JUDGMENT Mukerji, J.
1. This is an appeal by two idols Sri Thakurji Maharaj and Sri Mahadeoji Maharaj through two of three persons who originally instituted the suit on behalf of the two idols. The Court below found that plaintiff 3 Sri Ram had not signed the plaint and thought that, on that account, he could not maintain the suit. Sri Ram has been made a pro forma respondent, in the appeal.
2. The plaintiffs' case was as follows: The two sons of Saheb Rai: see genealogical table at p. 3 of the printed record, namely, Baldeo Prasad and Har Dayal created a wakf in favour of the two idols and, for the purposes of their worship and certain charitable purposes and for the performance of Ramlila, endowed the property in village Hasanpur Huryai. This was on 10th September 1866. On the death of the dedicators his descendants, who wore the defendants in the suit, carried on the objects of the trust, although they got their own names recorded in the village papers as the proprietors of the property endowed. During the last settlement these descendants of the dedicators did not admit the existence of the wakf. Shortly before the institution of the suit defendant 6 Mt. Mehda, having obtained a decree for money against some of the other defendants, proceeded to attach and to bring to sale a part of the wakf property, as the private property of her judgment-debtors. The two persons Mal Chand and Mata Din, who belonged to the same caste as the dedicators, brought the suit on behalf of the idols to obtain a declaration that the idols are the owners of the property, that the profits arising out of the property are meant to be spent over charitable objects, Ramlila, etc., and that the property is not liable to be attached and sold in execution of the decree.
3. The defendants contested the suit, but some of them, later on, by a petition made in the Court below, admitted the correctness of the claim: see pp. 12 and 13 of the record. The contesting defendants pleaded, inter alia, that Mul Chand and Mata Din (as also Sri Ram) had no connexion with the trust property, (which the plaintiffs described as a private trust) and were, therefore, incompetent to maintain the suit, that the trust was of a public nature that the suit was barred by Section 92, Civil P.C. and that the plaintiffs, being out of possession, could not maintain a suit for a pure declaration and the suit was barred by Section 42, Specific Relief Act. They denied the existence of the wakf.
4. The learned Subordinate Judge held that the wakf, as indicated by the award printed at p. 59 of the record and dated 15th September 1866, was of a public charitable nature, that only two persons namely Baldeo Prasad and Har Dayal having created the wakf: see para. 3 of the plaint, and they having joint sons living with them, were incompetent to make a valid wakf and the wakf was never put into force. As regards the competence of the persons Mul Chand and Matadin to maintain the suit the learned Judge was of opinion that they could maintain it. He also held that Section 42, Specific Relief Act, was no bar to the maintenance of the suit. In the result, the suit was dismissed with costs. As regards the defendants who admitted the claim, the learned Judge held that they were not entitled to any costs.
5. In this Court it has been contended that the consent of the sons of Baldeo Prasad and Har Dayal to the creation of the wakf has been proved, that the learned Judge was wrong in holding that the wakf had not been enforced and that in any case the suit should have been decreed against such of the defendants as admitted the claim.
6. On behalf of the respondents it has been contended that Mul Chand and Mata Din have no locus standi to maintain the suit, that at any rate, the suit is barred by Section 42, Specific Relief Act, and that the decision of the Court below is right on the merits.
7. The learned Counsel for the appellant has agreed with the Court below that the alleged wakf was, in its nature, a public and charitable one.
8. I am of opinion that the suit must fail on the ground that it is barred by Section 42, Specific Relief Act and, in this view, it is not necessary to decide whether Mul Chand and Mata Din could maintain the suit on behalf of the idols, they being neither shebaits nor being, in any way, entrusted with the management of the idols' property. I do not also propose to enter into the merits of the case, as anything said on that point would only amount to an obiter dictum.
9. I have already given a summary of the plaintiffs' case. It is common ground that the names of the descendants of Baldeo Prasad and Har Dayal are recorded in the village papers as proprietors. It is stated in the plaint that the defendants denied the existence of the wakf at the last settlement and that one of the defendants sought the sale of the share of some of the other defendants in execution of her decree. In the circumstances, a mere declaratory decree granted in favour of the idols would be of no use. The property in spite of the declaration would still remain in the hands of the defendants. They have already denied the existence of the wakf. The fact that four of the defendants admitted the correctness of the alleged wakf during the pendency of the suit will not make the entire property a wakf. The property cannot be divided up as partly wakf and partly not wakf. It follows therefore that the appellants' contention that the suit should have been decreed at least as against those persons who admitted the wakf has no force. What would be necessary in the circumstances of the case-accepting that the plaintiffs' case is true-is the appointment of a trustee or trustees and the formulation of a scheme for management and recovery of property from people who have committed the breach of trust. All these things cannot be relegated to a second suit. There should be one suit and, as far as possible, a complete suit for the adjudication of such matters as may be adjudicated in one suit properly filed.
10. Mr. Malaviya has urged that if we decree the claim it would still be open for him to bring a second suit for the purposes indicated above. But it is exactly for the purpose of avoiding the evils of a second suit that the proviso of Section 42, Specific Relief Act, has been enacted. No one has a right to vex another in respect of the same subject matter of litigation, if one suit would serve the purpose.
11. Being of opinion that the suit is not maintainable in view of the proviso of Section 42, Specific Relief Act, I would maintain the decree of the Court below and dismiss the appeal with costs.
Niamatullah, J.
12. The plaintiffs are two idols, Sri Thakurji Maharaj and Sri Mahadeoji Maharaj, installed in a temple in village Jagat, district Budaun. The suit, out of which this appeal has arisen, was brought in the names of the aforesaid idols through Mul Chand and Mata Din, who do not claim to be the trustees or managers in respect of the property which is the subject matter of the suit. The plaint does not disclose the position of these individuals with reference to the alleged dedicated property or to the temple in which the plaintiff idols are worshipped. At best, they are interested as ordinary Hindus who are anxious for the maintenance of the worship of the idols in the particular temple and are themselves regular or occasional worshippers therein but the suit is not one is which relief is claimed by a worshipper for himself or for himself and others.
13. The relief claimed is a declaration of the plaintiffs' (idols') right to the property, which consists of certain shares in zamindari villages alleged to have been dedicated by Baldeo Prasad and Har Dayal, the ancestors of some of the defendants, several of whom, according to the plaint, repudiate the endowment and all of whom are recorded as proprietors thereof. According to the plaintiffs, the income derived from the property in dispute has all along been devoted to the performance of certain religious ceremonies and on charitable objects alleged in the plaint, No consequential relief of possession or in any other form is claimed. What immediately necessitated the institution of the suit is said to be a threatened sale of the endowed property in execution of a certain decree obtained by defendant 6 against defendants 1 to 4 and father of defendant 5.
14. The suit was contested by a number of defendants who denied the endowment and set up their own personal rights in the property in dispute. They questioned the right of the plaintiffs to sue through Mul Chand and Mata Din, and pleaded that the plaintiffs not being in possession are not entitled to a mere declaratory relief.
15. The learned Subordinate Judge who dismissed the suit held (1) that the endowment set up by the plaintiffs has been established, (2) that the plaintiffs are entitled to sue and (3) that Har Dayal and Baldeo, who dedicated the property in dispute, were not competent to do so and (4) that the dedication was not given effect to.
16. On appeal all the questions enumerated above were argued by the parties. The learned Subordinate Judge has found that the endowment in question in the case is a public trust of a religious and charitable nature. This finding has not been impugned by the plaintiffs-appellants though they had originally alleged it to be one of a private nature. Whether the plaintiffs-appellants are entitled to sue to at all cannot be seriously questioned. An idol has been repeatedly held to be a juridical person entitled to sue in its own name. This, however, is only a fiction of law, and the suit has to be brought through some human agency. The property vested in an idol must of necessity be in possession of the shebait, and though in certain circumstances persons other than shebait can maintain a suit in the name of the idol for a declaratory relief against the shebait or other who may be found infringing the rights of the idols in whom the property is vested the possession of the property itself and management thereof cannot be claimed by a person who is not shebait or the recognized manager of such property. In Jagindra Nath Roy v. Hemanta Kumari Debi [1905] 32 Cal. 129, their Lordships of the Judicial Committee have laid down that:
there is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. And probably this is the true legal view when the dedication is of the completest kind known to the law.
17. And again, that:
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.
18. Suits are frequently permitted to be brought in the names of idols by she baits, and are held to be maintainable: see, for example, Ranga Charya v. Reoti Raman Achary A.I.R. 1928 All. 689., and the cases cited therein. Suits have also been permitted to be brought by persons other than shebaits for certain declaratory reliefs: see, for instance V. Ramaswamy v. S. Pitchayya [1920] 43 Mad. 410. Others have been held to be not maintainable, having been brought by persons such as mere servants of worshippers: see, for instance, Dhadpale v. Gurav [1881] 6 Bora. 122. Where, therefore, a suit is brought by a person other than the shebait in his own name or in the names of the idol, it will depend on the circumstances and the alleged cause of action whether the plaintiff is competent to sue for the relief claimed by him. It is, however, not permissible for a-person other than the shebait to claim possession and management of the endowed property, which exclusively belonged to a properly constituted she-bait.
19. In the case before us, it is common ground that no shebait or legally constituted manager is in existence. Mul Chand and Mata Din do not claim to be such. As has already been stated, none of the defendants is alleged to be she-bait or manager, or accepts the responsibility of that position. It is therefore pre-eminently a fit case in which the interests of the idols as regards the property alleged to be vested in them should be protected by the proper appointment of a shebait, manager or trustee, who will be entitled to the actual possession and management of the property and to carry out the objects for which the property had been originally dedicated, if at all. The relief of mere declaration if granted to the plaintiffs suing through Mul Chand and Mata Din assuming they are entitled to sue in the names of idols will be absolutely futile. They cannot obtain possession of the alleged endowed property and carry out the objects of the endowment. To achieve this end they will have to obtain the appointment of a shebait, manager or trustee even if a declaration of right be made a sprayed.
20. I regret I am unable to agree with my learned colleague in holding that the plaintiffs' suit is barred by the proviso of Section 42, Specific Relief Act, which lays down that the Court shall not make a declaration, in favour of a plaintiff who is able to seek further relief than a mere declaration of title and who omits to do so. The idols, situated as they are at present and in the absence of a duly appointed manager, are not able to seek the relief of possession. The proviso, in my opinion, applies to cases where, at the date of suit, the plaintiff is able to obtain consequential relief, and not in cases where, by taking certain other proceedings, the plaintiff will in future, be in a position to seek such relief. It may be that the Court should, in the exercise of its discretion, refuse to grant a mere declaration if the plaintiff, though not entitled to claim possession at the date of suit can by taking proper proceedings, more effectively vindicate his right by obtaining possession. I think the case before us is one in which a mere declaratory relief will not serve any useful purpose and the plaintiffs can effectively enforce their rights by obtaining appointment of a trustee under Section 92, Civil P.C., if it is a case of religious or charitable trust of public nature, or by other appropriate legal proceedings, if it is a trust of a private character.
21. For the reasons stated above, I would maintain the decree passed by the Court below on the ground that the circumstances of the case do not warrant the Court, in the exercise of its discretion to grant the declaration prayed for by the plaintiffs-appellants, assuming they are entitled to sue through Mul Chand. and Mata Din and assuming the property in dispute is dedicated property as alleged by them or as found by the Court below. In this view of the case it is unnecessary to decide the questions that have been raised by the pleadings of the parties and decided by the Court below. I, therefore, concur with my learned colleague in dismissing the appeal with costs.
22. The appeal fails and share by dismissed with costs.