1. This is an appeal on behalf of the plaintiffs and it arises out of a suit commenced by them under Order 21, Rule 63, Civil P.C., following an adverse order in a claim case. The material facts may be shortly stated as follows: There were two money decrees obtained against the minor defendants as heirs and legal representatives of their father, Ashutosh Roy, on 19th June 1933 - one by plaintiff 1 alone and the other by all the three plaintiffs together. Both these decrees were put into execution, in Execution Cases Nos. 81 and 82 of 1936, and the decree-holders got an order for attachment of certain properties in the hands of the judgment-debtors, including the properties in suit. Thereupon two claim petitions were filed - one on behalf of Idol Sarat Kali and the other by Idol Joy Kali, both the deities being represented by the judgment-debtors as shebaits, for release of the proper, ties described in Schedules 1 and 2 of the present plaint, on the allegation that they were debutter properties owned and possessed by these two deities, and hence could not be attached and sold in execution of personal decrees against the shebaits. Both the claims were allowed and the plaintiffs decree-holders thereupon commenced this present suit for a declaration that they were entitled to attach and sell these properties in execution of their decrees. The two deities, who were made defendants 1 and 2 in the suit, were represented by the judgment-debtors as shebaits. The judgment-debtors were also made parties in their personal capacity. Both the Courts below have dismissed the plaintiffs' suit and they have come up on appeal to this Court.
2. For the purpose of proving that the properties in suit were debutter properties, the shebaits relied upon two documents; one was a will executed by Bam Kishore, a maternal ancestor of Akshoy, the father of Ashutosh, in 1274 B.S. by which the properties described in Schedule 1 to the plaint were alleged to have been dedicated to Idol Sarat Kali; the other was an arpannama created by Akshoy himself shortly before his death in 1323 B.S. by which a debutter was made in favour of deity Joy Kali in respect to the property described in Schedule 2 to the plaint. The Courts below were of opinion that both these documents were genuine and bona fide deeds and that they created a valid and absolute debutter in respect of both the properties. It is the propriety of these findings that has been challenged before us in this second appeal.
3. With regard to the will of Rarn Kisore, Mr. Pakrashi, who appears for the appellants, has contended before us that even if it was a genuine document it did not create either a valid or an absolute debutter. It is said, in the first place, that there was no deity by the name of Sarat Kali; it was the name of Goddess Durga herself who is worshipped once every year during the autumn months, and as there was no permanent image of the Goddess, who is only worshipped for four days in the year, no dedication of property to such deity was permissible or valid in law. It is argued, in the second place, that under the will of Rarn Kishore the property was not set apart for the worship of Sarat Kali alone; it was to be used for a variety of purposes including the daily worship of the household deities the performance of the Sradh of the ancestors, and gifts to spiritual preceptors and Brahmins, etc., and it cannot be said that the property was owned by Sarat Kali. The third argument is that in any view of the case what was created was not an absolute or complete debutter, but a mere charge for the expenses of worship of Sarat Kali and the performance of other religious and charitable duties. As regards the arpannama created by Akshoy, the learned advocate contends that it failed as a deed of gift as defined in the Transfer of Property Act, and as it was neither stamped nor registered during the life-time of the donor there was no acceptance of the property by the donee prior to the death of the donor as is necessary under Section 122, T.P. Act. We will deal with these points in their proper order. So far as the first point is concerned, it is perfectly true that the deity Sarat Kali has no permanent image, it is the Goddess Durga that is worshipped by that name in the autumn season every year; and, as is well known, an earthen image of the deity is prepared each year and after the ceremonies, which last for four days, are over, it is immersed in a river. It cannot be said, however, that a permanent image of a deity is necessary before a valid gift can be made under Hindu law. The same question was raised in Asita Mohon v. Nirode Mohon ('17) 4 A.I.R. 1917 Cal. 292 and a Division Bench of this Court answered it in the following manner:
The absence of a permanent image has also been commented upon. Such an image ia not absolutely essential for dedication to a Thakur. The Durga Puja is a periodical festival in Bengal and clay images of the Thakur are built every year and thrown into a river after the Puja is over. We agree with the trial Court that Harishpur is debutter property.
4. This is quite in accordance with what, was laid down in the Full Bench case in Bhupati Nath v. Ram Lal ('10) 37 Cal. 128. it was observed by more than one learned Judge in that case that according to Hindu Scriptures the god by whatever name he is adored is ever existent and whether a particular image did or did not exist at a particular time was not at all material. 'It is immaterial' so runs the judgment of Mookerjee J. 'that the image of the deity has not been established before the death of the testator or is periodically set up and destroyed in course of the year.' One of the reasons put forward by Chatterjea J. in that case in support of the decision of the Full Bench was that gifts of property for the purpose of periodical Pujas of Durga, Kali, etc., or for the celebration of periodical festivals were from very ancient times given effect to by our Courts. 'If a gift in favour of the deity whose image has to be prepared and destroyed periodically' thus observed the learned Judge, 'is valid, I do not see any reason why a gift in favour of a deity whose image is to be prepared once and for all, except for any reason for reconstruction coming to pass, should be invalid.' The first point raised by Mr. Pakrashi must therefore be overruled.
5. To appreciate the second point raised by him it would be necessary to refer to the relevant clause in the will of Bam Kisore where the bequest in favour of Sarat Kali was made. The provision is contained in para. 2 of the will which reads as follows:
The great Puja of the Goddess in the Autumn season and the celebration of Syama Puja on the Mahastami day is being performed by me since 1235 B.S. Further, unless immovable properties having income commensurate with the expenses of the daily worship of the deities and those of Sradh, etc., are set apart it would be difficult for the Bjmali heirs to perform these rites properly. Therefore, I fix hereby the property mentioned in Schedule 2, and with the income of this property the aforesaid rites as well as the annual gifts to the families of the spiritual preceptor and the priest as also to pious Brahmins should be made.
6. It would be clear from this passage that the property mentioned in Schedule 2 of the will, which corresponds to Schedule 1 of the present plaint, was given not merely for the worship of deity Sarat Kali, but it was to be used for several and other religious and charitable purposes expressly specified in the will. Of course, the household gods, for whose daily worship the debutter was created, were not mentioned by name, and the provision regarding gifts to pious Brahmins priests, and spiritual preceptors, etc., was also very general. The document was certainly not drawn up artistically, and the view put forward by Dr. Basak that the named deity Sarat Kail was to hold the property subject to the obligation of meeting the expenses of the household idols and the Sradh of the ancestors, etc., though not altogether untenable, obviously implies an undue straining of the language used by the testator. The document, however, is an ancient one and we have this further fact in support of Dr. Basak's contention that for a period of 70 years since the execution of the document, the deity Sarat Kali was the recorded owner of this property in the Collectorate as also in the zamindary papers. The plaintiffs themselves were co-owners in respect to this property, and to their knowledge the property was all along treated as belonging to Sarat Kali. But even if we do not accept this view, the only other conclusion that one can arrive at is that there was no gift of the property to any particular deity in the proper sense of the word, but that the testator created a trust for certain specific religious and charitable purposes. The property would in that event be regarded as a trust property in the, hands of the legal representatives, and it would be equally incompetent to the plaintiffs' decree-holders to proceed against it for satisfaction of a decree obtained against the heira personally.
7. Mr. Pakrashi argues that the claim under Order 21, Rule 58, Civil P.C., was preferred in respect of this property on behalf of deity Sarat Kali alone and the scope of a suit under Order 21, Rule 63 is only to determine whether that particular claimant has any right or not. This contention is manifestly unsound. The person who is aggrieved by an adverse order in a claim case files the suit under Order 21. Rule 63 of the Code to establish the right he claims to the property in suit. The right which the plaintiffs assert is that the property belonged to the judgment-debtors and was consequently saleable in execution of the decree obtained by them. If it is held that the property is trust property and does not belong to the judgment-debtors personally then also the plaintiffs' suit must fail. The deity Sarat Kali in that event would be regarded as one of the beneficiaries under the trust, and it is enough that one of the beneficiaries preferred a claim under Order 21, Rule 58 of the Code and disputed the alienability of the property which was attached by the decree-holder. So in any view of the case the plaintiffs' contention must fail.
8. The next point raised by Mr. Pakrashi is that no absolute debuttar was created by the will of Ram Kisore and at the most the expenses of the worship of the deity and the performance of other religious duties were made a charge upon the property. Mr. Pakrashi lays stress upon the fact that there were no words in the will signifying gift or dedication of the property to any of the deities, and there was no indication also that the entire income of the property was to be spent for the particular religious purposes. In para. 2 of the will quoted above, the testator has used the word 'nirdiata' which means fixed or set apart, but para. 16, which is the penultimate paragraph in the will, clearly says that the testator's son and grandson 'will as shebaits look after and arrange for the cultivation and settlement and disposal, etc., of the properties that have been made a gift of for the purpose of the performance of the worship of the deities in the manner aforesaid.' This proves that there was in fact a gift of the property to the deity or deities and the son and grandson of the testator were to hold it as mere Shebaits of the latter. The words 'kharacher pariman' which mean commensurate with the expenses used in para 2 of the will set out above indicates, in our opinion, that the entire income of the properties is to be used for religious purposes, and the heirs should not have la right to appropriate the residue, if any, after defraying the expenses. The testator certainly did not contemplate that any surplus would be left. Our conclusion therefore is that the will of Ram Kisore did create an absolute debuttar in respect of the property No. 1.
9. We now come to property No. 2 with regard to which there is the arpannama executed by Akshoy in August 1916. It has been found as a fact by both the Courts below that the arpannama was a bona fide document and was not executed to delay or defeat the creditors of the grantor. The document was executed just two days before the death of Akshoy, and as no stamps could be procured at that time it was written on plain demi paper and signed by the donor. The document was stamped after the death of Akshoy under orders of the Collector of the district and was thereafter duly registered, the document being presented for registration by Ashutosh the son and heir of Akshoy. Mr. Pakrashi argues that the arpannama was neither a complete nor a legally valid document when it was signed by Akshoy without the requisite stamps being attached to it, and as Akshoy died before the deed was completed there could not be an acceptance by the donee during the lifetime of the donor as is required under Section 122, T.P. Act. We do not think that we can accept this contention as sound. Failure to stamp a document which has got to be stamped under the provisions of the Stamp Act does not affect the validity of the transaction embodied in the document; it merely renders the document inadmissible in evidence : vide the case in Joyman Bewa v. Easin Sarkar ('26) 13 A.I.R. 1926 Cal. 877.
10. Under Section 35, Stamp Act, with the exception of certain specified classes of instruments, all such unstamped or insufficiently stamped documents may be admitted in evidence on payment of the requisite stamp and penalty prescribed therein. In this case the stamps payable under the Act were actually paid by Ashutosh after the death of the donor under orders of the Collector and it was a duly stamped document when it was presented for registration. No exception can be or has been taken to the validity of the document as it now stands. The donee had done all he could possibly do to perfect the transaction, and we cannot say that the gift was incomplete at the time of the execution of the deed simply because certain fiscal requirements were not complied with. It is not disputed that the deed was delivered over to the donee immediately after execution and it would be sufficient acceptance of the transfer by the donee under Section 122, T.P. Act. The deed therefore became effectual from the very moment of its execution subject to its being stamped and registered as required by law: vide in this connection the case in Kalyana Sundaram v. Karuppa Mooppanar . Thus, all the contentions raised by the appellants fail and the appeal is dismissed with costs.