Thomas Richardson, J.
1. This is an appeal from the judgment of Greaves, J., dated 1st June 1922. The parties to the suit are the present representatives of a well-known family in Calcutta, the founder of which was Moti Lal Mullik. Moti Lal died in 1846 leaving a widow, Rangomani Dasi, and an adopted son, Jadulal, then two years old. During his lifetime he established and consecrated the three deities who are the subject of this litigation, Thakur Sree Sree Radhashamasunder Jee, Thakuratti Sree Sree Radharanee, and a Saligramsila known as Sree Sree Raj Rajeswar. These deities were located in his family dwelling house in Pathuriaghata Street. A room was set aside for them as a private or retiring room and there was also a thakurdalan into which they were brought on ceremonial or festival occasions.
2. By his Will dated the 3rd September 1846, Moti Lal provided that until Jadulal should attain the age of 20 years, his widow should be the malik or proprietor and attorney for the care of the whole of his estate which was Considerable. On Jadulal attaining the age mentioned, the whole estate was to be made over to him except the mollies or Government securities which the testator bequeathed to his widow or others or had set apart for his own shradh and so forth.
3. As regards the deities, no direct gift was made in their favour, but the widow was authorised to spend Rs. 600 a month in defraying the expenses of their worship in the same manner that I have paid and defrayed the same hitherto. On Jadulal taking over the estate, he was in the like manner to protect the whole of the property and effectuate the Kreah karmas or religious acts and ceremonies and so forth.' The whole estate, therefore, was given to Jadulal subject to a charge thereon for the maintenance of the worship both of the ancestral deities and of those established by the testator.
4. The two relevant portions of the Will ran according to an old translation as follows:
(1) As long as my adopted son Srijut Jadulal Mullik does not attain the age of 20 years (twenty) so long I do hereby appoint you the malik or proprietor and attorney for the protection and care of the whole of my estate. The whole of my property, fixed and moveable, i.e., my land homesteads and gardens and my nij dwelling homestead and my ready money and my Company's papers and my pearls, diamonds, corals, etc., and my furrow gold and silver olonkar or personal ornaments, my plates and brass and kansa or bellmetal vessels and my dresses and apparels and my shawls, doshallahs, etc., and my Sri Sri Issur Thakurs and Thakuranis, etc., established by me and a ancestral, of the whole of my property agreeably to the list in my handwriting under my signature, you remain the malik of protecting for taking care of whatever property and effects I leave behind. Upon my said possio poottro or adopted son attaining the age above mentioned you will make over the whole of the said property to him in full and the said poasio poottro or adopted son is become our, i.e., both your and mine, uttaradheekary or heir of the whole of the property, and will become so
(2) The Company's papers belonging to my estate that shall stand in the Government Agency to the credit of the name of my possio poottro or adopted son Srijut Jadulal Mullik, you will draw Company's Rs. 600 monthly from the interest there 0 or having sent for and obtained Company's Rs. 36,000 (thirty-six thousand rupees) at the interval for every six months, you will defray the expenses of the daily shekel or service and the porbas or festivals and the teher or ceremonies of the Sri Sri Issur Thakurs, Thakuranis etc., established by me and ancestral according to my pala or turn, as also the nithoo or daily and the noimithoo or periodical expenses and so forth, in the, manner that I have paid and defrayed the same hitherto, as long as my said possio poottro or adopted son does not attain his age above mentioned. Upon the said possio poottro or adopted son's having attained his majority, you will, without ozur or objections make over the whole of the property to him fully and he will in the like manner protect the whole of the property and effectuate the kreah karmas or religious acts and ceremonies and so forth wherewith you have no concern, and the above-mentioned Company's paper of one lac of rupees that I have given to you and Company's, 25 thousand rupees that I have set apart for my shrauddio and sopindee-koron offering of the funeral cake exclusive of that, Company's papers to whatever amount shall remain, agreeably to the afore-mentioned list under my signature, all those Company's papers you will place to credit in the name of Srijut Jadulal Mullik in the Government Agency, when lam no more, and they shall so remain. He will, upon his attaining the age above-mentioned, receive fully all the said Company's papers, together with interest agreeably to account and be entitled to the same.
5. Jadulal, after succeeding to the estate, pulled down the old family dwelling house and built a new house partly on the site of the old house (No. 67, Pathuriaghata Street) and partly on a new site (No. 7, Prasanna Kumar Tagore Street). On another site acquired for the purpose (No. 1, Prasanna Kumar Tagore Street) he built a thakurbai. There is no evidence that any special ceremony was performed but there he installed the three deities and there he worshipped them. The building is between No. 67 and No. 7, but is separate from them and has a separate entrance from the street. It is two storied, and as in the old family house, the retiring room or sleeping apartment of the deities is on the first floor and the thakur dalan on the ground floor.
6. On the 26th April 1888, JaduLal executed a deed or declaration of trust which refers by name only to the Thakur Radha Sham Sunderjee. The erection of the thakurbari by Jadulal is recited and also the fact that, with the land on which it stood, it was of the value of Rs. 10,000. Then comes a dedication of the premises in the form of a conveyance in trust to Jadulal, his heirs and representatives to the use of the Thakur for the purposes, of his location and worship, 'The proviso is added that if at any time it should appear expedient to Jadulal or his representatives so to do, 'It shall be lawful for him or them upon his or their providing and dedicating for the location and worship of the said Thakur another suitable thakurbari of the same or greater value than the premises hereby dedicated, to revoke the trusts hereinbefore contained.' Finally, there is a declaration in the following terms:
It is hereby declared that unless and until another thakurbari is provided and dedicated as aforesaid the said Thakur shall not on any account be removed from the said premises and in the event of another thakurbari being provided and dedicated as aforesaid the said Thakur shall be located therein but shall not similarly be removed therefrom on any account whatsoever and further that during the lifetime of the said Jadulal Mullik he shall be the sole shebait of the said Thakur and after his death and subject to any provision in that behalf f o be hereafter made by the said Jadulal Mullik his heirs in the male line shall be such shebaits, no female heir or widow of any male heir being entitled to the shebaitship although she shall have full liberty to worship the Slid Thakur and also that in case of any disagreement between any future shebaits of the said Thakur the worship thereof shall be conducted by yearly palas or turns.
7. The subsequent history may be briefly narrated. Jadulal died on the 5th February 1894 leaving three sons, Anath, Pramatha and Manmath who separated. The partition of the family property was referred to the late Mr. W.C. Bannerjee as arbitrator. Under his award published in 1899 and made a rule of Court in Suit No. 913 of that year, No. 7, Prasanna Kumar Tagore Street was allotted to Anath and No. 67, Pathuraghata Street to Manmatha; Pramatha, the second son, obtained his share otherwise and has since built himself a residence at No. 129, Cornwallis Street. The penultimate paragraph of the award decides that the entrance or passage to the thakurbari from the street 'shall remain as the common passage to the said thakurbari and shall continue to be the joint property of the three brothers, their heirs and assigns for ever and that none shall be entitled to raise any structure or any building of any kind or in any way to obstruct the said common passage and that it shall always remain perfectly open to the sky throughout.
8. Anath died in June 1900 and was succeeded by his infant son, Pradyumna.
9. The partition of 1899 was not exhaustive and in a suit of 1900 (No. 890) to which Pradyumna was a party other assets were petitioned by Babu Bhupendra Nath Bose as Commissioner appointed by the Court for the purpose.
10. Then, it is stated, controversy arose as to the Will of Moti Lal's widow, Rangomani, who had died in 1891 and had devised certain property for the worship of the Thakur Radna Sham Sunderjee. In a suit of 1904 (No. 799) Mr. Bose was appointed to frame a scheme for the worship of the deity and to partition the residue of the Rangomani's estate. Neither Rangomani's Will nor Mr. Bose's scheme has been placed before us, but it is common ground that as the result the right to manage the worship has since been exercised by each of the three branches of the family by palas or turns of one year each. I gather also from paragraph 31 the plaint that the charge on Moti Lal's estate for the worship of the Thakur was then crystallized, and that sum of Rs. 1,00,000 was then by agreement set apart in trust, the income of which was to be devoted to the maintenance of that worship.
11. The first turn of worship for the Bengali year, 1317 (commencing in April 1910) fell to Pradyumna. During. Pramatha's turns of 1911-12 and 1914-15, he removed the deites to the pujadalan in his own house, returning them to the thakurbari at the end of each period. When his turn came round again in April 1917, and he again desired to remove the deities to his house, Pradyumna who had then come of age, and Manmatha joined in refusing to allow him to do so. He then brought this suit against them asking for a declaration of his right to take the course which he had taken in his previous turns and for other reliefs.
12. As in the case of Ram Soondur Thakoor v. Taruck Chunder 19 W.R. 28, it is not contended that there, is anything in the indu canon which forbids the, manager of a Hindu deity from taking the deity to his own house during his turn of worship. The dispute owes its origin to the prohibition against the Thakur's removal from the thakurbari in Jadulal's deed of 1888, on which the defendants rest their case: As the other two deities are not specifically mentioned in the deed, there is a subsidiary question whether the prohibition, applies to them.
13. A number of issues were framed for the trial but the only, two of any present importance are the ninth. 'Is the plaintiff entitled to remove the Thakurs to his residence, 129, Cornwallis Street during his turn of worship?' and the seventh, 'Could the Thakur Radha Sham Sunderjee be severed from his consort, the Thakurani, and from the other ancillary deities?'
14. The learned Judge answered the ninth issue in the plaintiff's favour and it was accordingly unnecessary for him to decide the seventh issue.
15. The appeal is preferred by Pradyumna; Manmatha, however, though he appears as a respondent, is ranged on the same side against, Pramatha.
16. The main ground o the learned Judge's decision is shortly and clearly expressed as follows:
There is no dispute that the Thakurs were established by Moti Lal and 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 shebaits.
17. This reasoning, which the first respondent, of course, endorsed, if I may say so, deserves consideration and lam not prepared to follow the argument for the appellant to the full length to which it Was taken.
18. The learned Standing Counsel, Mr. B.L. Mitter, founding on Moti Lal's Will, argued that the testator treated the idols or images which he had set up as his personal property and left them absolutely to Jadulal. When pushed Mr. Mitter said, that Jadulal might, if he bad so pleased, have thrown them into the river. The inclusion of the idols, however, among items of property, moveable and immoveable, does not show that the testator regarded his interest in them in the same light as his interest in his secular property. The careful directions given later in the Will show that the testator intended the worship of the ancestral deities and the deities he had established to be a charge upon his estate.
19. Reference, again, was made to the broad statement in Subbaraya Gurukal v. Chellappa Mudali 4 M. 315 : 1 Ind. Dec. (N.S.) 1055, that in the eye of the law idols are property,' and to the observation of Banerjee, J., in Khetter Chunder Ghose v. Hari Das Bandopadhya , 17 C. 557 : 8 Ind. Dec. (N.S.) 911, to the effect that an idol may be the subject of gift. In legal conception, however, an image which represents a deity, or in which the deity resides or inheres, is a juristic or juridical entity capable of receiving gifts and holding property. Hindu religious conception carries the matter even further, as the following passage from a recent judgment of Mookerjee, J. Rambrahma Chatterjee v. Kedar Nath Banerjee 72 Ind. Cas. 1026 : 36 C.L.J. 478 at p. 483 : (1923) A.I.R. (C.)60 will show:
We need not describe here in detail the normal type of continued worship of a consecrated image,--the sweeping of the temple, the process of smearing, the removal of the previous day's offerings of flowers, the presentation of fresh flowers, the respectful oblation of rice with flowers and water, and other like practices. It is sufficient to state that the deity is, in short, conceised as a living being and is treated in the same way as the master of the house would be treated by his humble servants. The daily routine of life is gone through with minute accuracy the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest.
20. Now, the subject is abstruse and in its nature metaphysical. I have certainly no desire to be dogmatic or to find fault with the language of so great an exponent of Hindu Law as Sir Guru Das Banerjee. There may be purposes for which an idol, considered with reference to the material substance of which it is composed, may be regarded as moveable properly. In this way it may be the subject of gift. But I find some difficulty in understanding how an image considered as a legal or spiritual entity can properly be said to be the subject of gift. What is probably true is that for certain purposes at any rate the office of manager or shebait of a deity may be regarded as property and the office will carry with it all such rights as properly certain thereto, including the right to the custody of the image. In a loose was therefore, the gift or transfer of the office may perhaps be spoken of as a gift or transfer of the image or the deity.
21. Assuming that the law will recognize such a gift or transfer inter vivos thereis a further difficulty when a devise'is suggested. Moti Lal himself, having established these deities, was only their manager during his lifetime. In Rajeshwar Mullick v. Gopeswar Mullick 12 C.W.N. 323 : 35 C. 226 : 7 C.L.J. 315, Sir Francis Maclean, C.J., said: 'A shebait is a manager or quasi-trustee for the benefit of the idol. His office only endures for his life, his Will only comes into operation on his death. 'What is then there for him to alienate by his Will? Nothing.'
22. I cannot, therefore, accede to the contention that the terms of Moti Lal's Will conferred on Jadulal an unlimited discretion to deal with the deities according to his own pleasure. I will assume on the principle stated by Banerjee, J., in Girijanund Datta Jha v. Sailajanund Dfitta Jha 23 C. 645 : 12 Ind. Dec. (N.S.) 429, that Jadulal could not bind his successors by any act which was not for the benefit of the deities. Nevertheless, be had rightfully succeeded his father as sole manager, and within the limits of his duty he had full discretion to, act as he might think best. No one suggests that dedication of a thakurbari was not the act of pious Hindu, anxious to do more than fulfil his obligations and to mark his tenure of the estate by a work of supererogation. In his secular capacity he had a perfect right to make the gift and to impose the conditions which he did impose. The only question of substance in the case is whether in his capacity as shebait he exceeded his authority in accepting the gift on the Thakur's behalf subject to the conditions. The test to be applied is whether the condition with which we are immediately concerned in the present case was or was not for the benefit of the Thakur. A house, suitable in every respect, built at considerable cost, close to his original home, was set apart for the Thakur's use. The condition is annexed that he should not be taken therefrom unless and until another house of equal or greater value is provided for his reception and entertainment. That ensures that he will always have a suitable abode, so long at any rate as funds are a variable to keep the present building in repair. It is not suggested that funds for that purpose are likely to fall short. If n situation should arise in which it would be desirable in the interests of the Thakur that other arrangements should be made, an application could doubtless be made to the Court and a proper order obtained. Meanwhile the three existing branches of the family may split up into numerous sub-branches, each with its own turn of worship, and the Thakur is at least secured from undignified journeys from one place to another.
23. As the worship of the deities was made by Moti Lal a charge on his estate, now converted into a trust fund, Jadulal has no right, I think, to the title of a founder of the endowment. His liberality, however, should dispose his successors and tie Court to respect his wishes as far as possible. We have not been informed as to the extent of Rangomoni's benefaction nor has the question been mooted whether she would have Selected the Thakur as the object of her bounty if he had not been housed in the thakurbari. All we know is that at her death the Thakur was located there.
24. I do not regard the condition in question as making a change in. the character of the worship, or, to use a phrase of their Lordships in Juggut Mohini Dossee v. Sokheemoney Dossee 14 M.I.A. 389 : 17 W.R. 41 : 10 B.L.R. 1 : 2 Suth. P.C.J. 512 : 2 Sar. P.C.J. 23 : 20 E.R. 795, as 'varying the use.' The deities are worshipped in the thakurbari as they were previously worshipped in the family dwelling house. Till 1886 they had never been removed from that house and till 1911 they had not been removed from the thakurburi. In the different partitions, the latter was treated as the property of the deity and, therefore, impartible among the members of the family. Mr. Bonnerjee, moreover, as above stated, was careful to provide that the passage to the building from the street should remain joint property. Up to 1911 no question arose as to the validity of the condition.
25. The suggestion that the condition is repugnant to the nature of an absolute grant and, therefore, void on the principle of Section 11 of the Transfer of property Act, is far-fetched. It is inapt to speak of deities, who presumably transcend the limitations of time and space, as being 'confined' or 'imprisoned' in a habitation or temple erected in their honour, arid such phrases have no application at all to their material images. Religious gifts are not in all respects on the same looting as secular gifts. They are exempt from the rule against perpetuities and in my opinion the condition cannot be said to be unreasonable.
26. It was suggested that the ladies of Pramatha's family would be inconvenienced in making their oblations if the deities were not removeable to his house during his turn of worship. I do not know whether the ladies of each branch only make oblations during the turn of worship of the head of the branch. The point is rot specifically mentioned in the plaint though it is stated generally in paragraph 29 that the thakurbari is to situate as to make it inconvenient to the plaintiff who lives at a distance to carry on the worship.' In these days of motor cars this complaint appears to me in any case to have little substance. The piincipal complaint, however, appears in paragraph 29 which runs:
The plaintiff has suffered considerable damage and has further felt greatly humiliated and injured, and suffered pain of mind by reason of his having been prevented from exercising any of his said rights.
27. I need hardly say in regard generally to complaints of this kind that in deciding this we must have regard not to the personal prestige of any individual shebait or to his personal convenience or the convenience of the members of his family, but solely to the interests of the Thakur.
28. As to the case of Gossami Sri Gridhariji v. Romanlalji Gossami 16 I.A. 137 : 17 C. 3 : Ind. Jur. 211 : 5 Sar. P.C.J. 250 : 8 Ind. Dec. (N.S.) 541 (P.C.), in the view I take, it is unnecessary to rely on the principle which their Lordships there applied. Moreover, as Greaves, J., his pointed out, this is not a suit for the possession of the thakurbari and the Thakur not put to any election between conflicting rights, or between remaking permanently in the thakurbari and being removed therefrom every third year. If he had to elect, which of the shebaits is to speak for him? It was suggested for the appellant, that the views of the majority should prevail. But, as I understand the matter the system of rotation which has been introduced amounts to a partition of the office of shebait and I do not know whether Mr. Bose's scheme provides for meetings of the separate holders of the office for the purpose of discussion and deciding disputed or difficult questions of administration.
29. No doubt it would be pessimi exempli that a deity should consent to be the recipient of a gift and should refuse to, be bound fey any valid condition annexed to it. But the whole question here is whether the condition is valid or not.
30. There remains the seventh issue, on which, as I have said, we have not the advantage of the learned Judge's decision. I gather that since their establishment, the three deities have been treated as companions. They have occupied the same apartments. They were installed together in the thakurbari and in the issue itself as drawn, no doubt with the concurrence of the parties, the Thakurani is described as the consort of the Thakur. In the circumstances, I should be extremely both to be party to any order which would admit of their being separated and occupying different abodes. In my opinion they should not in this respect be differentially treated. The location of the Thakur in the thakurbari aprears to involve the sarre location for the Thakurani and the Saligramsila. The considerations, therefore, which govern the Thakur are also applicable to his companions
31. In the result, differing with treat respect from the learned Judge, I come to the conclusion that the suit should be dismissed with costs in this Court and in the Trial Court.
32. I agree. In my judgment the real question in this case is whether Jadulal, in his capacity of shebait, was empowered to accept on behalf of the Thakur the conditions which he, as donor of the property, attached, to the gift in the deed of 26th April 1888.
33. I agree that the test is whether the conditions were for the benefit of the Thakur. Ira my judgment they were.
34. Some of the reasons therefor have been stated by my learned brother, and I need not repeat them. The main reasons, which influence my mind in this respect, are that the premises were undoubtedly, eminently suitable for the worship and location of the Thakur; and, it is to be noted that the deed did not absolutely, prohibit the removal of the Thakur but provided for its removal in the event of the provision of another suitable Thakurbari of a value, the same as or greater than, the value of the premises comprised in the deed.
35. I agree that the appeal should be allowed with costs and the suit dismissed with costs in the Trial Court.