ANNADAPROSAD ADAK Vs. MIHILAL ADAK

JUDGEMENT

(1.) This is an appeal by defendant 7 in a suit for declaration of the title of an idol Sridhar Jiu Bistu Thakur and for recovery and confirmation of possession. The suit was instituted by one of the Shebaits making the other Shebaits party defendants. The facts are not disputed. The property in suit is part of an ancient de-butter property of the idol. Umesh Chandra Adak, one of the Shebaits, in 1921, made a gift of his Shabayati rights to defendant 1, who in 1924 transferred the same to defendant 7. The present suit was instituted in 1928. The learned Advocate for the appellant urges that (1) the Court below has not decided what kind of debutter the property in question is whether it is an absolute debutter or whether it is less complete debutter, and that (2) assuming that the property to be debutter, whether the transfer in this case was valid. Now on question of the kind of dedication to an idol the learned Advocate has quoted the case of Jagadindra Nath Roy V/s. Hemanta Kumari Debi (1904) 32 Cal 129. In that case their Lordships stated that there were two kinds of dedication to an idol: (1) dedication of the completest kind where the idol is rightly regarded as a juridical person capable as such holding the property, and (2) less complete endowments in which notwithstanding a religious dedication property descends (and beneficially) to heirs subject to a trust or charge for the purposes of religion. It is urged that the learned Subordinate Judge in appeal committed an error in law in throwing the onus of proof on the defendant to show that this debutter was not of a complete kind. It is urged that it is for the plaintiff to show that this debutter was of a complete kind. The facts found by the Courts below are that this is an ancient dedication, the date of the dedication has not been established, but it is an old dedication. As the property in suit appears to be the property of the idol which is existing at the present date and which is duly worshipped it may, in my opinion, be presumed that the dedication is a proper dedication.

(2.) The real question for determination is whether the transfer in this case ought to be declared invalid on the prayer of the plaintiff. The learned Advocate has rightly quoted authorities to show that the debutter property can be transferred in certain circumstances, e.g. (i) where such transfer is allowed by custom, (2) where such transfer is made by one of the shebaits to a co-shebait and (3) where all co-shebaits combine to make a transfer to a stranger. The proposition is quite correct, but in this case there is nothing to show that there was any custom of transfer of the properties of the idol. In this case there is no instance on record that any of the debutter properties was transferred by any one in the past. As to transfer to a co-shebait such as was made in the case of Nirode Mohini Dassi V/s. Shibdas Pal Dewagin (1909) 36 Cal 975, neither defendant 1 to whom the first transfer was made, nor defendant 7, to whom defendant 1 transferred it was a co-shebait of the deity.

(3.) Having regard to the findings of fact of the Courts below. I am of opinion that the property in this case was debutter and there was nothing to show that it was ever treated by the Shebaits as secular property. The transfer to a stranger in this case was rightly declared void by the Courts below. In the result the appeal fails and must be dismissed with costs.