of possession of property, wrongfully alienated by the trustee, and for the incidental declaration that theproperties are the subject of the trust and that they cannot be alienated.[100]

Right of Parishioners to Sue against Third Parties

Though the property of a Catholic Church vests in the hands of the Bishop or the Vicar, in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[101]  it is observed by the Kerala High Court that the parish being by law a public juridic person, the elected representatives of the parishioners entrusted with the administration of the church were competent to represent the juridic person; and that they were competent to initiate proceedings before a Civil Court with the ultimate aim of protecting the property belonging to the church. 

Private Trust: Settlement of Scheme and Removal of Trustee

Section 92 CPC will not apply to private trusts, and suits relating to religious[102] private trusts are not governed under the Indian Trusts Act, 1882. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right[103] under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.

In Thenappa  Chettiar  Vs.  Karuppan  Chettiar[104] the Supreme Court held that even in the case of a private trust, a suit could be filed for settlement of a scheme for the purpose of effectively carrying out the object of the trust. If there is a breach of trust or mismanagement on the part of the trustee of a private trust, a suit can be brought in a Civil Court by any person interested for the removal of the trustee and for the proper administration of the endowment.

Compromise of a Suit Relating to Public Trust

Compromise of a suit relating to public trust was prima facie against public policy, yet the court had jurisdiction to sanction it if it was not detrimental to the interest of the trust and was lawful.[105]

Suits in Matters of Private Religious Trusts

Under general law, founder or heirs to institute suits

A family idol can sue or be sued through Shebaits; or a beneficiary, that is, a member of the family. BK Mukherjea (Tagore Law Lectures) on Hindu Law of Religious and Charitable Trusts it is observed:

• “The suits relating to such private trust are not regulated by any statute as in the case of public trusts; they are governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights. In a private or family debutter, the beneficiaries are a limited and defined class of persons, viz. , the members of the family. If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. The suit could be for the removal of the trustee with a prayer for accounts as ancillary to the removal. It would lie for a declaration that any alienation of the debutter property is not binding on the deity or for recovery of possession of the property thus wrongfully alienated. A suit can also be filed for settlement of a scheme for the purpose of effective carrying out of the trust.”

The learned author has extracted the observations of Asutosh  Mukherji, J. in Manohar  Mukherji V. Raja Peary Mohan Mukherji.[106] He had also quoted the observations in Bimal Krishna Vs. Iswar  Radha   Ballav.[107]

In Mahant Ram Saroop  Dasji  Vs. S P Sahi Special Officer[108] it is held by our Apex Court as under:

• “In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one.”

Suits Against Public Charitable Trusts Under NI Act 

To the question whether a Public Charitable Trust (organisation) has been recognised as a juristic person for the purpose of Negotiable Instrument Act, it is held in Abraham Memorial Vs C. Suresh Babu[109] that a Public Charitable Trust being capable of contracting, and making and issuing a cheque or Bill (Sec. 26), it is a juristic person for the purpose of the said Act; and that a Trust, either private or public/charitable or otherwise, is a juristic person liable for punishment for the offence punishable under Sec. 138 of the N I Act.

Suit by the Deity: Outside S. 92 CPC

The suit by the deity for declaration and possession challenging the alienation is for the enforcement of a private right. Such a suit falls outside the purview of S. 92 CPC and is not barred.[110]

Removal of Trustees

See Blog: Breach of Trust and Removal of Trustees

Suit Against Deity: Appointment of Next Friend

See Blog: Is an Idol a Perpetual Minor?

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions