1. The property which is the subject matter of this appeal originally belonged to one Ramdas Mohanta. On 14th April 1914, he executed a will by which he dedicated the disputed property for the sheba-puja of two idols Sree Sree Banku Behari Jieu and Sree Sree Shalgram Shila Thakur. Ram Das died on 12th December 1914. On 10th May 1916, letters of administration with a copy of Ram Das's will annexed were granted to his widow, Golap Sundari Debi. Golap Sundari performed the sheba-puja of the deities for some time. On 12th December 1916, she executed a kobala in favour of one Satish Chandra Choudhury. By this kobala, she transferred the disputed property to Satish, for meeting the expense of the sheba-puja of the idols, for maintenance and marriage of the minor Arun Bala, the daughter of Ram Das. Arun Bala attained majority in the year 1926. On 11th April 1928, she sold the disputed property to defendant 1. In the kobala, which she executed in favour of defendant 1, it was stated that she inherited the property from her father. On 18th July 1928, defendant 1 sued Satish for possession of the disputed land. This suit was decreed on 7th July 1933. Defendant l got possession of the decretal lands in execution of the decree obtained by him on 11th March 1935. On 17th January 1938, five gentlemen of the locality brought the present suit under the provisions of Order1, R.8, Civil P.C, for a declaration that the disputed property was debatter property, for recovery of possession of the disputed property and for other reliefs. Defendant 1 contested the suit. His defences, so far as they are material for the purpose of the present appeal, are (i) that the disputed properties are not debatter properties; (ii) that the plaintiffs have no right to bring the present suit on behalf of the idols; (iii) that the plaintiffs are not entitled to recover possession of the disputed properties from the defendant; and (iv) that the suit is barred by limitation.
2. The trial Judge as well as the first appellate Court decreed the suit. Defendant 1 filed a second appeal to this Court. Henderson J heard this appeal. The learned Judge modified the decrees passed by the trial Courts well as by the first appellate Court. The direction of the trial Judge as well as of the first appellate Court that the possession of the disputed property should be made over to the plaintiffs was set aside by the learned Judge. He however directed that a receiver should be appointed to take possession of the disputed property pending the appointment of another shebait. Defendant 1 has therefore filed this appeal under Cl.15, Letters Patent. Four points were urged in support of this appeal: (i) that the Courts below should have held that the disputed property is not debattur property; (ii) that the Courts below should have held that the plaintiffs have no right to sue; (iii) that the Order of Henderson J. directing the appointment of a receiver of the disputed property pending the appointment of a shebait is bad in law; and (iv) that the suit is barred by limitation.
3. The argument in support of the first contention is that a person competent to accept the gift on behalf of the deities did not validly accept the gift to the deities. By the will of Ramdas, his minor daughter Arun Bala was appointed first shebait. It was also provided in the will that during her minority her mother Golap Sundari would act as her guardian and carry on the deb-sheba. It is an admitted fact that Golap Sundari obtained letters of administration with a copy of the will annexed after the death of Ramdas. It has been found by the Courts below that after obtaining the letters of administration she carried on the deb-sheba. In fact, in the kobala, which was executed by her in favour of Satis Choudhury, she stated that she was selling the property for meeting the expense of debsheba and for certain other necessities. There cannot be any doubt therefore that she was competent to accept the gift on behalf of the deities. It must therefore be held that the disputed properties are debattur properties. It was also contended on behalf of the appellant that, the consent of the widow and the daughter of Ram Das made the disputed properties secular. The final Court of fact however has found that there was no satisfactory proof that the disputed properties were converted to secular properties by the consensus of the members of the family of Ram Das. We therefore hold that the disputed properties were not converted to secular properties by the consensus of the members of the family of Ram Das.
4. As regards the second point, it appears from the will of Ram Das, that any five gentlemen of the locality would be able to take up the management of the sheba-puja and of the endowment in case the person in control of the endowment does any misappropriation. Arun Bala who was appointed shebait committed breach of trust when she transferred the disputed properties alleging that she got these properties by inheritance from her father and that they were her secular properties. The plaintiffs are admittedly five gentlemen of the locality. They are therefore entitled to bring the present suit. As regards the third point, in view of the events that have happened in the present case, we are not prepared to say that the learned Judge was wrong in appointing a receiver of the disputed properties pending the appointment of another shebait. As regards the fourth point, it appears that Satish Choudhury, so long as he was in possession of the disputed properties on the basis of his purchase from Golap Sundari, used to pay Rs.2 per month for the sheba-puja of the deities. Satish was in possession up to 11th March 1935. The present suit was instituted on 17th January 1938. It cannot be said therefore that the deities were dispossessed, or that their possession was discontinued for more than 12 years before the institution of the present suit. The Courts below were therefore right in holding that the suit is not barred by limitation. The appeal accordingly fails and is dismiss ed with costs hearing fee two gold mohurs.