1. This is an appeal arising out of an interpleader suit. The subject matter of the dispute is a house which belonged to one Bhagwan Das, deceased. The tenant of the house is one Ishri and after the death of Bhagwan Das two persons laid claim to the rent of the house, viz. Mt. Lakhna, the present appellant, and Sahu Sita Ram, one of the respondents. Ishri finding himself in this position brought interpleader proceedings which were ultimately fought out between the two rival claimants to this rent. Bhagwan Das died leaving two sons Parsotam Das and Sita Ram. Parsotam Das died leaving surviving him, his widow the present appellant.
2. On 18th May 1927 Bhagwan Das made a will. In that will he mentions the house in question in this case and states that the income derived from the house has been and is being spent by him on virtuous actions, charitable and religious purposes and pujapath of Sri Thakur Satnarayan Maharaj. Later in the will he mentions 'that he was greatly displeased with his son Sita Ram and on the other hand greatly pleased with his son Parsotam Das. He then states that he is making his will in favour of Parsotam Das though he, the testator, is to remain the owner of his entire property during his lifetime. The material portion of the will is as follows:
After my death it shall be incumbent on my legatee to perform my obsequies according to the rites add customs of the caste and he shall be the owner in possession of all my moveable and Immoveable properties and realise the undermentioned dues, and spend the income of the above-mentioned house on virtuous actions and charitable purposes and the pujapath above mentioned and keep up my name. He shall not mortgage or sell the above mentioned house and if he does so, it shall be considered void and invalid.
3. Upon the death of Bhagwan Das, his son Parsotam Das came into possession of all the properties and he undoubtedly collected the rent of this house from Ishri. After the death of Parsotam Das, hia widow, the present appellant, claimed the rent. The respondent, Sita Ram, also claimed this rent as the shebait of the idol Sri Thakur Satnarayan Maharaj mentioned in the will. He claimed that by the will the income of this particular house and indeed the house itself was devised or bequeathed to the idol and that the will only appointed Parsotam Das the first shebait of the idol. As no provision was made for the successor to Parsotam Das, Sita Ram as the nearest heir of the founder claimed that he, by law, became the next shebait, hence he claimed the rent from Ishri.
4. The Court of first instance held that this house was not given to the idol by the will of Bhagwan Das but on the contrary it had been given by the will to Parsotam Das and consequently it held that upon the death of Parsotam Das the present appellant was entitled to the rent. On appeal to the lower Appellate Court, the learned Civil Judge reversed the findings of the Court of first instance and held that the house in question was devised or bequeathed to the idol and that Parsotam Das was the first shebait. The lower Appellate Oourt further held that upon the death of Parsotam Das the respondent, Sita Ram, was entitled to the office of shebait by reason of the fact that he was the nearest heir of the founder, Bhagwan Das.
5. The learned Civil Judge was of opinion that there was a gift of the whole income of this particular house to the idol and such in law amounted to a gift of the house itself to the idol. That proposition of law is not challenged by Mr. P.L. Banerjee on behalf of the appellant, but he contends that there was no gift in this will of the whole or any part of the income of this house to the idol.
6. I have already set out the material portion of the will where the testator expressly states that the legatee meaning Parsotam Das shall be the owner in possession of all the moveable and immoveable properties of the testator. There can be no question that this house was in terms devised or bequeathed to Parsottam Das though there is a provision enjoining him to spend the income of the house on various objects, viz. virtuous actions, charitable purposes and the pujapath of the idol. In my judgment it is quite impossible to say that there was a gift of the whole of the income to the idol in this case. Parsotam Das is directed to spend the income on the three purposes to which I have referred and therefore the idol could only obtain what was left after Parsotam Das had spent what he thought proper upon virtuous actions and charitable purposes. Even if the gift had not been in terms to Parsotam Das, it would still have been quite impossible to hold that there was in this case a gift of the whole of the income to the idol. The highest the case can be put in favour of Sita Ram is that there was a gift of some undefined share of the income in favour of the idol. However, in my view upon a true construction of the will there is a gift of this house to Parsottam Das with possibly a charge in favour of the idol to cover the expenses of the worship of the same. It is unnecessary to decide in this case whether there is a charge, but that in my view is the most that can be said in favour of the respondent.
7. The present case is very similar to the case in Gopal Lal Sett v. Purna Chandra Basak A.I.R. 1922 P.C. 253. In that case the will of a Hindu testatrix was addressed to her grandson and provided that out of the income of specified property he should perform the worship of certain family idols, and that he should be the person in charge of the worship. The will Contained no gift, express or implied, to the idols; and there was no provision for the worship after the death of the grandson. Their Lordships of the Privy Council held that the will conferred the property specified on the grandson charged with the maintenance of the worship, but that no heritable shebaitship was created. In this Privy Council case there was no direct gift to the son, whereas in the case which I am considering the property is in terms given to the son. In my view the present case falls within the principle laid down in the Privy Council case which I have' cited and therefore I am bound to hold that there was no gift of the property or any part thereof to the idol Sri Thakur Satnarayan Mahraj.
8. For the reasons which I have given, this appeal must be allowed and the decree of the lower Appellate Court set aside and the decree of the Court of first instance restored. The appellant must have the costs of this appeal and the costs of the proceedings in both the Courts below. Leave to appeal under the Letters Patent is refused.