B.N. Maitra, J.
1. The plaintiff has alleged that the disputed property belonged to Sridhar, Dharani and Gadadhar, who were brothers. In the C. S. Khatian, the property was erroneously recorded in their names as the shebait of one Santa Goswami Thakur. As a matter of fact, the property is a secular one. Sridhar died first leaving his son, Akshoy. The plaintiff purchased his 1/3rd share by a registered kobala dated 28-11-1941. Dharani had no son and his wife, Suchitra, became unchaste during his life time. She illegally married one Bepin Mondal. So, his brother, Gadadhar, inherited Dharani's share in the property. He left three sons, Surendra, Debindra and Netai. Surendra's son is Hrishikesh. On the 7th June, 1952, 2/3rds share of Deben-dra, Netai and Hrishikesh was sold to the plaintiff by registered sale deed and thus, he became the 16 annas owner of the property. Defendants Nos. 1, 2 and 3 colluded with one Bhuban Pal and obtained a fraudulent and inoperative kobala from Suchitra, unchaste wife of Dharani, in favour of one Bhuban Pal. Then the plaintiff started a criminal proceeding and subsequently, Bhuban Pal gave up his claim to the property. Then the defendants Nos. 1 and 2 fraudulently obtained a kobala regarding the property on the 14th August, 1957, from her. Defendant No. 3 is the father of defendant No. 2. The defendants harvested paddy from a portion of the property. Hence this suit for confirmation of possession on declaration of the plaintiff's title to the disputed land, for an injunction and alternatively, for recovery of khas possession.
2. Defendants Nos. 1 and 2 filed a written statement denying the plaintiffs allegations. The defence is that the disputed property was dedicated to SriSanta Goswaini Thakur. Dharani was the sole shebait of that absolute debutter property. Suchitra did not become unchaste. After Dharani's death, Suchitra became the sole shebait. On the 14th August, 1957, he validly transferred the property to them. The plaintiff had no title or possession.
3. The suit was dismissed. The learned Munsif held that Suchitra never became unchaste or remarried anybody. She remained in possession of the property. An appeal was preferred by the plaintiff. The learned Subordinate Judge held that the disputed land was a secular property and not a debutter one. Suchitra never became unchaste or remarried anybody. Suchitra's possession in a portion of the property was admitted by the plaintiff. That court stated that in that view of the matter, she inherited l/3rd share in the property after the death of her husband. So, by purchase, the plaintiff acquired title to the extent of 2/3rd share in the property. The appeal was allowed and the suit decreed in part declaring the plaintiff's 2/3rd share and granting a decree for joint possession to the extent of such share. A permanent injunction was also granted. The defendant preferred a second appeal, which was allowed. The High Court stated that the learned Subordinate Judge allowed the appeal because of misinterpretation of the deed of gift, Ext. G, executed by the maternal uncle. Gopal, in favour of his nephew, Dharani. The matter was remitted to reconsider the matter. The learned Subordinate Judge accepted the findings of the learned Munsif and held that it was an absolute debutter property. Dharani was the sole shebait. After his death, Suchitra became the sole she-bait. Hence, the plaintiff had no title. The appeal was, therefore, dismissed. Hence this second appeal.
4. The learned Advocate, appearing on behalf of the appellant, has contended that there is no document creating the alleged dehutter. Moreover, the defendants case is that the dedication was made in favour of Sri Sri Santa Goswami Thakur, who was a living being and not a deity. Under the Hindu Law, it is not possible to make any dedication in favour of a human being. The deed of gift, Ext. C, shows that Gpoal purported to transfer his alleged shebaiti right in the property to Dharani. But that deed of gift is invalid in law because the gift was revocable merely at Gopal's sweet will and hence, in view of the provisions of Section 126 of the Transfer of Property Act, that giftis void. D. W. 1, Suchitra, had admitted in her evidence that there are account papers at home to show that from the income of the property, the seva puja of the deity is performed. But those documents have not been produced. Moreover, her evidence clearly shows that only a portion of the income of the property is spent for the seva puja. In such circumstances, the Court should hold that it was a secular property. At all events, the Court can find that it was a partial debutter and hence, according to the provisions of Hindu Law, a partial debutter property is alienable and heritable too, subject to the performance of the seva puja of the deity.
5. The concurrent findings of fact arrived at by the courts below are that Suchitra did not become unchaste, as alleged, and she did not remarry, as asserted by the defendants Nos. 1 and 2. There is no document to show the alleged dedication to Sri Santa Goswami Thakur. But the entry in the C. S. khatian shows that it is a debutter property. Law is that where there is an entry in the C. S. khatian that a property is a debutter one, a presumption of dedication arises and it will be for the other party, who denies the debutter character of the property, to rebut the presumption. This principle was enunicated in the case of Ronald Duncan v. Iswar Radha Damodar in (1935) 62 Cal LJ 10. This observation was also made by Dr. Bijan Kumar Mukherjea in the Tagore Law Lectures on Hindu Law of Religions and Charitable Trusts, page 172, 4th Edition. It also appears from the case of Doorganath v. Ramchunder in (1876) 4 Ind App 52 that the existence of a document is not necessary to prove a debutter. The same observation will appear from Dr. Mukherjea's Book at page 170.
6. The registered deed of gift, Ext. C, was executed on the 24th Pous, 1301 B. S. i. e., long before the final publication of the C. S. khatian. That deed is revocable merely at the donor's will. So in view of Section 126 of the Transfer of Property Act, the gift is void. But that document shows that it is a debutter property. The entry in the C. S. khatian is being supported by that deed. Such recital in an ancient document of 1301 B. S. is admissible in evidence according to the provisions of Clause (8) of Section 13 or the Evidence Act because the debutter character of the property was asserted in a particular instance by that registered document.
In the famous case of Bhupathi Nath Smrititirthe v. Ramlal in (1909) 10 Cal LJ 355 (FB), Sir Lawrence Jenkins, who presided over the Bench, has stated that the rule requires that the relinguishment of the debutter must be in favour of a sentient person. Sri Santa Goswami Thakur was a sentient person and hence, relinquishment in his favour may be accepted as a debutter, though there is no document to that effect. The plaintiff could not adduce any clear and cogent evidence to rebut the presumption arising out of the entry in the C. S. khatian regarding the debutter character of the property.
7. But it is important to point out that the plaintiff's own witness, viz., P. W. 2 Barmdra, has admitted that there is a Samadhi, on the disputed land. P. W. 4, Bidhubhusan, has stated that this Samadhi is called the Samadhi of Santa Das Goswami. P. W. 8, Kanai, says that he knew the suit land as it is called Sauda's lands.
8. From the defendants' side, there is the evidence of D. W. I, Suchitra, D. W. 2, Radhanath and D. W. 3, Satyaban, that the Samadhi of Santa Das Goswami exists on the disputed land and it is still worshipped. The C. S. Khatian, Ext. 3, shows that it is a debutter property. The dakhilas. Ext. 8 series, which were filed by the defendants, indicate that they were issued in Santa Goswami Thakur s name. Even the plaintiff's dakhilas, Ext. 4 series, show that the dakhilas were granted to the plaintiff regarding Santa Goswami Thakur's property. Even the plaintiff's own kobala, Ext. 1/b, will reveal that the property was being transferred by his vendors as the shebaits of Santa Goswami Thakur together with the right of seva puja.
9. Law is that where by a grant a mere charge or trust is created in favour of an idol, the dedication is partial or qualified. In the case of Jagadindra v. Hemanta Kumari Debi in (1904) 31 Ind App. 203 at pages 209 and 210, Sir Arthur Wilson has stated that in case of a partial debutter, the property descends and is alienable and partible in the ordinary way, but subject to the trust or charge in the idol's favour. The same observation appears from Dr. Bijan Kumar Mukherjea's Book. It will appear from page 175 of that Book that in the case of a partial dedication, the deity does not become the owner but is in the position of a charge-holder. The property does not become extra-commercium like debutter property so called. It can even be attached and sold in execution of a decree. Whoever gets the property, takes it burdened with the charge ofreligious trust.
10. Suchitra made a sale to the defendant describing it as debutter property. As indicated previously, the plaintiff's own kobala, Ext. 1/b, dated 7th June, 1952, by Dcbendra, Netai and Hrishikesh shows that the shebaiti property of Santa Goswami Thakur was being transferred along with the right of the seva puja. Since D. W. 1, Suchitra, also admits in her evidence that only a portion of the income of the property is spent for the seva puja of the deity, considering the facts and circumstances of the case, I hold that it is a partial debutter property and not an absolute debutter property, and it is not a secular property, as stated by the plaintiff.
11. It has already been indicated that in case of partial debutter, the property is alienable and the transferee takes it subject to the charge of seva Puja of the deity. In fact, that burden has been cast on the plaintiff by the registered sale deed, Ext. 1/b, dated 7th June, 1952. In case of 'partial debutter, it is not necessary to 'prove any legal necessity or to show that the sale was made for the benefit of the estate or in case of need, as enunciated in the famous Privy Council case of Hannumenpresaud v. Babooee Munraj in (1856) 6 MIA 393. In that view of the matter, I hold that the plaintiff has only 2/3rds share in the disputed land and the remain-big l/3rd share is held by defendants Nos. 1 and 2. Consequently, the plaintiff will get relief accordingly.
12. The appeal is allowed. The suit is decreed in part. It is hereby declared that the plaintiff has 2/3rds shares in the disputed land. He do get joint possession thereof with the defendants Nos, 1 and 2. They are permanently restrained from interfering with the plaintiff's joint possession in the disputed land.
13. In view of the fact of the case, the parties will bear their own costs throughout.