S.K. Ghose, J.
1. For the sake of convenience the volumes of printed paper books in this appeal will be referred to as follows:
Group I Part I ... Appeal from Original ... ... ... 'A'Group I Part II ... Decree No. 252 of 1929 ... ... ... 'B'Group I Appeal from Original Order No. 2 of 1923 ... ... ... '0'Part II Appeal from Original Decree No. 252 of 1929 ... ... ... 'D'
2. The parties to this litigation derive their interest from one Narendra Kumar Dutt, now deceased. According to the genealogical table in the written statement at Order 81 which is not now in dispute the original defendant Narayan Chandra Dutt was the son of a cousin of Narendra's. The original plaintiff Bhubanmohini Basu Mallik was the daughter and only child left by Narendra. The latter who was a very wealthy man, executed an arpannama on 18th April 1893 by which he dedicated the Ka schedule properties to the worship of twelve siba idols and provided for a line of shebaits of which he himself was to be the first and his wife and then his heirs were to come in the order of succession. Accordingly Narendra himself became the shebait and continued to be so until his death on 20th May 1922. His wife had died in 1903. After her death Narendra executed a second arpannama on 28th December 1903 by which he cancelled the previous arrangement about the shebaitship and appointed the defendant Narayan and his sons, etc., according to the rule of primogeniture to be the succeeding shebaits. According to the evidence which is not now in dispute Narayan in Narendra's lifetime took over the duties of the sheba and the management of the debuttar properties and after Narendra's death he continued to be in possession. On 17th July 1922, Bhuban Mohini brought the present suit alleging that, as the sole heiress of the deceased Narendra, she was the lawful shebait and that the second arpannama was nob valid or genuine. She accordingly prayed for declaration to that effect, for declaration of title to and recovery of possession of the plaint properties as debuttar properties, and for other reliefs. Narayan Chandra Dutt filed written statement claiming that the second arpannama was genuine and valid and that he was the rightful shebait, and resisting the plaintiff's claim to the properties some of which he alleged were his own. During the litigation the original plaintiff and the original defendant died and their heirs have been substituted: see A. 628.
3. The learned Subordinate Judge has decided in favour of the first arpannama and held that plaintiff is the lawful shebait. He has also decided that the properties of schedule ha and property No. 3 of schedule kha to the plaint are the debuttar properties. He has accordingly given to the plaintiff a partial decree. The defendant appeals and the plaintiff has also filed cross-objections. The first point raised on behalf of the appellant arises out of issues 4 to 8 of the trial. The position taken up by the appellant is that Narendra had the right to change the terms of the arpannama of 1300 B. Section regarding the appointment of shebait after his death, and that therefore the Arpannama Bahalipatra of 1310 B. S. is a valid and operative document. It will be necessary therefore to consider the terms of the two documents.
4. The arpannama Ex. 4 is printed at p. 17, Vol. B. It is a registered document bearing date 6th Baisakh 1300 B. S. corresponding to 18th April 1893. The relevant terms are these: Narendra had already caused to the established twelve Siva idols called Hariseswar, treating himself as the shebait. On that date he executed a will relating to his other properties. By this arpannama he created a debuttar for the Sheba of the idols by dedicating the two properties which are mentioned in Schedule Ka of the plaint viz. (1890) 17 Cal 3 14 bighas of land on which the temples stand (1904) 32 Cal 129 and one-sixth share of the property known as the Madhyam zamindaris. The rights of the founder in those properties were to cease and they were to devolve on the deities. The document proceeds:
During my lifetime I shall keep the aforesaid properties, dedicated to Hariseswar Deities as above, in my own possession and control and I shall perform the Sheba in nay own way as a Shebait. If after my death, my wife Sreemati Golapi Dasi remains alive, then she too will continue the Sheba of Hariseswar Deities as Shebait and possess the properties in the capacity of a Shebait. After the death of both of us, whoever shall be my heir or heirs, he or they down to their sons and grandsons and other heirs in succession, either singly or jointly, shall possess the estate as Shebiat and continue to perform the Deb-Sheba of Hariseswar Deities. But the Shebait will not be competent to transfer by way of gift or sale or charge the temples or shares in zamindari, i.e., to say the Debuttar estate further, for the period a person or persons will remain Shebait or Shebaits he or they will not be liable for accounts to anybody. God forbid if any of my heirs gives up the Sana-tan (ancient) Hindu religion and adopts any other faith, and thereby becomes unfit for performing the duties of Deb-sheba according to Hindu Sastras, then he or they shall be debarred from Shebaitship. In his or their place, any other heir who will adhere to the Hindu religion will become Shebait and perform the Sheba of Hariseswar Deities.
Neither I nor any of the Shebaits will be competent to convey by way of sale or gift the above share (in the zamindaries); nor can it be attached in any way owing to any liability either of myself or of any of my heirs. * * * Be it further declared that if in future any decision is needed from Court regarding heirs, or selection of Shebait, in that case those persons concerned will bear the expenses themselves. The Debuttar estate will not be liable for the same.
6. It is clear from this document that the founder divested himself of the properties dedicated for the Sheba, that he appointed himself to be the first Shebait, and that he further laid down a line of succession of Shebaits. The second document Ex. A is printed at p. 8 Vol. C. It is termed Arpannama Bahalipatra and it bears date 13th Pous 1310 corresponding to 28th December 1903. It does not appear to be registered. As on the former occasion a will was executed on the same date. Ex. A recites the terms of the previous Arpannama which it says it confirms. But there is a change:
My wife Golapi Dasi is now dead. Under the circumstances, after my death my nephew (brother's son) Sriman Narayan Chandra Dutt, who has been brought up as my son, will be appointed to the office of the Shebait.
And so it makes a change in the line of succession of Shebaits. The parties are at issue on the question whether Narendra could validly do this. It may be observed here that there has been no attempt to show that the change was made for the benefit of the idols or for other than the purely personal reasons that are stated in the document. The contention on behalf of the appellant is mainly this, that Narendra though acting as Shebait had at all times the powers of a founder, and that his direction as to succeeding Sebaits was in the nature of a testamentary disposition which it was within his power to alter. Now in the case of a Hindu religious endowment the parties ordinarily concerned are first the founder, second the idol, and third the Shebait. The first and the third may be united in one and the same person, but whether that is so or not it is recognised that some residue of power will be left in the founder to act for the benefit of the idols when the necessary provisions are wanting. Thus the Shebaitship is vested in the founder and his heirs and they may interfere in the management for the benefit of the deity. But these powers are subject to limitations which may be imposed by custom or by the founder's own dispositions. And so the Shebaitship will not be vested in the founder if he has disposed of it otherwise Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee (1890) 17 Cal 3. Maharaja Jagadindra Nath v. Hemanta Kumari (1904) 32 Cal 129, Mohan Lalji v. Gordhan Lalji (1913) 35 A11 283, Ananda Chandra v. Braja Lal AIR 1923 Cal 142; Kali Krishna v. Makhan Lal AIR 1923 Cal 160.
7. The inter-relations between the three parties to the endowment must be governed primarily by the terms of the foundation, so long as these are not opposed to the law of the land. After the gift the founder has no right to impose other conditions, nor can he interfere in the management unless he has reserved the power to do so, as was done in the case in Ishri Prasad v. Ram Krishan Das : AIR1930All620 , to which Mr. Sen for the appellants referred ; nor is he competent to revoke, alter or resume the trust, even though the manager may be guilty of misconduct. The cases bearing on these points will be found collected in Iyer's Hindu and Mahomedan Endowments, Edn. 2, pp. 121, 714, 715,722, 723, Mulla's Hindu law, Edn. 5, Articles 327, 237 and 339. It is not necessary that there should be a deed, but when there is a deed and no provision in it, the founder is the de facto Shebait and at any time before his death he may confer the office of Sebait on another: Pramatha Nath Mullick v. Pradyumna Kumar Mullick . If the deed provides for succession that provision must be in accordance with the law of succession, Monohar Mukherjee v. Bhupendra Nath AIR 1932 Cal 791. For a summary of the case law before 1922 on the subject of founder's rights, see Mayne's Hindu law, Edn. 9, Article 440, p. 619. It is in accordance with the aforesaid principles that where the founder has laid down a line of succession he should not be allowed to alter it, unless he has reserved the right to do so. In 1922 this question came up for decision in this Court in the case of Gouri Kumari Dassi v. Ramanimoyi Dasi AIR 1923 Cal 30 the facts of which are similar to those of the present. Woodroffe, J., said:
It is clear law that the donor of a Debuttar property can make no change in the order of succession of Shebaits as laid down in the deed of endowment in the absence of a reservation to that effect in the deed.
8. The authority of this decision has been followed more than once in this Court: see Chandi Charan v. Dulal Paik AIR 1926 Cal 1083, Sm. Monorama Dasi v. Dhirendra Nath Basu : AIR1931Cal329 . In the former case with regard to the powers of a founder, Page, J, pointed out that by absolutely dedicating the property and appointing a line of succession of sebaits the founder became functus officio. Mr. Sen, for the appellant has argued on a theory of testamentary disposition by the founder and referred for authority to the case of Sreepati Chatterjee v. Khudi Ram : AIR1925Cal442 . In that case Chakrabutty, J. sought to lay down that the rule prohibiting a Hindu from creating a special line of succession unknown to Hindu that the donor could alter the appointment of a shebait provided he had not expressly precluded himself from doing so. On the first point Chakrabutty, J., has been overruled by the Full Bench in Monohar Mukherjee v. Bhupendra Nath Mukherjee AIR 1932 Cal 791, and so the authority of this case has been greatly weakened. Moreover at p. 37 (of 37 CWN) the learned Judge remarks:
It is now settled law that the appointment and succession to the office of a shebait must follow the line laid down in the original grant and in the absence of special direction and usage the heirs of the donors succeed.
9. At p. 28 (of 41 CLJ) he remarks that (except in the case of Gaurikumari Dassee v. Ramanimoyi Dassee AIR 1923 Cal 30 there is no authority,
nor is there anything on principle which would stand in the way of the donor to alter the appointment of a shebait to the office or the rules regulating the worship except on the ground that the donor has expressly precluded himself from doing so or that such an alteration affects some right of property of the she-bait so appointed or the rights of a third party which had already been created; provided always that any such alterations do not affect any of the fundamental gifts.
10. Later he refers to the provisions for appointment of shebait as being in the nature of a testamentary arrangement. But where there is an express provision for the appointment of a line of shebaits, it is difficult to see why that should not be sufficient to show that the founder intended to preclude himself from acting again in the matter and why further express provision to that effect should be necessary. As a matter of fact in deciding the appeal before them the learned Judges did not give effect to the theories propounded by Chakrabutty, J., for it was held that the founder was not competent to change the shebaitship of the lands which were already endowed by the first deed of 1308. Leaving aside the theory of testamentary disposition Mr. Sen, has further suggested that the first Arpannama was in the nature of a deed of gift to Narendra's wife which she could not accept as she died in his life-time. In support of this Mr. Sen, has referred to the ease of Khetter Chunder Ghose v. Hari Das (1890) 17 Cal 557. The facts of that case may easily be distinguished, but the main point is that there the deed was unquestionably a deed of gift of an idol and of lands with which it was originally endowed. Here the Arpannama of 1300 is itself the deed of the original endowment, setting forth the terms on which that endowment was made and it cannot be said that the arrangement about the shebaitship was not an integral part of the endowment. As has already been pointed out, the facts here are similar to those in the case of Gouri Kumari Dasi v. Ramanimoyi Dassee AIR 1923 Cal 30, and the oases following that case. No useful purpose will be served by referring to other cases which were mentioned by Mr. Sen, as they do not touch the proposition on which this part of the appellants' case rests. In the present case it is clear from the plain terms of the Arpannama of 1300 B. S. that the founder Narendra divested himself of the properties and gave them over to the idol absolutely appointed himself to be the first shebait and laid down a line of succession of shebaits. Mr, Sen, has referred to the words:
During my life-time, I shall keep the aforesaid properties dedicated to Hariseswar deities as above, in my own possession and control and I shall perform the sheba in my own way as a shebait,
and contended that those words indicate that the founder reserved to himself general control over the sheba and the property. But those words must be taken along with the other words in the deed. Narendra did not reserve to himself any power to alter the line of succession and from the terms of the document it is clear that he precluded himself from so altering. He had therefore no power to make the alteration by the Arpannama Bahalipatra of 1310 B. S. We must agree with learned Judge below in holding that Narendra had no power to change the terms, condition, and stipulation in the Arpannama of 1300 about the appointment of shebait after him, and that the Arpannama Bahalipatra dated 13th Pous 1310 is not valid and operative. At the trial issue 4 was raised as follows:
Whether the terms, conditions and stipulation about the appointment of shebait after Narendra Kumar in the Arpannama dated 6th Baisakh 1300 B. S. are vague, meaningless, indefinite and void for uncertainty?
11. This point has not been argued on behalf of the appellant and we are also satisfied that the issue must be answered in the negative and in favour of the plaintiff. The next point raised on bo-half of the appellant is comprised in issue 11, viz., whether the property which is No. 3 of Schedule kha to the plaint is debuttar property as claimed by the plaintiff, or whether it is the self-acquired property of Narayan Chandra Dutt as claimed by the defendant. The learned Subordinate Judge has held in favour of the plaintiff. (After considering the entire evidence His Lordship held that the shares in question, being properties No. 3 of schedule kha of the plaint, were not acquired independently of the debuttar estate but that they were debuttar properties, proceeded). The next point is whether there was a bona fide transfer of the shares to Narayan. I have already referred to the defence on this point. Ex. L dated 24th August 1907 and printed at B 154 is a deed of transfer by Narendra to Narayan of 599 shares for a sum of Rs. 1,000. He had previously transferred one share to Kshetra Mohan Ghose who again on the same day, 24th August 1907, transferred that one share to Narayan for a consideration of Rs. 10 (vide, B-156). The share certificate shows endorsement of transfer (at B-65). The company also recognized Narayan as the share-holder (vide, proceeding of 14th June 1914, B.57) and the list of share-holders B.143, 147). It is note-worthy that Narayan in his turn transferred one share to his son Jatindra, the present defendant on 3rd May 1918 (vide, B.205.,) Plaintiff's case is that these transfers by Narendra were necessary in order to relieve him of the business of the syndicate. For this reason the first transfer was made in favour of Kshetra Mohan Ghose, since deceased, who was a trusted adviser. (See the evidence of K. K. Dutta at A-77 and further evidence A-306-308). After his wife's death in 1903, Narendra left everything to Narayan as the latter himself says. In 1907, Narendra as also Kshetra on the same day made a transfer of all the shares in favour of Narayan who was to act for him. Narendra wrote to the municipality to substitute Narayan's name (B.216) and he also wrote to the company.
12. The learned Subordinate Judge has taken the view that it was not a real transfer. It is contended on behalf of the appellants that there is no allegation in the plaint that consideration did not pass nor was the passing of consideration made the subject-matter of issue.. Narayan himself admitted in his evidence that the consideration was utterly inadequate and that the shares were practically thrown away. But he said that he did pay Rs. 1,000 though there is nothing but his word for it. The reason for the transfer as suggested by Narayan was that the company took putni lease of a one-fourth share of Boro zillah against the wishes of Narendra with the result that there was heavy litigation. That there were difficulties over this business is borne out by documents at B-56, 110, 112 and 114. The learned Judge however did not believe the story that for that reason Narendra would transfer his shares. We think that the learned Judge is right and that really no consideration passed. But even assuming that consideration did pass, the question would still remain whether the sale was for legal necessity and if not whether the transferee Narayan was a purchaser in good faith; neither of these positions can be maintained in view of our findings of fact detailed above. It is the ordinary rule of Hindu law that property dedicated to religious use is inalienable and the objection may be raised by a successor to the shebaitship. A recent decision on this point is in the case of Ram Charan Das v. Naurangi Lal . The result therefore is that we must agree with the learned Subordinate Judge in holding that the defendant has got no right to the properties No. 3 of Schedule kha to the plaint.
13. There was an objection as to limitation, but it was not seriously pressed by the learned advocate for the appellant. The suit being instituted within a few months of the death of Narendra, it cannot be barred by limitation. This disposes of the appeal. (His Lordship then disposed off the cross-objections on facts and ordered the inclusion of mesne profits in the decree and concluded). With this reservation, the decree of the lower Court must be afirmed. The appeal is dismissed. The cross objection is also dismissed. Having regard to the circumstances of the case the parties will bear their own costs through out.
14. I entirely concur in the judgment delivered by my learned brother and desire to add only a few words.
15. The Judicial Committee in the case of Gossamee Sri Greedharijee v. Ruman Lolljee (1890) 17 Cal 3 has very clearly pointed out that when the founder of an endowment dedicates properties to a deity and appoints a shebait or lays down the order of succession to shebaitship, he makes a gift with a condition attached and that the deity or those who speak for him on earth need not take advantage of the gift but that if the gift is taken and the condition insisted on, it must be observed. The deity, in the ideal sense, is the recepient of the gift, and the shebait takes the gift for him and on his behalf. The analogy of the transaction to a gift to a mortal with a condition attached is, to all intents and purposes complete and perfect. When the gift to the deity has taken effect, the donor or founder, in the absence of a reservation to the contrary, ceases to have any proprietary right in the properties, the subject matter of the gift, and such right thereupon vests in the deity. In the Arpannama of 1893 there is not only no reservation, but an express declaration in these words:
I make debuttar in favour of the said Harisheswar deities and I dedicate them to the aforesaid Harisheswar deities and I write that with effect from this day under the following terms, my rights therein cease and they vest in the aforesaid Harisheswar deities.
16. Then follows certain terms amongst which the relevant one is this:
I shall keep the aforesaid properties, dedicated to Harisheswar deities as above, in my own possession and control and I shall perform the sheba in my own way as a shebait.
17. These words, cannot, in my opinion, be read in the way in which Mr. Sen desires to read them, namely as derogating from the gift and reserving some sort of proprietary right over the dedicated properties. They merely declare that the founder would continue to act as shebait as he had been hitherto doing; that the properties would remain in his possession and control as such shebait, and that he was not laying down any rules for the performance of the sheba which he declared he would perform in the way he had been previously doing or in such manner as he liked. On the gift taking effect, the properties vested in the deity, and though the donor remained in possession the character of that possession was very different from what it was before; he remained in possession thenceforward as shebait and not as a person in whom there was any proprietary right. As already pointed out, he expressly declared that he would have no such right from that day. It is not possible to conceive that after the donor had completely parted with his proprietary right and that right had vested in the donee by the gift having taken effect, he should be still competent to interfere with or alter the condition which was attached to the gift and subject to which the gift was taken.
18. When the worship of a deity has been founded, the shebaitship, in the absence of course, of any usage to the contrary, vests in the founder and his heirs, unless the same has been disposed of otherwise. In an endowment in which the shebait is appointed with power to appoint his successor, the shebait, if he exercises that power does so on the strength of the authority delegated to him by the founder. And in the present case if the founder had reserved such power for himself, he could have, even after the dedication and even in his capacity as shebait, appointed his successor. It is not possible however to read the deed in that way. Here the founder had disposed of the shebaitship in the clearest possible language. Mr. Sen has also argued that the deed should be read as indicating that the donor had not constituted himself as shebait but he merely went on acting as such as he had hitherto done and that by it he merely expressed his intention that after him his wife was to be the first shebait and that when subsequently he found that his wife died the disposition which was in its nature a testamentary one could very well be altered by him. The language of the deed, in my judgment, does not favour such a contention: it clearly intended the founder to be the first taker of the shebaitship, and once the gift of the shebaitship took effect the plaintiff's right became a vested right which could not be subsequently interfered with.
19. Mr. Sen has also endeavoured to make out that the founder of the endowment, as such, has always some residuary rights left in him, under which, he may, if he chooses, alter the line of succession of shebaitship. Such rights of supervision or control as the founder, in the absence of express reservation, may have in respect of the endowment, can only be exercised for the benefit of the endowment, a circumstance which is entirely absent in the present case, and cannot in my judgment, extend to an alteration in the order of succession to shebait ship unless through the intervention of the Court and except for good cause shown.