1. The decision of this appeal depends on the interpretation of the Will of one Ram Chander Maulik, dated the 9th of April 1897. By that Will Ram Chander Maulik appointed his nephew Shambhu Nath Maulik as the principal executor and he also named three other relatives as executors. Shambhu Chander took out probate of the Will. The property left by Ram Chander Maulik consisted of house property and Government promissory notes. One of those houses was mortgaged by Shambhu Chander to the defendants Nos. 1 and 2 and the mortgage included Government securities of the face value of Rs. 2,000. After the death of Shambhu Chander the defendants Nos. 1 and 2 obtained a decree for sale against his son, the third defendant. The suit out of which this appeal has arisen was thereupon brought by Benode Behari Maulik, one of the executors named in the Will, for a declaration that the mortgaged property is property of which Ram Chander Maulik made an endowment under his Will to the god Shiva and to a Dharam Sabha and is not liable to be sold in execution of the defendants' decree. The Court of first instance held that valid endowment had been made by Ram Chander Maulik and accordingly decreed the claim. The lower appellate Court, whilst expressing the opinion that the intention of the testator was to make a complete dedication, felt itself bound by certain rulings of the Privy Council referred to in the judgment, and held that there was no complete and valid dedication for religious purposes and dismissed the suit. The plaintiff has preferred this appeal. He has withdrawn from that part of the claim which relates to Government promissory notes, with liberty to bring a fresh suit upon the same cause of action if not otherwise barred.
2. The question we have to determine is whether Ram Chander Maulik made a valid dedication of the house which is the subject matter of the suit. The test in each case of this kind is what was the intention of the testator, that is to say, whether the dedication made by him is real and bona fide or only colourable and nominal. This intention is to be gathered from the terms of the Will by which the dedication was made and from surrounding circumstances. The rulings on which the learned District Judge relies were based on the merits of the particular cases. In some of those cases it was held that the dedication was merely illusory and that the intention was to retain the property in the family and for its benefit, We have, there-fore, to consider the terms of the Will made by Ram Chander Maulik. The first clause of the Will has been translated and correctly translated, by the lower appellate Court as follows: 'For the worship and puja of Shiva Thakur and the Dharam Sabha, the house, of which the boundaries and descriptions are given below and in which the Shiva Thakur has been established, and the income derived from the promissory notes of the value of Rs. 10,000, out of these numbers of which the numbers are given below, shall be devoted to the worship and puja of Shiva Thakur and the repairs of the said house, and whatever remains, it may he used by the principal executor for meeting the family expenses. The aforesaid house shall not be transferred by sale, mortgage, gift or in any other way. The principal executor may live in it and may let it out on rent provided that such act does not interfere with the seva and puja of Shiva Thakur and the Dharam Sabha and the aforesaid sum of Rs. 10,000, which is set aside for the service of Shiva Thakur shall be kept in such a way that it may not be destroyed on any account whatever.' We next find that at the commencement of the third clause the testator states, as the learned Judge points out, that he has 'set apart a debutter house for the god Shiva and a sum of Rs. 10,000, for his service' and in describing the boundaries of the house in question, he has described the house as the house dedicated to the god Shiva. In describing the boundaries of another house, the house in dispute is stated to be the house of the god Shiva. From these provisions of the Will it is manifest that the intention of the testator was to dedicate the house to the god Shiva and to direct that the income derived from the Government securities should be applied to the worship of the god. There is no reservation of any beneficial interest in the members of the family. The principal executor alone is allowed to appropriate the surplus after defraying all expenses. This surplus which appears from the terms of the Will to be the surplus of the income derived from Government promissory notes of the face value of Rs. 10,000, was, as the learned Subordinate Judge points out, not a substantial part of the income so derived. It is also manifest from the Will that there is no intention to create a heritable estate. The principal executor is in the third clause given the power to appoint one of the other executors as his successor, and in the event of his not doing so, one of the executors, the son of the principal executor, was to discharge the duties of principal executor. Taking the document as a whole it seems to us that the intention was to make a real dedication of the property and the transaction was not a mere colourable one made for the benefit of the members of the family. This case is very similar to that of Bhuggobutty Prosonno Sen v. Gooroo Prosonno Sen 25 C. 112. The house in suit being, in our judgment, endowed property, Shambhu Chandra Maulik was not competent to hypothecate it and the defendants Nos. 1 and 2 are not entitled to bring it to sale in execution of that decree obtained by them. We allow the appeal and setting aside the decree of the Court below decree the plaintiff's claim as regards the house in suit. As for the claim in respect of the Government promissory notes the plaintiff has, as we have said above, withdrawn from it with liberty to bring a fresh suit if not otherwise barred. We, therefore, decide nothing as regards that portion of the claim. We direct that the parties do pay and receive costs in all Courts in proportion to failure and success. The costs in this Court will include fees on the higher scale.