1. This was a suit in which the plaintiff prayed for a declaration that the property in question was not liable to attachment and sale in execution of a decree obtained by the first defendant against the second defendant inasmuch as it was property reserved for the performance of a certain religious trust.
2. The learned Subordinate Judge in the Court of first instance dismissed the suit holding that the document relied upon as constituting the trust did not constitute a trust but showed that there was here only a gift burdened with an obligation.
3. In the Court of appeal, however, the learned District Judge took another view, and was of opinion that there was a good complete trust of the property which in consequence was not liable to attachment and sale.
4. Against the District Judge's decree an appeal was presented to this Court; it was heard and decided by the Chief Justice who accepted the Subordinate Judge's view of the case as correct and restored his decree reversing that of the District Judge.
5. Now finally from the Chief Justice's decree an appeal is made to us.
6. The case at first sight may present some little difficulty in determining which side of the line it ought to be considered to fall, but now that it has been fully argued on both sides, we are unable to entertain any doubt whatever but that the correct view is that which was taken by the Chief Justice. The controversy turns upon the meaning of the partition-deed Exhibit 59 P. Is there by that deed a complete dedication of this property to a religious trust or is there merely a gift to Vithoba of the property subject to an obligation to perform certain services? If there was a complete dedication, then admittedly the property is not liable to attachment. If there was merely a gift burdened with an obligation, then an attachable interest was admittedly left in Vithoba. The cases illustrating the two extremes are Bishen Chand Baswat v. Nadir Hossein ILR (1887) Cal. 329 and Basoo Dhul v. Kishen Chunder Geer (1870) 13 W.R. 200. The question really is where, between these extreme points, does this case fall, and the way to ascertain that is, we think, to look to the deed itself. It is a deed to which the whole family were apparently parties, and it sets out in tabular form the details of the divine service to be performed annually in the house-hold and the particulars of the expenses required for maintaining them. The total of thee expenses comes to 8 1/2 Khandies of rice, Rs. 17 in cash and 921 cocoanuts.
7. Thereafter the deed goes on. 'These plots the income whereof has been settled to be 10 1/2 Khandies of rice and 2200 cocoanuts should from this date be enjoyed by Vithoba Prabhu who should from the current year 1899 pay to Government the assessment Rs. 14-8-0 and local fund cess Re. 0-14-6 in respect of the same and hand over to me the following profits, namely, 8 1/2 Khandies of rice, Rs. 17 in case and 920 cocoanuts in my life-time. I am to maintain the divine services mentioned above with the help of the same. Vithoba Prabhu should take these profits after me, (that is, after my death); and perform the said divine services on the respective occasions.'
8. Now pausing there we see that what is given is given to Vithoba Prabbu and consists of 10 1/2 Khandies of rice and 2200 cocoanuts. But out of this entire gift a reservation is made of part, and the reservation is imposed as a burden or obligation upon the donee. But after the discharge of the burden so imposed, the donee is left in beneficial enjoyment of considerable property which works out at Rs. 50 or upwards.
9. Then another clause in the deed recites 'some money has to be spent on plot Survey No. 42. Should Vithoba Prabbu spend it and get the land improved and raise extra produce, none can claim from him either that more should be spent for the divine services than what has been now settled or that any profits are due to him (the claimant').' Again in alater clause it is provided, 'should the assessment of these lands be increased or diminished in the Revision Survey, Vithoba Prabbu should bear the same and hold these lands upon these conditions from generation to generation.' That is to say whatever increase in the profits Vithoba can secure by prudent cultivation goes not to the endowment but into his own pocket, and any increase or decrease in the Government assessment is in the same way to damnify or to benefit Vithoba personally and not the endowment.
10. It seems to us clear from the particular words in this deed that all that is given to the endowment is that specific amount 8 1/2 Khandies of rice, Rs. 17 in cash and 92 cocoanuts which is expressly stated in more than one passage and that endowment is merely a burden placed upon the larger gift which is made to Vithoba. If we are right in thinking that that is the meaning of the deed considered as a whole, our opinion need not be shaken by the clause in which it is sought to prohibit Vithoba Prabhu from mortgaging or selling the lands in question. For that clause would merely be an attempt to impose restrictions repugnant to the gift such as are frequently made in such documents and would be of no avail.
11. For these reasons we are of opinion that the decree already made by this Court is the right decree.
12. We affirm it and dismiss this appeal with costs.