1. The appellants before us are the shebaits of certain idols and as plaintiffs they commenced a suit in the Court of the third Subordinate Judge at Dacca for a declaration that the defendants hold the property in suit, not as permanent tenants but as tenants at will under the deities, at a rental of Rs. 4-11-0 per month. There was also a prayer for recovery of rent from the defendants at that rate from Baisakh 1341 to Chaitra 1343 B.S. The material facts which are not in controversy may be shortly stated as follows: The disputed property is a house together with the land underneath and is situated at Kumartooli in the town of Dacca. It admittedly-belonged to two brothers Kebal Sen and Kanai Sen. These two brothers established two idols known as Sri Sri Sudarsan Chakra Jew and Sri Sri Gobind Jew, and dedicated jointly, in favour of them, seven house properties including the property in suit. On 9th September 1854, Kebal and Kanai jointly executed a will by which four persons to wit Ram Chandra Sur, Guru Charan Sur, Sonamani Sur and Lakhimani Sur were appointed shebaits of these deities. After the death of Kebal, Ramchandra and Sonarnani, Kanai executed a deed of arpannama on 12th July 1865, by which he re-dedicated to the deities his 8 annas share in the seven houses referred to above and also made gift of his share in certain additional properties to them, directing at the same time that one Madhab Chandra Sur and his heirs would be the shebaits of the deities in respect to the properties thus dedicated. Lakhimani died after that, and the position then was that Madhab Sur the new shebait exercised the rights of management with regard to 8 annas share of the debuttar property which was dedicated by Kanai, while Gurucharan the other she-bait purported to manage the remaining 8 annas share.
2. On 16th March 1870, Guru Charan by a died which was described as a kayemi keraya potta leased out in perpetuity an 8 annas share in the disputed house to one Gourmani Dasya at a fixed rental of Rs. 24 a year. On 29th April 1870, Madhab the other shebait executed a similar patta in favour of the same lessee, by which an 8 annas share in the disputed premises as well as two other properties were permanently let out to her at a consolidated rental of Rs. 60 a year. The shebaiti right of Guru Charan gradually devolved upon Bhagi-rath and Rakhal and they executed an arpannama on 28th August 1900, by which they surrendered their rights as shebaits in favour of Madhab; Madhab thus became the sole shebait in respect of the entire debuttar estate. On 17th June 1915, Madhab by an arpannama transferred his shebaiti right to his two sons Gobind and Brojendra, and after their death, the present plaintiffs became the shebaits. In the meantime, the leasehold interest of Gourmani in the disputed house was sold in execution of a decree against her on 18th January 1877, and it was purchased by two persons named Lai Mohan Pal and Pajoo Pal. On 21st March 1899, Pajoo Pal sold his interest to Lal Mohan who thus became the sole lessee in respect of the disputed premises. The defendants in the suit are the succes-sors-in-interest of Lal Mohan and they are holding the disputed property at an yearly rental of Rs. 56-4-0 which is made up of Rs. 24 of Guru Charan's lease, and Rs. 32-4-0 as the proportionate share of rent reserved by the lease granted by Madhab. The plaintiffs' case in substance was that there being no legal necessity justifying a permanent alienation of the debuttar estate the leases granted by Guru Charan and Madhab were not binding on the deities, and consequently the defendants could not but have the status of tenants at will under the deities, in respect to the premises in suit.
3. So far as the plaintiffs' claim for rent was concerned, there was practically no defence by the defendants and the whole controversy centred round the point as to whether the defendants could claim the status of permanent tenants under the two documents mentioned above. Both the Courts below have decided this point in favour of the defendants and the plaintiffs have now come up on second appeal to this pourt. Mr. Chakravarty appearing in support of the appeal has not disputed before us that the two pottas granted by the two shebaits to Gourmani Dasi do purport to create permanent rights in the lessee. It is also conceded that as the documents are very old, and the original parties to the transaction have long passed away the recitals of legal necessity contained in the documents cannot be lightly brushed aside. In fact one of the leases (Ex. D) which was granted by Madhab did come up for consideration before this Court in Lakshmi Narayan v. Jagadish : AIR1938Cal541 ,and it was held by Jack and Khundkar JJ. on the strength of these recitals and other circumstances that a valid permanent lease was created by the shebait. Mr. Chakra-varty's first and main contention is that as in the case before us, the leases were granted separately by the two shebaits and each purported to be for a specific share which the grantor claimed in the idols' property, they could not be regarded as acts of the deities or binding on them.
4. It is pointed out that in the patta granted by Guru Charan (Ex. D1) the lessor expressly states that incase his coshebait raises any difficulty with respect to the share leased out, the lessee would be at liberty to ask for and obtain a partition of that share. This Mr. Chakravarty argues, conclusively shows that the she-baits were not acting together or on behalf of the dei-ties. Now, it may be taken to be fairly well established that trustees or shebaits when they are more than one, from, as it were, but one body in the eye of law. The. deity is represented by all of them acting together and no one shebait can be said to possess any specific interest or share in the idols property: Norendra v. Atul ('18) 5 A.I.R. 1918 Cal. 810,and Baraboni Coal Concern Ltd. v. Gokula Nanda , In the case before us, as has been said already, there were originally four shebaits appointed by the joint will of the founders, After Kebal and two out of the four shebaits had died, Kanai executed a deed of arpannama on 12th July 1865 by which he made additions to the existing endowment by giving certain additional properties, and also re-dedicated his half share in the houses which he had already dedicated jointly with his brother. By this arpannama Madhab Sur and his heirs were appointed shebaits in respect of the dedicated properties. The position therefore was that there was a change in the provision regarding the office of the shebait, and Madhab who was, not one of the original appointees was appointed a shebait of the deities with rights of management and control in respect to Kanai's 8 as. share of the properties which were covered by the arpannama of 1865.
5. It may be assumed that the additional gift made by Kanai, being for the benefit of the idols, the latter accepted the same subject to the condition relating to the exercise of shebaiti rights by Madhab Chandra Sur and his heirs: Ashutosh Seal v. Benod Behary : AIR1930Cal495 , From this time onwards it appears, that Madhab exercised the rights of management with regard to Kanai's share of the debuttar property, while Guru Charan was in charge of the other half. In the eye of law undoubtedly the shebaitship vested in both the shebaits jointly, and one then could not represent the deity separately from the other. For purposes of management, however, there was a separation and this seems to have been the implication of the provision relating to shebaitship in the arpannama of Kanai. In the patta (Ex. D) Madhab expressly recites that he is in possession of the 8 as. share of Kanai under the deed of dedication, and the passage in the potta of Guru Charan referred to by Mr. Chakravarty which speaks of partition of an 8 as. share points really to the same conclusion. If the idols accepted the additional gift of Kanai on condition that Madhab should not only be a co-shebait, but would have the exclusive right of managing an 8 as. share of the debuttar estate, a lease by Madhab of an 8 as., share in the debuttar property would be quite valid and binding on the deities. If we cannot read the arpannama of Kanai in that way, then also the fact remains that the two shebaits were exercising their rights of management separately each with regard to a moiety share of the debuttar estate. If in these circumstances the same lessee got two leases from the two shebaits separately no doubt, but within a short distance of time from each other, and each one of the documents purported to have been executed on behalf of the deity, with the same recitals as to legal necessity, we think that it can be legitimately held that in substance the act was one on behalf of the deities in which both the shebaits concurred. It may be pointed out here that in Lakshmi Narayan v. Jagadish : AIR1938Cal541 , only the lease granted by Madhab carne up for consideration before this Court, and although it related to an 8 annas share of the debuttar estate which Madhab purported to hold as shebait, the lease was pronounced to be valid and binding on the deities by the learned Judges. For all these reasons, we do not think that we should be justified in reversing the decision of the Courts below on this point.
6. Mr. Chakravarty has contended further that the tenancy which is at present held by the defendants, is not one which was created by the two pottas mentioned aforesaid. It is pointed out that the lease granted by Madhab reserved a consolidated rental of Rs. 60 for the disputed premises as well as two other houses. The rent which is being paid by the defendants in respect of the house in suit is Rs. 56-4 a year or Rs. 4-11 a month. As this is referable only to a new contract of tenancy, the defendants, it is argued, cannot claim the status of permanent tenants on the strength of the two pottas. We do not think that there is much substance in this contention. It appears from the records that the three houses covered by Ex. (D) passed to different hands, and that there was a distribution of the total rent between the three houses, and the proportionate rent assessed for the disputed premises was Rs. 32-4 a year. This sum being added to the rent reserved by the lease of Guru Charan, gave the figure Rs. 56-4 and this is the rent which is being paid all along by the tenants without any. change whatsoever. We do not think that mere apportionment of rent amongst the different tenants which were covered by one lease, would by itself affect the permanent character or other incidents of the lease. The result therefore is that the appeal fails and is dismissed. The Order for costs made by the trial Court would stand, there would be no Order tor costs either of this Court or of the Court below.