1. This is an appeal by, the principal defendants arising out of a suit for partition and accounts decreed by the learned Subordinate Judge, First Court, of Dacca. The plaintiffs asked for partition of the immovable properties consisting of three houses described in items 1, 2 and 3, Schedule Ka in the plaint and for accounts against the defendants of the five karbars described in Schedule Ga of the plaint and also for an account with regard to some gold and silver articles mentioned in Schedule Kha of the plaint. The learned Subordinate Judge has made a decree in favour of the plaintiffs with regard to the entire claim except with regard to karbar No. 4 described in Schedule Ga.
2. The plaintiffs' right to partition arose on these facts : There were four brothers Krishna Charan, Tokani, Rashiklal and Boharilal who formed a joint Hindu family. Krishna Charan died long ago leaving him surviving his widow Anandamayee and two daughters. Anandamayee died, according to the finding of the Subordinate Judge, in 1317 B.S. Her two daughters survived her. The plaintiffs are the sons of one of the daughters Bansimoni. On the death of their aunt who died later than their mother in the year 1332 B.S. the plaintiffs became entitled to the properties left by Krishna Charan, that is, a fourth share of the joint properties belonging to the four brothers. Of the other three brothers of Krishna Charan. Tokani died in 1321 B.S. leaving his son defendant 3. Rasiklal died long ago and his descendants are represented by defendants 1, 4, 5, 6 and 7. The youngest of the brothers of Krishna Charan is Beharilal who is defendant 2 in this case. Defendant 8 is an idol Raj Rajeshwar Jiu the family idol of Krishna Charan which was established, according to the evidence, long ago by some ancestor - when, the evidence does not show. Defendants 9 and 10 are persons unconnected with the family-defendant 9 was a servant in one of the karbars and defendant 10 is a tenant in the house described in plot 3, Schedule Ka in the plaint. The plaintiffs alleged that of the number of karbars mentioned in Schedule Ga of the plaint, karbar 4 was closed down long ago when plaintiff 1 was an infant. Karbars 1 and 2, according to the defence, were closed in the year 1320 and karbar 3 was closed down in the year 1316 while, according to the plaintiffs, karbar 3 was closed down about the year 1308; and that evidence has been accepted by the Subordinate Judge. The defendants did not dispute the plaintiffs' right to partition of the house described in item 1, Schedule Ka of the plaint. Before us, on appeal defendant 1 in whose possession it was admitted that there were certain gold ornaments which formed the assets of karbar 3 did not dispute his liability to account therefor; but the defence of the defendants was that the houses in plots 2 and 3, Schedule Ka were dedicated to the family idol for its worship and sheba by a deed (Ex. B) dated 11th February 1902 executed by all the then surviving male members of the family along with the maternal grandmother of the plaintiffs Anandamoyee, except one of those who was a minor, namely, defendant 6 who subsequently affirmed the dedication by a separate deed on attaining majority. It was pleaded by the defendants that these two properties were not partible. With regard to the karbars, they alleged that the first three karbars were closed down long before the plaintiffs succeeded to the interest of their maternal grand father. The business in all these firms was losing one, they said, when they were closed down and the debts swelled to a greater amount than the assets and the gold ornaments which were kept with defendant 1 were not demanded by any of the other cosharers because that defendant had paid off the joint debts of the karbars which exceeded the value of the gold ornaments. With regard to the karbar 5 the plaintiffs' allegation was that it was started by defendant 1 with the assets of karbar 3 which was according to the plaintiffs' story, closed down in 1308 B.S. It is admitted that karbar 5 was opened in 1308 and it is a karbar carried on by defendant 1 alone for himself. In the plaint, the plaintiffs do not allege that they have got any share in that business. The other members of the family disclaim all interest in this business.
3. In this state of the pleadings, several issues were raised before the Subordinate Judge. It is necessary now only to consider Issues 8 and 10 in this appeal. Issue 8 thus:
when were the businesses in Schedule Ga closed down; does this suit for dissolution and accounts lie and ace the plaintiffs entitled to sue as reversioners and to get the accounts claimed.
4. The learned Subordinate Judge has come to the conclusion that the plaintiffs as the grandsons of Krishna Charan have got a 4 annas share in the99 karbars, that the defendants are liable to render accounts to the plaintiffs for their share with respect to karbars 1, 2, 3 and 5 only in Schedule Ga and with respect to the ornaments in Schedule Kha, that karbar 4 in Schedule Ga was abolished long before and that the defendants are not liable to account for it.
5. It is contended on behalf of the appellants that the learned Subordinate Judge is in error in holding that the plaintiffs had any interest in these karbars when, as a matter of fact, they were closed down before the succession to thorn had opened, that is to say, long before the year 1332. It seems to ma that this contention is sound. The karbars ceased to exist so long ago that if there was any right to claim accounts in respect of those karbars, that right accrued to the ladies who were then the next reversioners that is, the mother, of the plaintiffs and their aunt. It cannot be said that this right accrued to the plaintiffs afresh after the death of the last surviving daughter of Krishna Charan. The claim, therefore, for accounts of karbars 1 to 3 must fail.
6. With regard to karbar 5, the plaintiffs' allegation was that it was started with the assets of karbar 3 which belonged to the joint family. If this could have been proved then the plaintiffs might possibly have asked for an account of the assets which belonged to the joint family that were used for the purpose of opening karbar 5 and carrying it on. The evidence, however, to support that case is almost nothing. Plaintiff 1 who has examined himself states that it was Madan, defendant 1 who told him that all the articles of the old karbae wore brought by Madan in order to open this karbar 5. He says, however:
I do not remember when and in which year this was said and who were then present.
7. Madan, defendant 1, contradicts this statement and, as I have already said, the other members of the family do not claim any interest in this karbar, although they are all separate. From this fact, it is quite clear that the plaintiffs have not been able to make out any case for demanding an account from defendant 1 or from any other defendant with regard to karbar 5 or any of the other karbars. It is not necessary, therefore, in the circumstances, to deal with the question which was sought to be argued here that karbar 5 had been interpolated in Schedule ga in the plaint after it had been filed.
8. The decree, therefore, made by the Subordinate Judge making the defendants liable to render accounts for these four karbars must be set aside.
9. I have already said that defendant 1 here undertakes to render an account of the ornaments which he admitted were put into his possession at the time when the business No. 3 was closed. The decree of the Subordinate Judge with regard to the account as regards the ornaments must, therefore, stand.
10. The next question that has been urged on behalf of the appellants is that property No. 2, Schedule Ka is one which is indivisible. This property, according to the evidence, is the Thakurbari of the family and apparently the family idol has been located and is still existing there from before the time of the four brothers. The house is not used for any other purpose and, therefore, according to the general principles of Hindu Law, this must be considered as an impartible property. According to the old text:
A dross, a vehicle ornaments, cooked food, water and females (slaves), properties destined for pious uses or sacrifices, and a pasture ground then declare to be indivisible : Manu, Ch. 9. Verse 219, Sacred Books of Bast Vol. 25.
A place of sacrifice, a field, a vehicle, cooked food, water and women are not divisible among kinsmen though transmitted for a thousand generations. Dayabhaga Ch. 6, Section 2, Verse 25. See, also, Mitakshara Ch. 1, Section 4 Verso 23.
11. It is true that there is a difference of opinion as to the meaning of the word Yogahshenam; but the preponderance of opinion is in favour of the interpretation as above and that is an interpretation which has been accepted by all modern scholars - Indian and European. Further, in the case of Anund Moyee Choudhurain v. Boykuntnath Roy 8 W.R. 193 this Court refused to direct a partition of five buildings which were sought to be partitioned. Those buildings were raised as places of worship. The learned Judges refused to direct a partition on the ground that to divide them would be to render them utterly unsuitable for the purpose for which they were originally built. The learned Judges further held that:
according to the Hindu Law, places of worship and sacrifice arc not divisible, and the parties may enjoy their turn of worship unless they can agree to a joint worship.
12. This case has been referred to in various subsequent cases in this Court and in Allahabad and Madras and has never been dissented from. I am, therefore, of opinion that, whatever may be the right of the plaintiffs with regard to the other joint properties, the Thakurbari which is described in item 2 of Schedule Ka of the plaint is not divisible. But I am of opinion that there is another ground which I shall deal with presently on which this property should also be held to be not capable of partition.
13. The most important question that was argued before us by Mr. Brojolal Chakravarti on behalf of the defendants appellants was raised in issue 10 which runs thus:
Is the debuttar a legal and valid gift and binding on the plaintiffs; can the plaintiffs impeach it now?
14. As I have stated before, this deed of gift was executed on 11th February 1902 by the lady Anandamoyee along with the male members of the family. The law as regards the right of qualified owners to make a gift of properties inherited from the last male owner for pious purposes has been the subject of consideration in the several High Courts in this country recently. The cases are V. Tattaya v. Rainakrishnamma [1910] 34 Mad. 288; Khublal Singh v. Ajodhya Misser [1916] 43 Cal. 547 and Kunj Behari Lal v. Lailu Sing [1919] 41 All. 130. All these cases have been approved by their Lordships of the Judicial Committee in the case of Sardar Singh v. Kunj Behari Lal A.I.R. 1922 P.C. 261. The result of the authorities is, in the opinion of their Lordships, that Hindu Law recognizes the validity of the dedication or alienation of a small fraction of a property by a Hindu female for the continuous benefit of the soul of the deceased owner. In this case, it can hardly be disputed; that the dedication would be conducive1 to the benefit of the soul of the deceased owner Krishna Charan. It was an ancestral deity of the family and to make provisions for the due performance of the sheba and poojah of the deity would be a meritorious act which, according to Hindu idea, would confer benefit as the soul of the deceased owner.
15. The question, therefore, resolves itself into this, as to whether the lady was justified in making a dedication of the property having regard to the pecuniary circumstances of the family or, in other words, whether it was a fraction of the property belonging to the deceased owner or it was such a substantial portion of the property that this alienation in favour of the Thakur cannot be supported according to law. The reason why this limitation has been pub on the powers of a Hindu female will-appear from the fact, as stated by the learned Judges of the Madras High Court in the case of Tattaya v. Ramakrishnamma [1910] 34 Mad. 288 above cited, that almost every gift, according to Hindu notions, is capable of conferring spiritual benefit more or less to the deceased owner. It is contended by Mr. Brojo Lal Chakravati that the gift in the present case stands on a higher ground than an ordinary gift by a qualified owner for pious purposes. He points out that it was the ancestral Thakur of the family and that it was the bounden duty of the members of the family to see that the sheba and bhog and pujah were carried on adequately of the ancestral Thakur. It is pointed out to us that the pujah expenses derived from the property dedicated are not of such an extravagant nature as to call for any comment. On the other hand, he shows from some of the accounts that the pujah is performed on a very limited scale and that, even then, that the expenses are not all covered by the income of the dedicated property. When I asked him whether there was authority either in the texts or in any decided cases that gift to a family idol should be looked at from a point of view different from other pious gifts, he admitted that he had not been able to find any. Under these circumstances, I do not think that it would be proper for us to extend the rule laid down in the cases I have mentioned by saying that, where the gift is in favour of a family idol, we should not look to the proportion of the property inherited by a female which was dedicated but we should look to the necessity of the idol in order to judge whether the dedication was proper or not.
16. It is next argued that, even if we take the standard of a small fraction of the property belonging to the late owner, then also this dedication may be supported and, in support of this, Mr. Brojolal Chakravarti points out from the evidence of plaintiff 1 himself that, during the lifetime of the lady Anandamoyee and also during the lifetime of the plaintiffs' mother down to the year 1920 B.S. the monthly payment for the maintenance of these ladies made out of the joint karbars was Rs. 15. The rent derived from property No. 3 was only Rs. 19 a month and it was argued that some portion of it must be kept apart for repairs and other expenses. Taking that to be the standard, it was argued that we might take Rs. 16 a month as the income derived from property No. 3 If that is so, Ananclamoyoo's share was Rs. 4 a month and, as she was getting Rs. 15 this Rs. 4 a month would be about a fifth of the total income that she was dedicating in favour of the idol. This argument has the merit of ingenuity but the difficulty of accepting it is this, that the defendants do not give any evidence as regards the circumstances of the family at the crucial moment, that is, the year 1308, when this dedication was made. It is true that the plaintiffs admit that Rs. 15 per month was paid to the ladies on account of their maintenance; but whether this sum was paid out of the profits or out of the assets of the karbars there is no evidence to show. As a matter of fact, the karbars ceased to exist some years after this dedication. It seems to me that this dedication was thought of because the family was going down in prosperity. As it appears that the Thakur was an old established Thakur, no permanent provision was made by the family for carrying on its sheba and pujah because probably the founder thought that their prosperity would continue. But when the male members of the family found that they were going down in prosperity as pious men they thought that some permanent arrangement should be made for the sheba of the idol and therefore, they joined together and made this dedication. As male members, they were free to deal with their own property. The question is whether the qualified owner, the widow, was able to do so. In the absence of any evidence, as I have said, as to the nature of the properties then owned by the family, it appears that they had only the three houses and the income from the shops was a doubtful one. In one house, they were living. The second was the Thakurbari in which the idol was located and the only source of income was property No. 3 apart from the shops. It is, therefore, difficult to hold that this dedication of property No. 3 was proper under the circumstances of the case on the part of Anandamoyee so as to bind the next reversioners. In my opinion, therefore, this dedication cannot be binding upon them and this property is liable to be partitioned.
17. Property No. 2, Schedule ka of the plaint, however, stands on a different footing. It was in the occupation of the idol. It was yielding no income and, therefore, even assuming that this property was not impartible, as I have already said, it cannot be said that the dedication of this property to the idol by the lady Anandamoyee was improper. As a matter of fact it might be that when the idol was located in the house for generations before these brothers came into possession of this property, there might have been a verbal dedication by the person who had established the idol. But no case has been made to that effect. However that may be, in my judgment the plaintiffs cannot assail the deed of endowment to which Anandamoyee was a party with regard to property No. 2, as this was not capable of producing any income.
18. In my view, therefore, the decree of the Subordinate Judge should be modified in this way. There will be a partition of property No. 1 and property No. 3, Schedule ka of the plaint. No accounts will be directed as regards the karbars Nos. 1, 2, 3 and 5, Schedule ga. Defendant 1 alone would be liable to render an account of the ornaments that were placed with him with the consent of the other cosharers. at the time when karbar No. 3 was closed. In making the partition, the learned Subordinate Judge will direct the commissioner to take into account any improvement made by defendant 1 or any other of the defendants, and the improvement that was made at the expense of a defendant will be allocated to the share of that defendant in making the partition. The plaintiffs will get a fourth share of the dwelling houses in plot 1 and plot 3, Schedule ka. Biah party will bear its own costs in both the Courts up till now. Furture costs will depend upon the directions to be made by the Court below.
Rankin, C.J.
19. I entirely agree.