1. The three preliminary-issues disposed of by my judgment dated 2nd August 1937 embraced only some of the questions covered by the issues originally raised. The original issues may now be set out: 1. Was any valid dedication in favour of Thakur Sri Sri Iswar Sitaram Jew effected by the deed of 31st March 1922? 2. Was the said deed given effect to? 3. If so, was the same validly put an end to by the deed of 13th February 1929 by the consensus of the settlor Sital Chandra Banerjee, his son and son's wife and the other parties who signed the said deed? (4) If not, on a true construction of the said deed of 31st March 1922 in the circumstances that have happened, is the plaintiff Bhabatarini entitled to the sole shebaiti? (5) Is the plaintiff estopped from bringing this suit by reason of the arrangement and settlement made on 30th August 1929 and the benefits received thereunder and also by virtue of the deed to which she was a party dated 13th February 1929? (6) If the plaintiff was a shebait, has the plaintiff relinquished her rights thereto? (7) Is the plaintiff entitled to maintain this suit?
2. Mr. Banerjee on behalf of the defendant has invited me to hear him again upon the second and third preliminary issues and I have done so. As regards the second of these issues, Mr. Banerjee has argued that upon a true reading of the cases already considered, I ought to hold that it is his client and not the plaintiff who is entitled to the shebaiti under the deed of 1922, and he has also drawn my attention to three decisions which were not cited in his previous argument, namely the cases in Kandarpamohan v. Akhoychandra : AIR1934Cal379 , Lal Behary Dhur v. The Administrator-General of Bengal : AIR1935Cal284 and Dia Parkash v. Bhana Mal (1936) 23 AIR Lah 241. I have considered the whole question again in the light of the cases previously relied upon, and all those now cited, and I have given careful attention to Mr. Banerjee's argument, but in my judgment there is nothing either in the authorities or the argument, which would justify me in arriving at a different conclusion from that already expressed.
3. As regards the third of the preliminary issues, Mr. Banerjee has submitted that as the provisions of the deed of 1922 relating to the devolution of the office of shebait after Panchanan's death are invalid and of no effect, there is a reverter to the founder of the right of nomination, and in support of this contention reliance has been placed upon the cases in Vaidyanatha Aiyar v. Swami Natha Aiyar (1924) 11 AIR PC 221, Pramotha Nath v. Pradhyumna Kumar Mullick , Prasanna Deb v. Bengal Duara Bank Ltd. : AIR1936Cal744 , Sitaldas Babaji v. Partap Chunder (1910) 11 CLJ 2, Gouranga Sahu v. Sudevi Mata (1918) 5 AIR Mad 1278, Raj Krishna Dey v. Bepin Behary Dey (1913) 40 Cal 251, Manikavachaga Desikar v. Parma Sivan (1929) 16 AIR PC 53, Guru Pada Haldar v. Manmohan Mukherjee : AIR1936Cal215 , Manohar Mukherjee v. Peary Mohan Mukherji (1920) 7 AIR Cal 210 and Manohar Mukherji v. Bhupendra Nath Mukherji (1932) 19 AIR Cal 791 at page 493. The first three of these cases seem to have no real application, and the others support no more than this proposition, that when succession in the line of shebaits indicated by the founder fails, the right to nominate the shebait reverts to the founder or his heirs. Mukherji J. has expressed the effect of the earlier cases in his judgment in Manohar Mukherji v. Bhupendra Nath Mukherji (1932) 19 AIR Cal 791 at page 493 in these words:
It has now been held by all the Courts in India that when the shebaitship does revert to the heirs, they have the right to nominate a fresh shebait, presumably on the ground that the right of nomination is appurtenant to the right of management.
4. In none of the decisions above noted do I find any warrant for holding that the founder in the present case had a right to make a fresh nomination, because the provisions for devolution after Panchanan's death were bad in law. It must be remembered that in the present case Panchanan was granted a life estate by a disposition which was perfectly valid so far as such an estate was concerned, and therefore upon the principle of the decisions cited no question of a reverter of a right of nomination could arise until after Panchanan's death. It would be convenient at this stage to set out the more important facts. Sital Chandra Banerjee, the settlor, actually executed three deeds in regard to this debutter. The first is the deed of 'arpannama' dated 31st March 1922. The second is a deed of rectification dated 18th September 1925, and the third is an 'arpannama' dated 13th February 1929. After Sital's death which took place on 16th August 1928, disputes broke out between his son Panchanan and his daughter Bhabatarini, which were composed by a document which purports to be a deed of family settlement dated 30th August 1929, and which was signed by Panchanan and by Bhabatarini and her two sons Kiriti and Bibhuti. Panchanan died on 20th September 1932 and the present suit was instituted on 28th January 1935.
5. It is necessary here to refer to some of the provisions of the deeds of 1922, 1925 and 1929. The deed of 1922 makes reference to a will which Sital had previously executed, and by which he had dedicated most of his properties to the deities Sri Sri Sitaram Jew, and recites the settlor's desire to carry on the work of seva and puja of these deities during his lifetime as shebait jointly with his wife. The deed then proceeds to say:
I dedicate to the said deities the properties mentioned in the schedule and make debutter and rights thereto vest in the said deities from this day, and from this day I become completely divested of rights to the said properties.
6. The clause which follows says that for the purpose of carrying on the work of seva and puja of the deities and charities appertaining thereto, and regarding the appointment of shebaits and the appointment of a governing body, the settlor is making the following rules. Immediately after this and before the rules are laid down there come the words:
Nobody shall ever be competent to break or violate these rules. My heirs and other people who-have been mentioned in connexion with different, matters regarding this document shall all be bound by all the rules and the relevant rules of this document. Nobody shall be competent to raise any plea or objection to rules mentioned in this deed.
7. After prescribing the rules for the devolution of the shebaiti, defining the qualifications and duties of the shebait, and making provision for a governing body the document proceeds to speak of the debutter properties and the work of the deva seva, and contains the following important passages:
By granting a lease for 99 years from the first day of May 1921 in respect of the properties in Mouza Ballygunj village within the jurisdiction. of Ballyganj thana in the district of 24 Parganas and described in Schedule Ka below to Sir Hu-kum Chand of Indore and Harkissendas Bhatter and Panna Lal Bhatter, both of No. 30, Clive Street, in the town of Calcutta, and Madan Gopali Daga of No. 203, Harrison Road in the town of Calcutta and by taking three years' rent in advance from the lessees, I have commenced the construction of the temples for the deities and dwelling house, etc. for the shebait at premises No. 48, San-karitolla East Lane. I entertain a desire for the improvement of the debutter properties by constructing masonry house at No. 1, Swinhce Street,, Ballygunj, described in the Schedule Kha below. The abovementioned premises are debutter properties and all the houses that will be constructed there shall be debutter properties. Considerable amount will be spent for the construction of the said houses. Therefore so long as the work of construction of the houses be not completed and the debts incurred in that connexion be not paid off, all the income of the debutter properties less Rs. 500 per month shall be kept in deposit in the debutter reserve fund and out of the same, the cost of construction, of the houses and repayment of debts incurred on account of the construction of the houses shall be met. Out of the said monthly income of Rs. 500 the revenue and taxes, etc. in respect of the debutter properties shall be paid and out of the balance-left the shebait shall get at the rate of Rs. 5 per cent. of the gross income as his remuneration for his supervision of the debutter properties and devaseva and for the work of improvement of the said properties and out of the balance money the work of deva seva and charities appertaining thereto as noted below in this deed shall be carried on. After meeting the cost of effecting the aforesaid improvement of the debutter properties, as long as 50 lakhs-of rupees does not accumulate in the debutter reserve fund, half the share of the entire net income shall be left for accumulation for the improvement and preservation of the debutter properties. When 50 lakhs of rupees will accumulate in the said; debutter reserve fund no more accumulation shall be allowed in the said debutter reserve fund.
8. The clauses which follow are concerned with directions as to the appointment of a priest and of servants and as to devotional exercises and the expenditure thereon. Then comes a provision for the maintenance of two Brahmin students and two Brahmin widows and after that there is the following passage:
The balance of the income left after sufficient expenses are met for the devaseva fixed according to the choice of the shebait and proper worship of deities, etc. and the abovementioned charities appertaining thereto shall be spent for Atithisalas 'and medical dispensaries for religious acts and works of public welfare at different places.
9. The document concludes with a postscript which is in these terms:
P.S.-If they so desire my daughters shall be competent to live with their families during their lifetime at my Iswar Thakurbarl at No. 48, San-taritolla East Lane and all shall get prasad daily out of the 'Bhoge' of the deity.
10. The deed of rectification dated 18th September 1925 makes some corrections in the areas and descriptions of the properties included in the schedules to the deed of 1922 and it contains the following passage:
A statement was omitted to have been made regarding the above. If debts be incurred for effecting improvement for the debutter properties or for the construction of the Seva Sadan and temple for the deity, then the said debts shall be repaid (first of all by the mortgage or sale of all the properties in the schedule Kha of the said Arpannama. As these words were not written in the Arpannama by mistake it may lead to a great loss and may cause obstruction to the improvement of the debutter. It is therefore decided that for the purpose of effecting improvement to the debutter properties and for the management and preservation thereof I as shebait shall have full right and power to incur debt and to mortgage and sell the debutter properties at my pleasure.
11. The deed of 1929 contains the following recitals:
Now spending a larger amount than the previous estimate I have been constructing deva mandir, temple for the deities and house for the servers and major portion of the same has been done bat yet there would be delay in the completion of their construction. On 30th Ashar 1333 B. S. last I have established the images of Sri Sri Iswar Sita Ram Jew according to the shastras and have arranged for their worship and have been regularly carrying on the puja duties. In the previous Arpannama by making arrangements for a governing body by guess I had merely put in writing all the provisions, terms and conditions for the appointment of shebait and for the management and supervision of deva seva and debutter properties and the provisions that I have made for the income and expenditure in respect of the debutter properties and the other rules and conditions which I had specified were to a certain extent theoretical and under the present circumstances it appears clearly that the work is not being carried on according to the said terms and conditions and cannot be carried on. Now I find that the provisions I had made for the governing body were highly improper and it is extremely difficult to put them in action. As a matter of fact I am realizing that it is reasonable that the shebait should have freedom. Besides these there are many other defects in the previous Arpannama. I and my family members fully considered and discussed those matters and on consultation with competent persons I and my family members being unanimously of the opinion, I have decided that there is no necessity of keeping any governing body inasmuch as the previous Arpannama, that is the Arpannama dated 81st March 1922, was not given effect to and the Deva and Devi (deities) having been established long after that it is essentially necessary to cancel the aforesaid document for the purpose of carrying on the seva, etc of the said deities nicely and supervising and maintaining satisfactorily the properties dedicated to the deities and to make a new Arpannama in its place. Particularly the temple and buildings, etc. which I had contemplated to erect at the time of the previous Arpannama have been completed to a great extent and beyond my expectations. For this reason unless a new Arpannama is made, there is the apprehension of various objections being raised in the future. As there have been various changes and my wife Rajlakshmi Devi having died lately it is essentially necessary to make a new deed of arrangement. Therefore, according to the consent and desire of all my family members on cancelling and revoking the Arpannama dated 31st March 1922 and the deed of amendment dated 18th September 1925 and on executing this new Arpannama I direct that the management of the debutter properties and all acts, etc. relating to the Deva seva and pujas, etc. shall be carried on according to the terms and conditions mentioned below:
None shall be competent to violate the under, mentioned terms and conditions at any time. If in future any one raises any objection the same would be void and inadmissible and untenable in all Courts of law. Only if I myself so desire I shall be competent to change the terms or conditions written below and to frame new rules and provisions:
(1) Although the Arpannama dated 31st March 1922 and the deed of amendment dated 18th September 1925 remained absolutely void inasmuch as no act whatsoever has been done at any time according to the provisions contained therein, I with the consent of my family members hereby cancel and revoke the said two documents formally lest any trouble should arise in future. All the properties mentioned in the said previous document have been included in my secular estate, and all the statements, terms and conditions written in the said two documents have become absolutely void and inadmissible.
(2) I by this Arpannama dedicate to Sri Sri Iswar Sitaram Jew the properties mentioned in schedule Ka below; from this day all the properties described in the said schedule Ka below become properties dedicated to the deities.
(3) Out of the properties which were included in the Arpannama dated 31st March 1922,I by the present Arpannama dedicate to Sri Sri Iswar Sitaram Jew the property mentioned in schedule Ka below. The other properties remain included in my deities by the present Arpannama, are more valuable than those mentioned in the previous Arpannama and they have been described in schedule Ka.
12. Some other clauses of this deed which are of importance should also be set out:
Considerable expenses were incurred in the construction of the temple for the deity, verandah and courtyard, etc, mentioned in para. 1 and the Seva Sadan mentioned in para. 2 of schedule Ka and much more money will be spent for the completion thereof. Some amount has been taken from the income of the debutter properties mentioned in paras. 3 and 4 and further sums will have to be drawn, and as to Rs. 15,000 of Government Promissory Notes which were mentioned by mistake as war bonds, the same too were used in repayment of debt on the said account and further sums have been borrowed. For the repayment thereof the holding No. 4, sub-division J., Division 5, which is premises No. 1, Swinhoe Street, is taken as secular property and a portion of the debt is paid off.
13. This document contains the signatures of Sital, Panchanan, Niranjan Chatterjee, the husband of a daughter Sudhangshu Badani, who was dead, Kiriti and Bibhuti, sons of Bhabatarini, Ashmantara and Bhabatarini on behalf of herself and her minor sons-and daughters. The relationship between the parties appears clearly from the following table of descent:
SITAL CHANDRA BANERJEE = RAJLAKHMI DEBI (deed.) . | (deed.)|_______________________________________________________________________| |Bhabatarini = Krishnadhan Panchanan = Ashmantara Sudhangshu Badani = Niranjan| Chatterjee (dead) | (dead) | Chatterjee.| (died before 1929) | || _________________________________________ || | | | || Ashalata Kanaklata (alias Benji) Diptilata ||(alias Pata) || || _________________| || ______________________________________ | | | | || Biru Badu Ava Mona|__________________________________________________________________________| | | | | | | | |Kiriti Bibhuti Mritunjoy Jyotirmoy Hiranmoy Nishabati Sabitri Chandrani Durga batialias alias alias aliasKhada Sabu Buri Durgamarried to married to married to married toIndu Hari Kanailal BankimBhusan Sadhan Mukherjee BanerjeeMukherjee Ganguly.
14. Three important facts which appear from those deeds must be noted. The idols were established on 15th July 1926. Premises No. 1, Swinhoe Street were taken by the Settlor for the satisfaction of debts incurred in constructing the temple and the Seva Sadan. The deed of 1929 revokes the deed of 1922, and after secularising the property embraced therein purports to create a new debutter which includes that property. The questions which the three issues previously decided left outstanding encompass a number of points and it would be convenient to deal with them in the order in which they were taken. The first question argued was that as the Thakur was not installed until 1926 there was no person capable of taking the gift which the deed of 1922 purported to make. This point is covered by authority. The case in Bhupati Nath v. Ram Lal (1910) 37 Cal 128, which was a Full Bench decision of this Court, has laid it down that the principle of Hindu law which invalidates gift other than to a sentient being capable of accepting it, does not apply to a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's death, nor does it make such a bequest void. Mr. Banerjee has endeavoured to distinguish this decision on the ground that it covers only a case in which property is given to trustees under a will. The distinction sought to be made between a bequest for religious purposes and a gift inter vivos for identical purposes is not supportable either on principle or authority, and to the further contention that the gift must be to trustees as distinct from a Thakur not yet brought into being, it is a sufficient answer to say that the inter. position of trustees has nothing to do with the question. It is well settled that if the gift to a person not in existence is bad, the vesting of properties to trustees for the benefit of such a person will not save it. The principle is set out in Mulla's treatise on Hindu Law, Article 366, Sub-clause (ii). Mayne in analysing the rule in Jotendra Mohun Tagore v. Ganendro Mohun Tagore (1872) IA Sup Vol 47 in Article 425 of his work on Hindu law has expressed the position in these terms:
Finally it was held that all the bequests must be looked on as if they had been made directly to the persons who were the subjects of them, and that the intervention of trustees made no difference since that which could not be done directly could not be done indirectly by the medium of a trust.
15. The case in Bhupati Nath v. Ram Lal (1910) 37 Cal 128 in clear terms held that the rule in Jotendra Mohun Tagore v. Ganendro Mohun Tagore (1872) IA Sup Vol 47 was not to be extended to gifts to Hindu idols. If a trust cannot be created except in favour of a person to whom a gift or bequest can be validly made, the true effect of this decision is to validate all gifts to idols not in existence. The language of the deed of 1922 is very clear:
But now for the purpose of carrying on the works, etc. of the Seva and Puja of the said deities duly...I dedicate to the said deities the properties mentioned in the schedule and make them debutter and rights thereto vest in the deities from this day and from this day I become completely divested of rights to the said properties.
16. That a gift made in these terms is valid is a proposition which would appear to find direct support in the language of the judgment in Bhupati Nath v. Ram Lal (1910) 37 Cal 128. Thus, in the judgment of Mukherji J. at page 155 there is this passage:
The owner is divested of his rights. The deity cannot accept. In whom does the property vest? The answer is that the king is the custodian of all such property....The true Hindu conception of dedication for the establishment of the image of the deity and for the maintenance thereof is that the owner divests himself of all rights in the property; the king as the ultimate protector of the estate undertakes the supervision of all endowments. There is no acceptance on the part of the deity but from the dedication, religious merit and spiritual benefit accrue to the founder and material benefit accrues to the person in charge of the worship and to the creatures of God.
17. At p. 169 of the report in the judgment of Chatterjee J., there is the following passage:
Again bequests for the purpose of the periodical pujas of Durga, Kali, etc. or for the celebration of the periodical festivities called Dolejatra, Rash-jatra etc. have been from very old times given effect to by our Courts. Instances will be found in the following cases : Ramtonoo Mullick v. Ram Gopal Mullick, Ramtonoo Mullick v. Ram Gopal Mullick (1829) 1 Knapp 245, Ashutosh Dutt v. Doorga Churn Chatterjee (1880) 5 Cal 438, Hemangini Dassi v. Nobin Chand (1882) 8 Cal 788, Gokoolnath Guha v. Issur Lochun Roy (1887) 14 Cal 222, Bhuggobutty Prosonno Sen v. Guru Prosonno Sen (1898) 25 Cal 112, Bisseswar prasona Sen v. Bhagbti Prasonna Sen (1906) 3 CLJ 606, Profulla Mullick v. Jogendranath (1905) 9 CWN 528, Jairam Narronji v. Kuver Bai (1885) 9 Bom. 491 and Monohar Ganesh v. Lakhmiram Govindram (1888) 12 Bom 247. If a gift in favour of a deity whose image has to be prepared and destroyed periodically is valid, I do not see any reason why a gift in favour of a deity, whose image is to be prepared' once for all except for any reason for reconstruction coming to pass, should be invalid.
18. If further authority were needed it is to be found in Manohar Sing v. Het Singh (1910) 32 All 337, Profulla Mullick v. Jogendranath (1905) 9 CWN 528 and Cnaturbhuj v. Chaturjit (1911) 33 All 253. Reference may also be made to the view expressed by Mayne in para. 378 of his book on Hindu law:
It follows from the above principles that whether the gift be in prassenti or in futuro the donee must be a person in existence and capable of accepting the gift at the time it takes effect The-only exceptions are the cases of an infant in the-womb, or a person adopted after the death of the husband under an authority from him. Such per-sons are by a fiction of law considered to have been in existence at the time of the death. A gift to an idol which is not in existence at the death of the-testator is valid.
19. Mr. Banerjee in seeking to distinguish, the case in Bhupati Nath v. Ram Lal (1910) 37 Cal 128 has drawn my attention to certain passages in the judgment of Mukherji J. in Manohar Mukherji v. Bhupendra Nath Mukherji (1932) 19 AIR Cal 791. At page 476 the learned Judge says : '
The principles underlying the dedication are the same both in the case of institutions and in the case of idols, though the deities and the rituals are different and diverse. The two cardinal essentials are the sankalpa or the formula of resolve and the utsarga or the renunciation. By the dedication the donor divests himself of his Proprietary rights absolutely, but so long as there is no appropriation of the property for the purpose-for which it is dedicated there is an obligation on him to see to its preservation, and accordingly a corresponding right of control, so long as the property itself exists.
20. Again at p. 477 there is this passage:
As regards an idol after it has acquired existence-as a juridical personage, the sankalpa or the-resolve makes the deity himself the recipient of the-gift and the utsarga divests the donor of his proprietorship, though by judicial decisions it is now settled that the principle of Hindu law which, invalidates a gift other than to a sentient being capable of accepting it, does not apply to a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's-death and does not make such a bequest void.
21. The argument is that the sankalpa is ineffective unless the deity is in existence, and the only way in which a gift to a deity not in existence can be validated is through a device of giving the property to trustees. My reasons for holding that the intervention of trustees makes no difference to the question have already been given, but I ought to state that in the development of his argument as to the meaning of sankalpa and utsarga, Mr. Banerjee has relied upon observations contained in the following decisions: Deo Saran Bharthi v. Deoki Bharthi (1924) 11 AIR Pat 657 at p. 850, Bhekdhari Singh v. Sri Ram Chandarji (193l) 18 AIR Pat 275 at p. 389, Chaturbhuj Singh v. Sarda Charan Guha (1933) 20 AIR Pat 6 at p. 704 and Ananda Chandra Chakrabarti v. Brojo Lal Singha (1923) 10 AIR Cal 142 at p. 359. The passage in the last mentioned decision is as follows:
It is well settled that dedication vests the property in the idol, only when the founder has title. The ceremony divests the proprietorship of the temple from the builder and vests it in the image, which by process of vivification has acquired existence as a juridical personage; for as Vijnaneswara puts it, gift consists in the relinquishment of one's own right and the creation of the right of another.
22. The ceremonies to which reference has been made were necessary for a gift to a deity in the days when deeds were not in use. Mukherji J. at p. 478 of his judgment in Manohar Mukherji v. Bhupendra Nath Mukherji (1932) 19 AIR Cal 791 proceeds to say:
Deeds not being in use it was one form of dedication that applied to all endowments, public and private, the effect whereof was to transfer the property dedicated from the donor to the donee, the deity. But this analogy of a human transfer need not be carried too far, for the deity is not in need of property nor does it hold any : what is given to the deity becomes available to all.
23. In my judgment the true position is as stated in Prem Nath v. Had Ram (1934) 21 AIR Lah 771 at page 97:
While it is true that in order to create a trust for religious purposes there must be true sankalpa and samarpan, I do not think that according to the law as administered in British Indian Courts any religious ceremony of sankalpa and samarpan is essential, though it seems that sometimes such a ceremony is performed. The literal meaning of sankalpa is decision or formulation of intention and samarpan means entrusting. Among the orthodox Hindus, ordinarily both sankalpa and samarpan are done by formally declaring the intention in one case, and relinquishing dominion on the property in favour of another in a ceremonial manner in the other case. The religious ceremony in both cases includes the recitation of 'mantras,' that is, hymns and the pouring of water, and delivery of other prescribed articles, either on the ground or in the hands of the person who is to be considered the recipient of the gift or of the trust. Among some persons, however, who are Hindus and are governed by the Hindu law, there is a conscientious objection to the performance of these ceremonies, and if the performance of the ceremonies of sankalpa and samarpan be decreed to be legally essential for the creation of a trust for public or religious purposes, then no legally binding trust for public or religious purposes would be possible in the case of such persons, but that is not the case. The true meaning of law in my opinion is that so long as there is a clear and unequivocal manifestation of intention to create a trust of this description, and there is a formal divesting of the ownership in the property on the part of the donor and vesting of the same in another or even in the donor himself as a trustee, that is to say, so long as there is a clear change in the tenure of the property with the intention on the part of the donor to devote it for religious or public purpose, dedication thereof must, in my opinion, be deemed to be complete.
24. Reference may also be made to Article 407, para, 2 of Mulla's work on Hindu law:
Even in the case of a dedication to an idol which cannot itself physically hold lands, it is not necessary, though it is usual, to vest the lands in trustees. Nor is it necessary that there should be any express words of gift to the idol. No religious ceremony such as sankalpa or samarpan is necessary, and a clear unequivocal manifestation of intention to create a trust and vesting of the same in the donor or other as a trustee is enough to constitute the dedication.
25. For the reasons stated above I am bound to hold that the deed of 1922 amounted to a valid dedication.
26. The next point argued by Mr. Banerjee was that the direction for accumulation of 50 lakhs vitiates the entire deed, because the margin left for expenditure upon the seva and puja, after deducting rates and taxes, and a remuneration of 50 per cent. for the shebait would amount to so little that the purposes of the dedication could not be carried out. I am not aware that such a clause offends against any rule of Hindu law. It does not benefit the settlor, or the members of his family at the expense of the idol, nor is its object so unreasonable as to be opposed to public policy: Rajendra Lal Agarwalla v. Raj Coomari Devi (1907) 34 Cal 5. If the direction for accumulation is hit by Section 17, T.P. Act that in itself would not render the dedication invalid. This being my conclusion I express no opinion as to whether the accumulation clause is affected, by Section 17, T.P. Act or not. Mr. Banerjee's next point is that this deed was never acted upon and is no more than an escrow. In this connexion my attention has been invited to an application made by Sital and his wife to the President of the Calcutta Improvement Trust Tribunal, with regard to the payment of compensation money for lands acquired by the Trust. Para. 4 of that application is in these terms:
That in the meantime a portion of the said premises Nos. 12/1 and 12/2, Ekdalla Road, has been acquired and the Collector has awarded Rs. 32,000 odd as compensation to your petitioners Nos. 1 and 2 as shebaits, although your petitioners submitted before him that until the idol was in existence there could not be any debutter nor could there be any shebait and the entire money should be paid to your petitioner No. 1 to complete the temple and residence of the shebait as stated in the Arpannama and the said amount has been deposited in this Court.
27. The contention is negatived by other paragraphs in the same petition. In para. 3, the petitioners say that the erection of a temple and the residence of the shebait had been commenced at No. 48, Sankaritolla East Lane and that for want of funds Sital had not been able to ' proceed much ' towards the completion thereof. In para. 7 of the petition it is clearly stated that the premises in question had been declared to be debutter. Again, the prayer in the petition is couched in the following terms:
Your petitioners, therefore, pray that your Honour may be pleased to direct the said compensation money deposited herein to be paid to your petitioners for the above purposes.
28. It is admitted that the idols were in fact established on 15th July 1926, and it cannot, therefore, be said that the deed of 1922 was never given effect to. Mr. Banerjee contends that the recital in the deed of 1929 expressly states that effect had never been given to the deed of 1922, and in particular he calls attention to the following passage:
The other rules and conditions which I had specified were to a certain extent theoretical and under the present circumstances it appears clearly that the work is not being carried on according to the said terms and conditions and cannot be carried on.
29. In my judgment the true meaning of these words is that the work could not be carried on in accordance with the terms and conditions of the previous deed, and I cannot construe it as meaning that the work was not carried on at all. A reference to the deed of rectification of 1925 shows that the settlor did not at that time take up this position for there is a recital in these terms:
By executing one Arpannama on 17th Chaitra of the year 1328 B. S., English 31st March of the year 1922,I dedicate most of my properties to my most Reverend Spiritual Deity Sri Sri Iswar Sita-ram Jew and got the said Arpannama No. 3313 for the year 1922 Calcutta Registration Office, It has now transpired that there are certain clerical mistakes in the said Arpannama.
30. That it was the intention of the settlor to give effect to the deed of 1922 is to be gathered not only from the language of that document, but also from his subsequent conduct in endeavouring to rectify certain mistakes therein, and in commencing the building of the temple and Seva Sadan and in installing the idols. Upon this point the present case would seem to be covered by the decision of Woodroffe J. in Kulsum Bibi v. Gulam Hussian Kasim Ariff (1906) 10 CWN 449. The next point taken was that No. 48, Sankaritolla Lane not being included in the schedules of properties in the deed of 1922 is no part of the debutter estate. It is true that the schedules do not mention it, but that it is clearly embraced in the deed itself appears from one of the passages quoted.
I have commenced the construction of the temple for the deities and dwelling house etc., for the shebait at premises No. 48, Sankaritolla Bast Lane. I entertain a desire for the improvement of the debutter properties by constructing masonry house at No. 1. Swinhoe Street, Ballygunje, described in the schedule Kha below. The abovementioned premises are debutter properties and all the houses that will be constructed there shall be debutter properties.
31. The next branch of the argument relates to the deed of 1929, and it is contended that the settlor had power to make the disposition which it purports to effectuate by reason of the fact that he acted with the consensus of the entire family. In this connexion Mr. Banerjee has argued that importance should be attached to the real purpose of the deed. It is primarily a document in the nature of a family arrangement by which the following objects were being effected : Firstly, possible disputes regarding the validity of the deed of 1922, and the respective rights of the members of the family thereunder, were being put an end to. Secondly, the worship and the management of the Thakur were being regulated. Thirdly, the rights of the Thakur in No. 48, Sankaritolla Lane which was the most valuable of the properties was being made clear. Fourthly, a different turn was being given to the method of management. There can be no suggestion that this was an improper dealing with the Thakur's property, but on the other hand the new arrangements were all for the benefit of the Thakur. The disposition was approved by all the members of the governing body, and of the family, and the deed was signed by all capable of signing. In support of the proposition that family arrangements are binding, reliance has been placed on the following cases : Stapilton v. Stapilton (1739) 26 ER 1, Hoghton v. Hoghton (1852) 51 ER 545, Helan Dasi v. Durga Das Mandal (1906) 4 CLJ 323, Pokhar Singh v. Mt. Dulari Kunwar : AIR1930All687 , Alasinga v. Venkatasudarsana : AIR1936Mad294 , Ramanathan Chetti v. Murugappa Chetti (1906) 33 IA 139, Gajadhar Prosad v. Lachuman Lal (1927) 14 AIR Pat 339, Rangaswami Gounden v. Nachiappa Gounden (1918) 5 AIR PC 196 at page 86, Ramgouda Annagouda v. Bhausaheb , Ahmad Azim v. Safi Jan (1926) 13 AIR Oudh 561, Jageshar v. Bhushan (1921) 8 AIR Oudh 134 and Sureshwar Misser v. Mt. Maheshrani Misrain (1921) 8 AIR PC 107. With regard to these authorities I do not think it is necessary to say more than this, that their true application is expressed in the decision in Basanta Kumar Basu v. Ramshankar Ray : AIR1932Cal600 . After considering a number of cases the judgment proceeds to say:
On reading these decisions with care, it seems to us that if there is one principle that follows from all of them unmistakably, it is this, that the arrangement must be one concluded with the object of settling bona fide a dispute arising out of conflicting claims to property, which was either existing at the time, or was likely to arise in future. Bona fide is the essence of its validity, and from this it follows that there must be either a dispute or at least an apprehension of a dispute, which is avoided by a policy of giving and taking; or else all transfers or surrenders will pass under the cloak of a family arrangement.
32. Upon the principle thus stated, it is clear that the facts of the present case are far from being covered by the decisions to which reference has been made. There was no bona fide dispute or indeed any appearance of a dispute between members of the family regarding the property. The deed of 1929 was not the expression of an agreement by which mutual rights and obligations were being adjusted by way of a giving and a taking. The document itself and the circumstances surrounding it leave no room for doubt that it was essentially a deed to which the formal assent of the members of the family, and the members of the governing body, was being taken for the purpose of curing a disability in the settlor to revoke what he had done by the deed of 1922. That the document was a revocation of the former deed is left in no manner of doubt:
I with the consent of my family members hereby cancel and revoke the said two documents formally, lest any trouble should arise in future. All the properties mentioned have been included in my secular estate, and all the statements, terms and conditions in the said two documents have become absolutely void and inadmissible.
33. What the settlor was clearly doing was to secularize the estate previously made debutter, and by means of a fresh dedication to create a new debutter. The deed is to be construed not by reference to the ultimate consequences of fact which might flow from its execution and adoption, but in the light of what it purports to say and the legal consequences of what it does say. The real question therefore which falls for consideration is whether, in spite of the authorities which have held that a dedication once made cannot in the absence of express reservation be revoked, a consensus of the family can alter the position, and confer on the settlor the necessary power. The foundation of this doctrine is an observation of the Judicial Committee of the Privy Council in Doorganath Roy v. Ram Chunder Sen (1876) 4 IA 52. The observation which is at page 58 is as follows:
Where the temple is a public temple, the dedication may be such that the family itself could not put an end to it, but in the case of a family-idol the consensus of the whole family might give the estate another direction.
34. The observation is in the nature of an obiter dictum but it has been applied in Gobinda Kumar Roy v. Debendra Kumar Roy (1908) 12 CWN 98. In Chandi Charan Das v. Dulal Chandra Paik (1926) 13 AIR Cal 1083 the decision in the case last mentioned does not seem to have been accepted without qualification, for, it was stated that in considering this question the rights of the deity in whom the properties have absolutely vested, and the fact that a Hindu who endows a family deity does so for the worship of his descendants from generation to generation have to be taken into account. Their Lordships also said:
But even if the consensus of the whole family can convert an absolute debutter property into secular property, such consensus must be of all the members, male and female, who are interested in the worship of the deity.
35. The proposition that by consent of all parties then interested in an endowment a dedication can be set aside, has been seriously doubted by Rankin C. J. in Surendra Krishna Roy v. Ishwar Bhubaneshwari Thakurani : AIR1933Cal295 . Referring to the passage in the case in Doorganath Roy v. Ram Chunder Sen (1876) 4 IA 52, his Lordship observed that it did not appear to be intended as a considered opinion to that effect, and that before importing any such doctrine into Hindu law, there was much to be considered, and he adopted what had been said upon this question in Chandi Charan Das v. Dulal Chandra Paik (1926) 13 AIR Cal 1083. In the appeal from the decision in Surendra Krishna Roy v. Ishwar Bhubaneshwari Thakurani : AIR1933Cal295 which is reported in Ishwari Bhubaneshwari v. Brojo Nath Dey , their Lordships of the Judicial Committee did not express dissent from the opinion of the learned Chief Justice on this question but observed that they were not called upon to consider it.
36. In view of the observations noted above, I am not satisfied that to hold the deed of 1922 to have been validly revoked by the deed of 1929 would be right, without a very careful examination of the circumstances of the original dedication and those surrounding the so-called family consensus. Attention should be directed to the provision in the earlier deed which directs the balance of the income to be spent for atithisalas and medical dispensaries, for religious acts and works of public welfare at different places.' Another passage lays down that out of the balance money 'the work of deb seva and charities appertaining thereto as noted below in this deed shall be carried on.' Now the deed of 1929 is not merely silent on the question of 'atithisalas and dispensaries and works of public welfare at different places,' but in para. 13 expressly declares the debutter to be a private debutter and excludes it from the operation of all laws relating to public charity. Reference may be made in this connexion to the case in Jugal Kishore v. Lakshman Das (1899) 23 Bom 659. If the deed of 1922 created a right in favour of the public as it would seem to have done, it is not easy to bring the revocation within the principle of consensus so guardedly and qualifiedly expressed in Chandi Charan Das v. Dulal Chandra Paik (1926) 13 AIR Cal 1083 and so clearly doubted in Surendra Krishna Roy v. Ishwar Bhubaneshwari Thakurani : AIR1933Cal295 .
37. As to the reality and completeness of the consensus, I entertain a serious doubt. The sheba and the worship of the family deity were matters in which the settlor's descendants were vitally interested. Can it be said, therefore, that the consensus was real and effective unless every single member of the family, male and female, who was sui juris, actually signed the document, and unless the assent of the numerous minors involved was expressed through a properly constituted guardian? The evidence of the witness Nagendra Nath Banerjee goes to show that Nishabati alias Khenda, a daughter of Bhabatarini was not a minor, and yet her signature does not appear on the document. As regards minors, it is true that Bhabatarini signed for herself and for her minor children. But whether a natural guardian is competent to act for her minor children in a transaction of this nature is a question about which I am not convinced. In all the circumstances of this case I am not prepared to say that the consensus, such as it was in the present case, could clothe the settlor with power to revoke the deed of 1922, more particularly when in that document he had expressly divested himself and his heirs of such a power in these words:
Nobody shall ever be competent to break or violate these rules. My heirs and other people who have been mentioned in connexion with different matters regarding this document shall all be bound by all the rules and the relevant rules of this document. Nobody shall be competent to raise any plea or objection to rules mentioned in this deed.
38. It remains now to consider the effect of the so-called 'settlement' of 30th August 1929. (His Lordship considered the effect of 'settlement' of 30th August 1929 and ultimately declared the plaintiff to be entitled to act as shebait.)