Chatterjee, J.@mdashThis appeal arises out of a suit for a declaration that certain properties which had passed from the family of the Plaintiff and
Defendants and had been re-purchased by some of the Defendants were debutter properties and liable to contribute to the expenses of the
debsheba. There were also certain other prayers. The debutter character of the property was denied. The learned Subordinate Judge has found
that the property was once debutter but that by the action of certain members of the family in dealing with this property the character of the
property has been changed into that of secular property. As authority for the latter conclusion, he has relied upon certain cases which he does not
name. He may have had in his mind the case of Doorga Nath v. Ram Chandra I. L. R. 2 Cal. 341 (1876). In that case, there is no doubt, their
Lordships said : ""but in the case of a family idol, the consensus of the whole family might give the estate another direction."" In the first place, that is
a mere opinion which was not necessary for the decision of the case : and, in the second place, it does not say that it is competent to the heirs of
the donor or other shebaits to convert debutter property into secular property by the manner of their dealing with the same. In any case, the facts
found in this case do not come within the purview of that opinion even, for, in this case, there was not the consensus of the whole family. The
Plaintiff and his predecessors were not guilty of any breach of trust in respect of the debutter in question. It is argued before us that the mere fact of
the several members of the family having partitioned the land was an act of breach of trust and that in that way the whole family may be considered
to have joined in giving the property a direction in the way of its being treated as a secular property. The partition, however, must have been for the
purpose of convenience of user for the sheba for which the property was dedicated: and, if that be so, the partition would not be in violation of any
trust for the sheba of the deity. Besides that, there is nothing against the Plaintiff or his predecessors. There has not, therefore, been any legal
conversion of the debutter property and the finding of the learned Subordinate Judge to that effect is wrong.
2. During the pendency of the appeal, there has been a compromise of the case with Defendant No. 3 and the relation between the parties is
governed, so far as the Defendant No. 3 is concerned, by the terms of the compromise entered into in the case. As regards the other Defendants,
there will be a decree in this case declaring that the property in suit is debutter property and liable to contribute to the sheba of the deity Sridhar
Jiu.
Jenkins, C.J.
3. I agree with the conclusion at which Mr. Justice Chatterjee has arrived. The case appears to me to be a very simple one. We are only
concerned with Defendants Nos. 1 and 2, for with Defendant No. 3 there has been a compromise which removes that Defendant from the sphere
of contest. We start with the fact found by the Subordinate Judge that the property in suit was debutter. The purpose of the suit is to have its
debutter character established, at this present day, with consequential relief. It is sought to establish this claim not against a stranger to the
dedication, but one who claims under an original shebait. It lies upon Defendants Nos. 1 and 2 to show that there has been some subsequent legal
conversion of the land to the ordinary user of property. [See Juggut Moheenee v. Rajendro Nath 10 B. L. R. 19, 31 (1871)]. Whatever force may
be attributed to what was said by their Lordships of the Privy Council in Doorga Nath''s case I. L. R. 2 Cal. 341 (1876) in relation to a family idol,
it certainly is not shown upon the facts of this case that there has been a legal conversion of the property which has divested it of its original
debutter character.
4. On these grounds, I think that the decree of the Subordinate Judge cannot be supported and his decree as well as the judgment of Mr. Justice
Caspersz must be set aside and a decree passed declaring the present debutter character of the property and that the Plaintiff and Defendants
Nos. 1 and 2 as shebaits are under an obligation to apply the income of the debutter property towards the purpose to which it was dedicated, that
is to say, the worship of the deity Sri Sri Sridhar Jiu. The Plaintiff declares his willingness to apply the income of the property in his possession for
the purpose of the endowment, and we decree that the income of the property in the possession of Defendants Nos. 1 and 2 be also applied for
the purpose of the endowment. Each party will bear its own costs in all the Courts.