R.P.Mookerjee, J. - (1.) Debendra Nath Mukherjee, the predecessor of the plaintiffs respondents who have sued as representing Sri Sri Saradiya Durgamata Thakurani, was the owner of a number of immovable properties including Pargana Kismet Maharul within Pargana Kulbaria Touzi No. 371 of the Murshidabad Collectorate and a two anna share of Dihi Hilara, Touzi No. 486 of the same Collectorate. Debendra had been performing the Saradiya Durga Puja from 1921. In September 1929 he executed an Arpannama (Ex. 2) in favour of Sri Sri Durgamata Thakurani Jew for the due performance of the annual puja of the said Goddess. An image of the Goddess Durga would have to be made ready according to the shastras, every year during the autumn season from, out of the income of the properties endowed, the deity is to be worshipped either at the dwelling house of the settlor at Gorabazar in Murshidabad or at Benares. Directions were also given as to how the income accruing from the said two properties was to be disbursed on the occasion of the annual puja. On 5-1-1932 Debendra executed two deeds. In the first deed (Ex. E) described as a deed of cancellation of the Arpannama (Ex. 2) referred to above he stated inter alia that the latter deed was a benami document and that the income from the property included within the Arpannama had never been spent specifically for the puja. It was further stated therein that he had been financially embarrassed and had executed the Arpannama to avoid any embarrassment that his creditors create in respect of the said properties. As he intended to sell the property to pay up his debts he was declaring by this later deed (Ex. E) that the earlier deed of settlement was a benami one and had not been acted upon. He further declared that he had every right to transfer the properties which were the subject-matter of the settlement and that by the deed of cancellation he was revoking the so-called deed of settlement.
(2.) Simultaneously on the same date Debendra executed a conveyance (Ex. D) in favour of Brajobala Dassi, who is the defendant in this suit and the appellant in this Court, conveying to her Kismet Maharul being one of the two items of property included in the Arpannama (Ex. 2). Debendra died six years after in December, 1938. The suit, out of which the present appeal arises, was filed by the widow and the son of Debendra, describing themselves as Shebaits of Sri Sri Saradiya Durgamata Thakurani for a declaration that the properties which had been included in the Arpannama (Ex. 2) still belonged to the deity and that in respect of Kismet Maharul, purported to have been sold to the defendant Brajobala Dassi, the latter had got no title to the same. The defendant was further to be ejected from Kismet Maharul. Some other reliefs also were prayed for.
(3.) The defence was that Debendra had not, at the time when the Arpannama was purported to have been executed, any intention to create a debuttar. The transaction was really one to defraud the creditors of Debendra, and so an attempt was made to put certain properties of his beyond the reach of his creditors. The alleged puja of the Goddess Durga had not been regularly performed and even after the execution of the Arpannama the property had not been treated by the settlor as belonging to the Deity. The Arpannama was a mere paper transaction and the right, title and interest of Debendra had not been affected by that document. The deed of cancellation was really the clearest proof of the intention of Debendra.;