1. This appeal arises out of a suit for recovery of possession of 7 1/2 bighas of land, on the allegation that the land was dedicated to the deity 'Ganesh Janani', and that the plaintiffs were appointed she-baits under an arpannama dated 12th Falgun 1315 B.S. executed by one Dhankumari. It is further alleged that they had been in possession thereof until they were dispossessed in 1319.
2. The defence was that by a subsequent deed dated the 26th Bhadra 1316, Dhan. kumari Dasi made a gift of the property in favour of the defendant subject to a charge in favour of the Thakur, and that by a still later deed dated 7th Assin 1316, she revoked the first deed of dedication dated 12th Falgun 1315 altogether,
3. The Court of first instance dismissed the suit. On appeal the decree of the Court of first instance wag reversed and the plaintiffs' suit decreed.
4. Two questions have been raised in appeal before us. The first is whether there was an absolute dedication of the property under the arpannama dated the 13th Falgun 1315 or whether there was merely a charge in favour of the Thakur on the property.
5. The arpannama has been placed before us and we agree with the Court below in holding that there was an absolute dedication in favour of the Thakur.
6. Our attention has been drawn to a passage towards the end of the document which might indicate that she had some beneficial interest in the property so long as she was alive. But reading the document as a whole, we think that there was an absolute dedication of the property. By that document she appointed the plaintiffs and their heirs as the shebaits of the Thakur after her death. Now, there being an absolute dedication of the property, the subsequent deed dated 26th Bhadra 1316 could not affect the right of the Thakur to the property nor of the plaintiffs as shebaits under that deed.
7. It is contended on behalf of the appellant that the founder has the right of substituting one shebait in the place of another and it is pointed out that by the deed of 20th Bhadra 1316, the lady purported to substitute the defendant as shebait in the place of the plaintiffs. It appears, however, that by this deed the lady purported to make a gift of the property to the defendant as if it was secular property and there was merely a charge in favour of the Thakur, That being so, it cannot be said that the defendant was substituted as shebait in the place of the plaintiffs.
8. The second contention is that even if there was a complete dedication, the donor had a right to change the course of management by a subsequent deed and reliance is placed upon the third deed dated 7th Assin 1316. But under the last deed there was a revocation of the dedication altogether, and we think, therefore, that the statement in the document to the effect that the plaintiffs would not be the shebaits cannot affect their right.
9. In the first place, the lady purported to revoke the gift and shebaitship in her right as owner of the property and not in her right as founder and first shebait of the Thakur. In the next place, the right of the plaintiff as shebait depended upon the dedication made in the deed dated 12th Falgun 1315. There having been an absolute dedication, as stated above, it could not be revoked. We cannot divide the terms of the deed and hold that one part of it, namely, that relating to the dedication was invalid, but that the statement contained in the document with regard to the shebaitship of the plaintiff was valid. The question might have been different, had she purported to act in her capacity as a trustee or as founder of the trust. As it is, we do not think that she had any power as owner of the property to set aside the deed dated the 12th Falgun 1315 in any respect.
10. In this view it is unnecessary to consider whether a founder of a trust can in his lifetime alter the course of succession of shebaits even if he does not reserve any power to do so in the deed of trust.
11. We may mention that she appellant before ns is an insolvent and has, prosecuted this appeal with the permission of the Insolvency Court.
12. The result is that this appeal is dismissed with costs.