1. This appeal arises out of a suit for partition, accounts and for various other reliefs. The plaintiff-respondent is the daughter's son of one Lokenath Mandal. Lokenath had two brothers, Tarak Nath and Hiralal. Lokenash left his widow Monmohini, his daughter Ramani, the Defendant No. 5, and his daughter's son Dulal Chandra, the plaintiff. Tarak Nath's widow Uma Sundari was the Defendant No. 3 since deceased. Hiralal left two sons Chandi, the Defendant No. 1, and Kedar Nath, the Defendant No. 2, and a daughter Bhabini, the Defendant No. 4.
2. Lokenath established a deity Sree Sree Radha Krishna Jiu in his dwelling-house in May 1902. On the 20th July 1902 he executed an arpannama (deed of endowment). On the 26th July 1903 he executed a Will. On the 31st July of the same year he executed an ekrar. A codicil was executed on the 11th November 1904.
3. On the 4th December 1907 Monmohini obtained probate of the Will of Lokenath, In 1912, the Defendants' Nos. 1 and 2 brought an administration suit against Monmohini and others. That suit was, decreed in a modified form on the 5th September 1913 by the trial Court. There was an appeal by the Defendants Nos; 1 and 2 to the High Court in R.A. No. 19 of 1914. There was a compromise between the parties, and a decree was passed by consent on the 25th July 1916. Subsequently Monmohini brought an account suit (No. 9 of 1919) against Dulal, the plaintiff. She died on the 10th November 1919 and the suit was continued by the Defendants Nos. 1 and 2 which, however, was dismissed on the 17th January 1921. The present suit was instituted on the 5th August 1921 by Dulal as stated above.
4. The arpannama, dated the 20th July 1902, was executed by Lokenath in favour of Sree Sree Iswar Radha Krishna Jiu and runs as follows:
I, Lokehath Das Mandal, do execute this arpannama or deed of endowment to the following effect:--I have installed the idol Sree Sree Iswar Radha Krishna Jiu in my dwelling-house at No. 43, Beniapukur Lane on 8th Jaistha 1309 last after the performance of sacrifices, etc., and the said dwelling house has coma to be called a 'thakurbati.' I am now duly performing the sheba (service) and puja (worship), etc., of the said Sree Sree Radha Krishna Jiu. But in order that the sheba and puja, etc., of the said idol may be duly carried on after my death, I, with that intention, make over, or endow once for all, the properties mentioned in the schedule to the said Sree Sree Radha Krishna Jiu, and become divested of all rights thereto.
The said Sree Sree Radha Krishna Jiu thus becomes the absolute owner of the properties mentioned in the schedule from this day. The sheba and puja, etc., of Sree Sree Radha Krishna Jiu shall be carried on and the management of the said debutter properties made and the expenses in connexion therewith on the score of revenue and taxes, etc., defrayed out of the income of the said properties. As it is necessary to appoint shebaits or trustees for duly performing the duties mentioned above, I appoint shebaits under the following conditions and rules.
The shebaits shall carry on the sheba and puja according to the rules set forth below. I shall perform the sheba and puja, etc., as the sole shebait of Sree Sree Iswar Radha Krishna Jiu so long as I shall be alive; on my death, my wife Monmohini Dassi shall be shebait of the said Sree Sree Ishwar Radha Krishna Jiu and, on her death, my daughter Ramani Dassi and on the death of the latter, my nephew Kedar Nath Das Mandal and my daughter's son Dulal Chand Paik shall jointly act as shebaits; and on the death of both of them, their heirs shall become the shebaits in succession.
The Shebaits shall defray the expenses of debsheba, etc., management of the properties and repairs, etc., out of the income of the properties hereby dedicated as per details given below, and shall credit the half of the surplus income, after deducting the expenses thus incurred, to the tehbil of Sree Sree Iswar Radha Krishna Jiu and shall, at the end of every three years, appropriate the remaining half of the surplus income, as remuneration for (Their labour. The shebait shall live with their family in the 'thakurbari' and perform the sheba, etc, of the thakurs (idols), I, of my own accord and in sound health, execute this arpannama or deed of endowment to the above effect.
5. The properties dedicated were mentioned in the schedule to the deed, viz., premises No. 14/1, Beniapukur Road which was let out at a monthly rent of Rs.... 60, and the dwelling-house No. 43 now 53, Beniapukur Lane.
6. Various questions were raised in defence, one of them being whether the endowment was an absolute debutter or merely was an arrangement for the benefit of the family with a charge for the deb sbeba upon the properties. The first question, therefore, for consideration is whether there was an absolute debutter. The arpannama states that Lokenath made over, or 'endowed once for all, the properties mentioned in schedule to Sree Sree Radha Krishna Jiu and became divested of all rights thereto.' Further on it states that Sree Sree Radha Krishna Jiu thus became the 'absolute owner of the properties mentioned in the schedule.' These provisions prima facie show that there was an absolute dedication. The contention on behalf of the appellants that it is not absolute debutter is based upon the ground that half the surplus income is to be taken by the shebaits as remuneration for their labour, and that the shebaits will have the right to reside in the house No. 53, Beniapukur Lane.
7. It is urged that these two circumstances go to show that it was really a device for the benefit of the family and that there was merely a charge of the deb sheba on the properties. The question whether an absolute debutter is created or there is merely a charge in favour of the deb sheba depends upon the terms of the deed and the circumstances of each case. In the present case the income of the property No. 1 which was the only property let out was Rs. 60 per month although the income has in recent times increased. But in considering this question we have to take the income of the property at the time of the execution of the arpannama. The expenses of the sheba of the deity stated in the schedule to the deed amounted to Rs. 527 per annum. That works out at about Rs. 44 per month.
8. The arpannama provides that the shebaits after defraying the expenses of the deb sheba, etc., out of the income of the properties shall credit half of the surplus income to the tehbil of Sree Sree Iswar Radha Krishna Jiu and shall, at the end of every three years, appropriate the remaining half of the surplus income as remuneration for their labour. It appears, therefore, that the shebaits were not to get anything under the deed for three years. That probably was to provide for any unforeseen contingency relating to the deb sheba expenses within three years, and it is only after the expiry of every three years that the shebaits would get half the surplus income. The total surplus income would not exceed Rs. 16 a month, one half of which is to be credited to the debutter fund. The amount, therefore, which would go to the shebaits is trifling and, moreover, this is to be enjoyed by them as their remuneration as shebaits.
9. In the case of Jadu Nath Singh v. Sita Ramji  39 All. 553, the Judicial Committee observed as follows:
The deed ought to be read just as it appears, and there is no reason why it should not be construed as meaning simply, what the language says, a gift for the maintenance of the idol and the temple, under which the idol is to take the property and, for the rest, the family are to be the administrators and managers, and to be remunerated with half the income of the property. If the income of the property had been large, a question might have been raised, in the circumstances, as throwing some doubt upon the integrity of the settlor's intention, but, as the entire income is only Rs. 800, it is obvious that the payment to these ladies is of the most trifling kind and certainly not an amount which one would expect in a case of that kind.10. The learned vakil for the appellants relied upon the decisions of the Judicial Committee in Sonatun Bysack v. Juggut Sundaree  8 M.I.A. 66 and Ashutosh Dutt v. Durga Charan Chatterji  5 Cal. 438. Both these cases are, however, distinguishable. As pointed out by their Lordships in the case of Jadu Nath Singh v. Thakur Sita Ramji  39 All. 553, although nominally there was a gift in Sonatan Basak's case  8 M.I.A. 66 at the beginning to the idol, that gift was so cut down by subsequent disposition as to leave it clear that the subsequent disposition ought to prevail rather than the earlier one, and that consequently there was no gift to the idol such as to make the property pass as an absolute and entire interest in its favour. With reference to the case of Ashutosh Dutt v. Durga Charan Chatterji  5 Cal. 438, their Lordships observed:
It was a question of the construction of a Will take as a whole, and it was said there was not a complete gift to the idol, it was cut down by the subsequent disposition to the family. Here there is no such cutting down. There is, in the beginning, a clear expression of an intention to apply the whole estate for the benefit of the idol and the temple, and then the rest is only a gift to the idol sub modo by a direction that of the whole which had already been given, part to be applied for the upkeep of the idol itself and the repair of the temple, and the other is to go for the upkeep of the managers. There was no reason why the disposer should not nominate the members of his family as his managers and he has done so. And there is nothing in that which militates against the propriety of his earmarking a certain part of the money to remunerate them as managers so long as they so continue.11. These observations apply to the present case.
12. As for the provision that the shebaits would be entitled to reside in the house, it appears that only a portion of the house is required for the location of the deity, and there is nothing wrong in the provision that the shebaits should reside in the other portions of it. On the contrary, the residence of the shebaits in the house may be convenient for the proper performance of the sheba and puja of the deity. On the whole we agree with the lower Court in holding that there was an absolute debutter.
13. It is contended that even if there was an absolute dedication the subsequent conduct of the members of the family goes to show that the property dedicated was treated as secular property, and that the consensus of the whole family might in the case of a family idol 'give the estate another direction.' This contention was founded on the terms of the Will and the compromise between the parties which provided that all the members of Lokenath's family were to have the right of residence although the arpannama merely provided for the residence of the shebait and his family.
14. The proposition that in the case of a family idol, the consensus of the whole family might 'give the estate another direction' cannot be said to be settled. It is based upon an observation to that effect in the case of Doorganath Roy v. Ram Chandra Sen  2 Cal. 341. But their Lordships did not decide the question. There was in fact no question of consensus of the whole family in that case, for their Lordships observe in the next sentence:
15. No question, however, of that kind arises in the present case.' The above observation has no doubt been followed in this Court by Rampini and Sharfuddin, JJ., in the case of Gobinda Kumar v. Debendra Kumar 12 C.W.N. 98, where their Lordships said, following the above direction, that the properties dedicated to a family idol may be converted into secular property by the consensus of the family. In the case of Gopal Jiu Thakur v. Radha Binode : AIR1925Cal996 , however, it was pointed out that:
where there is a consensus of all the members of the family, there is no one to object to the diversion of the endowment to secular uses, but the question whether in a case of an absolute debutter, where the property is absolutely vested in the deity, the successors of the members of the family who give the estate another direction may not call in question the diversion of the estate, did not arise nor was considered by the Judicial Committee.16. In considering this question, the right 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. It is to be observed that in the recent case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick , their Lordships directed a special guardian to be appointed of the deity in order to protect its interests.
17. 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: see Monmohan Ghose v. Siddeswar Dubay A.I.R. 1923 Cal. 177 and Lalit Mohan Seal v. Brojendra Nath Seal A.I.R. 1926 Cal. 561. In the present case the Defendant No. 4 did not join in the compromise. We are of opinion that the property which was made absolute debutter was not converted into secular property in the present case. Having regard to our finding that there was an absolute dedication Ramani, Defendant No. 5, is the present shebait after the death of Lokenath and his widow Monmohini.
18. A question has been raised by the learned vakil for the appellants that the present suit having been brought by Dulal, there could not be any decree Passed in favour of Ramani, the Defendant No. 5, more specially as the suit was one for partition. That is so; but in order to decide which properties are liable to partition the Court has to decide whether some of the properties which are claimed as debutter are really absolute debutter or not, and as we have found that the properties mentioned in schedule Ka of the plaint are absolute debutter properties, they will be excluded from partition. It is unnecessary to make any decree for possession in favour of Ramani (nor is it permissible in this suit to do so) as the Defendant No. 5, Ramani, is already in possession as receiver and, as stated above, she is the shebait after the death of Monmohini.
19. It was contended by the learned vakil for the appellants that Ramani's right as shebait was cut down by Lokenath in the ekrar subsequently executed by him. But it does not appear to be so. What was stated was that she was to take the advice of the executors and certain other persons. That, however, does not take away her rights as shebait.
20. It is also contended for the appellants that in the suit as framed there could be no provision made for the maintenance, jalpani and annuity of certain members of the family. But the suit primarily relates to secular properties and the plaint prayed for directions as to maintenance, legacies and tiffin money; we think, therefore, that there is nothing to prevent the Court from giving the directions which it has given with respect to those matters, and we do not think that the decision of the Court below on those, points is erroneous.
21. Then there is the question of the legacy of Rs. 3,000 in favour of the plaintiff as mentioned in the Will. Two contentions have been raised by the learned vakil for the appellants on this point. The first is that in the compromise decree there was no mention of the legacy at all and that, therefore, Dulal must be taken to have given up his right to this legacy. It is true that this legacy of Rs. 3,000 was not mentioned in the compromise decree, but after stating the terms contained in Clauses 1 to 8 in the compromise decree, it was provided that all other rights of the parties in the litigation 'would remain intact and unaffected.' That being so, we do not think that the plaintiff Dulal can be said to have given up his right to the legacy.
22. It is further contended that the, plaintiff Dulal, having agreed to take one-third share of the Property No. 14/1, Beniapukur Lane, must be taken to have given up his right to Rs. 3,000, because this legacy of Rs. 3,000 was to be realized by sale of the said property in case the money could not be raised by other means. We do not think that that is sufficient to show that Dulal agreed to give up his claim for Rs. 3,000, because the property might be divided into three shares subject to the charge for the legacy. It is further to be observed that the arrangement under the compromise was to inure only for the lifetime of Monmohini.
23. The second condition is that even if the plaintiff is not to be taken as having given up his right to the legacy he was entitled only to the sum of Rs. 1,400, i.e., after giving credit for the sum of Rs. 1,600 which had been paid over to him by Monmohini. There is a finding as to the said payment by Monmohini to Dulal in the judgment of the trial Court an the suit which came up to this Court and which was compromised, but then that judgment was by consent of parties set aside and a consent decree was passed, In the circumstances, we think the question whether the plaintiff received Rs. 1,600 from Monmohini should be enquired into.
24. The Defendants Nos. 1 and 2 claimed the expenses connected with the worship during the time they had performed the sheba of the deity and the Defendant No. 5, in her written statement, prayed that the thakur might be made over to her. Strictly speaking, in the suit as framed, neither the claim for the possession of the thakur on the part of the Defendant No. 5, nor the claim of the Defendants Nos. 1 and 2 for the expenses in connexion with the deb sheba, can be gone into.
25. The parties, however, have agreed that the Defendants Nos. 1 and 2 will make over the thakur together with ornaments and utensils (such as there might be) to the Defendant No. 5 within one week of this order being signed, and the Defendant No. 5 will make over the expenses of the sheba of the thakur, that is, the amounts of expenses incurred by the Defendants Nos. 1 and 2 for the period they have been performing the sheba since the death of Monmohini up to the date when they deliver possession of the thakur to the Defendant No. 5. The parties are agreed that the amount of expenses for the sheba will be taken at Rs. 25 per month with the result that the Defendant No. 5 will pay the sum of Rs. 1987-8 annas to the appellants.
26. The Defendant No. 4 states that the arrears of her maintenance should be paid out to her. The Court below has found that she is entitled to maintenance. She can apply to the Courts below for a direction upon the receiver of the secular estate to pay her the amount of the arrears of her maintenance.
27. The decree of the lower Court with, regard to other matters except the direction in the decree:
and she do get khas possession of the debutter properties described in schedule Ka and of the said idol.
And that the plaintiff do get Rs. 3,000 as legacy from the estate of Lokenath Das, for which portion of Premises No. 14, Beniapukur Lane, may be sold, if necessary
will stand. But the case will go back to the Court below in order that the question whether the plaintiff received Rs. 1,600 from Monmohini may be gone into. If he did receive it, the legacy payable to him will be reduced accordingly. It is further ordered by consent that the defendant do pay the sum o Rs. 1,987-8 to the appellants as the expenses of the sheba of the deity incurred by them during the period they had been performing the sheba and that the defendants do make over the thakur together with ornaments and utensils (such as there might be) to the Defendant No. 5 within one week of this order being signed.
28. I agree. We have come to the conclusion that under the arpannama Lokenath dedicated and transferred the two properties--14/1 and 43 (now 53), Beniapukur Lane--absolutely to the deity, and became divested of all right and title thereto. After dedication Lokenath possessed only such rights in relation to these properties as were expressly given to him under the arpannama. As founder he was functus officio, Gouri Kumari v. Ramanimoyi A.I.R. 1928 Cal. 30=50 Cal. 197, and the only rights which be retained for himself under the arpannama were those that appertain to the office of shebait. What those rights are I endeavoured to explain in Nagendra Nath v. Rabindra Nath A.I.R. 1926 Cal. 490=53 Cal. 132 and Lalit Mohan v. Brojendra Nath A.I.R. 1926 Cal. 561. The question as to who are the persons entitled to be shebaits in future was also canvassed before us at the hearing of the appeal. The answer to that question appears to me to present no difficulty. But until the death of Ramani no question as to the succession to the shebaiti can arise, for under the arpannama it is specifically provided that Ramani should be the sole shebait with an unfettered right to exercise her powers in that behalf. It would be premature, therefore, in this case and during the lifetime of Ramani to decide any question as to the right of succession to the shebaiti in the future which can properly be taken into consideration only after Ramani's death. A further contention was raised by the appellants that there was a consensus of opinion among all the persons interested in the worship of the deity that these two properties, which had been dedicated absolutely to the deity, should be treated as secular property. In my opinion it is clear upon the facts that no such consensus was proved. But it must not be taken that I should be prepared to hold that if all persons interested in the worship of the deity are agreeable, they can validly convert debutter into secular property, or that such a doctrine can be sustained as being in accordance with Hindu Law. Although this is not the occasion to express a definite opinion upon this vexed and still unsettled question, it appears to me, as at present advised and subject to any further argument that hereafter may be presented when the question arises for determination, that this doctrine, which is based upon a mere obiter dictum of Sir Montague Smith in Konwar Doorganath Roy's case  2 Cal. 341 is incompatible with the spirit that moves a pious Hindu to set up a thakur for his family to worship from generation to generation, and also with an absolute dedication of property to the deity: Dharmadas Mandal v. Gosta Behari Mandal (12) and Monmohan Ghose v. Siddeswar Dobey A.I.R. 1923 Cal. 177. See also Sarkar's Hindu Law, 5th Ed., at p. 710; Gopal Jiu Thakur v. Radha Binode : AIR1925Cal996 and Pramatha Nath Mullick v. Pradyumna Kumar . I concur in the order proposed.