The doctrine of consensus of family members to make debutter property secular is not binding.

( 1 ) THIS appeal raises an important question of Hindu Law. In Konwur Doorganath Roy v. Ram Chunder Sen, 4 Ind App 52 (PC) (A) their Lordships made an observation in these words:"where the temple is a public temple, the dedication may be such that the family itself could not put an end to it; but in the case of a family idol, the consensus of the whole family might give the estate another direction".

( 2 ) THE question has been raised in the present appeal whether this observation that "in the case of a family idol, the consensus of the whole family might give the estate another direction", is binding authority for holding that an absolute debutter property of a family idol can be made secular by the members of the family agreeing to do so. The plaintiffs brought the present suit for declaration of their title and for delivery of possession of certain lands on the basis of a lease by the descendants of one Akshoy Kumar Haldar. The defendants contend that this was absolute debutter property of the idol Abhoya Thakurani and so the descendants of Akshoy, who was one of the Shebaits, could not give any valid title to the plaintiffs by giving lease on the representation that the property was their own secular property. Another defence which was canvassed in the Courts below was that the transfer was invalid inasmuch as it offended against the terms of the document of family arrangement in regard to this property.

( 3 ) BOTH the Courts held that the property, though originally absolute debutter property of a private debutter of the family idol Abhoya Thakurani, was made secular by the consensus of the whole family. While the trial Court, held, however, that the restriction against transfer contained in the solenama was void, the learned Subordinate Judge held that this restriction was valid in law and as the transfer by Akshoy's heirs offended against this restriction, no title passed thereby. The learned Subordinate Judge who heard the appeal accordingly set aside the order of the learned Munsif, decreeing the suit, and dismissed the suit.

( 4 ) THE main dispute between the parties before us is whether the property continued as the debuttar property of the idol Abhoya Thakurani or was secular property of the different, descendants of Gobardhan Holder, father of Akshoy Haldar at the date of the transfer. It appears that the absolute debutter character of the property was declared by the Court in a suit brought by Akshoy in the year 1929. Shortly after this a partition suit was instituted by Akshoy Kumar Haldar against his co-sharers. That suit was decreed on compromise, in the terms of solenama, which is Ex. 1 in this case. The very first term of the solenama provided that the property which had been made debutter by Gobardhan Haldar by his will would be partitioned as secular property. In para. 5 it was provided that certain niskar properties would remain charged on account of Deb Sheba and that the parties would not be entitled to sell, transfer, mortgage or lease any portion of this nisker property to anybody other than the parties. The question is whether this conduct of the parties to the suit, Title Suit No. 73 of 1930, in declaring that the debuttar properties would be treated as secular and partitioned on that basis had the consequence of extinguishing the debutter character of the properties and making them secular. I have already set out the observation of the Privy Council on which this doctrine is based. In 'gobinda Kumar v. Debendra Kumar ', 12 Cal WN 98 (B), Rampini 'c. J. and Sharfuddin J. relied on this observation for holding that certain properties dedicated to a family idol had been converted into secular property by the consensus of the family. In 'chandi Charan v. Dulal Paik', 1926 Cal. 1083 (AIR V13) (C), this Court, however, doubted the correctness of the preposition. Chatterjea J. observed:"the proposition that in the case of a family idol, the consensus of the whole family might" give the