SARKARIA - (1.) THE appeal by certificate under Art 133 (1) (b) of the Constitution, is directed against a decree, dated 4/03/1966 of the High Court of Judicature at Calcutta, passed in Second Appeal No. 626 of 1959.
(2.) IT arises out of these facts: - One Indra Narayan Biswas owned considerable property. On 9/04/1904 he executed a deed called "Declaration of Trust Deed", dedicating 26 items of his immovable property, mostly houses and buildings situated in Calcutta and other places, to the family deity Sree Sree Iswar Lakshmi Janardan Jiew, which is installed and located at Barhatta, Police Station Ranghat, District Nadia, which was the ancesttral home of the founder. Since a good deal of argument before us centered on a construction of this Trust Deed, it will be appropriate to extract here its material terms:- "1. All that properties in Schedule is vested in to the Debottar and Trust Property completely and permanently from today. 2. That from the income of the above mentioned property according to the account and estimate mentioned in Schedule (Kha) the expenditure of Durga puja, Kali puja and Saraswati puja will be made permanently and these properties are hereby encumbered permanently for the purpose of meeting these expenditures, and under these circumstances, all these properties completely and with all the rights I dedicate to the deity Lakshmi Janardan. 3. The puja and worship etc. of Lakshmi Janardan will be carried on as per list attached in Schedule (ka). I shall remain as the sole Trustee and shebiat of these properties and Debottar mentioned above so long as I shall remain alive, and shall be able to sell or settle temporarily or permanently or be able to distribute to the tenants the Trust property or any part thereof. No Trustee excepting me shall be able to encumber the Trust and Debottar property or the part thereof excepting letting the property or any part thereof not more than three years. No Trustee of Debottar shall be able to encumber the property in any manner of transfer or shall not be able to do any thing which shall in any way diminish the value or glory of the deity or do any thing which shall decrease the income or loss of the Debottar property. 5.......... 6. In case of any surplus of fund, after meeting the expenditures mentioned in Schedule (Ga) and (Gha), arising out of the Debottar property, security papers (company papers) in the name of Debottar Trust estate should be purchased from the surplus amount, and it will remain as the property of the Trust estate permanently. 7. ......... 8. In my absence after my death Shrijut Abinash Chandra Bhowmick and Shrijut Jogendra Nath Biswas both of them on equal rights shall be the joint Shebiat and Trustee for generations and the said each branch shall get as remuneration at the rate of Rupees fifteen per month and the other branch also shall receive respectively at the rate of Rupees fifteen per month, generations together permanently. 9. ......... 10. I have a desire to construct one Thakurbari and a Temple, if I cannot do the same, in that event my future Trustee and Shebiat shall construct one Thakurbari and a Temple from the income of the property only. 11-12. ......... 13. This Trust Debottar property shall not be encumbered by the individual alone of any Trustee, the Trustee or Shebiat shall not be able to transfer their rights and it shall not be so transferred. 14. ......... 15. That I shall be able to change the terms of the deed but no other Trustee excepting myself shall be able to change the terms and conditions of the deed. 16. From today onward all Debottar Trust Estate as per the deed shall be known as "Indra Narayan Trust Estate" permanently, and from today separate khata Book etc. will be kept, and the said Estate shall be separated from our own estate permanently and in that estate myself or my heirs shall have no rights or concern or nobody shall be able to claim anything in that estate. 17.......... 18. In case if any Trustee and Shebiat attempts to waste or tries to misappropriate the property, any of my relations, Priests or any of one of my Priest family, shall be able to rectify or shall be able to take such steps required to protect the property, as per Act 20 of 1863 or as per any other Act or laws. 19 to 22......... 23. All the income and other amounts due to Debottar, besides the expenses which I have fixed as per list, shall be used for the purchase of Security "reserve fund" and will as such go on increasing, and there paper will have to be purchased in the name of Debottar Trust fund or in the name of Trustee mentioning the name of Debottar Trust estate on its behalf. 24 & 25.......... 26. God forbid, the Trustee and the Shebiat of the two branches as divided, if either of them become extinct and no heirs remain or any one of the heirs becomes incapable for the Trusteeship and Shebiatship, the other branch will become full sixteen annas trustee and Shebiat, but if the other branch also becomes extinct or heirless or becomes incapable for the Trustee and Shebiatship, then in that event the then the other branch at the relevant time shall become Trustee and Shebiat or this Trust and all the terms of this deed will be applicable to them and if there is no such heirs at all in that case the Government will appoint Administrator as per the Terms of this deed. 27-28.......... 4. In Schedule (Ka) of the Trust Deed, several items of expenditure for worship and religious festivals were prescribed. The total of the annual expenditure fixed in the Deed comes to Rs. 1,430.00 for meeting which the income of the Trust properties was encumbered vide Term (2), above.
(3.) ON the same date. i.e. 9/04/1904 Indra Narayan Biswas executed a Will, bequeathing his movable and immovable properties to his relations. In the Will, he further provided that in case the Deed of Declaration of Trust fails. Abhinash Chandra Bhowmick, his sister's son, would get the properties included in the said Deed. Indra Narayan Bishwas died on 7/08/1905, Jogendra Nath Biswas predeceased him. Indra Narayan Biswas was survived by his sister's son Abinash Chandra Bhowmick, and Bipin Bihari Biswas, the brother of said Jogendra Nath Biswas, the son of another brother of Indra Narayan Biswas.;