The central legal point established in the judgment is the interpretation of valid dedication and the treatment of properties as trust property, considering the absence of a deed of dedication and the consensus of the family in diverting endowment to secular uses.

JUDGMENT

1. This appeal arises out of a suit instituted by Sri Sri Iswar Gopal Jew Thakur and Sri Sri Iswar Sambhunath Sib Thakur represented by the Shebait Narendra Nath Mondal for the declaration that the properties in suit (consisting of 33 items) are Debuttar properties of the deities and for other reliefs.

2. The Shebait plaintiff, and the defendants to the suit are all members of the Mondal Family of Bawali. It appears that the ancestors of the Mondals viz., Peary Lall Mondal and Mohni Mohan Mondal established the two Deities mentioned above more than 70 years ago built temples and kept apart some properties for the maintenance of the worship and Seba of the Deities, which are being carried on from their time.

3. A suit was instituted in the year 1919 by two of the members of the Mondal family for framing a scheme of management of the Seba of the Thakurs in which Radha Binode Mondal (the defendant No. 1 in the present suit) denied that the properties were debuttar, and the Court held that the plaintiff in that suit had failed to prove that properties were absolute debuttar, and accordingly dismissed the suit).

4. The titles of the deities having been clouded by the decision of that suit and the defendant No. 1 (whose religious tendencies having taken a different form) having denied the debuttar, the present suit is instituted by Narendra Nath Mondal as representing the Thakurs.

5. The defendant No. 1 Radha Binode Mondal alone contested the suit. He pleaded that the properties were not debuttar and that the decision in the previous suit operated as res judicata. The Court below gave effect to the defendant's contentions and dismissed the suit. The plaintiff has appealed in this Court.

6. Two questions arise for consideration in this appeal. The first is whether the properties are debuttar, and the second whether the decision in the previous suit operates as res-judicata. We will first deal with the question of debuttar.

7. There is no deed of dedication produced in this case.

[The judgment then dealt with the evidence and proceeded :]

8. Prima facie, therefore, the properties were treated as debuttar, but the Court below relies upon certain conduct of the Shebait as showing that the properties have not been so treated. Reliance is placed by the Court below (and by the respondent before us) mainly upon the fact that certain debuttar properties were partitioned among the shebaits, and certain compensation money under the Land Acquisition Act (when some debuttar properties were acquired under the Act) was received by them according to their shares and that these facts together with some others would go to show that the properties have not been treated in such a manner as to give rise to the inference that the properties were absolute debuttar.

9. We will therefore deal with the evidence on the question whether the properties are debuttar.

10. The Thakurbari situated in 93, Tollygunge Road, is described as property No. 1 in the plaint. The first plot of land consisting of three bighas, as already stated, was acquired by a conveyance dated the 7th April, 1832. It was expressly taken for building "Devalaya." It is contended however by the respondent that the Kobala was not taken in the name of a deity, and the vendee under the terms of the Kobala was to have the right of gift and sale so that Peary Lall the vendee could have sold the property the next day. But the Thakur had not been established then, and as to the power of gift or sale, that was the statement of the vendor who was selling the property, and those expressions were used to show that an absolute right was being transferred to the vendee. We wore referred to Hara Sundar v. Basunta (1904) 9 C.W.N. 154, where it was held with reference to the words "the right and power of gift are yours" that there was no absolute dedication. But those words occurred in a deed in favour of the shebait executed by the person who professed to make the endowment and such words in favour of the she