B.N. Maitra, J.
1. The plaintiff's case is that by a registered deed of arpannama dated 20th Nov., 1932, one Saudamini Dassi dedicated the disputed property to the deity, Sri Sri Rameswar Siba Thakur. The property belonged to Lausen Hazra, 'who had two sons, Bhairab and Balanun. Rama-moyee is Bhairab's widow. After Balaram died, his daughter, Saudamini, acquired the property as a limited owner. She had six sons of whom Ramdas, Makhan and Surendra predeceased her. Ramamoyee transferred her 1 anna 3 pics interest in Barapukur to Saudamini. Subsequently, the latter acquired 16 annas interest in the properly by compromise in a title suit, by purchase and by adverse possession also. She died in 1936 leaving her sons, Ramsaran, Ramtarak and Ramsasi, father of defendant No. 3. Jamini Bala, pro forma defendant No. 4, is Rumtarak's widow. Phanindra, defendant No, 1, is Ramsaran's son. Arum-damoyee, widow of Birendra Nath, is defendant No. 2, who is also Ram Saran's son. Ramtarak, Ramsaran and Ramsasi had divided the properties amongst themsehes. Jamini Bala sold her 1/3rd interest in the properly to the plaintiff by a registered kobala dated 4th Dec., 1948, to meet the expenses of her daughter Lakshminoni's marriage ceremony. In the R. S. Khatinn, the property was recorded as a secular one. Phanindra filed an objection that it was a debuttar property of Sri Sri Rameswar Siba Thakur, of which he was the sole shcbait. Defendant No. 2, Anandamoyee, and defendant No. 3, Nirmal, also claimed shebaitship of the deity. The plaintiff has alleged that Saudamini had no right to dedicate the property to the deity. The fictitious document was obtained by her eldest son, Ramsaran, and she did not understand the nature and contents of the document. She did not treat it as debudar property. The plaintiff was threatened by defendant No. 1 with dispossession. The suit is for declaration of title and confirmation of possession and alternatively, for recovery of possession. There is also a prayer for injunction.
2. Defendant No. I has alleged, inter alia, that the arpannama is a valid document. Soudamini executed it with full knowledge of its purports and contents and it was treated as debuttar property.
3. The learned Munsif discussed the facts carefully, accepted the plaintiff's version and decreed the suit. The defendant No. 1 preferred an appeal. The appellate court did not discuss the facts properly. That court came to the conclusion that Saudamini did not exceed her right as limited owner in dedicating the property in question in favour of the deity, Sri Sri Rameswar Siba Thakur. She validly executed a document and a valid endowment was created. After coming to those findings, the appeal was allowed and the suit dismissed. Hence this appeal by the plaintiff.
4. It has been contended on behalf of the appellant that the alleged deed of arpannama, Ext. G, said to have been executed by Saudamini, shows that Lausen Hazra had executed an arpannama regarding the property in question. That document has not been produced. She was only a limited owner. She did not execute that document with regard to a small portion of the property. She was in possession of 41 bighas of land as a limited owner. By executing that deed of arpannama, Ext. G, she purported to dedicate 18 bighas 16 cottahs of land to the deity, Sri Sri Rameswar Siba Thakur, and thereby she exceeded her power because such dedication was not a reasonable one. The oral and documentary evidence will support the plaintiff's version. The learned first appellate Court did not discuss the facts elaborately. The case of Ram Kawal Singh v. Ram Kishore in (1895) ILR 22 Cal 506 has been cited in support of that contention. Saudamini had two other sons, who are cultivators. Her eldest son, Ramsasi, was a pleader's clerk. He managed to obtain that deed of arpannama from her mother and she was made to believe that Lausen Hazra had already dedicated the property to the deity, Sri Sri Rameswar Siba Thakur. The plaintiff is in possession of the property. The mode of devolution of she-baitship runs counter to the provisions of Hindu Law because the deed of arpannama, Ext. G, lays down the rule of primogeniture.
5. It has been contended on behalf of the respondents that the first appellate Court has come to a finding that the deed of arpannama was validly executed and subsequent treatment of the property was immaterial. She was in possession of 28 bighas 4 cottahs of arable land. Out of that land, she purported to transfer a very small portion, i. e., only 2 bighas of arable land by the document in question. Two tanks viz., Bnrapukur and Chhotopukur, purported to be dedicated to the deity, Sri Siba Thakur, by that document were indivisible ones. So, the court will have no hesitation in stating that such transfer was a reasonable one and she did not exceed her limit in making such dedication. The property is really a debuttar one. The case of Churaman Sahu v. Gopi Sahu in (1909) 13 Cal WN 994; Dharmadas v. Gosta Beharyin (1912) 16 Cal WN 29 and Sri Ram v. Chan-deshwar Prosad in : AIR1952Pat438 have been cited,
6. The plaintiff did not state in the plaint that Saudamini did not execute the disputed deed of arpannama. So, the learned Munsif made put a 3rd case that that document had not been executed by her. The first appellate Court has stated that really the document had been executed by Saudamini in favour of the deity. Subsequently she filed the suit evidenced by the copy of the rent suit register, Ext. L, which will also go to show that, in fact, such document of arpannama, Ext. G, has been executed by her.
So, in second appeal, this matter need not be dilated any more.
7. In the case of Sardar Singh v. Kunj Behari Lal in 49 Ind App 383 : (AIR 1922 PC 261), it has been stated that Hindu Law recognizes the validity of dedication or alienation of a small fraction of the property by a Hindu female for the benefit of the soul of the deceased owner. It will appear from the page 107 of Dr. B. K. Mukherjea's Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts, 4th Edition, that when there is a deed of dedication executed by the donor, the mere execution of the document though it purports on the face of it to dedicate properly to religious or charitable uses, is not enough to constitute a valid endowment. It must be proved that the donor intended to divest himself of his ownership in the property dedicated.
8. This is a case of transfer inter vivos and not a case of a will, where the acts of the subsequent shebait after the death of the donor contrary to the terms of the endowment cannot be regarded as reflecting her intention.
9. Now about the cases cited by the parties. In the case of Churaman Sahu v. Gopi Sahu (1909) 13 Cal WN 994) (supra), Amritalal died leaving three houses, the total value of which was Rs. 3,800/- approximately. The house in question of that case was transferred by way of gift to the daughter during her 'dwiragaman' ceremony which was of the value of Rs. 1,200/-. So, the value was a little less than l/3rd of the lotal value of those houses and it was held as a reasonable alienation.
10. In the case of Kainala Devi v. Bachulal Gupta in : 1SCR452 , referred to for the respondent, it has been stated that where the gift is neither disproportionate nor unreasonable in extent, it is binding on the rcversioners. There the gift for the marriage dowry was to the extent of 1/4 till of the total value of the property.
11. In the case of Sri Ram v. Chandeswar Prasad : AIR1952Pat438 (supra), it has been staled that no mathematical limit can be fixed to the power of alienation of widow of her husband's property for the purpose of religious acts which conduce to his spiritual benefit. The question if the dedication constitutes a reasonable proportion of the whole estate must depend upon the facts and circumstances of each particular case, vide page 440 of the report.
12. The case of Dharmadas v. Gostha Bchuri (1912-16 Cal WN 29) (supra) is on a different point because there it has been stated that where the private debuttar has been partitioned amongst the members of the family and there was subsequent transfer, but there was nothing to show that there was a consensus to give the property a different turn, the original debuttar character of the property is not destroyed.
13. The case of Ram Kawal Singh v. Ram Kishore Das ((1895) ILR 22 Cal 506) (supra) relied 'on by the appellant is also distinguishable because in that case, the alienation was not for the maintenance of an idol. The dedication was prima facie for the widow's own spiritual welfare and not for the husband. It will now be necessary to discuss if the dedication was a valid one. The deed of arpannama. Ext G, shows that the property had already been dedicated to the deity by Lausen Hazra But no document has been filed !o show that Lausen HAZra made any such dedication in favour of the deity and she executed that deed, Ext. G. to reaffirm the same. She was, in fact, a limited owner regarding the property in question. Though she had 41 bighas of land in her possession, she purported to dedicate 18 bighas and 16 cottahs of that land by a document including the only homestead, two tanks including the 'khirki' tank and some tenanted lands. Of course, emphasis has been laid on behalf of the respondent that she purported to transfer only two bighas of arable land.
14. In the case of Mst. Sheo Kuer v. Nathuni Prawd in : 2SCR1002 , it has been stated that if the alienation by the widow is of a reasonable portion of the property depends on the facts and circumstances of each case.
15. The record of rights. Exts. 9 (b) and 9 (d), show that the properties were recorded as Saudamini's personal property. The learned Munsif referred to the admission in Title Suit No. 28 of 1864 that the property was characterised as a secular one. It can be seen from the document. Ext. 2 (a), which is her written statement filed by her in Title Suit No. 987 of 1886. that no mention of debultar property had been made. Similar statement will appear from the document, Ext. 2, which is the written statement in Title Suit No. 886 of 1892. In the plaint, Ext 1, of the Title Suit No. 311 of 1911, she asserts her right in the property as a secular one It can He seen from the document, Ext. 1 (a), that Saudamini filed Title Suit No. 146 of 1929 for correction of entry in the record of rights and did not assert that the property was a debuttar one made by Lausen Hazra.
16. It is common ground that no mutation of name was made even after that arpannama was executed, vide the landlord's papers, Ext. 3 series, and the dakhilas, Ext. 4 series. Of course, defendant No. 1 produced dakhilas, Ext. C series, to show mutation in the name of the deity. But the learned Munsif rightly pointed' out that such dakhilas came into existence after defendant No. 1 came to know that the plaintiff had purchased the property in the meantime. So, he has rightly refused to place any reliance on the dakhilas, Ext. C series.
17. The learned Munsif has also pointed out that the documentary evidence shows that subsequently Saudamini's sons partitioned the homestead covered by the deed of dedication, Ext. G. These items were lost sight of by the first appellate Court though the law of small fraction was discussed.
18. It has not been challenged even now that the two sons of Saudamini were only cultivators and only her eldest son was a pleader's clerk. In that view of the matter, the disputed document, Ext. G, was the handiwork of Ramsaran because there was no reason to exclude her other two sons from the line of alleged shebaitship.
19. The learned Munsif has given satisfactory explanation why no reliance could be placed on the copy of the rent suit register, Ext. L.
20. A substantial portion of her property was alienated. It was not conducive to Lawsen's spiritual benefit either. Thus, from the aforesaid discussions, the argument advanced on behalf of the respondents cannot be accepted. The law of small fraction advanced on behalf of the respondents cannot be accepted. It must be held that the document, Ext. G, purported to create an illusory endowment and she did not intend to divest herself of the properly. I further find that she did not intend to create any endowment and hence, such dedication is inoperative in law. A reasonable portion of the property was not transferred. The learned first appellate Court made a mistake in not discussing the important aspect of the case, viz.. the subsequent conduct of Saudamini and of her sons. That court made an error in jumping to the conclusion that mere execution of the document was sufficient to create a valid dedication in favour of deity, Sri Rameswar Siba Thakur. I further hold that she exceeded her limit by making such improper alienation, that the disputed deed, Ext. G, was not acted upon and it was a sham and paper transaction. The learned Munsif rightly held that the plaintiff had title to the property.
21. The appeal is allowed. The judgment and decree appealed against be hereby set aside and those of the teamed Munsif restored with costs.