PURNA CHANDRA CHAKRABARTY Vs. KALIPADA ROY

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs and it arises out of a suit commenced by them under Order 21, Rule 63, Civil P.C., following an adverse order in a claim case. The material facts may be shortly stated as follows: There were two money decrees obtained against the minor defendants as heirs and legal representatives of their father, Ashutosh Roy, on 19th June 1933 - one by plaintiff 1 alone and the other by all the three plaintiffs together. Both these decrees were put into execution, in Execution Cases Nos. 81 and 82 of 1936, and the decree-holders got an order for attachment of certain properties in the hands of the judgment- debtors, including the properties in suit. Thereupon two claim petitions were filed - one on behalf of Idol Sarat Kali and the other by Idol Joy Kali, both the deities being represented by the judgment-debtors as shebaits, for release of the proper, ties described in Schedules 1 and 2 of the present plaint, on the allegation that they were debutter properties owned and possessed by these two deities, and hence could not be attached and sold in execution of personal decrees against the shebaits. Both the claims were allowed and the plaintiffs decree- holders thereupon commenced this present suit for a declaration that they were entitled to attach and sell these properties in execution of their decrees. The two deities, who were made defendants 1 and 2 in the suit, were represented by the judgment-debtors as shebaits. The judgment-debtors were also made parties in their personal capacity. Both the Courts below have dismissed the plaintiffs suit and they have come up on appeal to this Court.

(2.) For the purpose of proving that the properties in suit were debutter properties, the shebaits relied upon two documents; one was a will executed by Bam Kishore, a maternal ancestor of Akshoy, the father of Ashutosh, in 1274 B.S. by which the properties described in Schedule 1 to the plaint were alleged to have been dedicated to Idol Sarat Kali; the other was an arpannama created by Akshoy himself shortly before his death in 1323 B.S. by which a debutter was made in favour of deity Joy Kali in respect to the property described in Schedule 2 to the plaint. The Courts below were of opinion that both these documents were genuine and bona fide deeds and that they created a valid and absolute debutter in respect of both the properties. It is the propriety of these findings that has been challenged before us in this second appeal.

(3.) With regard to the will of Rarn Kisore, Mr. Pakrashi, who appears for the appellants, has contended before us that even if it was a genuine document it did not create either a valid or an absolute debutter. It is said, in the first place, that there was no deity by the name of Sarat Kali; it was the name of Goddess Durga herself who is worshipped once every year during the autumn months, and as there was no permanent image of the Goddess, who is only worshipped for four days in the year, no dedication of property to such deity was permissible or valid in law. It is argued, in the second place, that under the will of Rarn Kishore the property was not set apart for the worship of Sarat Kali alone; it was to be used for a variety of purposes including the daily worship of the household deities the performance of the Sradh of the ancestors, and gifts to spiritual preceptors and Brahmins, etc., and it cannot be said that the property was owned by Sarat Kali. The third argument is that in any view of the case what was created was not an absolute or complete debutter, but a mere charge for the expenses of worship of Sarat Kali and the performance of other religious and charitable duties. As regards the arpannama created by Akshoy, the learned advocate contends that it failed as a deed of gift as defined in the Transfer of Property Act, and as it was neither stamped nor registered during the life-time of the donor there was no acceptance of the property by the donee prior to the death of the donor as is necessary under Section 122, T.P. Act. We will deal with these points in their proper order. So far as the first point is concerned, it is perfectly true that the deity Sarat Kali has no permanent image, it is the Goddess Durga that is worshipped by that name in the autumn season every year; and, as is well known, an earthen image of the deity is prepared each year and after the ceremonies, which last for four days, are over, it is immersed in a river. It cannot be said, however, that a permanent image of a deity is necessary before a valid gift can be made under Hindu law. The same question was raised in Asita Mohon V/s. Nirode Mohon ( 17) 4 A.I.R. 1917 Cal. 292 and a Division Bench of this Court answered it in the following manner: The absence of a permanent image has also been commented upon. Such an image ia not absolutely essential for dedication to a Thakur. The Durga Puja is a periodical festival in Bengal and clay images of the Thakur are built every year and thrown into a river after the Puja is over. We agree with the trial Court that Harishpur is debutter property.