1. The properties in suit belonged to one Umacharan Roy. He died leaving a will the material portion of which is as follows:
I dedicate all my ancestral and self-acquired immoveable and moveable properties to my family deity Sree Sree Iswar Dayamayi Thakurani. For the present my wife, Srimati Kamala Sundari Thakurani and my son, Sriman Durga Prosad Roy shall go on managing the said properties. Out of the profits of the said properties the managers (Sarbarakars) shall maintain the deities, Sri Sri Iswar Dayamoyi, Sri Sri Iswar Dasabbhuja and all my usual annual festivities and the surplus profits shall be enjoyed in equal shares by my wife, the said Kamala Sundari Thakurani, and my sons Sriman Durga Prosad Roy and Kalika Prosad Roy and Sriman Karuna Kumar Roy, the minor son of my eldest son, the late Kishory Mohan Roy, and the manager (Sarbarakar) shall be bound in every way to bring up the minors Sriman Kalika Prosad Roy and Sriman Karuna Kumar Roy during their minority. Be it known that the said, Durga Prosad Roy or Kalika Prosad Roy or Karuna Kumar Roy, shall not be competent to gift away, sell or alienate any portion of the said properties, nor shall they be able to put up to auction or sell any of these properties for their debts.
2. Probate of this will was taken by Kamala Sundari and Durga Prosad. They got their names registered as Shebaits of the deity in respect of all the revenue paying estates. Defendant 1 obtained a decree for money against Durga Prosad and Kalika Prosad defendants 2 and 3, and in the execution of the decree attached these properties. The idol Dayamoyi Thakurani through the Shebait Kamala Sundari preferred a claim under Order 21, Rule 58, Civil P. C. This claim was disallowed. She therefore raised the present suit under Order 21, Rule 63, Civil P. C., for a declaration that the properties in suit are debuttar properties and are not liable to attachment and sale. She obtained an injunction from the Court restraining defendant 1 from selling the property pending the hearing of the suit but before the order of injunction was communicated to the executing Court the properties were sold and purchased by defendant 4. The defence of defendant 4 is that the disputed properties are not debuttar, that they are the secular properties of defendants 2 and 3 which they had inherited from their father and that they are liable to be sold in execution of the decree obtained against them. He also pleaded that he had obtained possession of the lands purchased by him at the auction sale and consequently Section 42, Specific Relief Act, was a bar to the present suit.
3. The trial Judge decreed the suit. He declared the properties to be absolute debuttar and not liable to be sold in execution of the decree obtained by defendant 1 against defendants 2 and 3. He also held that plaintiff was in possession of the disputed properties and was not dispossessed by defendant 4 after the latter obtained symbolical possession through Court. Defendant 4 took an appeal to the lower appellate Court. The learned Additional District Judge has come to the conclusion that the plaintiff has not been dispossessed by defendant 4, that by the will the disputed properties were made absolute debuttar of the idol and were not liable to be sold in execution of the decree against defendants 2 and 3. He accordingly dismissed the appeal. Hence this second appeal by defendant 4. The point for determination in this appeal is whether the disputed properties are liable to be sold in execution of the decree obtained by defendant 1 against defendants 2 and 3.
4. Now if by the terms of the will of Uma Charan there was a complete or absolute dedication to the deity the properties are not liable to be sold. If on the other hand by the will only a charge for sheba of the deity and other usual annual festivities were created on the properties by the will the right, title and interest of defendants 2 and 3 subject to that charge are liable to be sold. The question in this case therefore ultimately resolves itself into a question of the construction to be put upon Umacharan's will. The first point which arises on the construction of the will is whether according to the true intent of the will the deity for whom the properties in suit was granted was intended to take the property absolutely. From the terms of the will quoted above it appears that the will begins with the dedication of the properties to the idol. The testator then appoints his wife and his son Durga Prasad, the manager or shebaits, and directs that out of the income of the properties dedicated the expenses for the maintenance of the deities mentioned in the will and for performance of all his usual annual festivities should be met first and the surplus is to be enjoyed by the members of his family in equal shares. He then prohibits his sons and grandsons from alienating the properties. Although the will purports to begin with an absolute gift in favour of the idol its subsequent provisions relating to the disposition of the surplus income to the members of his family cut down this absolute gift. In Jadunath Singh v. Thakur Sitaranji 1917 P O 177, Viscount Haldane, while explaining the decision of Sir George Turner in Sonatun Bysack v. Jagat Sundari (1859-61) 8 M I A 66, observed as follows:
Although nominally there was a gift at the beginning to the idol, that gift was so cut down by subsequent disposition as to leave it clear that the subsequent disposition ought to prevail, rather than the earlier one and that consequently there was no gift to the idol so as to make the property pass an absolute and entire interest in its favour.
5. The intention of the testator as expressed in the will before us taken as a whole was not to apply the whole income of the estate for the benefit of the idol. We are therefore of opinion that by the provisions of the will the expenses for the maintenance of the idols and other usual annual festivities which were being carried on by the testator at the time of his death form a burden upon the properties left by him and that the properties were not made absolute debuttar by the will. The next question that arises is whether the dispositions in favour of defendants 2 and 3 by the will created such an interest in them as are liable to be sold in execution of a decree against them. Applying the principle laid down by the Judicial Committee in the case of Ashutosh v. Durga Charan (1878-79) 5 Cal 438, to the directions in the will before us that the surplus income is to be enjoyed by the members of the family in equal shares, we are of opinion, that this direction amounts to a bequest of the surplus to them for their own use and benefit. There are no words in the will to indicate that the testator intended to limit this bequest to the life-time of defendants 2 and 3. It is true that the testator has declared that defendants 2 and 3 or Karuna Kumar, shall not be competent to sell or gift away or alienate any portion of his properties. But these directions being inconsistent with the interest given were wholly beyond the power of the testator and must be rejected as having no operation: Ashutosh v. Durga Charan (1878-79) 5 Cal 438, cited above. This being so, under the will of Uma Charan, defendants 2 and 3 obtained a share in the properties in question which after satisfying the expenses actually incurred for the maintenance of the idols and the performance of the usual annual festivities may have some value and was therefore liable to be sold in execution of the decree obtained by defendant 1 against them. Defendant 4 has therefore acquired by his purchase at the Court-sale the right, title and interest of defendants 2 and 3 in the disputed properties under the will.
6. The learned advocate for the appellant contended that the share of defendants 2 and 3 was one half. This was not disputed by the respondent. The expenses with which these properties are charged are incurred for the maintenance of the idols mentioned in the will and certain usual annual festivities by which apparently the testator meant the periodical pujas and the customary sradh which, according to the finding of the trial judge, used to be performed by him during his lifetime and which are now being performed by the shebaits. The trial Judge did not allow any evidence as to the actual amount spent in these connections. This amount will have to be ascertained in some future proceeding. The result therefore is that the appeal is allowed and the decrees of the Courts below are set aside. It is declared that the effect of the will of Umacharan was to charge the properties in suit with the payment of such sums of money as might be necessary to defray the expenses which might be incurred by the managers or shebaits of the idol for the daily worship of the idols mentioned in the will in the manner in which such service was performed at the time of the death of the testator and with the expenses which might from year to year be incurred by them in performing the usual annual ceremonies which were being performed by the testator in his lifetime in the manner in which such ceremonies were being performed at the time of his death. It is also declared that defendant 4 has acquired by his purchase at the auction-sale the right, title and interest of defendants 2 and 3 in the disputed properties under the terms of the will as construed by us. The parties will bear their own costs throughout this litigation.