JUDGMENT

SARKARIA, J: —The appeal by certificate under Art 133 (1) (b) of the Constitution, is directed against a decree, dated March 4, 1966 of the High Court of Judicature at Calcutta, passed in Second Appeal No. 626 of 1959.

2. It arises out of these facts: -

One Indra Narayan Biswas owned considerable property. On April 9, 1904 he executed a deed called "Declaration of Trust Deed", dedicating 26 items of his immovable property, mostly houses and buildings situated in Calcutta and other places, to the family deity Sree Sree Iswar Lakshmi Janardan Jiew, which is installed and located at Barhatta, Police Station Ranghat, District Nadia, which was the ancesttral home of the founder.

3. Since a good deal of argument before us centered on a construction of this Trust Deed, it will be appropriate to extract here its material terms:-

"1. All that properties in Schedule is vested in to the Debottar and Trust Property completely and permanently from today.

2. That from the income of the above mentioned property according to the account and estimate mentioned in Schedule (Kha) the expenditure of Durga puja, Kali puja and Saraswati puja will be made permanently and these properties are hereby encumbered permanently for the purpose of meeting these expenditures, and under these circumstances, all these properties completely and with all the rights I dedicate to the deity Lakshmi Janardan.

3. The puja and worship etc. of Lakshmi Janardan will be carried on as per list attached in Schedule (ka).

4. I shall remain as the sole Trustee and shebiat of these properties and Debottar mentioned above so long as I shall remain alive, and shall be able to sell or settle temporarily or permanently or be able to distribute to the tenants the Trust property or any part thereof. No Trustee excepting me shall be able to encumber the Trust and Debottar property or the part thereof excepting letting the property or any part thereof not more than three years. No Trustee of Debottar shall be able to encumber the property in any manner of transfer or shall not be able to do any thing which shall in any way diminish the value or glory of the deity or do any thing which shall decrease the income or loss of the Debottar property.

5. ... ... ...

6. In case of any surplus of fund, after meeting the expenditures mentioned in Schedule (Ga) and (Gha), arising out of the Debottar property, security papers (company papers) in the name of Debottar Trust estate should be purchased from the surplus amount, and it will remain as the property of the Trust estate permanently.

7. ... ... ...

8. In my absence after my death Shrijut Abinash Chandra Bhowmick and Shrijut Jogendra Nath Biswas both of them on equal rights shall be the joint Shebiat and Trustee for generations and the said each branch shall get as remuneration at the rate of Rupees fifteen per month and the other branch also shall receive respectively at the rate of Rupees fifteen per month, generations together permanently.

9. ... ... ...

10. I have a desire to construct one Thakurbari and a Temple, if I cannot do the same, in that event my future Trustee and Shebiat shall construct one Thakurbari and a Temple from the income of the property only.

11-12. ... ... ...

13. This Trust Debottar property shall not be encumbered by the individual alone of any Trustee, the Trustee or Shebiat shall not be able to transfer their rights and it shall not be so transferred.

14. ... ... ...

15. That I shall be able to change the terms of the deed but no other Trustee excepting myself shall be able to change the terms and conditions of the deed.

16. From today onward all Debottar Trust Estate as per the deed shall be known as "Indra Narayan Trust Estate" permanently, and from today separate khata Book etc. will be kept, and the said Estate shall be separated from our own estate permanently and in that estate myself or my heirs shall have no rights or concern or nobody shall be able to claim anything in that estate.

17. ... ... ...

18. In case if