Baboo Lall Jain, J. - (1.) This application has been made on behalf of Shri Shri Iswar Satyanarayanjee and other deities and by Satyanarayan Bagla as shebait of the said deities. The case of the petitioners is that Shewbux Bagla consecrated the deities in a temple house at Calcutta from the 1st June, 1984 and thereafter at Varanashi. On 11th January, 1988 the said Shewbux Bagla executed a registered deed of dedication. On the 3rd January, 1985 the property being the subject-matter of this petition, then numbered as 105, Mechua Bazar Street, Calcutta, was purchased by the founder in a Court sale to form part of the trust estate.
(2.) On 1st August, 1901, a Deed of Declaration was executed by the said Shewbux Bagla who was then known as Raja Shewbux Bagla. By the said Deed the said Shewbux Bagla dedicated and/or confirmed dedication to the said Deities of other properties since purchased and belonging to and/or confirmed them to be part of the dedication and declared the same to be absolute debuttar properties, including the property being the subject-matter of this petition which was purchased on 3rd January, 1895 in Court sale in Suit No. 8 of 1887 of this Court. By the said Deed of Declaration, the properties were declared not alienable and in case of acquisition it was provided that the property has lo be substituted by other immoveable property of the same value. It was also provided that the properties are to be vested at all times in the Idols. The expenses of the Deities were to be met from out of the rent realised from the debuttar properties. The said Deed of 11th January, 1988 whereby the said Shewbux Bagla dedicated the properties situated at No. 41, Cotton Street, Calcutta and Bisweswar Phatak, Varanashi to Sri Satyanarayan Jew and other deities, appointing him as the sole shebait and trustee, provided, inter alia, as follows:- "Whereas the said Shewbux Baglais desirous of severing for ever the said house at Calcutta and Benaras and the said articles and furniture from all secular purposes and concerns and of converting the same into absolute debutter property and limitation reservation of restraint and whereas the expenses of the said sheva or worship and for the maintenance of the said Chutter at the scale at which they are now performed and worked being considerably larger then the income derived or derivable from the said houses and the said Shewbux Bagla with a view to maintain the said Sheva and the said Chutter or their present scheme and scale is desirous of making such provisions therefor as are hereinafter contained. Now this indenture witnesseth that in pursuance of the said premises and for effectusting the said intention of the said Shewbux Bagla with the consent and concurrence of the said Ganapat Roy testified by this being party to and executing these presents doth hereby grant convey assure unto the said Shewbux Bagla as shebait of the said idols Sree Sree Iswar Satyanarayanjee and the auxiliary deities hereinbefore mentioned and to his successors in the office of shebait..........." "To have and to hold the said temples houses lands hereditaments and other premises hereby granted or expressed or intended to be unto the said Shewbux Bagla as such shebait as aforesaid and his successors in the office of such Shebaits upon Trust that the said Shewbux Bagla as such shebait as aforesaid and his successors in the office of such shebait shall stend seized and possessed of the said temple houses lands hereditaments and premises and place keep locate and put up the said idols in that protion of the said houses and premises No 51, Cotton Street. Calcutta namely in the same set of rooms where the said idols, are at present kepi located and put up and to use the said hereditaments and premises as the consecreted temples or places of worship of the said idols to let out or demise such other portions rooms or set of rooms of the same bouse and premises namely the House and premises No. 51, Cotton Street hereby Convayed and consecreted or any parts thereof as to the discretion of the said shebait or shebaits can be conveniently let out and demised for any term or period upon and subject to such rents covenants and conditions as the said shebait or shebaits shall think fit and out of the income arising or to be derived therefrom in the first place to keep the said house hereditaments and premises in due and proper repairs and to pay and spend the balance in the manner hereafter provided set out and appointed modifying to and in due proportion with the increase or diminution of the said income with full and sufficient power and liberty to the said shebait or shebaits to set apart and accumulate such portion of the said income as the said shebait or shebaits shall in his or their discretion shall think fit against any sudden emergency or unforeseen accident in connection with a concerning or relating to the said house and premises or to keep up and maintain the sheba or worship of the said idols in a regular or systematic mode and manner as hereinafter prescribed..." "Sree Sree Satyanarayanjee such funded properly investment or money shall be deemed taken or considered to all intents and purposes as debutter property and for ever absolutely end completely severed from the secular properties of the said Shewbux Bugla his heirs representatives or assigns or the descendants of any or either of them and shall be absolutely and completely subject to the provisions limitation and reservations of these presents and dealt with accordingly provided always the discretion hereinbefore reserved to in shebait or shebaits for the time being to vary and modify the expenses and to create a fund for providing against future contingencies shall not be so exercised as to deminish the monthly and periodical expenses lower than Rupees Four thousand two hundred sixty nine and thirteen annas annually or in other words to make the expenses less than Rupees Three hundred fifty five thirteen annas per year provided always and it is hereby agreed and declared that in case the said houses lands hereditaments and premises or any portion thereof be taken up by Government or taken up any public purposes according to any law for the time being in force or in case any larded property or any portion thereof to be hereafter dedicated or consecrated under the provisions hereinbefore to that effect contained be taken up by Government or for any public purpose then and as obtain as the same may happen the shebait or shebaits for the time being shall with all convenients speed substitute Jot the lands or houses or any portion thereof so taken up lands or houses of similar income by purchase or otherwise with the moneys received by the then acting shebait or shebaits as compensation for the lands houses on any portion thing to taken up as aforesaid and it is hereby agreed and declared that the said Shewbux Bagla as such shebaits as aforesaid shall have power and authority at any time or times during the terms of bis natural life to appoint by deed or deeds in writing any person or persons to act as substitute or substitutes for himself as such shebait or sbebaits and at his discretion to revoke such appointment and to replace or reappoint new shebait or sbebaits in the place or stead of the displaced or dismissed shebait or shebaits and in default of such appointment by the said Shewbux Bagla upto the time of his death or if the said Shewbux Bagla departs this life without making any such appointment then and in that case his next of his in shall succeed in his place and stated provided always that in the succession of next of kin the male should be preferred to a female and the elder successors shall commit or be guilty of any breach of trusts conditions covenants directions or proviso herein contained and it is hereby agreed and declared that if so often any future shebait or shebaits shall die or become incapable to act in the trusts of these presents it shall be lawful for the eldest male descendants or representative or next of kin of the said Shewbux Bagla or if there be no such female next of kin then for the retiring or refusing shebait or the male nearest of him of the last acting shebait to constitute or appoint not shebait or shebaits in the place of the shebait or shebaits dying going to reside abroad or desiring to retire or refusing or become incapable to act as aforesaid with liberty upon any such appointment to increase or diminish the number of shebaits and upon every such succession or appointment the hereditaments and premises and all additional properties hereby dedicated consecrated settle assured and consigned under the provisions of these presents shall be so transferred to stand transferred as to become vested in the said shebaits as the case may require and..." "..........Provided and it is hereby agreed and declared that the heirs and decendants of the said Shewbux Bagla or any or either of shall have full power to increase and scale of the said sheba or worship or of the said chutter by making a suitable provision therefore but not otherwise and it is hereby agreed and declared that all persons of Hindu pursuation shall have right to worship the said idols Sree Sree Satyanarayanjee or to make any presents to it at their own cost and the shebait or shebaits shall not be competent to refuse admittance to any Hindu desirous of performing the worship of the said idol or to accept any offering presented to it at his own cost and the said Gunpatroy Bagla doth hereby declare that money paid as consideration for the purchase of the said house No. 51, Cotton Street and also the said house at Benaras was the proper money of the said Shewbux Bagla and that be the said Gunpatroy Bagla has no interest to the said property or claim or demand to the said moneys or to the said properties namely and the said house and premises at 51, Cotton Street, Calcutta or the said house and premises at Bisweswarnath Phattak............."
(3.) The petitioners relied on the judgment in the case of Satyanarayan Bagla v. Controller of Estate Duty, West Bengal, Calcutta reported in 1981(1) Cal LJ 94. In that judgment a Division Bench of this Court had an occasion to concider the purpose and effect of the said Deeds, dated 11th January, 1888 and various other Deeds and Declarations. Of course the question there was only as to the assessment proceedings under the Estate Duty that arose due to the death of Kumar Gungadhar Bagla on 20th September, 1964, who was the father of the present shebait Satyanarayan Bagla and was the shebait and/or trustee of the said deities and/or the said deities and their estate until his death.;