M. A. No. 337 of 1920.
1. This appeal arises oat of an application under Section 47. Civil Procedure Code, objecting to the attachment and sale of certain properties of the judgment debtor in execution of a money decree on the ground that the properties were debuttar and the judgment debtor was only a shebait.
2. The question was whether the properties, which the judgment-debtor claimed to hold under the Will executed by one Ram Gopal Pandit on the 6th Aughran 1315 B.S. were debuttar
3. The Court of first instance was of opinion that there was no dedication of the properties to the idol (thakur) but that the properties were subject to the charge of performance of the sheba of the thakur, and accordingly held that the properties ware liabls to attachment and sale as the judgment-debtor's properties, subject to the charge of the due performance of sheba of the idol Sridhar Thakur. On appeal the learned Subordinate Judge came to the conclusion that the properties were debuttar.
4. Now, the Will states as follows:'.... The sheba of Sri Sri Iswar Salgram Thakur established by my anceetors is performed at my house.... It is necessary to make sitae arrangements for performance of the religious rites, the sheba and other acts of the said Sridhar Salgram, ministrations to me so long as I live and my funeral and other ceremonies.... Sriman Gokul Chandra Chuckerbutty, my jnati and my brother's son's son, has agreed to serve and attend on me so long as I may live, and after my death to perform all the acts mentioned in the Will, and ha has till now bean performing ail the said acts of sheba, etc., and has agreed to perform the said acts regularly after my death. I have on that account been pleased with him. The said Gokul Chandra Chuckerbutty shall, on my demise, aontinue to enjoy and possess in absolute right all my moveable and immoveable properties. To this none will be able to take any objection.... He will regularly perform the sheba. etc., of my aforesaid Sri Sri Iswar Salgram Thakur remaining in my house. The said Sriman Gokul Chandra Chuckerbutty shall also get the profits whatever will be obtained from my moveable and immoveable properties and disciples etc., Any objections taken by anyone to this will not be entertained.' Than follows the clause upon which reliance is placed by the learned Pleader for the respondent and which runs as follows:--'If the said Gokul Chandra does not regularly perform the sheba, etx., of the aforesaid Salgram Thakur and the religious rites of the disciples and jaimans, then he among my nearest jnatis who will perform the said acts, shall enjoy and possess in absolute right all of my properties. The said Gokul Chandra shall not be able to take any objections thereto.'
5. There is apparently some inconsistency in the two clauses, one that Gokul will possess and enjoy all the moveable and immoveable properties in absolute right and the other that if he fails to perform the sheba some other jnati (agnate) would perform the Act of sheba and possess and enjoy in absolute right all the properties. Giving weight to all the clauses of the Will, we think that the intention of the testator was to give the estate to Gokul subject to the charge of the sheba of the thakur.
6. It is contended on behalf of the appellant that the gift over was uncertain, that the clause was not intended to be operative and that the gift over was illegal, not being in favour of any definite person. It is unnecessary to discuss these matter, because we think upon the construction of the document that there was no absolute debuttar created by the testator.
7. It is contended, however, on behalf of the respondent that there were certain dokkilas, upon which the learned Subordinate Judge relied, which describe the properties as debuttar. But if the properties were absolute debuttar properties dedicated to the thakur by the ancestors of the testator, they would certainly have been mentioned as debuttar in the Will itself. Although the document makes provision for the maintenance of the sheba, there is not a word said about the properties being debuttar and if they were debuttar, the testator could not have provided that Gokul was to enjoy and possess in absolute light (nibburha sattsa) all his moveable and immoveable properties. We are accordingly of opinion that the construction put upon the Will by the Court of first instance was the correct one.
8. The order of the lower Appellate Court is accordingly set aside and that of the Court of first instance restored with costs. The application for execution made by the decree-holder will be proceeded with by the Munsif according to law.
9. We assess the hearing fee in this Court at one gold mohur.
Rule No. 874 of 1920.
10. No order is necessary on the Rule, as we have given directions in the appeal to proceed with the execution case.