1. This is an appeal from a decision of the Officiating Subordinate Judge, Second Court, Hooghly, dated 25th February 1929, by which he dismissed the plaintiffs' suit in which they prayed for a declaration that certain properties referred to in the plaint were the absolute debutter properties of the deity Sree Sree Iswar Lakshmi Janardan Jiu and that, as such, they could not be attached and put up to sale in execution of personal decree obtained against defendants 3 and 5.
2. The suit was instituted on 21st December 1923. The issues arising on the pleadings were settled on 4th June 1925, The case came on for hearing before the learned Judge on 21st February 1929. Some portions of the order sheet have been placed before us; but it is much to be regretted that it should have taken nearly six years to dispose of this suit in the trial Court.
3. It appears that Sree Sree Iswar Lakshmi Janardan Jiu is the family deity of a large number of persons who constituted a joint family named the Nandi Babus of Jamgram in the District of Hooghly. On or about 7th Aghrayan 1287 B.S. corresponding with 21st November 1880, the then members of the Nandi family executed an Arpannama or a deed of dedication in favour of the deity referred to above by which they dedicated certain properties described in the schedules to the said Arpannama as debutter and declared that thereafter they stood divested of all their rights and interest in the said properties. They further declared that they and their representatives and successors would not have any right, interest in or concern with the said properties and that those properties were not to be held liable for their debts or for the debts of their representatives or successors and that no person would be competent to encumber them, in any way. Provision was made for the appointment of shebaits in respect of the debutter estate and for the management thereof. This Arpannama or the deed of dedication is printed in the paper-book and will be found at p. 1, part 2. It was registered with the Sub-Registrar of Assurances in Pandua soon after its execution. In 1306 B. S., there was a second deed of dedication by the then members of the Nandi family of Jamgram. It appears that the previously dedicated properties were found to be insufficient to meet the expenses of the de-butter estate owing to various reasons which are fully set out in the second deed of dedication which is dated 2nd Baisakh 1306 B. S., corresponding with 14th April 1899. The members of the Nandi family declared that in order to meet the increased expenditure on account of the debutter estate it had become necessary to endow additional properties and they accordingly executed the second deed of dedication by which they dedicated the properties set out in the said deed and declared that they stood divested of all their rights in the said additional properties. They went on to declare:
Whatever we have in the said properties dedicated, the same is vested in the said Srea Sree Iswar Lakshmi Janardan Jiu. Exclusive of the expenses for the management of the properties dedicated, the annual profits are approximately Rs. 10,000. Out of the said profits. we shall get Rs. 8,000 per annum as shebaits. Save and except the same, the whole amount of the balance is due to the said Thakur and, as such, the same shall he spent towards the performance of the daily and periodical ceremonies of the said Thakur and the surplus amount shall be kept in the tehbil of the said Thakur.
4. Detailed rules of management of the additional properties in addition to the rules already laid down in the previous deed of dedication are then set out in the document which will be found at p. 17, Part 2 of the paper-book. Among the properties dedicated by the second document wore two businesses, one business in betel-nuts and the other business in spices, both being carried on in the town of Calcutta.
5. It appears that some of the Nandis contracted debts in particular, it appears that defendant 1 got a personal decree against defendant 3 who is one of the shebaits, and that he took out execution of the decree and attached l/48th share in the betel-nut shop alleging that the share in question belonged to defendant 3. Defendant 3 thereupon applied before the District Judge of Hooghly for being adjudicated an insolvent. Defendant 2 who is a pleader was appointed receiver under the Provincial Insolvency Act of defendant 3's properties and he was about to take possession of the said alleged share of defendant 3 in the said shop and to sell the same. Defendant 1 got a similar decree against defendant 5 and was about to proceed against his alleged interest in the said shop, whereupon defendant 5 also applied for adjudication as an insolvent and defendants, who is a pleader, was appointed receiver under the Provincial Insolvency Act of defendant 5's properties. The latter was about to take possession of defendant 5's said alleged share and to sell the same.
6. In the events which had happened, the plaintiffs who contended that the properties--immovable and moveable--comprised in the said two deeds of dedication were the absolute debutter properties of the deity commenced the present action praying for a declaration such as is mentioned above and for a permanent injunction prohibiting the sale of any portion of the debutter properties. Defendant 1, who is the person most interested stated in his written statement that the two deeds of dedication referred to above were not bona fide documents but were colourable transactions created with the object of tying up the properties mentioned in the schedules to those documents in the hands of the Nandi family, that these properties were never treated as debutter properties and that, in the circumstances, on a true construction of the said deeds, it should be held that he (defendant l) was entitled to proceed against the shares of his judgment-debtors in the said betel-nut shop and that no case for a permanent injunction had been made out by the plaintiffs.
7. The trial having begun learned Counsel for defendant 1 took a preliminary objection that, upon the construction of the second deed of dedication of 1306 B.S. the suit was not maintainable: see Order 144, in the order sheet. The learned Counsel's contention was that upon a true construction of the deed of 1S06 B. S., it might at best be said that a charge was created upon the properties mentioned in the second deed and as such they were liable to be sold subject to that charge, but that they are not the absolute debutter properties--inalienable and non-transferable. Learned Counsel further made it clear that he did not go to the length of saying that the endowments in question were colourable transactions. The learned Judge thought it proper to dispose of the suit on this preliminary point although objection thereto was taken by learned Counsel for the plaintiffs who urged that the suit should not be disposed of on this preliminary point but should be allowed to proceed in the ordinary way and that evidence should be taken.
8. The trial Judge was however of a contrary opinion and he accordingly proceeded to try two issues, namely:
(1) ' Whether the properties dedicated are absolute debutter properties of the deity or there is simply a charge created for the performance of the debasheba ' and (2) ' what is the true construction to be placed upon the second deed of dedication referred to in para. 2 of the plaint ?
9. The learned Judge held that the dedication was a partial or qualified one and that ''as such, it is alienable, it can be attached and sold subject to that charge,' whatever that might mean. The learned Judge added as follows:
So, defendant 1 may proceed to sell 1/48th share of the betelnut firm and the spice firm in execution of his decrees against defendants 3 and 5 and, as such, the plaintiffs have got no locus standi to stop such sales; in other words, they have got no cause of action and this suit is not maintainable and should be dismissed on this preliminary ground alone. The two issues are thus disposed of. I should here make it clear that the first deed of endowment of 1287 S.S. was not taken into account now and no property of that deed was attached or was going to be sold.
10. On appeal it has been contended before us that the learned Judge of the lower Court was wholly wrong in the procedure adopted by him and in his construction of the second deed of dedication and that he overlooked entirely the fact that the second deed of dedication was supplementary to the first deed. It is further argued that, in any event evidence should have been taken of surrounding circumstances including the income of the properties during the years which followed after the second deed of dedication and the expenditure and disbursements on account of the debutter estate and that the learned Judge should have taken into his consideration the fact of the possession of the deity for a period of nearly 31 years and the exclusion during the said period of the members of the Nundi family from participation in all profits arising from the dedicated properties save and except to the extent stated in the second deed of dedication. Lastly it is said on behalf of the appellants that in any event the ease should be remitted for retrial on questions of law as well as of fact, the trial before the learned Officiating Subordinate Judge, Second Court, Hooghly, having been no trial whatsoever. Learned Counsel on behalf of the appellants drew our attention to the fact that from time to time in the trial Court a large number of documents had been filed and that defendant 1 who was the real contesting defendant had taken inspection thereof and that from these documents it appeared that it was not the case that the major portion of the income of the dedicated properties had been appropriated by the shebaits as alleged by defendant 1.
11. Now, there can be no doubt that the mere execution of a deed, although it may purport on the face of it to dedicate property to an idol, is not enough to constitute a valid endowment. It is necessary to the validity of a deed of endowment that the executant should divest himself of the property dedicated. Whether he has done so or not is to be determined by the subsequent acts and conduct of the party or parties. For instance, if the profits of a certain dedicated property are appropriated by the executant to his own use and not spent for the worship of the idol and his subsequent dealings with the property show that he did not intend to create an endowment the dedication will be held to be inoperative and the property cannot be treated as debutter, that is, as belonging to the idol. Where however the subsequent acts and conduct of the parties show that, as a matter of fact, the profits of the property have been utilized in the performance of the debasheba in accordance with the rules laid down in the deed of dedication, a contrary conclusion may be drawn. Further, it is to be remembered that the mere fact that 'the members of the settlors' family are nominated shebaits and that they are to be remunerated out of the income of the property is no ground whatsoever for [holding that the dedication is not real provided that the remuneration is reasonable having regard to the income of the property.
12. In all these cases, the question is dependent for its solution on evidence to be adduced by the parties. It is true that the question whether the dedication is a complete or a partial one may be decided on the construction of the document. The question is this: Whether any beneficial interest is reserved to any person, and, if so, what is the nature and extent of the beneficial interest so re-'served? Is it a mere charge or trust in favour of the idol or whether the property alleged to have been dedicated is property which is descendible to the heirs of the settlor? If it is the latter, then it is only a partial dedication that is, a dedication of property alienable and partible and heritable in the ordinary way but subject to a charge in favour of the idol. In the present case, the course that has been followed by the learned Subordinate Judge is one which we are bound to strongly disapprove. He has apparently construed the second deed of dedication upon the basis of one clause only without adverting to the other terms and clauses bearing thereon and connected with it and without taking into consideration the provisions of the document as a whole. It should further be borne in mind that the second deed of dedication is supplementary to the previous one. The Subordinate Judge has paid no attention to this, It is clear from the second deed of dedication that the income of the property was to be apportioned between the maintenance of the shebaits and the performance of the debasheba in the proportion of 8,000 to 2,000 if the income came up to Rs. 10,000; but if the income was less than Rs. 10,000 then there would be proportionate reduction of and in the maintenance amount of Rs. 8,000.
13. Further, it is clear that if the income was above Rs. 10,000 then the whole of the surplus, after defraying the expenses of the maintenance amounting to Rs. 8,000, would go to the debasheba. It is reasonably clear that the trial Judge did not at all advert to the fact that the second deed of dedication showed that under the terms of that document Rs. 8,000 was the maximum to be appropriated for the maintenance of the she-baits and that it was liable to be reduced in case of diminution of the income below Rs. 10,000. No limit was placed on the amount which could be appropriated for the debasheba. In the two deeds of dedication referred to above, the language used is clear and express and it shows that the ownership of the properties was fully and finally conveyed to the deity without reservation of any rights whatsoever and that the whole corpus of the estate was given to the idol--the executants, subject as above, entirely divesting themselves of all their rights as proprietors of the properties described in the schedules to the two deeds. The construction of the second deed of dedication could not, in our opinion, be undertaken without at the same time considering the effect of the earlier deed. In those circumstances although we are not able to express an opinion on the facts, because the facts have not been investigated and explored, it is clear that the learned trial Judge was completely in error in disposing of the suit in the manner in which he has clone without taking into his consideration evidence which was available for the purpose of showing the subsequent acts and conduct of the parties and the surrounding circumstances.
14. We are of opinion that a suit of this nature having regard to the pleadings in the case, cannot safely be disposed of by taking an isolated point of law and basing the adjudication on the suit itself upon a partial examination of the contents of one document. The whole trial has been unsatisfactory and we regret this conclusion all the more because of the time which has already been wasted over this litigation. But we are unable to approve of the way in which the suit has been disposed of and, in the view of the matter which we have taken, we have no other alternative, but to set aside the judgment and decree complained of and direct that the suit be remitted to the Court of first instance to be tried afresh and by a Judge other than the learned Judge who tried the case on the first occasion. The appellants must have their costs of this appeal to be paid by defendant 1. The costs of the lower Court will abide by the result.