1. The plaintiff in this suit seeks a declaration that he is entitled to remove certain deities named respectively Thakur Sree Sree Radha Shamsunderjee, Thakurani Sree Sree Radharanee and a Saligramsila known as Sree Sree Rajrajeswar from the Thakurbari, where they are ordinarily located, to his residence during his turn of worship.
2. The deities above named Were established by one Moti Lal Mullick, the grand father of the plaintiff and of the second defendant and the great-grandfather of the fast defendant. During Moti Lal's lifetime the deities were located la his family dwelling house in Pathuriaghatta Street Moti Lal died in 1846 leaving a widow Sreemutty Rangomoni Dassi and an adopted son, Jadu Lal Mullick aged two years. Moti Lal left a Will dated the 3rd September 1846 and thereby appointed his wife so long as Jadu Lal did not attain the age of 20 malik or proprietor and attorney for the protection and care of the whole of his estate. And he left certain funds out of which his wife was to defray the expenses of the daily shebu and of the festivals of the Thakur and Thakurani so long as his adopted, son had not attained the age of 20, upon the happening of which event he directed his wife to make over the whole of the property to him fully. Jadu Lal, who attained his majority, pulled down the family dwelling house and rebuilt it partly on No. 60 Pathuriaghatta Street and partly on No. 7 Prasanno Kumar Tagore Street. Jadu Lal, who on Moti Lal's death became shebait of the deities, acquired a piece of land No. 1 Prasanno Kumar Tagore. Street, and erected thereon a Thakurbari for the Thakur Radha Shamsunderjee and located and worshipped this deity there. By a declaration of trust dated the 26th. April 1888, Jadu Lal declared that he, his heirs, executors, administrators and representatives should for ever hold this la nd to and for the use of the Thakur Radha Shamsunderjee to the extent that the Thakur might be located and worshipped in the premises. A power was reserved by the Instrument to the settlor, his heirs, executors, administrators or representatives to 'revoke the trusts upon providing and dedicating for the location and worship of the Thakur another suitable Thakurbari of the same or greater value and the settlor provided that; unless and until this was done the Thakur should not on any account be removed from the said premises, The settlor further provided that he should be the sole she bait of the idol during his lifetime and that his male heirs should alone be the she baits after his death and that in case of disagreement between any future she baits the worship should be conducted by yearly turns Jadu Lal died on the 5th February 1894 leaving him surviving his widow Sreemutty Saraswati and three sons Ananthnath, who has since died leaving the first defendant his heir, the plaintiff and the second defendant and four daughters. He left a Will but I understand that the provisions are not material for the purposes of this suit. In a subsequent appointment of new trustees of the Will the Thakurbari appears as secular property of the estate. An amicable partition took place between Jadu Lal's three sons and the Commissioner of Partition, the late Mr. W.C. Bannerjee, made his award as Commissioner of Partition, on the 3rd June 1899. By the said award the properties which formed the family dwelling house of Jadu Lal were allotted to Anathnath Mullick and to the defendant Manmathanath Mullick and the plaintiff got no part therein and ultimately built himself a residence in Cornwallis Street where he now resides. Disputes arose between the parties to this suit with regard to the provisions of the Will of Sreemutty Rangomoni Dasi, the mother of Jadu Lal who had devised certain property for the worship of the Thakur Radha Shamsunderjee and in Suit No. 799 of 1904 Mr. Bhupendra Nath Basu was appointed to frame a scheme of worship of the deity and to partition the residue of Rangomoni's estate Mr. Basu directed that the worship of the deity should be performed by the parties and their heirs by turns of one year each, the first turn commencing from the first Baisack 1317 and going to the 1st defendant in the present suit, the 2nd turn going to the present plaintiff and commencing on the 1st Baisack 1318 and the 3rd turn going to the second defendant and commencing on the 1st Baisack 1319.
3. The dispute in this suit arose in this way. It appears that the plaintiff during his turns of worship in 1911 and 1914 removed the deities to his house in Cornwallis Street and worshipped them in the Puja Dalan which he has made there but when his turn of worship came round in 1917 the first defendant, who was then of age, and the second defendant refused to allow the deities to be moved relying upon the provisions of the deed poll, executed by Jadu Lal on the 26th April 1888. 4. The dispute which I have got to decide is whether the defendants were right in their refusal or whether the plaintiff is entitled at his recurring turns of worship each 3rd year to move the deities to Cornwalls Street and worship them there.
4. The plaintiff says, amongst other things, that the accommodation is not adequate at the Thakurbari and that there is no sleeping accommodation for him there and no conveniences and that he cannot properly carry out the worship there. The plan of the Thakurbari is Exhibit No. 1 and the other plan, which is before me, shows the position of the Thakurbari with regard to the premises allotted to the second defendant and to the first defendant's father.
5. The issues framed were as follows:
(1) Was the deed of the 26th April 1888 a pretended document? Was it executed with a view to getting exemption from Municipal rates and taxes as alleged in paragraph No. 8 of the plaint?
(2) What is the effect of this deed Upon the true construction thereof ?
(3) Did the taking of the Thakurs to the Thakur Dalan constitute a removal thereof within the meaning and intention of the said deed?
(4) Was the Thakurbari ever treated as the secular property of Jadu Lal, if so what is the legal effect thereof?
(5) Was there any understanding as alleged in paragraph No. 14 of the plaint?
(6) Was there any concensus by all the members of the family as alleged in paragraph No. 23 of the plaint? What is the effect thereof Did the concensus, if any, extend beyond the temporary taking of the Thakur from the Thakurbari to the Thakur Dalan ?
(7) Could the Thakur Radha Shamsunderjee be severed from his consort the Thakurani and from the other ancilliary deities?
(8) Were the Thakurs established by Moti Lal Mullick, Radha Shamsunderjee, Radharani and Saligram ?
(9) Is the plaintiff entitled to remove the Thakurs to his residence 129 Cornwallis Street during his turn of worship ?
(10) Is the plaintiff estopped by his conduct from questioning the validity of the deed of dedication?
(11) Has the defendant No. 2 replaced the silver articles referred to in paragraph No. 33 of the plaint? Which of these articles came into the hands of defendant No. 2?
(12) Is the plaintiff entitled to any and what damages ?
6. So far as issues Nos. 1 and 4 are concerned the only evidence is that of the plaintiff who stated that the Thakurbari was really secular property and that the deed of 1888 was prepared to avoid payment of rates and that his father on principle (what principle is not clear) applied for remission of rates thereon and not because it was dedicated property. He also stated that the Thakurbari was treated by himself and the other trustees as secular property and that his father told him in 1892 that he had made the deed of 1888 to exempt the building from taxation and that to effect this he had to state that the Thakurs would be permanently located there and that he did not mean to keep the Thakurs there himself. I am not prepared to accept this evidence as correct and as sufficient to displace the express provisions of the deed poll of 1888. I answer issues Nos. 1 and 4 in the negative.
7. The 3rd issue deals with the removal of the Thakurs and it will be convenient to state here the evidence with regard to this. The plaintiff stated that when No. 67 Was demolished the Thakurs remained in one room which was not demolished and that they were removed from room to room as convenience required during the rebuilding. That subsequently they were moved from No. 1 to No. 7 and to No. 67 passing through the public street evenin his father's lifetime. The defendant prodyumna denied that when they were moved to No. 7 and to No. 67 they were taken through the public street and stated that since he attained his majority they had not been moved from the Thakurbari. He stated that when they were moved they were kept in the PujaDalanand taken back to the Thakurbari as soon as the ceremonies were over.
8. Upon the evidence it would appear that since the Thakurbari was built the Thakurs were not removed therefrom (apart from the removals by the plaintiff of 1911 and 1914) except for the purposes of festivals when, they were taken back to the Thakurbari at the conclusion of the festivals and it would appear that this has been discontinued.
9. I am not prepared to say that the removal for festivals constituted a removal within the meaning of the deed or that it affects the question which I have to decide.
10. With regard to the 5th and 6th issues the evidence does not support the understanding alleged in paragraph No. 14 of the plaint or the consensus alleged in paragraph No. 23.
11. With regard to the 10th issue no question of estoppel arises. The answer to the first point of issue No. 11 is in the affirmative and the second point of this issue does not arise.
12. The real questions that arise for decision are contained in issues Nos. 2 and 9.
13. There is no dispute that the Thakurs were established by Moti Lal and that he imposed no condition as to their location and consequently I do not think that it was open to any subsequent shebait to impose restrictions which would fetter those who subsequently as heirs of the founder became shebait.
14. But it is said that it is not open to those who are shebaits to take for the Thakurs the benefit of the Thakurbari founded and built by Jadu Lal without conforming to the restrictions which he imposed by the deed with regard to the removal of the Thakur Sree Sree Radha Shamsundarjee and reliance is placed on the case of Gossami Sr. Gridhariji v. Romanlalji Gossam 17 C. 3 : 16 I.A. 137 : 13 Ind. Jur. 211 : 5 Sar. P.C.J. 350 : 8 Ind. Dec. (N.S.) 541 (P.C.).
15. But in the present case no quest on arises as arose in Gossami Sri Gridhariji's case 17 C. 3 : 16 I.A. 137 : 13 Ind. Jur. 211 : 5 Sar. P.C.J. 350 : 8 Ind. Dec. (N.S.) 541 (P.C.) where the claim was to the She baitship and to the temple. The only question that arises for my decision is whether Jadu Lal who was not the founder of the Thakur could impose a condition as to the location of the Thakur which would bind shebaits who came after him. I tihnk he could not and I answer issues Nos. 2 and 9 accordingly. It maybe that some day the question may arise for decision whether the Thakur can charge his location every 3rd year and still keep his Thakurbari and he may be put to his election with regard to this but as already stated this question does not arise in the present suit as no claim is being made to the Thakurbari adversely to the Thakur. In the view I take issues Nos. 7 a nd 8 do not arise. With regard, to the 12th issue this has not been argued and the only damages that I can see the plaintiff has suffered are the loss of such spiritual benefit as may ensue from worshipping the Thakurs and this can not be measured in money. I accordingly declare that the plaintiff is entitled to move the Thakurs from the Thakurbari during his turn of worship and the defendants must pay the costs to be taxed on Scale No. 2.