D.N. Mitter, J.
1. This is an appeal by Anukul Chandra Haldar, one of the claimants in proceedings before the President, Calcutta Improvement Tribunal, arising out of acquisition of certain premises in Mudiali Road for a project of the Improvement Trust known as a Street Scheme No. 33, Southern Avenue, Section 1, in Ward No. 27, Calcutta Municipality. The President has awarded the entire compensation money in accordance with his award which comes to about Rs. 3,54,000 odd to claimant No. 1 (a) Gurupada Haldar and his wife claimant No. 1 (b) Sukumari Debi. It appears that the present appellant Anukul Chandra Haldar put in a statement of claim under Section 9, Land Acquisition Act, before the Land Acquisition Collector, Calcutta, on 30th May 1932 in which he alleged that the famous goddess Sri Sri Iswari Kali Mata Thakurani, and the gods Sri Sri Iswar Shyam Roy Thakur and Sri Sri Iswar Nakuleswar Thakur are the sole owners and proprietors of the premises proposed to be acquired. He stated in that petition that he and his uncle (his father's step-brother) Gurupada Haldar are the joint shebaits of the said gods and goddesses. Upon this he claimed for a joint compensation for the acquisition of this property alleging that the said premises being debuttar property the claimant and the said Gurupada Haldar are not competent to alienate the same. Upon this a claim petition was put in by Srimati Sukumari Debi on 13th June 1932 in which she alleged that she was the Mourashidar of the premises in question and that her husband Gurupada Haldar was the superior landlord thereof. She claimed compensation for the acquisition of the said premises. Upon this the Land Acquisition Collector seems to have made a joint award of the compensation money, which has been awarded by the Collector, in favour of Gurupada Haldar, his wife Sukumari Debi, and the other claimants Nos. 1 (c) to 1 (g) who are the purchasers of the portion of the premises in question from both Gurupada Haldar and Sukumari Debi as well as in favour of the present appellant Anukul Chandra Haldar, the total compensation being Rs. 2,54,749-14-1. Gurupada and Sukumari were apparently not satisfied with the award made by the Collector.
2. A reference under Section 18, Land Acquisition Act, was made on behalf of Sukumari Debi in which she alleged that she was the Mourashidar of the premises which were sought to be acquired, under Gurupada Haldar; and she wanted an increased compensation. There were petitions for reference under Section 18 by some other claimants also. The learned President who dealt with these references came to the conclusion that the property that was sought to be acquired was the property of one Kenaram Haldar, Gurupada being his son by his third wife Hemangini Debi, and that the said property has been bequeathed in absolute right to Gurupada Haldar who had granted a Mokarari Mourashi lease in favour of his wife. The President held that there was merely a nominal charge for worship of the said deities on the property bequeathed by Kinuram to his son Gurupada in absolute interest. On the question of compensation the President came to the conclusion that the compensation awarded by the Collector was inadequate and that he increased it to the sum which has already been mentioned, namely Rs. 3,54,000 odd, to be divided between Gurupada and his wife Sm. Sukumari Debi. He rejected the contention raised on behalf of Anukul that the property sought to be acquired was debuttar property and that the same was inalienable. He held that the property was secular property and belonged to Kinuram who had full power of disposing of the same by his will.
3. Against this award of the learned President the present appeal has been brought by Anukul, and on his behalf two contentions have been put forward by the learned Advocate for the appellant. It has been contended firstly that on a proper construction of the Will of Kinuram Haldar, who died on 27th April 1894, it should have been held by the learned President that the premises sought to be acquired belonged really to certain deities who are named in the Will; that there was a bequest in favour of these idols; that therefore the property was inalienable and no portion of the compensation money should have been awarded either to Gurupada or to his wife Sukumari Debi. The second contention was that in any event under the provisions of Section 32, Land Acquisition Act (Act 1 of 1894), a certain sum of money should have been retained by the President and it should have been invested in approved securities seeing that in any event by the Will a charge was created on all the properties bequeathed by Kinuram Haldar for the purpose of the Sheba of the several deities mentioned in the Will. It becomes necessary therefore to examine the provisions of the Will which is printed at p. 102, part 2 of the paper book, and which has been marked as Ex. 2 in the case. The material portion of the will to which it is necessary to refer for the purpose of repelling the first contention of the appellant before us is as follows:
Excepting the properties described in the 2nd paragraph, I hereby bequeath all these moveable and immoveable properties, ancestral and selfacquired, and the Government Promissory Notes, and the bonded warehouse shares and the money lying in deposit in the Savings Bank and all the other (properties) which I have, to my son Sriman Gurupada Haldar born of the womb of my third wife; after my death Gurupada Haldar will become entitled to all my properties in absolute right, and shall enjoy the same down to his sons, grandsons and so on and heirs in succession; to that no objection on the part of anybody will be entertained (Clause 3). I bequeath by this Will to my said son Sriman Gurupada Haldar, in absolute right, all the Palas of Sri Sri Iswari Kali Thakurani and Sri Sri Iswar Nakuleswar and other (deities), to which I am entitled (Clause 4). Out of the income of the properties left by me, the expenses of the Seva of the Siva Thakurs established by me, viz. Sri Sri Iswar Kalyaneswar, Sri Sri Iswar Sarbeswar, Sri Sri Iswar Kasiswar, Sri Sri Iswar Anandeswar and Sri Sri Iswar Jogeswar and of the Sri Sri Iswar Syam Roy Thakur; Sri Sri Sri Iswari Kali Thakurani and Nakuleswar Thakur and other dieties established by my ancestors shall be borne. The executrix shall perform the Seva of the said Thakurs and Thakuranis; after her death my son Sriman Gurupada Haldar shall do the same down to his heirs in succession; my properties remain liable for the Seva of all these deities (Clause 5).
4. There can be no doubt having regard to the provisions of Clause 3 of the Will which have been just quoted that there has been an absolute bequest in favour of Gurupada Haldar of the properties mentioned therein. By the said clause all the properties which Kinuram died possessed of passed to Gurupada except the properties described in para. 2 of the Will, viz. 5 cottas of land within holding No. 66 in village Kalighat, Division 6, Sub-Division 1 and the legacy of Rs. 1,000 referred to in the same Clause 2 of the will. The contention that the property is debuttar is based on Clause 5 of the Will which has just been quoted in extenso. It is contended that the clause which gives absolute interest to Gurupada has practically been superseded by the subsequent clause, viz., Clause 5, where all the properties of Kinuram are made liable for the Sheba of these deities and reference has been made to Section 88, Succession Act of 1925, in support of this contention. We have no hesitation in rejecting this view of the construction of the Will which has been submitted to us, for it is absolutely clear from Clause 3 that there is a bequest of all the properties in favour of Gurupada Haldar, and Clause 5 should be so read as not to be in consistent with the earlier provisions of the Will in favour of his son. An endeavour should be made in construing the Will to reconcile the inconsistent clauses. But one can see nothing in Clause 5 to sustain the contention raised by the appellant that this clause gives any of the properties to any deity. There are no words in Clause 5 of the Will which can possibly lend colour to this contention that there is gift in favour of the idols, Clause 5 is absolutely clear. All that is stated is that it is the desire of the testator that out of the properties left by him the expenses of certain deities established by the testator as also of other ancestral deities of Kinuram should be met and for that purpose properties left by Kinuram should remain liable for the Sheba of those deities.
5. In other words properties left by Kinuram should be charged with the worship of these deities. The construction which the appellant contends for is directly opposed to what has been repeatedly laid down by their Lordships of the Judicial Committee in construing a Will of this kind. We may refer in this connection to the very early case in Sonatun Bysack v. Sreemutty Juggutsoondree Dossee (1859) 8 M I A 66, where it was held that even where a Hindu by will gave all his moveable and immoveable property to his family idol, and after stating that he had four sons, he directed that his property should never be divided by them, their sons or grandsons in succession, but that they should enjoy the surplus proceeds only, and the will, after appointing one of the sons manager to the estate, to attend to the festivals and ceremonies of the idol and maintain the family, further directed, that whatever might be the surplus, after deducting the whole of the expenditure, the same should be added to the corpus, and in the event of a disagreement between the sons and family, the testator directed, that after the expenses attending the estate, the idol and maintenance of the members of the family, whatever net produce and surplus there might be, should be divided annually in certain proportions among the members of the family; the bequest to the idol was not an absolute gift, but was to be construed as a gift to the testator's four sons and their offspring in the male line as a joint family, so long as the family remained joint, and that the four sons were entitled to the surplus of the property, after providing for the performance of ceremonies and festivals of the idol, and the provisions in the will for maintenance. The terms of the will in Sonatun Bysack v. Sreemutty Juggutsoondree Dossee (1859) 8 M I A 66 were much more favourable to the idol than in the present case.
6. There is no question of dedication to the idol in the present case. Besides, this clause creating a charge for the worship of the deities is preceded by the clause of giving the properties absolutely to the son of the testator. The construction of the provisions in the will in Sonatun Bysack v. Sreemutty Juggutsoondree Dossee (1859) 8 M I A 66 which was decided in the year 1859, came up for consideration by their Lordships of the Judicial Committee of the Privy Council in Ashutosh Dutt v. Doorga Churn Chatterjee (1880) 5 Cal 438, where it was held with reference to somewhat similar provisions of the will that the property was a secular property charged with the worship of ancestral deity. The learned advocate for the appellant very frankly admitted that the case Sonatun Bysack v. Sreemutty Juggutsoondree Dossee (1859) 8 M I A 66 was directly opposed to his contention in the present case. We have no doubt that the President rightly held that this property which included the acquired premises was secular property which it was open to Kinuram to dispose of by a will.
7. In this connexion it is important to remember the circumstance that shortly after the death of Kinuram Haldar an attempt was made by Ram Chandra Haldar the father of the present appellant to set aside the will on the ground that Kinuram had no disposing power over the properties which have been disposed of by the will and it appears that on 5th September 1894 a plaint was filed on the original side of this Court by Ram Chunder Haldar against Hemangini Debi executrix to the will of Kenuram and mother of Gurupada Haldar as well as against Gurupada who was then an infant for a declaration that the will was void and incapable of being given effect to and that the whole of the property which Kinuram died possessed of was debuttar and that Kinuram had no power of testamentary disposition over 'it, and that the same descended to the plaintiff and the defendant Gurupada Haldar jointly in the course of succession according to the Hindu law. It appears that on 4th March 1896 the plaintiff presumably finding it difficult to sustain his claim on the original side of this Court did not appear either in person or by counsel, and this suit was dismissed: see Ext. B. p. 121 of part 2, of the paper book.
8. It remains to consider the other contention as to whether the properties, the subject matter of the acquisition were not charged with the worship of the deities. The learned President while dealing with part of the case has said that there was a nominal charge for worship but notwithstanding that, Gurupada had full and unfettered right over it. There is no question that Gurupada had the right of alienation over the properties which are now the subject matter of compulsory acquisition under the Land Acquisition Act. At the same time if there is a charge for worship it is desirable that the monies that might be spent for these deities should be secured out of the compensation money awarded to Gurupada Haldar. We have been taken through the evidence as to what was spent by Kinuram for these deities and we have been referred to Ext. HH the account book of Kinuram Haldar for 1299-1300 B.S. and it appears that a very small sum used to be spent for the worship of 'Shiva'. The expenses are shown in the accounts printed at p. 68 onwards of the part 2 of the paper book. It may be that having regard to the passage of time the expenses at this date cannot be met at the said small sum. Taking into consideration the present condition of the prices of things we think that a sum of Rs. 10 per mensem would be sufficient to meet the expenses of the Sheba of the deities.
9. In other words the expenses would be Rs. 120 per annum and capitalizing that by twenty years we think that a sum of Rs. 2,400 or say Rs. 2,500 should be sufficient to meet these expenses. In that view we direct that out of the compensation money which has been awarded to Gurupada Haldar a sum of Rs. 2,500 be detained by the President of the Improvement Tribunal and Gurupada Haldar might be asked to deposit in approved Government securities of the real value of Rs. 2 500 with the President to secure the charge of worship and the interest is to be paid to Gurupada who has been entrusted with the worship of the deities under Clause 5 of the will of Kinuram and that interest of the securities which will be deposited by Gurupada Haldar will be paid to him for the Sheba of the deities. Subject to this slight modification in the judgment of the President of the Tribunal the appeal stands dismissed. The appellant will pay to Dr. Basak's client a sum of Rs. 500 as costs of this appeal. The sum of Rs. 500 includes the costs of the preparation of paper book as well as the hearing fee. It is stated that by an order of this Court Sukumari Debi took the sum which was awarded to her on furnishing as security of Rs. 50,000 in immoveable property. Now that the appeal is disposed of in her favour she is permitted to be discharged from that security.
10. I agree.