1. This is an appeal by the plaintiff in a suit which has been described by the Courts below as a suit of a-novel description. The defendant is in possession of land which originally belonged to the predecessor of the plaintiff the Maharaja of Burdwan. More than half a century ago, the then Maharaja established an image of Shiva and named it Trilokeswar Shiva after himself. The allegation of the plaintiff is that the land in dispute was made over to predecessor of the defendant in order that the income might be applied for the worship of the image so established. The Maharaja asserts that about 40 years before the commencement of this ??? the site on which the temple of Shiva stood was washed away by the river Bhagirathi, that the image itself was broken to pieces, that since that came the broken image has been worshipped by the predecessor of the defendant, that the Maharaja has recently established a new image of Shiva in a newly constructed temple in the same village, and that the defendant has refused to perform the worship of this image. The plaintiff therefore asks for relief in the alternative in this manner. He prays in the first place that the defendant may be compelled to perform the worship of the newly established image; in the second place, that the defendant may be called upon to provide out of the income of the land in his possession the articles necessary for the worship of the image, and finally that if the defendant refused to perform the worship or to supply the articles necessary in that behalf a decree may be made against him for ejectment.
2. The defendant repudiated his liability to perform the worship. His case was that the land had been granted to his predecessor for the worship of his family idols and that neither he nor his predecessor was ever under any obligation to perform the worship of the image Trilokeswar Shiva. The suit has been dismissed by all the Courts below.
3. On the present appeal it has been contended that upon the facts found there is no answer to the claim. The defendant has produced an arpannamah executed in his favour by his predecessor in 1882. In so far as this deed of transfer contains an admission by his predecessor, it may be used against him. The arpannamah recites that the land had been granted by the Maharaja of Burdwan to the predecessor of the defendant in order that the income thereof might be applied for the worship of his family idols and also of Trilokeswar Shiva. It has been argued on behalf of the defendant-respondent in this Court that this at best indicates that the dedication, if any, was for the benefit of the family idols of the defendant as also of the image established by the Maharaja.
4. It is answered that the defendant cannot use in his fovour an admission by his predecessor in his own interest. Under the circumstances it is clear that the property must have been made over by the Maharajah to the predecessor of the defendant in order that the income might be applied for the worship of the image Trilokeswar Shiva. The question arises whether this trust came to an end when the temple was washed away and the image was broken.
5. On behalf of the respondent it has been contended on the authority of a text of a Hayasirsha quoted and translated in Shastri Golap Chandra Sarkar's Hindu law, Edn. 4, p. 471, that when an image has been mutilated or destroyed, it may be renewed of the same material, of the same size and in the same plan and that this renewal must be made on the second or on the third day. In our opinion this text does not assist the contention of the respondent. This text shows that when an image has been mutilated or destroyed, the religious purpose does not come to an end and as pointed out by this Court in the case of Purna Chandra Bysack v. Gopal Lall Sett . [1908] 8 C.L.J 369. the endowment is not affected by the destruction or mutilation of the image. The religious purpose still survives and a new image may be established and consecrated in order that it may be worshipped as intended by the, original founder. Were the contention of the respondent to prevail the endowment would come to an end, if, as has happened in this case, the land upon which the temple stood was washed away by the action of the river. This view is not supported by any text or any principle of the Hindu law which has been brought to our notice.
6. It is, on the other hand, clearly opposed to the principle recognized by a Full Bench of this Court in the case of Bhupati Nath Smrititirtho v. Ramlal Maitra . [1909] 3 I.C 642. If then the endowment was not destroyed when the land upon which the temple stood was washed away and the image was broken, what has happened since then to alter the position of the parties? The defendant is in the same position as if he held a service tenure. The land was given to him for definite purpose, namely, that he might apply the income thereof for the purposes of the service of the image established by the Maharaja. That image has ceased to exist and a new image has been installed and consecrated by the successor of the Maharajah and it has been named after the original founder Trilokeswar Shib. It is in the same village. There is no conceivable reason why the defendant should decline to apply the proceeds of the property in the worship of the idol. This he has deliberately refused to do. The Court cannot compel him to perform the worship when he repudiates his obligation in that behalf. The only course which the Court can adopt under such circumstances is to hold that the service tenure has come to an end, and the defendant is not entitled to retain possession of the land. This is clear from the decision of this Court in Hurrogobind Raha v. Ramrutno Dey . [1879] 4 Cal. 67. and in Ansar Ali Jamadar v. C.E Grey . [1905] 2 C.L.J 403..
7. The result therefore is that this appeal must be allowed and the decrees of the Courts below discharged, the suit will stand decreed, and the defendant must deliver possession of the property to the plaintiff. The plaintiff will be entitled to his costs in all the Courts.
8. The claim for mesne profits is abandoned.
V.B/R.K
9. Appeal allowed.