Case: Sree Kalimata Thakurani Of Kalighat Vs. Jibandhan Mukherjee &amp; Ors

2. The suit out of which the appeal arises was instituted by the plaintiffs who are respondents 1 to 5 to the appeal, under S. 92 of the code of Civil Procedure for the purpose of framing a scheme for the proper management of the seva puja of Sree Sree Kalimata Thakurani and her associated deities and, for the proper management of the properties, declared to be debuttar proparties in a previous suit. The District Judge, Alipur in whose Court the suit had been instituted settled a scheme with respect to the aforesaid matters but upon appeal by the appellant the High Court amended that scheme. The main grievance of the appellant in this appeal is regarding certain amendments to the scheme made by the High Court.Taking the first point, the direction made by the High Court in the scheme with respect to the properties belonging to the deity is as follows:"The properties enumerated in Schedules A and B belong to Sree Sree KaliMata Thakurani and the associated deities of Kalimata together with such other properties as may be acquired by purchase, dedication, gift or as offerings or in any manner whatsoever are hereinafter called the Debuttar. Estate and appertain to a Hindu Public Religious Endowment. Any other property which may hereafter be found by a competent Court to belong to the Deity will a so be part of the Debuttarour opinion in a suit for the settlement of the scheme for the management of a temple it is not appropriate for the court to investigate questions of title to property about which there isprecise direction of the High Court with regard to this matter is in Cl. 17 of the scheme which runs thus:"Kalighat Temple Committee:There shall be a Committee of Management called the Kalighat Temple Committee consisting of 18 members constituted in the following manner :(A) Twelve persons to be elected by the Council of Shebaits from amongst themselves in the manner indicated below.(B) Six members, who shall be other than Shebaits, to be appointed as follows:(a) Two Hindus to be nominated by the District Judge, Twenty-four Paraganas.(b) One Hindu member of the Bharat Chamber of Commerce, Calcutta, to be nominated by the Executive Body of the Chamber.(c) One Hindu member to he selected by the(i) President, Bangiya Sanskriti Siksha Parishad, Calcutta,(ii) Vice-Chancellor, Calcutta University,(iii) Principal, Government Sanskrit College, Calcutta. If at the time of selection one of them is not available the other two may make the selection.(d) One Hindu member to be nominated by the Executive Body of the Bharat Sevasram Sangha of Rashbehari Avenue, Calcutta.(e) One Hindu member of the Calcutta Corporation to be elected by the said Corporation."

Court's reasoning:
It seems to us, however, that the provision made by the High Court in the scheme with respect to properties other than those described in Schedules A and B to the plaint is sufficient for that purpose. We may also point out that in another litigation to which the deity as well as some of the shebaits were parties, the subordinate judge had granted a declaration of the deitys title to these very lands but that declaration was set aside by the High Court. The reasons given by the High Court for setting it aside are stated thus :"The parties had led evidence bearing upon the question of title to that area. That defect could have been removed even now by allowing the plaint to be amended at this stage. But the plaintiff cannot have the declaration because all persons who would have been affected by the declaration are not before the Court, not being made parties at all. It is the common case of the parties that most part of that area has been sold to outsiders. These transferees are not parties to the suit, and defendants 1 to 13 cannot represent in the suit these outsiders, for according to the plaintiff they were sued on the footing that they were to represent only the shebaits of the deity and none else. It is of fundamental importance that a Court should not make a declaratory decree which would be useless. We accordingly discharge that part of the decree by which he declared the title of the deity Sri Sri Kalimata to the whole of the said area of 595 bighas and 9 cottahs odd of land."As we have already stated the bulk of the lands are in the hands of transferees who are not parties to the proceeding under S. 92 of the Code of Civil Procedure and of course are not parties to the appeal either. Their inclusion in the schedules to the scheme as being debuttar property will d not affect the rights of those persons in any way and the fact that they are debuttar properties will have to be established if and when appropriate proceedings are taken for obtaining their possession.We, therefore, decline to interfere with the direction made by the High Court in the scheme respecting thepresent shebaits are the descendants of Smt. Uma. According to him only a sanyasi could be a de jure shebait of the deity and that though the plaintiffs-respondents and their ancestors have been functioning as shebaits, they could in law only be de facto shebaits and not de jure shebaits.Whatever that may be, we cannot ignore the fact that the present shebaits and their predecessors have been functioning as shebaits for a very long period and their rights in that regard have not been called in question ever before. In these circumstances we cannot accept the contention of learned counsel that they should be completely excluded from the management of thecannot decide this question without going into the question of title to the property which is said to have been alienated by the shebaits. As we have already stated it would be wholly inappropriate to consider that question in these proceedings. In the circumstances this contention must be rejected.8. We, however, agree with learned counsel that the shebaits are over-represented in the proposed managing committee. Theprecise direction of the High Court with regard to this matter is in Cl.there are five groups of shebaits and it would, in our judgment, be quite sufficient to permit them to choose five of their number to work as members of the managing committee and to reduce the total number of members of the committee of Management from 18 to 11. In our view the majority of the members of the committee should be from outside the body of shebaits and while we agree with the High Court that the number of outsiders should be six, we direct it to substitute for sub-cl. (B) of Cl. 17 the following:"Six Hindu members who shall not be shebaits to be appointed as follows :One nominated by each of the following;1. The District Judge, Twenty-four Paraganas, who will also be the chairman of the Managing committee and have a casting vote in addition to the right to vote;2. the Bharat Chamber of commerce, Calcutta to be nominated by the Executive Body of the Chamber;3. the Vice-Chancellor, Calcutta University;4. the Executive Body of the Bharat Sevasram Sangha of Rashbehari Avenue, Calcutta; and5. the Calcutta Corporation.In addition, one jointly nominated by the President,Bangiya Sanskriti Siksha Parishad, Calcutta and the Principal, Government Sanskrit College, Calcutta.In case of the failure of any of them to nominate a person within one month of being called upon by the Secretary to do so, by the District Judge, Twenty-four Paraganas.9. We further direct the High Court to amend the scheme and in particular Cl. 18 and other parts of Cl. 17 for bringing them in conformity with our aforesaid directions. If a Committee has already been constituted it would be necessary to dissolve it and constitute a new one. We direct the High Court to take appropriate stem for thisis wrong to call shebaits as mere pujaris or archakas. A shebait as has been pointed out by Mukherjea J. (as he them was), in his Tagore Law Lectures on Hindu Lady of Religious and Charitable Trusts, is a human ministrant of the deity while a pujari is appointed by de founder or the shebait to conduct worship. Pujari thus is a servant of the shebait. Shebaitship is not mere office it is property as well. The present body of shebaits and their predecessors have been functioning as such without question, as already stated, for a long time. They have been in fact managing the property, that is, doing something which no pujari or archaka can claim to do. Therefore, they cannot be treated as mere pujaris or archakas even assuming that they are not de jure shebaits. They have in fact, to bear the expenses for bhog, rag and seva of Sree Sree Kalimata and are thus entitled to be reimbursed not only for the service they perform but for the expenses which they incur.The High Court, which must be cognisant of the local situation, was in a more advantageous position than this Court can be to judge what would be the proper measure of recompense for the service rendered and expenses incurred by the shebaits whose turn it is to perform the worship of the deity. In the circumstances we decline to interfere with the direction in this regard made by the High Court in theare precedents in this matter and to mention one, the case of Sevak Kirpashankar Daji v. Gopalrao Manohar, 15 Bom. LR 13 (PC). As was done there we direct that the following be added as cl. 56-A to theThe provisions of the scheme may be altered, modified or added to by application to the District Judge. TwentyfourHigh Courts direction is that the deity represented by her next friend will be entitled to recoupment of a consolidated amount of Rs. 600 from the debuttar estate. That was a matter within the discretion of the High Court and we see no reason to interfere withis sufficient to say that these are not matters with respect to which any direction should be made in the scheme. The right of shebait as already stated, is a right in property and if any person wants to challenge the right of a person to act as a shebait it is open to him to pursue such remedy as may be available to him at law.14. Finally he said that the High Court was not justified in modifying cl. 8 of the scheme prepared by the District Judge. It is not necessary to reproduce the clause in the scheme prepared by the District Judge nor the clause as amended by the High Court. We have read these clauses and we find that there is no substantial difference between them.