Authored By : Richard Harington, Herbert William CameronCarnduff

Richard Harington, J.

1. This is an Appeal by the Plaintiff against the judgmentof the Additional Subordinate Judge of Muzafferpur in a suit for possession ofcertain land. The Plaintiff claimed as the reversionary heir of the last fullowner and his claim was resisted on the ground that the lands in question hadbeen dedicated to the maintenance and worship of certain idols. The property inquestion formerly belonged to Babu Kamla Prosad Narain Singh. He died in theyear 1874 leaving a son and heir named Dwarka Prosad Narain Singh and his widowMusstt. Ram Nundan Koer surviving him. Dwarka Prosad Singh died while yet achild in the year 1876, and his mother then succeeded as his heiress to theproperty in question. In the year 1897 she executed a deed of endowment inrespect of the property in question. The learned Subordinate Judge came to theconclusion that the deed executed by the lady was a bond fide endowment of theland for religious purposes but he thought that she had exceeded her powers inalienating so large a proportion of the property she had inherited for thispurpose. He therefore gave the Plaintiff a decree for a moiety of the landwhich was the subject of the suit. In appeal before us it has been contendedthat on the Judges own finding the decree in favour of the Defendants cannotstand, because having found that she had exceeded her powers in making theendowment that she did he should have held that the entire settlement was void,and should not have made a settlement which was other than the settlement madeby the lady. It has also been contended that the endowment was an illusorytransaction and that the real object of the lady was under the cloak ofreligious endowment to benefit some of her favourite retainers out of theproperty which ought to go to the reversionary heir of her deceased son.Lastly, it is contended that even if the settlement be treated as a genuineendowment for religious purpose, then the lady had no power to alienate thefamily properly for such a purpose.

2. Now the first question to be considered is one of fact,namely, was this a genuine endowment or was it merely an illusory transaction.The deed itself which was executed on the 29th of July 1897 is a registereddocument. It recites that there was a temple of Mohadeo Ji constructed by thewidow of one Ganga Persad, an ancestor of the executant and that of herhusband. In the said temple an image of Mohadeo Ji had been set up by thatwidow. There was another temple containing the images of Ram Janki, JogannathJi and Mohabir Ji constructed by Babu Jagdeo Narayan Singh, her husbandsancestor, and that the images have been placed within the compound of thetemple of Luchmi Narain Ji. It is stated that services were managed by herhusband during his life-time as she has done since his death, and that herhusband constructed a stone temple and gave her verbal permission to set up animage of Luchmi Narain and to dedicate under a deed of endowment a portion ofthe landed property. She then goes on to make the endowment in favour of LuchmiNarain Ji, Ram Janki Ji, Mohabir Ji and Mohadeo Ji of the land now subject ofdispute. The management of the temples is vested in Ram Gopal Achari. Tosupervise the management nine Punches are appointed. Their duties are to takeaccounts from the Mohunt and to test the propriety or otherwise of the expenseswith power to allow or disallow them. They are empowered if the Mohuntmisconducts himself to appoint another person in his place. After his death,the lady provides that all the income from the dedicated property is to be inthe hands of Sripat Raot and on his death his son is to succeed him ascustodian of the collection money. If Sripat Raot or his heir misappropriateany of the money, the same is to be recovered from their person and property.Sripat and his successor are to receive their food and Rs. 5 a month. Provisionis then made for recital of Mahabharat and Panchratnam, and Paramdhar Misser isappointed Pujari with a salary of Rs. 10 a month. The power to appoint anddismiss a servant is vested in the Mohunt. But he is expressly disabled fromappointing any person as Pujari in the place of Paramdhar Misser. These are theprincipal provisions of the deed of endowment.

3. It is argued on behalf of the Appellant that this isreally only a cloak to benefit Sripat Raot and Paramdhar Misser. All the moneyfrom the endowment which amounted to a sum of Rs. 2,000 a year was to go intothe hands of Sripat Raot who is irremoveable even if he misappropriates the fund.The evidence for the Plaintiff is that the actual cost of maintaining the idolsand temples was from three to four hundred rupees a year. This was notquestioned in cross examination. Nor was it contradicted unless contradictioncan be inferred from the statement of two of the witnesses that the income ofthe dedicated properties Was spent on the endowment. These witnesses were notcross-examined as to the extent of the income that was so spent.

4. On the other side it is contended that it was the duty ofthe lady to endow the temple which her husband had built, that the appointmentof the Punches showed that the lady had taken care that the administration ofthe endowment should be under an efficient supervision, and that Sripat Raot isan old trusted servant and was nothing more than a custodian of the fund underthe supervision of responsible people.

5. In reply to the argument, it is pointed out that out ofthe nine Punches four have disclaimed having anything to do with the endowmentin question. Some, in their written statements, have alleged that they had beenappointed without their knowledge. The one of the Punches who has in hiswritten statement not disclaimed his connection with the endowment says that henever had any opportunity to supervise. Sripat says that he has got no moneyand has made no collection. It is contended, therefore, that the provision asto supervision is quite illusory and that when the evidence comes to beexamined it is quite clear that the provisions in the deed were not acted onbetween the death of the lady in 1904 and the institution of the suit in 1907.Not only did the Punches not supervise but the Mohunt himself appears never tohave carried out the duties of that office though he says he may have visitedthe temple 7 or 8 times after the ladys death and looked at the accounts, butdid not sign them. He says that he carried out the duties of the Mohunt by hismuktear, Saraswati Persad. The muktearnama has been produced and it is a littlecurious to observe that while the muktear is given very ample authority withreference to conducting suits and doing other business in Civil, Criminal andRevenue Courts there is no mention of these particular temples and there is noauthority to him to perform the duties of the Mohunt with reference to themanagement of the property of this particular endowment. It is quite clear, Ithink, that the provisions of the deed of endowment which by the way were onlyknown to the Mohunt, two years after the execution of the document, were infact not carried into effect. I am unable to agree with the learned Judge inthe Court of first instance in thinking that the document represents a bondfide transaction.

6. The learned Judge does not believe that the lady receivedany authority from her husband to establish the idols, as is recited in thedeed of dedication and he gives good reasons for not believing the evidence onthat point. But nevertheless he finds that the deed is a bond fide one, becausehe thinks it is likely that the lady would make provisions for family idols.With great respect to the learned Judge he does not seem to me to haveconsidered the weight to be attached to the circumstance that Punches did notknow that they were appointed to supervise and had not consented to theirappointment and to the fact that during the three years which elapsed betweenthe ladys death and the suit, the terms of the deed of endowment were notcarried out. It is very difficult when considering these circumstances andhaving regard to the great disproportion between the costs of the maintenanceof the endowment and the amount of the money which was allocated to it underthe settlement to come to the conclusion that it was really a genuinetransaction. In any view the evidence on behalf of the Defendants does not meetthe points I have referred to. I do not believe that the endowment is anythingbut an illusory transaction.

7. The next question to be considered is whether assumingthe endowment to be a bond fide settlement of property for religious purposesthe lady had any power to make such a settlement.

8. There are certain facts which it is important to bear inmind in considering the law on the subject. The first is that none of the idolswere installed and none of the temples built by the person to whose propertythe lady succeeded. No idol was installed by her husband; he had built atemple. It must be taken that he did not authorise installation of any idol inthat temple. There is no evidence that he intended to set up an idol: the templemay have been built for the idols which had been relegated to the compound ofLuchmi Narain Ji. The other temples had been built and the idols establishedeither by a widow of an ancestor or by the ancestors of the ladys deceasedhusband. These persons had not thought it necessary to execute any endowmentfor the maintenance of their idols. Then the other fact which is to be borne inmind is that the lady succeeded not as a widow and heiress to her deceasedhusband but as mother and heiress to her deceased son : and there appears to beno authority for saying that a mother and heiress takes any greater estate byinheritance than that taken by a widow as heiress. Indeed it was not contestedin the course of the argument that whether an heiress takes as mother, daughteror widow the estate she takes is a restricted one. The onus, therefore, in anyopinion lies on those who allege that this lady had the power to alienate theproperty she inherited from her deceased son to show that she had that powerunder the Hindu Law.

9. Now the cases that were cited to us as showing the powersof alienation vested in an heiress were cases with reference to the powers ofthe widow. Reliance was placed on the case of Lukhi Narain v. Kubali 1Borradailes Rep. 612.. It was decided in 1817 and contains this answer fromthe Shastras: " that the Respondent as widow of the brothers son, was atliberty to sell the two houses for the purpose of defraying his funeralexpenses or paying his debts, but not otherwise, though she might at pleasuresell them with any good and religious object in view." It is a littledifficult to see what is the precise meaning of this answer unless it meansthat good and religious object means something ejusdem generis with defrayingfuneral expenses and paying debts. If that be the interpretation it tellsagainst the Respondents because it could not be inferred from it that the ladywould have power to alienate the property to endow an idol. Other authoritieswere cited, particularly the case referred to in the judgment of the Court ofthe first instance, The Collector of Masulipatam v. Cavelly Venkata Narayanappa8 M.I.A. 500 (1867), which laid down that " for religious or charitablepurposes or those which are supposed to conduce to the spiritual welfare of herhusband, she, i.e., the widow, has a larger power of disposition than thatwhich she possesses for purely worldly purposes." Putting the result ofthe cases at its highest in favour of alienation by the lady it would seem thatshe had only a very limited power of alienating property for religious purposesand that only when it would conduce to the spiritual welfare of her deceasedhusband. That may be placed upon the principle to be found in the text ofBrihaspati, which is quoted by the learned Subordinate Judge and indicates howamongst the Hindus, the wife is regarded as half her husband, and it may bethat it is this intimate relation which enabled her to use his property forpurposes which have been held amongst the Hindus to be beneficial to hisspiritual welfare. But there does not seem to be any authority for theproposition that the installation of an idol and the endowment of its templecome within the category of acts which conduce to the spiritual benefits of thedeceased husband. On the other hand, there is one direct authority to thecontrary in the case of Kartik Chandra v. Gour Mohan 1 W. R. 48 (1864), inwhich it is laid down that a Hindu widow cannot endow an idol with herhusbands property or a portion thereof to the detriment of the reversioners.The decision which has the great authority of Shambu Nath Pundit, J., rests onthe ground that such a dedication could only be supposed to conduce to thespiritual benefit of the widow herself who had made the gift without herhusbands consent. There is a later case reported in Ram Kawal v. Ram KishoreI. L. R. 22 Cal 506 (1895) in which it was held that when an idol wasestablished by the mother of a deceased man his widow could not make analienation of a substantial portion of the property for the purpose of endowingthat idol. It does appear, however, from the judgment that the Judges thoughtthat a very small portion of the property might possibly be alienated forendowing an idol of the husband. These two cases seem to be the only ones thathave a direct bearing on the subject. They are destructive of the view taken bythe learned Judge in the Court below, assuming it to be correct to say that amother and heiress has no greater power than a widow and heiress.

10. There is no text that has been cited to us which placesthe mother as heiress of her son in the same close and intimate position inwhich a widow is placed as heiress to her husband. I should infer from thatthat her powers to conduce to the spiritual welfare of the son were less thanthose of a widow to promote the spiritual benefit of her husband.

11. Moreover, as in this case the idol was established bythe lady without the authority of her husband, the maintenance of it wouldconduce only to her spiritual benefit and for that purpose she would not beentitled to alienate the property inherited by her from her deceased son.

12. In the view I take of the case it is unnecessary toconsider the other question which is argued.

13. I am unable to agree with the learned Judge in the Courtbelow in his decision either as to the bond fides of the transaction or as tothe power of the lady. In the absence of any authority to show that a motherand heiress has power to deal with the property as this lady has done, I thinkit would be unsafe to hold that such power exists under the Hindu law.

14. For these reasons I think that the Appeal should beallowed, the judgment and decree of the lower Court set aside and the suitdecreed with costs. The Plaintiff will be entitled to mesne profits and thesuit must be remanded to the Court of first instance that the amount may beascertained and a decree made therefor.

Herbert William Cameron Carnduff, J.

I agree with Mr. Justice Harington.

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Harmanage Narain Singhvs. Ram Gopal Achari (19.03.1913- CALHC)