1. This is a suit instituted fey Sri Sri Kalimata Devi established at No. 28, Sovabazar Street, by her next friend Srimati Basanta Kumari Debi and by the said Srimati Basanta Kumari Debi as one of the worshippers of the said deity, for a declaration that the deed of revocation and mortgage executed by one Suresh Chunder Chuckerbutty are not binding upon the idol. The facts of the case are a follows:

Nemai Chunder Chuckerbutty, who died in 1894, left four sons : Sashi, Suresh, Nagendra and Debendra. Sashi and Debendra died before the 1st, May 1922, on which date Suresh executed a deed of trust in favour of himself and his brother Nagendra in regard to two properties, being No. 12 Beniatolla Street, and 18 Sovabazar Street. The deed of trust provided that Suresh and Nagendra should be the Shebaits to carry on the worship of the idol and that Chandi, Nagendra's son, and Gourmohau, Debendra's son, should also be added to the category of Shebaits upon attainment of their majority.

2. On 6th June 1928 Suresh and Nagendra, acting for himself and as guardian for Chandi, and Bejoy, son of Suresh, as well as Charubala, Debendra's wife, as :guardian for Gourmohan, executed a deed of revocation the effect of which was to set aside the deed of trust executed on the 1st May 1922. Thereafter, on 20th June 1923, Suresh executed a mortgage in favour of the 8th defendant, the firm of Kodarmull Luchminarain, which has since filed a suit on the mortgage and recovered a decree.

3. The defence to the suit is that the deed of trust in May 1922 is merely a colourable transaction executed in fraud of creditors and has therefore no legal or binding effect, and was never acted upon. It is further said that Suresh never actually divested himself of the property or of his beneficial interest therein and after the deed of settlement appropriated the rents and profits thereof to his own use and not to the worship of the idol. The defendants further plead that there was no dedication of the properties and no trust was effectually created thereby and that neither of the properties became debutter property or the absolute property of the idol. It was in any event a fraudulent or colourable debutter created with the ulterior object mentioned and thus constituted no valid endowment or dedication. The defendants further plead that the liability of the mortgagor was just and bona fide and that there was valid consideration for the said mortgage. They further plead that Sreemati Basanta Kumari Debi was not the Shebait of the idol and has no locus standi to maintain this suit, and further, that the idol never had any title in the properties so that no cloud could be cast over it in any way. The infant defendants submit their interest to the protection and judgment of the Court.

4. The defendants, Nagendra, Srimati Charubala Dobi and Nandabala Debi, have filed written statements; and in paragraph 2 they say that tome time before the deed of trust Suresh became involved in debts and closed his business, whereupon his creditors began to press him; and in order to appease them Suresh proposed to these defendants that they should execute along with him a deed purporting to revoke the deed of dedication and it was on account of the importunate requests of Suresh that these defendants were prevailed upon to execute the deed of revocation and. they say they had no independent advice at the time but acted entirely on the representation made by Suresh without caring to read, understand or appreciate the nature and effect thereof.

5. The following issues were framed:

(1) Was there any valid dedication of the properties in suit to Plaintiff No. 1.

(2) Where the properties treated as absolute debutter properties of the idols?

(3) Is the suit maintainable by either of the plaintiffs?

(4) Is the deed of revocation void?

(5) Is the mortgage in favour of Defendant No. 8 void.

(6) What reliefs, if any, are the plaintiffs or either of them entitled to?

6. I will deal with the third issue first as it relates to the maintainability of the suit. As I have said, the plaintiffs are the idol and Srimati Basanta Kumari Debi, who is the widow of Nemai Chunder Chuokerbutty. The argument of the learned counsel for the plaintiff is that the idol is a juristic person and is therefore competent to sue and though in the ordinary way the Shebait is the proper parson to represent the idol in any litigation, in the present case Nagendra, who is the only surviving Shebait, is not in a position to maintain the suit. Therefore Srimati Basanta Kumari Debi, who is a worshipper of the idol is the proper person.

7. On behalf of the defence it has been contended that the only person who can represent the idol in any litigation is the Shebait. Basanta was not appointed a Shebait under the deed of Trust, and so far from Nagendra not being in a position to maintain the suit, he admits in his examination that he has been acting as Shebait and has done what the She bait is required to do according to the tenets of Hindu Law. Unless therefore it is shown that Nagendra is unwilling to maintain the suit, no one else can do so.

8. The rights of an idol to maintain a suit through its Shebait is indisputable. In the case of Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi [1904] 32 Cal. 129 the head note says:

Although an idol may be regarded as a juridical person capable as such of holding property, especially where the dedication is of the completest character, yet the possession and management of the dedicate property with the right to sue in respect of it are vested in the Shebait.

9. At page 210 the following passage occurs:

But assuming the religious dedication to have been of the strictest character, it still remains that tin possession and management of the dedicated property belong to the Shebait. And the carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait, not in the idol.

10. In the case of Pramatha Nath v. Pradhyumna Kumar 52 I.A. 215, the following passage occurs at page 251:

It must be remembered in regard to this branch of the law that the duties of piety from, the time of the consecration of the idol are duties to something existing, which, though symbolisting the Divinity, has in the eye of the law a status as a separate persona. The position and rights of the deity, must, in order to work this out both in regard to its preservation, its maintenance and; the services to be performed, be in charge of human being. Accordingly he is the Shebait custodian of its idol and the Manager of its estate.

11. It would appear therefore that the proper parson to have instituted the suit was the Shebaib and nobody else. Had the position been that Nagendra in his capacity of Shebait had definitely declined to institute the suit, it might perhaps have been open to Basanta as the next friend of the idol to have taken his place but in tha absence of any such refusal it seems to ma that neither Basanta nor the idol are competent. The suit is therefore bad.

12. I now proceed to consider the other issues. The deed of trust as it stands is-undoubtedly a valid deed. Under it Suresh divested himself of his title in favour of the trustees and the trustees are himself and his brother Nagendra. Prima facie therefore the dead would constitute a valid endowment and no one could impeach it unless it were shown that it was executed in fraud of creditors. Now in the present case there is clear evidence that in May 1922 Sure3h was heavily indebted. Two brothers have given evidence in apart today and from the evidence of the broker Balkissan who deals in hundies appears that hundies drawn by Sviresh to the extent of Rs. 33,800 were in existence in May 1922, some of which would mature in that month and others a little-later on. Lear led counsel for the plaintiff has contended that some of these have been paid off. Very likely that is true, but the fact remains that on the particular date when the dead of trust was executed Suresh had a very large sum of money outstanding and had subsequently to renew the hundies. The result that inevitably followed was that a year or so later Suresh had to be declared an insolvent. Mr. J.N. Bose of the firm of Messrs. B.N. Bose and Co., Solicitors, says that a composition was come to between Suresh and his partner Satya Charan Sur and the creditors, and under it Suresh agreed to pay a certain proportion of the debts which the creditors agreed to accept. Mr. Bose says that he paid them a sum of Rs. 76,000 on Suresh's account, the total amount of debts being about 1 3/4 lakhs. There is, therefore, in my judgment no room for doubt that at the time when the deed of trust was executed Suresh was in serious financial embarrassment and that he resorted to this device in the hope of saving the properties from his creditors.

13. Now it is well established that if the Settlor is in debt at the time when he makes a dedication of the character described, the dedication becomes invalid and can be impeached. In Ram Chandra v. Ranjit Singh [1899] 27 Cal. 242 it was said at page 249:

We are of opinion that the first defendant is entitled to succeed on the ground that the dedication was nominal and colourable only made with a view to protect the property covered by it against the claims of the creditors.

14. At page 251 the following passge appears:

In dealing with the question whether an endowment is real or nominal, the manner in which the dedication pi the property is held and enjoyed is a most important point for consideration. In the present case there is not sufficient and reliable evidence to show how, during the four months in which the property was dedicated, the income of the properties was spent; nor is there any sufficient evidence in respect of any period subsequent to the death of the donor.

15. In the present case there is no satisfactory evidence to show how the income of the properties was spent. All that the evidence shows is that the idol which is an old family idol remained where it was; that the pujari continued to receive the monthly stipend of Rs. 2, which he had always received, and that offerings varying from 4 annas to 8 annas continued to be made by outsiders to the deity and were presumably appropriated as in former years by the pujari. It is that a rate bill has been produced to show that there was a mutation of names, but that is a mere clerical piece of work and it does not seem to be sufficient to show that the income of the property was devoted to the worship and maintenance of the idol so as to divest the transaction from the suspicion that it was merely a colourable one.

16. The next point to be considered is what the effect of the deed of revocation is. On the face of it all the parties interested in the deed of Trust joined in revoking it. The motive for the revocation is obvious. If the dedicated property was inaccessible to his many creditors, Suresh would have found himself in an even more hopeless position and there can in my judgment be no doubt that he prevalied upon his brother Nagendra and sister-in-law Charubala to become signatories to the document simply to help him out of the difficulty. Nagendra, in his evidence in the box, pretended that he did not know what he was signing and that his brother was so insistent that he was quite content to put his signature to the document without reading it. Nagendra, according to his own account, is a man of affairs, and it is merely childish for him to make a statement of that kind. In point of fact the statement is false, and has been conclusively proved to be false by the evidence of the witness Dr. Sailendra Nath Ghose who is Mr. J.N. Bose's assistant and a pleader of the Alipore Court who swears that he read and explained the whole document to Nagendra as well as to the lady before they affixed their signatures.

17. I would therefore answer the issues by saying that the dedication to the idol was valid in its inception, but there was nothing to prevent the trustees from revoking it. The deed of revocation is a valid document. The mortgage in favour of the 8th defendant was executed for consideration and it is valid and binding. I answer the issues accordingly. The result therefore is that the suit fails and must be dismissed with costs on scale No. 2.