Ross, J.:— (after stating the facts set out above proceeded as follows):— Before dealing with the construction of this document as a whole, I shall refer briefly to the position of Musammat Jaitoon Kuer and the defendants 12 and 13. The deed is very in artistically drawn and it is by no means clear that the settlor intended the committee of management to function during his life or the life of his widow; and I am inclined to think that this was not the meaning of the deed. No real distinction seems to be drawn between manager (muntazim) and mutawalli. The settlor reserves to himself and to his wife (if she survived him) the power to appoint managers; but this appears to be merely a power to fill up vacancies among the managers and there does not seem to be any power reserved to appoint a manager who would hold the same position as the settlor and his wife Chandrajote Kuer; and, after the death of the settlor and his wife Chandrajote Kuer it is quite clear that any vacancies in the management are to be filled by the surviving managers. While, therefore, the appointment of defendant no. 12 Dasi Singh in place of the deceased manager Sheodeyal Singh appears to be within the powers reserved, and possibly, though doubtfully, the appointment of Rameswar Prasad Singh (defendant no. 13) who, however, has not appeared to defend the appeal, there seems to be no power to appoint Musammat Jaitoon Kuer as mutawalli if this deed as a whole is read as a dedication out and put of the settlor's property. If, however, it is construed as creating a charge only, these questions do not arise.

The argument for the appellants is that on the proper construction of the deeds of dedication there was no valid gift, but at the most a charge was created in favour of the deities for their service and worship; and that on the evidence it should be held that the deeds did not take effect as an absolute gift.

Before dealing with this argument it will be convenient to examine some of the authorities on the subject of the wakf in order to ascertain how deeds of this nature are to be tested. In Kasheshuree Dassee v. Krishna Kdmenee Dassee their Lordships after constructing the deed in that case as a deed of endowment, said: “The lower Court has not…………tried the fact of the bona fide nature of the endowment with reference to the use of the proceeds from the time of the confirmation of the endowment, exclusively for religious and pious purposes, but has confined its decision to the inference drawn from the wording of the deeds………………If, however, the result of this enquiry establish that Koylass himself never intended that the proceeds were so to be used, and accordingly they were not used, the case for the plaintiff must fail”. In Ganga Narain Sircar v. Brindabun Chunder Kur Chowdhry their Lordships said: “The tests of a bona fide or a nominal endowment are, how did the founder treat this property, or how have his descendants treated it; has the income of the endowed lands been continuously applied to the object of dedication?…………… We can never assent to the doctrine…………that because a nominal endowment has been once made it is to be regarded as an endowment for ever”. In Ram Pershad Doss Adhikaree v. Sreehuree Doss Adhikaree it was said “It may be that a portion of the profits of the lands in the possession of the defendant had been for some time used for the worship of the idol; but that circumstance cannot impose on the respondent the liabilities attached to the office of a shabait”. These decisions were relied upon in Madhub Chandra Bera v. Srimati Rani Saratkumari Devi and from these and other decisions the conclusions were drawn that in order to support the case that the lands in suit formed the subject of a valid public endowment, it must be established that an absolute grant was in the first place made with the intention that the profits should be applied for the services of the idol, that the profits have since been so applied and that the members of the family of the founder have not treated the property as one the profits of which were mainly intended to be applied for their benefit. This decision was followed in this Court in Siri Thakur Parmod Banabihari v. Atkins where it was said that a dedication to be effectual must be real and not nominal and it must be shown that the grant or completely divested herself of every portion of the property which was the subject-matter of the grant. It was pointed out that the property had always stood recorded in the name of the estate in the Land Registration Department and that the mode of dealing with the property by the parties interested in the endowment showed that they regarded the property as belonging to the estate; and it was held that the original endowment was altogether ineffectual and that the trust in favour of the idol was never brought into existence. In Jadunath Singh v. Thakur Sitaramji their Lordships of the Judicial Committee were dealing with the construction of a deed of endowment and they referred to Sonatun Bysack v. Juggut Soondree Dosee and to Ashutosh Dutt v. Doorga Churn Chatterji. In both of these cases there was a nominal gift at the beginning to the idol, but the subsequent dispositions so cut down that gift that there was no gift to the idol, such as to make the property pass as an absolute and entire interest in its favour. In the case with which their Lordships were dealing, it was held that there was no such cutting down although half the income was reserved for the remuneration of the members of the grantor's family as managers. But it was pointed out that if the income of the property has been large a question might have been raised in the circumstances, as throwing some doubt about the integrity of the settlor's intention, but, as the entire income was only Rs. 800 the payment was of a trifling kind and it was held that there was no impropriety, in the ear-marking of a certain part of the money, to remunerate the members of the family as managers so long as they should so continue. In Sri Thakurji v. Sukhdeo Singh it was held that there was no dedication on the following facts: (1) the transfer was of the whole property; (2) the failure to obtain mutation of names; (3) the failure to produce any accounts; (4) the fact that the expenditure on the idol was at the most one-tenth of the whole income; and (5) the absence of any explanation by the widow on any of the above points and of any accounts by her of her managership and dealing with the income. On these facts it was held that although the deed purported to make over the property irrevocably to the idol, there was in fact no intention to dedicate. In Harnarayan v. Surja Kunwari the Judicial Committee laid down that the question whether the idol itself should be considered the true beneficiary, subject to a charge in favour of the heirs for their upkeep, or the heirs should be considered the true beneficiaries of the property subject to a charge for the upkeep of the worship and expenses of the idol is a question which can only be settled by a conspectus of the entire provisions of the instrument. The instrument in that case was a will. The question therefore was one purely of construction. In Deosaran Bharthi v. Deoki Bharthi it was held by this Court that there must be something shown to indicate an acceptance on the part of the donee and whether there has been an acceptance and what constitutes acceptance depends on the circumstances of each case. The giving away of the property as the essential ingredient for a valid gift implies a divesting of the ownership in the property by the donor; and it was held that a registered deed of gift cannot take the place of those essentials among which is the complete divesting of the ownership by the donor; and it must be proved in each case, apart from the registration of the document, that there was a complete divesting of the ownership and that a registered deed of gift, as any other such document, may be merely a nominal transaction. The essential ingredient that constitutes a gift whether of moveable or immoveable property in the Hindu law is the sankalp and the samarpan whereby the property is completely given away, and the owner completely divests himself of the ownership of the property. The evidence of the actings of the party after the deed was gone into as determining the question whether there had been a real dedication, i.e, the sankalp and the samarpan of the property; and one of the points emphasised was that there had been no attempt by the donee to have his name mutated in the landlord's sharista. In Abadi Beaum v. Kaniz Zainab, of a Muhammadan wakf, their Lordships pointed out the significance of the absence of mutation of names and the suppression of accounts, on the question whether there was a dedication or not. In Mahomed Ahsanulla Chowdhry v. Amarchand Kundu the Judicial Committee were dealing with a Muhammadan wakf but the principles are equally applicable to the case of a Hindu endowment. It was observed as follows: “Their Lordships do not attempt in this case to lay down any precise definition of what will constitute a valid wakf, or to determine how far provisions for the grantor's family may be engrafted on such a settlement without destroying its character as a charitable gift……………. Their Lordships think there is good ground for holding that provisions for the family out of the grantor's property may be consistent with the gift of it as wakf; and they then quote the opinion of Mr. Justice Kemp in Muzhurool Huq v. Puliraj Ditary Mohaputtur: “We are of opinion that the mere charge upon the profits of the estate of certain items which must in the course of time necessarily cease, being confine to one family, and which after they lapse will leave, the whole property intact for the original purposes for which the endowment was made, does not render the endowment invalid under the Mahomedan law”. In that case it was held that the effect of the deed was only to create a charge on the property for the religious and charitable purposes therein mentioned.

Turning now to the construction of the deed as a whole, it appears from the recitals that the object of the deed was to provide for the maintenance of the service and worship of the deities in the way in which they had been celebrated in the settlor's life-time. The operative words, however, purport to dedicate the whole property to the deities and to provide for the expenditure of the entire income under four heads which are exhaustive of everything. Thereafter comes the clause which I have quoted in full; and it is or this clause that the appellants rest their main argument. It is contended that the effect of this clause is to cut down the grant in favour of the deities and in effect to reduce it to a charge on the estate, because the settlor reserves the right to his personal expenses and those of his wife and family according to his position in life, as well as the marriage expenses of his daughter. The clause indicates that no change was to be made in the settlor's scale of expenditure. The words used are ‘hasab liyakat apne’ that is to say, he was to get his personal expenses and the expenses of his family out of the estate according to their position in life or according to their means. It is contended that this imposes no limit and further that these expenses are not reserved to the settlor for his expenses as manager. On the contrary they are his personal expenses according to his position in life. Now it is to be observed that this clause follows the clauses which completely exhaust the income of the property. And if it is to be given a meaning it seems as if the intention was that the donor and his family were to be provided for as they had been in the past, and that what was available for religious purposes was the balance of the income.

On the Other hand due weight must be given to the clauses appointing mutawallis and managers of the property. These persons are not members of the settlor's family and the fact that the property is to be handed over to them after the death of the settlor and his wife is a strong indication that the intention was to dedicate the property; and reading the deed as a whole, as a pure matter of construction, I should hold that although it is not altogether consistent in its terms, it was an out and out dedication of the property charged with the maintenance of the settlor's family. But that does not conclude the case.

Besides the question of the construction of the deed, a further question is whether it was put into operation by delivery of the dedicated property to the deities and how the property was in fact dealt with after the deed. Learned Counsel for the respondents referred to the finding of the learned Subordinate Judge that the sankalp and samarpan ceremonies had been performed—a finding which was not contested; and argued that this completed the gift. It was further argued for the respondents that the settlor showed his intention to dedicate the property by taking two conveyances in the name of the deities; a conveyance of mauza Rampur which was purchased by the deities through Nanhuprasad Singh and by his relations Jaldhari Singh, Bhekdhari Singh and Mohipnarain Singh in equal shares on the 26th of June, 1925, (Exhibit A), and a conveyance of an interest in mauza Chapuk on the 14th of March, 1923, to Nanhuprasad Singh for the deities (Exhibit A-1). On the other hand there are two other deeds—a sale deed of the 17th of December, 1923, and a mukajrari lease of the same date—both of which Nanhuprasad Singh took in his own name (Exhibits 9 and 10). These deeds, therefore, do not carry the matter further.

I should here refer to the finding of the Subordinate Judge that the fact that the reversioners joined in the purchase of Rampur by Exhibit A amounted to an estoppel barring the suit. In my opinion this view is wrong. The fact that the reversioners or some of them may have purchased 8 annas of a village of which the other 8 annas was purchased by the same deed by Nanhuprasad Singh for the deifies does not seem to me to raise any estoppel. There is nothing in this which changed the position of the deities, nor is there anything in their entering into the transaction to prevent the reversioners from raising the question as to what the true nature and effect of the dedication were.

The other documents upon which the respondents rely are the village papers. It is argued for the appellants that the learned Subordinate Judge erred in admitting these documents in evidence. They were admitted at a very late stage, more than a year after the issues were settled. The learned Subordinate Judge has not recorded any reason for admitting these documents which were produced by the defendants' patwari. They are ordinary zamindari papers on loose sheets which might be fabricated at any time and it is precisely to meet papers of this kind that rules 1 and 2 of Order XIII were framed. It seems to me that the learned Subordinate Judge paid too little regard to these rules of the Code in admitting these papers. So far as the village collection papers are concerned, all that they show is that the names of the deities are entered at the top. This is consistent with the deed (Exhibit E) but does not really advance the case. Nor are the papers uniform, because the counterfoil rent receipts (Exhibits 2 and 3) show receipts by Nanhuprasad Singh personally. Two other documents were referred to by the respondents (Exhibits Z and Z-1). These are decrees for rent in suits of 1926. As rent was claimed for the year 1333, it is clear that the suits must have been instituted in or about September, 1926. But the present suit was brought in February, 1926, and consequently these documents have no probative value.

The decisive questions on this part of the case are whether possession was delivered under the deed and whether the income was appropriated to the deities. The first question is not answered by the formal finding that the sankalp and samarpan ceremonies were performed. The real meaning of the samarpan ceremony has been made clear by the decision in Deosaran Bharthi v. Deoki Bharthi which I have quoted at length above. Here the donor is himself mutawalli for the deities. Consequently the donor and the donee are the same and there must be some unmistakeable act to show that the possession of the property was transferred. The learned Subordinate Judge has found that the pujari accented the gift on behalf of the deities, but this would not amount to acceptance in law because the gift is to the deities and must be accented on their behalf by the mutawalli; and the effective way of showing this acceptance is by altering the land register. But not only did the settlor not effect registration of the names of the deities in substitution for his own name for these properties, but he actually applied for registration of his own name, subsequently to the deed of dedication, in the case of a property which came to him in 1924 (Exhibit 13). This was part of one of the dedicated properties, mauza Kurwa, in which a female member of the family had life interest for her maintenance. The fact that the settlor applied for registration of his own name in respect of this property is irreconcilable with the terms of the dedication. The land revenue chalan (Exhibit 16-h) of the 8th of June, 1925, shows that the land revenue was paid by Nanhuprasad Singh as proprietor. Judged by this test, therefore, the dedication fails.

Nor does the matter stand otherwise when the appropriation of the income is examined. The accounts that have been produced are no accounts at, all. They consist of Exhibit E, a jamakharch for a period of nine months of 1922–1923. This is a mere abstract showing the total sums said to have been expended on different heads and is no account. It is produced by Rajkumar Lal, the patwari, who says that the tahbil used to remain with Nanhuprasad Singh and now remained with Jaitoon Kuer and that the income of the property used to be sent to Nanhu Singh and was then sent to Jaitoon Kuer and that whenever Jaitoon Kuer spent any money she called him and he entered it in the jamakharch. An account kept in this way is manifestly no account of the expenditure of trust funds. This witness also says that the expenses for the Rag-Bhog and pujapath in the thakurbari and Sivala before 1330 Fs, were more than after, 1330 Fs., that is to say, there was actually a decrease in the expenditure on the service of the Gods after the dedication. According to the plaintiffs' evidence the income of the properties was Rs. 8,000 and according to the defence it was between five, and six thousand rupees. Taking it to be Rs. 7,000 and deducting the Government demand, which according to the evidence is Rs. 1,000 and ten per cent, for collection charges, the net income would be Rs. 5,300. According to the defense evidence Rs. 125 a month is spent on the thakurbari celebrations and Rs. 175 or Rs. 200 annually on the Sivala. That means about Rs. 1,700 at the most. The result then is that on the defence evidence there is an annual expenditure of Rs. 1,700 on the objects of the trust, while the net income of the property appears to be at least Rs. 5,300. This means that Rs. 3,600 was spent by the settlor's family on themselves. It was argued by learned Counsel for the respondents that to this expenditure must be added what was paid for Rampur and Chapuk (Exhibits A and A-1). But the purchase of property is not one of the objects upon which the income is to be expended and the fact that income was spent it this way is a clear indication that it was not in fact devoted to the objects set forth in the deed. In my opinion the way in which the money has been spent since the so-called dedication leads to the conclusion that the deed in fact did not make an absolute dedication or lead to any change in the manner of expenditure. The same inference is to be drawn from the fact that when this deed was executed the settlor was still having children. In fact his wife subsequently died in childbirth and he married again. It is most unlikely in these circumstances that he intended an out and out dedication of his property, especially as the deed on the face of it purports to dedicate his entire estates, thus leaving his descendants, of whom he might still have several, entirely unprovided for after his own and his wife's death. A further indication of the nature of his intention is to be found in the fact that he actually executed a second deed by which he made provision for his possible descendants. This shows that he did not understand the full legal effect of the apparent language that he used and that he considered that he could still deal with the property. All this seems to me to indicate quite clearly that all that was intended was to charge his property with the service of the deities in order that service might be maintained as heretofore.

The conclusion to be drawn from the whole evidence in the case is that although as a pure matter of construction the deed is properly to be read as a deed of dedication yet from the failure to carry the dedication into effect by delivery of the property and by effecting a change in the mode of expenditure of the income, it must be held that all that the settlor effected by the deed was the creation of a charge on the property for the service and worship of deities therein mentioned, and not an out and out dedication.

The result is that the appeal must be decreed and the decree of the Subordinate Judge set aside and in lieu thereof there will be a decree declaring that the true effect of the deeds mentioned in the plaint is to charge the property of the settlor with the service of the deities therein named and that the deeds do not effect a dedication of the property. The plaintiffs are entitled to their costs of both Courts; but in view of the nature of the litigation and of the absence of any personal interest in the defendants in defending the suit, the costs will come out of the estate and not from the defendants personally.

Dhavle, J.:— I agree.

Appeal allowed.