1. This is an appeal by the plaintiff in 4 suit for recovery of possession of land upon establishment of title as shebait. The Subordinate Judge gave the plaintiff a decree which has been reversed on appeal by the District Judge.
2. The subject-matter of the litigation admittedly belonged to one Gobinda Chandra Ganguli who, shortly before his death, which took place on the 29th January 1897, made a testamentary disposition on the 29th October 1898. The names of the members of his family appear on the following genealogical table:
Gobind Chandra Ganguli, W. Taramani
| | | |
Kshetra Mohan, Bhuban Mohan Chandra Mohan, plaintiff |
defandant No. 4. | |
| | |
Bama Charan, Hem Chandra, |
defendant No. 2 defendant No. 3 |
Raj Krishna, Ananda Debi, married
died on 19th July 1918 Bhairab Chandra.
Banerjee,defendant No. 1
3. The testator had a garden in the northern suburb of Calcutta, which covered an area of more than 12 bighas. He had a map of the garden prepared, which was mentioned in his last Will. He gave the portion marked D to his eldest son Kshetra Mohan, B to his second son Bhuban Mohan, A to his third son Chandra Mohan, and C to his youngest son Raj Krishna. The portion marked E was called panchabati debtitter, and the passage marked F was described as appurtenant to the debutter as a passage for ingress and egress from the public road. He appointed Raj Krishna as full shebait of the debutter in the following terms:
(As regards) the Iswar debutter panchabati and brick-built house (containing) two bighas (of land situate) on the east side of the same (and) which has been marked (E) and coloured in neutral tint in the accompanying map, and the passage (measuring) two kathas (and) leading to the sadar road from the said debutter house on the western side which (passage) has been marked (F) and coloured light red, my youngest son Sriman Raj Krishna Gangopadhayay Babaji shall be full shebait of the said debutter (property) and shall enjoy (and) possess (it) down to (his wife and son, son's son and so forth in succession). The said shebait shall, if necessary, give unto my other three sons Sriman Kshetra Mohan Gangopadhyay, Sriman Bhuban Mohan Gangopadhyay (and) Sriman Chandra Mohan Gangopadhyay nine kathas of land, being three kathas to each, on the east side, for residential purposes.
4. The wife of Raj Krishna pre-deceased him and he died childless. On the 18th January 1919 the plaintiff instituted the present suit for possession of the debutter property, on the allegation that the shebaitship had, upon the death of Raj Krishna, vested in himself and Kshetra Mohan and that as Kshetra Mohan had not joined as plaintiff, he had been made a pro forma defendant. Kshetra Mohan died on the 9th January 1920 during the pendency of the suit in the Primary Court, and his executor was brought on the record in his place. The contesting defendants repudiated the claim and set up title under a Will alleged to have been executed on the 11th January 1918 by Raj Krishna who had made a testamentary disposition of his private properties. The question, consequently, arose whether the disputed property was secular or debutter, for if the property was validly dedicated by the original owner, it could not be affected by the Will of his son. The Courts below have taken divergent views upon this matter. I am of opinion that the conclusion of the District Judge cannot be supported.
5. The Subordinate Judge found on the evidence--and his finding has been accepted by the District Judge--that the disputed land was dedicated by the proprietor as a place of worship and was regularly used by him for that purpose. The evidence shows that the land was consecrated, holy trees were planted and a vedi (raised brick-built platform) was erected. The founder used to go to this panchabati everyday, performed his puja ahnwik there, seated on the vedi and engaged in pious and religious meditation. On these facts, there is no room for controversy that there was a valid religious dedication.
6. Special religious efficacy is ascribed in the sacred books of the Hindus to selected groupings of plants, one of these is called the, panchamra, while another is known by the name of panchabati. The panchamra is described in the Mahabharata quoted in the Danakhanda of the Ohal Chaturvarga Chintamani of Hemadri. Chapter XIII; p. 1032 (A.S.B.) and in the Sabdakalpadruma. The sacred group panchabati is described in the following passage of the Skandapurana, which is re-produced in the Sabdakalpadruma from the Vratakhanda of the Chaturvarga Chintamani of Hemadri:
Aswatha, Billwa, Bata, Amlaka, and Asoka trees constitute a panchabati: these should be planted in five directions. For the sake of religious merits, oh, Ruler of gods, the Aswatha tree should be planted on the east, the Billwa on the north, the, Bata on the west, the Amlaka on the south and the Asoka on the south-east. In the middle, there should be raised a beautiful and well-attractive vedi measured four cubits. Oh, Siva, the consecration ceremony should be performed after five years. This produces infinite results and is a giver of the fruits of austerity. Thus has the ordinary panchabati been explained. Now hear of the bigger panchabati. Oh, Supreme Goddess, one should plant a Billwa tree in the centre, four (such trees) on four directions, four Bata, trees on four corners, twenty-five Asoka trees in a circular order, one Amalaka tree in each direction and in the intermediate spaces and Aswatha trees on all sides. Thus a greater panchabati is formed. Oh Great Goddess, whoever makes (such a panchabati) becomes exactly like Indra. He attains perfection in mantras in this world and the highest path in the next.
7. The group consists of the (1) Aswattha, (2) Vilwa, (3) Vata, (4) Dhatri (amlaki) and (5) Asoka; these are to be planted to the east, north, west, south and south-east respectively of a vedi or raised platform in the middle, for cubits in size and of beautiful shape; when the trees have grown for five years, the place has to be consecrated and religious austerities practised on such a spot are fruitful of endless rewards. A bigger type of this sacred grove is described in the same work, under the name of Vrihat-Pancha-Vati, as composed of a (1) Vilwa tree placed in the centre, single specimens of the (2) Vilwa Amalaki land (3) Aswatha in the four cardinal directions, a Vata tree at each of the four corners, and a circle of twentyfive Asoka trees surrounding the whole; the maker acquires the prowess of Indra; he is master of incantations in this world and obtains salvation in the next.
8. The ceremony of pratishtha or consecration for trees and groves is described in the Matsyapuraria to be in its preliminaries the same as that for water reservoirs. Hemadri, Dankhanda, Chap. XIII, p. 1048 and Ashwalyana, Grihyasutra, Parishishtha, p. 344 (A S.B.). The erection of the mandap, the appointment of priests and the collection of materials is the same as in the case of the consecration of a reservoir. The trees which are the subjects of the ceremony are to be irrigated with holy water, beautified with rice-flour and alaktaka, adorned with garlands and covered with cloths. The ear-boring ceremony is then to be performed for each with a golden needle and collyrium applied (as if to their eyes) with a golden pencil; and imitation fruits of silver placed upon the platform at the foot of each tree. A kalasa properly filled is to be installed for each, and homas offered for Indra and the other Rokapalas or guardians of the quarters of the globe and also in honour of 'Lord of the Forest,' Vanaspati, which is specially introduced because of the trees. Then a milch-cow, covered with white cloths, ornamented with, gold, specially in her horns and accompanied by a milking vessel of bell-metal, is to be released in the midst of the trees, with her face to the north, so that naturally she proceeds in that direction. The worshipper then is bathed by the priests from the auspicious waters of the installed Avater-pots to the accompaniment of music and auspicious songs. Having so bathed and attired himself in white cloths the worshipper honours the priests with appropriate presents. The ground is sprinkled for four days with milk and a homa performed with ghee, barley and black seaamum. On the fourth day there is held a great festival and presents again offered to the priest. He who performs the Vrikshotsava or 'Tree-festival,' according to the above rule, has all his desires gratified and enjoys eternal exaltation. The man who has consecrated even a single tree, dwells in heaven till three ayutas of Indra. He procures the salvation of past and future generations, and obtains final emancipation from which there is no return.
9. A place so dedicated for worship ceases to be private property according to Hindu religious ideas and the case of reservoirs is included in the rule; see Jagannath's Digest, translation--Colebrooke, Book III, Chapter I, Section 2, pl. 101; see also Birendra Kishore Manikya v. Akram Ali 13 Ind. Cas. 513 : 39 C. 439 : 16 C.W.N. 304 : 15 C.L.J. 194, Bhudeb Mookerjee v. Kalechand Mallik 66 Ind. Cas. 536 : 34 C.L.J. 315 and Thandapaneni Krishnayya v. Paddilibotta Subbayya 11 Ind. Cas. 728 : 21 M.L.J. 784. In this connection, it is important to bear in mind, that to effect a valid dedication, it is not necessary to establish the image of an idol; all that is essential is that the religious purpose should be clearly specified and the property intended for the endowment set apart for that object Bhuggobutty Prosonno Sen v. Goorooprosunnoo 25 C. 112 : 13 Ind. Dec. (N.S.) 76, Bhupati Nath v. Ram Lal 3 Ind. Cas. 642 : 37 C. 128 : 14 C.W.N. 18 : 10 C.L.J. 355, Chandi Charan Mitra v. Haribola Das 51 Ind. Cas. 215 : 23 C.W.N. 645 : 29 C.L.J. 366 : 46 C. 951 and Asita Mohan v. Nirode Mohan 35 Ind. Cas. 127 : 20 C.W.N. 901 at p. 919. This test is fulfilled in the case before us, and there is no room for any suggestion that the dedication was void for vagueness as happened in the case of Runchordas Vandravandas v. Parvati Bai 26 I.A. 71 : 23 B. 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.), where the bequest was to 'dharam.' We cannot further ignore the fact that the proprietor designated the property as Iswar debutter panchabati. No doubt, as pointed out in Benode Behari v. Manmatha Bose Nath 13 Ind. Cas. 425 : 21 C.L.J. 42, the designation debutter is not conclusive, though valuable evidence of the intentions of the founder; Madhab Chandra v. Sarat Kumari 6 Ind. Cas. 26 : 15 C.W.N. 126. On the other hand, we must bear in mind that if there has been a valid dedication, a breach of trust on the part of a shebait or even of the donor himself, will not invalidate or annul the trust or alter the original nature of the grant. In the words of Sir Robert Phillimore in Juggut Mohini v. Sokheemoney Dassu 14 M.I.A. 289 at p. 306 : 10 B.L.R. 19 : 17 W.R. 41 : 2 Suth. P.C.J. 512 : 2 Sar P.C.J. 23 : 20 E.R. 795, a former abuse of trust cannot be pleaded against a trustee who seeks to prevent a repetition of abuse even if he himself were formerly implicated in the same indefensible courses against whichhe is seeking to protect property. The misconduct of the trustees cannot be put forward as a valid reason for holding that the author of the trust had no intention of acting seriously or for determining his intention at the time when he founded the trust. If property has been set apart for religious purposes that constitutes, dedication, and such property must be treated as partak-ing of a trust or religious endowment though the mere erection of a temple and the planting of a grove may not without consecration amount to such a setting apart as constitutes dedication Anath Nath Dey v. Mackintosh 8 B.L.R. 60, Pirfin v. Abdool Karim 19 C. 203 : 9 Ind. Dec. (N.S.) 581, Dakhni Din v. Rahim-un-nissa (14), Ram Brahma Chatterjee v., Kedar Nath Banerjee 72 Ind. Cas. 1026 : 26 C.L.J. 478; (1923) A.I.R. (C.) 60 and Ram Das v. Basanti 77 Ind. Cas. 97 : 20 A.L.J. 789; (1922) A.I.R. (A.) 519. In my opinion, the facts established in the present case show that there was a dedication of the land in suit for religious, purpose and a valid debutter was thereby created. In this view, the appeal must be allowed, the decree of the District Judge set aside and that of the Subordinate Judge restored with costs in all Courts.
10. I agree that Gobinda Ganguly intended a full and complete dedication and that he did everything necessary to effect this. I see no objection in law to the validity of the dedication and agree in allowing this appeal with costs here and below as proposed.