R.N. Misra, J.
1. It is a defendant No. 1's appeal against the affirming decree of the Learned Additional District Judge, Puri, in a suit for title and possession of the Ka Schedule property on the basis of two purchases from the defendant No. 2 under Exts. 2 and 2/a dated 28-6-1965. Alternatively, the Kha Schedule property in which the Ka Schedule property is included was asked to be partitioned and the property in the Ka schedule was asked to be allotted to the Plaintiff in view of the purchases.
2. The Defendant No. 2, the Plaintiff's vendor, supported the Plaint claim. The defendant No. 1 pleaded that the property was the absolute Debottar of the Deity Bhagbat Dev and the palm-leaf books were being worshipped. As such the property was not alienable and the Deity has no interest to alienate the property nor was the Deity benefited by the alienation. Thus the Plaintiff acquired no title under Exts. 2 and 2/a.
3. The Courts below have found that the defendant No. 1 has failed to establish the existence of a Deity known as Sri Bhagbat Dev as pleaded in paragraph 3 of the written statement of defendant No. 1. They have reached the further finding that the disputed property was a nominal Debottar and hence was transferable. In an amicable partition, the Ka Schedule property stood allotted to the share of the defendant No. 2 and he was thus competent to alienate good title in favour of the Plaintiff.
4. The finding that there is no Bhagbat Dev in existence as pleaded by defendant No. 1 is one of fact not open to challenge in second appeal. The Courts below have rightly declined to accept the oral evidence regarding the existence of Deities like Salagram, Radhakrushna etc. in the absence of appropriate pleadings. They have taken the view that 'religious books' would not constitute a Deity capable of holding property in the absence of consecration. In this Court, a Division Bench in the case of Krishnaballav Ghosh v. Sibananda De, (1956) 22 Cut LT 65 held;
'...... taking the evidence at its highest, it may be that all that was dope in 1929 or thereabouts was to place a few books, representing the Bhagwat, in a corner of the house and start worshipping them as a Deity. But that is not sufficient in the eye of the law, to give the character of a juristic personality to the books. A deity in an ideal sense is a juridical person and is capable of holding property, but a collection of books, however sacred, is not a legal person. If therefore consecration has not been established or attempted to be proved, all the subsequent documents purporting to endow property on this collection of books is. in the eye of law, invalid ......'
Mr. Sengupta for the appellant does not dispute the correctness of this decision, The conclusion of the Courts below on this score is, therefore, not open to challenge.
5. The Defendant advanced the story of absolute Debottar. In the case of Panchanan Dalai v. Lakshmidhar Dalai, (1957) 23 Cut LT 440 = (AIR 1958 Orissa 65), this Court quoted with approval the following passage from Mayne's Hindu Law :--
'Very strong and clear evidence of an endowment is required and the onus lies upon a party who sets up a dedication to prove that property has been inalienably conferred upon an idol to sustain its worship or upon a religious of charitable institution. Where there is no instrument of gift or trust, the mere fact that the rents and profits of immovable properties have been utilised for the support of an idol or a religious or charitable institution is insufficient to establish an endowment or dedication. The fact that the deceased Karta of a joint Hindu family regularly paid the expenses of a choultry out of the profits of the family property, the expenses however not exhausting the whole of the profits, would not establish a dedication of the profits to the charity for a distinction must be made between meeting all the expenses of a charity out of a particular property and applying all the receipts of that property to the charity.'
Lord Macmillan speaking for the Board in Sri Sri Ishwari Bhubaneswari Thakurani v. Brojonath Dey, AIR 1937 PC 185 observed as follows:--
'The effect of a valid deed of dedication is to place the property comprised in the endowments extra commercium and beyond the reach of creditors. The dedication is not invalidated by reason of the fact that members of the settlor's family are nominated as Shebaits and given reasonable remuneration out of the endowment and also rights of residence in the dedicated property. In view of the privileges attached to the dedicated property it has not infrequently happened that si-mulate dedications have been made and a close scrutiny of any challenged deed of dedication is necessary in order to ascertain whether there has been a genuine divestiture by the settlor in favour of the idol. The dedication moreover may be either absolute or partial. The property may be given out and out to the idol or it may be subjected to a charge in favour of the idol. The question whether the idol itself shall be considered the true! beneficiary subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that on the other hand, these heirs shall be considered the true beneficiaries of the property subject to a charge for the upkeep, worn ship and expenses of the idol is a question which can only be settled by a con-spectus of the entire provisions of the deed. It is also of importance to consider the extent of the property alleged to be dedicated in relation to the expense to be incurred and the ceremonies to be observed in the worship of the idol. The purposes of the dedication may be directed to expand as the income increases, or the purposes may be prescribed in limiting terms so that if the income increases beyond what is required for the fulfilment of these purposes it may not be protected by the dedication.'
Mr. Sengupta relied upon the Record-of-Rights of the Current settlement wherein the disputed property has been described in the name of the deity. Placing reliance on a decision of this Court in the case of Nilamani Kundu v. Ghanashyam Jena (1935) 1 Cut LT 3, he contended that from the C. S. Record-of-Rights it follows that the property in dispute is Debottar. While the presumption might arise from the Record-of-Rights, the presumption is a rebuttable one and the Courts below on the basis of the evidence have come to hold that the defence story of absolute Debottar has not been established. This Court indicated the Law with regard to Debottar absolute or partial in the following way:--
'...... the position is that where the dedication made by a settler in favour of an idol covers the entire beneficiary interest which he has in the property the Debottar is an absolute or complete Debottar. Where, however some proprietary or pecuniary right or interest in the property is either undisposed of or reserved for the settlor's family or relations, a case of partial dedication arises. In a partial dedication the deity does not become the owner of the dedicated property, but is in the position of a charge holder in respect of the same. The charge is credited to the property and there is an obligation on the holder to apply a portion of the income for the religious purposes indicated by the settlor. The property does not become extra com-mercium like a debottar property strictly speaking, but is alienable subject to the charge and descends according to the ordinary rules of inheritance. It can be attached and sold in execution of a decree against the holder. Whoever gets the property however takes it burdened with the charity or religious trust.'
6. In this view of the matter, it must follow that the defendant No. 1 has failed to establish that the property is absolute debottar. On the concurrent findings of the Courts below that the disputed property is nominal debottar, the defendant No. 2 must be found to have title to alienate and the Plaintiff is, therefore, entitled to succeed. The affirming decree of the lower appellate Court stands confirmed and the second appeal is dismissed. There shall be no order as to costs in this Court.