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Judgment
The first question that arises for decision is, whether the Subordinate Judge is right in holding that the properties in suit are subject to a charge of 1400 paras.
It is found by the Subordinate Judge that the family owns the temple and that the daily pooja and the ceremonies are conducted out of the income of the family property. It is also found that 1400 paras at least is necessary to carry on the worship and the ceremonies. It is argued before us that as no specific property has been set apart, there is no endowment and the Subordinate Judge is, therefore, wrong in holding that there was a trust of charge for that amount in favour of the temple. It is not necessary that any specific property should be set apart. A share of the income derivable from the family properties may be dedicated. The family properties will then become subject to a charge for that amount and whoever takes the family properties by partition or alienation, will take it subject to that charge. Whether the amount has been set apart by the family is a question of fact to be decided upon the evidence. There is a poojari and the worship has been carried on for more than 50 years. In these circumstances we are unable to say that the Subordinate Judge was wrong in holding that the family have set apart 1400 paras for the ceremonies in the temple.
It was then contended that part of this amount consists of certain payments made in the family house itself and not in the temple. No such objection was taken in the lower Court. The Subordinate Judge''s finding is that this amount is necessary to carry on the ceremonies in the temple and. we are not satisfied that the finding is erroneous.
The Subordinate Judge also finds that certain debts are binding and others not binding. Both appeal against this finding. The creditors are not parties to this suit and in their absence, the question cannot be finally decided. We are, therefore, of opinion that the Subordinate Judge''s decision on this point should be modified. We set aside his finding on the 6th issue and amend the decree by substituting with the consent of parties for paragraph 5 the following
That the debts that may be due by the family be borne equally by the plaintiff and 1st defendant''s branch.
We disallow the objections as to mesne profits. With this modification we confirm the decree." We think in the circumstances of the case that the parties should bear their own costs throughout.