(1.) This appeal arises out of an order made by Mallick, J., by which he had dismissed an application for setting aside an award made in a pending suit. The facts which are relevant for the purpose of this appeal are these. On May 23, 1950, one Nanda Rani Devi filed a suit against her brother's wife, Nivanani Devi for a declaration that Nivanani Devi was a benamdar of the Plaintiff in respect of two houses being premises Nos. 5B and 50 Bhim Ghose Bye Lane, within the town of Calcutta. During the pendency of the suit Nivanani executed a Deed of Settlement in respect of the properties in dispute in favour of the deity Sree Sree Binode Kristo Jew. By the Deed of Settlement she constituted herself the first Shebait and trustee of the deity. On August 30, 1951, the deity was made a party Defendant to the suit and in the cause title the deity was described in the following manner: "Sree Sree Binode Kristo "Jew a Hindu deity located in premises No. 5B (Bhim Ghosa "Bye Lane, Calcutta", and the plaint was also amended by adding a prayer to the effect that the deed of Settlement might be declared null and void. On June 18, 1952, Nivanani Devi, the sole sebayet of the deity was appointed guardian-ad-litem. On August 31, 1955, all matters in dispute between the parties in the suit were by a consent order referred to the arbitration of Mr. Subimal Roy, Barrister-at-Law. In the petition for referring the disputes to the arbitration of Mr. Subimal Roy there was an endorsement made by Nivanani Devi for self and as guardian of the minor deity to the effect that she consented to an order being made in terms of the prayer of the petition. No express order, however, was recorded by the Court granting leave to Nivanani Devi to enter into the compromise. In pursuance of the order of reference, Nivanani Devi both in her personal capacity and as representing the deity participated in the arbitration proceedings. On September 15. 1958, the arbitrator published his award whereby he declared that Nanda Rani Devi was the real owner of the premises in dispute and that Nivanani Devi was her benamdar and further that the Deed of Settlement in favour of the deity was void. After the award had been filed in Court, notice under Section 14 of the Arbitration Act was received by the deity and on February 5, 1959 the deity Sree Sree Benode Kristo Jew "by its Shebait and next "friend (and Guardian-ad-litem) Sm. Nivanani" applied for setting aside the award. The principal ground upon which the award was sought to be set aside is that the order of reference to arbitration made by the Court by consent on August 31, 1955 was invalid, because no leave of the Court was expressly recorded in the proceeding' permitting the guardian-ad-litem to enter into the compromise. Mallick, J., has refused to give effect to this contention and against that order the present appeal has been filed.
(2.) The Learned Counsel appearing for the Appellant has raised two points before us. In the first place, he has contended that the provisions of Order XXXII of the Code of Civil Procedure are applicable by analogy to the case of a Hindu deity and, in fact, in the present case the Plaintiff, Nanda Rani Devi, herself made an application under Order XXXII for appointing Nivanani Devi as the guardian-ad-litem of the deity. It has accordingly been argued that if Order XXXII applies, Rule 7 of Order XXXII requires that no guardian-ad-litem shall enter into compromise or agreement in respect of the subject-matter of the suit without the leave of the Court expressly recorded in the proceeding. Reliance is placed by the Learned Counsel for the Appellant upon the decisions in the cases of Thakur Sree Sree Annapurna Devi v. Shiba Sundari Dasi,1944 2 ILR(Cal) 144 and Gopal Jew v. Baldeo Narain Singh,1946 51 CalWN 383. In the former case it was held by Sen, J., sitting singly that Order XXXII applies by analogy to a suit instituted on behalf of a Plaintiff deity and this view was accepted by S.E. Das, J., as he then was, in the case of Sri Sri Gopal Jew v. Baldeo Narain Singh . A contrary view, however, was taken by Gentle, J., sitting singly, in the case of Sreedhar Jew v. Kanta Mohan Mullick, 1945 50 CalWN 14and also by Pal, J., in the case of Tarit Bhusan Rai v. Sri Sri I mar Sridhar Salgram Shila, 1941 45 CalWN 932. Lastly, a Division Bench of this Court consisting of Das Gupta and Guha, JJ., in the case of Sushama Roy v. Atul Krishna Roy, 0 59 CalWN 779dissented from the view taken by Das, J., in the case of Sri Sri Gopal Jew v. Baldeo Narain Singh and preferred to follow the opinion of Gentle, J., in the case of Sree Sree Sreedhar Jew v. Kanta Mohan Mullick and of Pal J., in the case of Tarit Bhusan Rai v. Sri Sri Iswar Sridhar Salgram Shila . It is to be noticed, however, that this conflict of judicial opinion is confined to cases where the deity is represented in a suit by a person other than the shebait. In the case of Sri Sri Gopal Jew v. Baldeo) Narain Singh the question was whether a suit instituted by a person who was not the shebait of the deity was maintainable. At p. 390 Das, J., points out that one of the grounds of objection to the maintainability of the suit was that the person who purported to represent the deity was not the shebait and could not therefore represent the Plaintiff deity. At p. 403 after an exhaustive review of all the authorities on the point his Lordship observes as follows:
It is true that Rajendra is not at present a shebait under the deed of trust but he is a prospective shebait on the removal of the present shebait * * * * and is certainly a member of the family and entitled to worship.
(3.) Upon that view his Lordship held that he was competent to represent the deity and that it was not necessary for him to be appointed a next friend because Order XXXII does not require such an application. The same question was raised and discussed in all the other decisions to which I have referred. In Torii: Bhusan Rai's case Pal, J., held that Order XXXII did not apply and, therefore, an application for appointment of the person as next friend of the deity was necessary and that was also the view taken by Gentle, J., in the case of Sree Sree Sreedhar Jew v. Kanta Mohan Mullick . In my opinion where, as here, the deity is represented by a person who is admittedly the sole shebait, the question of extending the provisions of Order XXXII by analogy does not arise. True, in the present case the Plaintiff, Nanda Rani Devi, filed an application for appointing Nivanani Devi as guardian-ad-litem of the deity, but the source of Nivanani's right to represent the deity is not derived from the order of her appointment as guardian-ad-litem, but under the general principles of Hindu Law. All the authorities are uniform on the point that the right of suit is vested in the shebait and that the shebait has full powers to represent the deity, even if he or she is not authorised by the. Court to do so. The cases to which I have already referred recognise this principle and all of them lay down that ordinarily it is the shebait who has the right of suit vested in him and the controversy about the applicability of Order XXXII analogy arises only when the deity is said to be represented not by the shebait but by somebody else. The fact that Nivanani was in the present case appointed a guardian-ad-litem by an order of the Court, dated June 18, 1952, does not, in my opinion, either enlarge or abridge the rights which she has under the Hindu Law to represent the deity and from this point of view, the order of her appointment as guardian-ad-litem seems to be a mere surplusage. On the first point, therefore, raised on behalf of the Appellant, I am unable to hold that the provisions of Order XXXII of the Code of Civil Procedure have any application to the facts of the present rase and that non-compliance with the provisions of Order 32, Rule 7 renders the reference to arbitration invalid.;