1. This is an appeal by the plaintiff in a suit for recovery of possession of land upon establishment of title as Shebait. The Subordinate Judge gave the plaintiff a decree which has been reversed on appeal by the District Judge.
2. The subject-matter of the litigation admittedly belonged to one Gobinda Chandra Ganguly, who, shortly before his death, which took place on the 29th January 1897, made testamentary disposition on the 29th October, 1896. The names of the members of this family appear in the following genealogical table:
Gobinda Chandra Ganuly.w. Taramani.| -----------------------------------------------------------| | | | |Kshetra Moha. Bhubanmohan. Chandramohna Rajkrishna Annada Debi.Deft. 4 | (Plaintiff). d. 19-7-1918 m. Bhairab| Chandra| |----------------- || | |Bama Hem Jnanendra NathCharan Chandra BanerjeeDeft. 2 Deft. 3 Deft. 1
3. The testator had a garden in the northern suburb of Calcutta, which covered an area of more than 12 bighas. He had a map of the garden prepared, which was mentioned in his last will. He gave the portion marked D, to his eldest son Kahetra Mohan, B to his second son Bhuban Mohan, A to his third son Chandra Mohan and C to his youngest son Raj Krishna. The portion marked E was called Panchabati Debutter, and the passage marked F was described as appurtenant to the Debutter as a passage for ingress and egress from the public road. He appointed Raj Krishna as full Shebait of the Debutter in the following terms:
(As regards) the Iswar Debutter Panchabati and brick-built house (containing) two bighas (of land situate) on the east side of the same (and) which has been marked (E) and coloured in neutral tint in the accompanying map, and the passage (measuring) two kathas (and) leading to the Sadar Road from the said Debutter house on the western side, which (passage) has been marked (E) and coloured light red, my youngest son Sriman Raj Krishna Gangopadhyay Babaji shall be full Shebait of the said Debutter (property) and shall enjoy (and) possess (it) down to (his) wife and son, son's son and so forth in succession. The said Shebait shall, if necessary, give unto my other three sons Sriman Kshetra Mohan Gangopadhyay, Sriman Bhuban Mohan Gangopadhyay (and) Sriman Chandra Mohan Gangopadhyay nine kathas of land, being three kathas to each, on the east side, for residential purposes.
4. The wife of Raj Krishna pre-deceased him and he died childless. On the 18th January 1919, the plaintiff instituted the present suit for possession of the Debutter property, on the allegation that the Shebaitship had upon the death of Raj Krishna, vested in himself and Kshetra Mohan and that as Kshetra Mohan had not joined as plaintiff, he had been made a pro forma defendant. Kshetra Mohan died on the 9th January, 1920, during the pendency of the suit in the Primary Court, and his executor was brought on the record in his place. The contesting defendants repudiated the claim and set up title under a will alleged to have been executed on the 11th January, 1918, by Raj Krishna who had made a testamentary disposition of his private properties. The question, consequently, arose whether the disputed property was secular or debutter, for if the property was validly dedicated by the original owner, it could not be affected by the will of his son. The Courts below have taken divergent views upon this matter. I am of opinion that the conclusion of the District Judge cannot be supported.
5. The Subordinate Judge found on the evidence - and his finding has bean accepted by the District Judge, - that the disputed land was dedicated by the proprietor as a place of worship and was regularly used by him for that purpose. The evidence shows that the land was consecrated, holy trees were planted and a Vedi (raised brick-built platform) was erected. The founder used to go to this Panchabati every day, performed his Puja Ahnwik there seated on the Vedi, and engaged in pious and religious meditation. On these facts, there is no room for controversy that there was a valid religious dedication.
6. Special religious efficacy is ascribed in the sacred books of the Hindus to selected groupings of plants; one of these is called the Panchamra, while another is known by the name of Panchabati. The Panchamra is described in the Mahabharata quoted in the Danakhanda of the Chaturbarga Chintamani of Hemadri, Chapter XIII, page 1032 (A.S.B.) and in the Sabdakalpadruma. The sacred group Panchabati is described in the following passage of the Skandapurana; which is reproduced in the Sabdakalpadruma from the Vratakhanda of the Chaturbarga Chintamani of Hemadri. [Here his Lordship quoted the passage as it is in the original.]
7. The group consists of the (1) ashwattha. (2) vilaw, (3) bata, (4) dhatri, (amlaki) and (5) asoka; these are to be planted to the east, north, west, south and south-east respectively of a vedi or raised platform in the middle, four cubits in size and of beautiful shape; when the trees have grown for five years the place has to be consecrated and religious austerities practised on such a spot are fruitful of endless rewards. A bigger type of this sacred grove is described in the same work, under the name of vrihat-Pancha-bati, as composed of a (1) vilaw tree placed in the centre, single specimens of the (2) vilaw, amlaki and ashwattha in the four cardinal directions, a vata tree at each of the four corners, and a circle of twenty-five asoka trees surrounding the whole; the maker acquires the prowess of Indra; he is a master of incantations in this world and obtains salvation in the next.
8. The ceremony of Pratishtha or consecration for trees and groves is described in the Matsyapurana to be in its preliminaries the same as that for water reservoirs; Hemadri, Danakhanda. Chapter XIII, page 1048 and Ashwalayan, Grihyasutra, Parishistha page 344 (A.S.B.). The erection of the Mandap, the appointment of priests and the collection of materials is the same as in the case of the consecration of a reservoir. The trees which are the subjects of the ceremony are to be irrigated with holy water, beautified with rice flour and alaktaka, adorned with garlands and covered with cloths. The ear-boring ceremony is then to be performed for each with a golden needle and eollyrium applied (as if to their eyes) with a golden pencil; and imitation fruits of silver placed upon the platform at the foot of each tree. A kalasa properly filled is to be installed for each, and homas offered for Indra and the other Lokapalas or guardians of the quarters of the globe and also in honour of 'Lord of the Forest 'Vanaspati, which is specially introduced because of the trees. Then a milch cow, covered with white cloths, ornamental with gold, specially in her horns, and accompanied by a milking vessel of bell-metal, is to be released in the midst of the trees, with her face to the north, so that naturally she proceeds in that direction. The worshipper then is bathed by the priests from the auspicious waters of the installed water-pots to the accompaniment of music and auspicious songs. Having so bathed and attired himself in white cloths, the worshipper honours the priests with appropriate presents. The ground is sprinkled for four days with milk and a homa performed with ghee, barley and black sesamum. On the fourth day there is held a great festival and presents again offered to the priest. He who performs the Vrikshotsava or 'Tree festival', according to the above rule has all his desires gratified and enjoys eternal exaltation. The man who has consecrated even a single tree, dwells in heaven till three ayutas of Indra. He procures the salvation of past and future generations, and obtains final emancipation from which there is no return.
9. A place so dedicated for worship ceases to be private property according to Hindu religious ideas, and the case of reservoirs is included in the rule : see Jagannath Digest tr. Colebrooke Book III Chapter I Section 2, pl. 101; see also Birendra Kisor v. Akram Ali  39 Cal. 439, Bhudeb v. Kalachand  34 C.L.J. 315, Krishnayya v. Subbaya : (1911)21MLJ784 . In this contention, it is important to bear in mind that to effect a valid dedication, it is not necessary to establish the image of an idol; all that is essential is that the religious purpose should be clearly specified and the property intended for the endowment set apart for the object : Bhuggobutty v. Guru Prasanno  25 Cal. 112, Bhupati Nath v. Ram Lal  37 Cal. 128, Chandi Charan v. Haribola (1919) 46 Cal. 951, Asita Mohan v. Nirod Mohan (1916) 20 C.W.N. 901. This test is fulfilled in the case before us, and there is no room for any suggestion that the dedication was void for vaguenesss, as happened in the case of Runchor Das v. Parbati Bai (1899) 23 Bom. 725, where the bequest was to 'Dharam'. We cannot further ignore the fact that the proprietor designated the property as Iswar Debutter Panehabati. No doubt as pointed out in Madan Mohan v. Manmatha Nath (1915) 21 C.L.J. 42, the designation Debutter is not conclusive though valuable evidence of the intentions of the founder. Madhab Chandra v. Sarat Kumari (1910) 15 C.W.N. 126. On the other hand we must bear in mind that if there has been a valid dedication, a breach of trust on the part of a shebait or even of the donor himself will not invalidate or annul the trust or alter the original nature of the grant. In the words of Sir Robert Phillimore in Jugerut Mohini v. Sakhimani (1872) 14 M.I.A. 289, a former abuse of trust cannot be pleaded against a trustee who seeks to prevent a repetition of abuse, even if he himself were formerly implicated in the same indefensible courses against which he is seeking to protect property. The misconduct of the trustees cannot be put forward as a valid reason for holding that the author of the trust had no intention of acting seriously or for determining his intention at the time when he founded the trust. If property has been set apart for religious purposes, that constitutes dedication, and such property must be treated as partaking of a trust or religious endowment, though the mere erection of a temple and the planting of a grove may not without consecration amount to such a setting apart as constitutes dedication; Anath Nath v. Mackintosh 8 B.L.R. 60, Piran v. Abdul Karim  19 Cal. 203, Dakni v. Rahimunnessa  16 All. 412, Ram Brahma v. Kedar A.I.R. 1923 Cal. 60, Ram Dass v. Basanti A.I.R. 1922 All. 519. In my opinion the facts established in the present case show that there was a dedication of the land in suit for religious purpose and a valid dobutter was thereby created. In this view, the appeal must be allowed, the decree of the District Judge set aside and that of the Subordinate Judge restored with costs in all the Courts.
10. I agree that Gobinda Ganguly intended a full and complete dedication and that he did everything necessary to effect this. I see no objection in law to the validity of the dedication and agree in allowing this appeal with costs here and below as proposed.