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TMI Blog1909 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , son of the late Ram Chandra Maitra of Hari-pur and the grandsons of my father-in-law, Sriman Kali Prosanna Maitra, Sriman Chunder Maitra, Sriman Protap Chandra Maitra,. Sriman Abhoy Gobinda Maitra, etc., as trustees. They shall, according to the provisions made in paragraph 4, pay to the persons mentioned in that paragraph, their monthly allowances, as fixed by me and shall defray the expenses for the performance of rites for the spiritual welfare of my mother, full sister and cousin (father's sister's daughter) : and shall pay to my Gurudeb Srijukta Harinath Bhattacharjee of village Purbasthali, in the district of Burdwan, ₹ 10 as "Barshick" and to my "Purohita", Srijukta Srish Chandra Chukerburty of Salkeah, ₹ 5 as 'Barshick" and after defraying the expenses for the sheba and worship, during my turn, of the ancestral Ijmali "Bighraha" Iswar Gopal Deb Thakur, Saligram Narain and Iswar Mahadeb Thakur, they shall spend the surplus income which may be left in the sheba and worship of Kali after the name of my mother, i.e., in the name of Iswar Anandambyee Kali. The image of the deity shall be established and consecrated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly was a disposition for religious purposes and such dispositions are favoured by Hindu Law. Thus it is said by Katyayana: "If a gift be promised by a person whether in health or sickness for a religious purpose, and he dies without making it, his son should be; compelled to make it : of this there is no doubt." (See Mandalik's Hindu Law page 124). And again in the chapter of the Mitakshara which deals with gifts it is said: "Whatever has been promised to any body for religious purposes should be given to him without fail." (See Mitakshara Vayabaliar Adhyay, part III Chapter IV, Section 14, translated by the late Girish Chandra Tar-kalankar). "Property" it is said, thus given by a man or appropriated (by him) to religious uses cannot be set aside by his son and the rest. The giver is competent to take care of the wealth or property endowed for religious purposes. He can no longer resume it because Dharma is the then Master or owner of such property. Let the owner himself or his representative, O Goddess ! appropriate to pious purposes the corpus of a property or its income according as it may have been resolved". (Mahanirvanrantra Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a means of carrying it into effect that something should be done after his death see too Mayor of Lyons v. East India Co. 1 M.I.A. 175 and Parmanandas Jivandas v. Venayelca Rao Wassudeo 7 B. 19 at p. 32. But then it is urged that the decision in Upendra Lal Boral v. Hem Chundra Boral 25 C. 405 : 2 C.W.N. 295 is against the validity of the disposition now under consideration. There apparently power was given by a testator to his wife to establish the service of an idol and by making a will in favour of it to manage the properties, construct a temple and perform the sheba. 7. In relation to these dispositions it was said, "if there was a gift to the idol it was bad because there was no idol in existence at the time of his death." In the first place it is this decision that has principally led to the present reference, so that it cannot be regarded as in itself an authority binding on us. Next it is to be noticed that the learned Judges did not consider the aspect of the case which I have been discussing, but treated the disposition with which they were concerned as though it were simple gift to a nonexistent idol. 8. I have shown that the disposition with which we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person and even as owning property Maharapee Shibessuree Debia v. Mothooranath Acharjo 13 M.I.A. 270 but : it has since been explained that it is only in an ideal sense that property can be said to belong to an idol Prosuno Comayee Debia v. Golab Chand Babu 2 I.A. 145 : 23 W.R. 253 : 14 B.L. 450 and Jagadindra Nath Roy v. Hementa Kumari Debi 31 I.A. 209 : 31 C. 129 : 8 C.W.N. 809. Whether this ideal sense means more than that the dedication to a deity is a compendious expression of the pious purposes for which the dedication is designed may be a question. In favour of this view we have the doctrine of Medhatithi cited to us in the course of the argument that the primary meaning of property and ownership is not applicable to God, and the train of reasoning that is suggested by the teaching of the Aditya Purana that the gods cease to reside in images which are mutilated, broken, burnt and so forth (Sarsivati's Hindu Law of Endowment, page 129). But whatever may be the true view on this obscure and complex question, this at least seems clear that the rule which requires relinquishment should be to a sentient person does not forbid the gift of property to trustees for a religious p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a contradiction in terms, to talk of the creator accepting anything, in the legal sense of the word, from a creature, and that it is inconceivable that laws which were made for, if not by, men should be applicable to a deity. But though a dedication to a deity does not constitute a gift it has a legal effect. The intention of the donor is that the subject-matter of the gift shall be used for doing honour to the deity by worship and for conferring benefit on the worshippers and the ministers of the deity who conduct ,it. This worship is properly and I understand necessarily carried out by having recourse to an image or other physical object, but the image is nothing till inspired by the deity. 17. It is the duty of the sovereign to see that the purposes of the dedication are carried out. 18. On, and, consequently with, this basis of general principles, modern law has arrived at certain conclusions. Of these the most important for present purposes is that an idol after it has been duly constituted is a juridical person in an ideal sense. The practical meaning of this somewhat elusive expression is that the ministers of an idol have over the property dedicated to the idol, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the image of the goddess Kali and her worship was void inasmuch as the deity had not been established in the life-time of the testators. 23. We have been invited by the learned Counsel for the appellants to answer the questions stated in the order of reference in the affirmative. It has been argued, upon the authority of the decisions of the Judicial Committee in the cases of Tagore v. Tagore 9 B.L.R. 377 : 18 W.R. 359; Bai Motivahu v. Bai Mamubai 21 B. 709 : 24 I.A. 93 that a person capable of taking under a will must be such a person as can take a gift inter vivos, and, therefore, must either in fact -or in contemplation of law be in existence at the time of the death of the testator. "It has been assumed that this rule is applicable to a bequest to trustees for the 'establishment of a Hindu deity, and the inference has been drawn that the manifestation of the deity in the form of an image must be in existence at the time of the death of the testator. As reliance has been placed upon two decisions of the Judicial Committee which in so far as they decide any question of law are binding upon this Court, it is essential to examine closely the decisions themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53 : 14 B.L. 450. The later decision of the Judicial Committee in the case of Jagadindra Nath Roy v. Ram Hementa Kumari Bebi 31 I.A. 209 : 31 C. 129 : 8 C.W.N. 809 however tends to indicate that this fiction must be employed cautiously and subject to many limitations. We must not, therefore, assume too readily that a Hindu deity is a juridical person for all purposes, and stands on precisely the same footing, capable of the same rights, and subject to the same liabilities, as an ordinary sentient being, and we must closely examine the scope of the applicability of the passage in the Bayahhaga, which is the foundation of the argument that a bequest for the establishment of an image of Hindu deity and for its worship is subject to the same rules as a bequest in favour of a human being. 25. The passage in the Bayabhoga which supposed to go to the root of the matter is as-follows: * * * (Bharat Srimoni's Edition 1863 p. 25). This is translated by Colebrooke' as follows: That is actually seen in the world since in the case of donation, the donee's right to the thing arises from the act of the giver, viz., from his relinquishment in favour of the donee who is a sentient pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in relation to what has been dedicated to the deity, it has a secondary sense different from what it bears when used in relation to persons. 32. Again Shulapani in his Sraddha-bibeka discusses whether a sradh can be called a gift, and in that connection observes as follows: * * * (Calcutta Edition 1892 p. 25) Of this passage, the following version will give a fairly accurate idea. (Sradh) has not the nature of a donation, as it does not generate ownership in the manes etc. for whom it is intended. The absence of ownership of manes, etc., is due to the absence of acceptance on their part by the words this is mine." In Donation, "having for its dative case, the Gods like the Sun, etc, term donation" has a secondary sense. The object of this figurative use being extention to it of the inseparable accompaniment of that (gift in its primary sense), viz., the offer of the sacrificial fee, etc. It has already been remarked in the chapter on the bratis that such usage as Devagram, Hastigrain, etc., are secondary. 33. Upon this passage, Sreekrishna comments as follows: * * * The Gods, Indra, etc., being devoid of consciousness, cannot have ownership in any object. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age from the Mitakshara in which Vijna-neswara commenting on verse 27 of the Vyavaharadhyay of the Institutes of Yajna-valkya observes: * * * (Bombay Edition, 1813, Suka, p. 129). "Gift consists in the relinquishment of one's own right and the creation of the right of another, and the creation of the right of another man is completed on that other's acceptance of the gift and not otherwise. Acceptance is made by three things mental, verbal, or corporeal. 41. This is also amply borne out by passages from the Bhasya of Savarswami on the Parvamimansa. 42. In one passage Savara defines the characteristics of a gift as follows: * * * (Adhyay VI, Pada I, Asiatic Society's Edition Vol. I, page 742). A gift is the cessation of the ownership of one and the generation of the ownership of another. 43. Savara, in another passage, observes as follows: * * * (Adhyaya IX, Pada I, Asiatic Society's Edition Vol. II. p. 145). " Devagram (village of the gods) Deva Kshetram (land of the gods). These are figurative terms. What one is able to employ according to one's desire is one's property. The gods, however, do not employ a village or land according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property and owner, (a thing is property in relation to a person having proprietary rights over it and a person is owner in relation to a thing over Which he can exercise proprietary rights.) * * * (5) For, the gods do not use the property according to pleasure, nor is found their exertion for the protection (of the property): and property is described to be of that character in popular view. Accordingly, when by referring or pointing to gods, it is stated--This is not mine, this is god's -that is god's property-and that property is enjoined (by the Vedas) for the fire god and the like in the Darsa Purnamasa sacrifice and the like (and also enjoined) by the well-known practice of the learned (not by the Vedas, for gods worshipped) in the Durga sacrifice and. the like Secondary means (of attaining spiritual benefit, but not primary inasmuch as these are not enjoined by the Veda). * * * (6) It cannot be argued that in popular view (property) relating to the Four-armed or the like image (of god) is called "God's property," and it is proper to put the popular meaning on words (employed) in the Sastras. * * * (7) It would be so, if the term "god-property&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content himself with a dedication of things for acceptance. Durga-charyya, however, in his commentary on the following passages of the Nivukta seems inclined to adopt the view that as the gods were originally physical objects deified, they could not very well be regarded as sentient beings capable of acceptance of gifts in the strict sense of the term. * * * 50. The following version will give a fairly accurate idea of the passage which deals with the subject of the authropomorphic and physical conception of the gods. 51. "One conception of the shapes of the gods is that (they are) like human beings, inasmuch as the praises (of the gods) speak of them like conscious beings. So also are their designations. They are praised with man-like limbs, as in Rigveda 4, 7, 31, 3: "Oh Indra ! Thou art bulky in thy graceful arms." Rigveda 3, 2, 1, 5: Oh Maghaban ! as Thou joinest together the two worlds (earth and heaven) large is thy fist." (They are praised also) as possessed of things used by men. Rigveda 2,6,21, 4: "Come Indra with a pair of horses" Rigveda 3, 3, 19, 6. In thy house is an auspicious wife(sachi) "(They are praised) also with acts of huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimate protector of the state, undertakes the supervision of all endowments. There is no acceptance on the part of the deity but from the dedication, religious merit and spiritual benefit accrue to the founder and material benefit accrues to the persons in charge of the worship and to the creatures of god. 53. It may further be observed that it is indisputable that the Hindu Law, encourages dedication of property for religious purposes. It is sufficient to refer to the following passage from Katyayana. * * * 54. which is rendered by Mandalik as follows: (p. 124 of edition of Yajnavalkya). " If a gift be promised by a person whether in health or in sickness and for a religious purpose and he died without making it, his son should be compelled to make it. Of this there is no doubt. 55. There can be no question as to the genuineness of this passage, because it is quoted with approval in the Mitakshara, Virami-trodya, Vyavaharamadhab, Vyavaharama-yukha, Kamalakar's Vivadatandal, Rajhu-nandan's Suddhitattwa Vivadaratnakar, and in Jagannaths Vivadabhangarnaba translated by Colebrooke. The spirit, if not the letter, of this text is entirely inconsistent with the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to the deity. 58. Let us now consider the decided cases from the point of view of the principle already explained. 59. The cases of Upendra Lal Boral v. Hem Chundra Boral 25 C. 405 : 2 C.W.N. 295; Rajomoyee Dassee v. Troylu-khya Mohiney Dassee 29 C. 260 and Nogendra Nan-dini Dassi v. Benoy Krishna Deb 30 C. 521 proceeded on the assumption that the rule in the case of Tagore v. Tagore 9 B.L.R. 377 : 18 W.R. 359 and Bai Moti Babu v. Bai Mamu Bai 21 B. 709 : 24 I.A. 93 is applicable to cases of dedication of property for the establishment of images of deities and for their worship. The case of Promotho Nath Roy v. Nojendrabala 12 C.W.N. 103 : 8 C.L.J. 489 rests on the same assumption. The case of Durga Prasad v. Shiba Prasad 7 C.L.R. 278 does not directly touch the point though it appears to have been held that an idol cannot be said to have juridical existence unless it has been consecrated by proper ceremonies and so has become spiritualised. Nor does the earlier case of 8 th Chunder Mullick v. Tripuranundari (1842) Fulton 98 really affect the question now under consideration. The Court proceeded on the ground that it would not require trustees to carry out trusts for relig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Lord Chancellor in Mills v. Farmer 19 Ves. at p. 486 : 8 Mer. 55 namely, that it is quite impossible to maintain the proposition that a gift to charity is to be construed as a legacy to an ordinary legatee who must be sufficiently pointed out and described. The case before us in which no question of indefiniteness can possibly arise consequently occupies a a much stronger position. 61. It is further clear that under the English Law, a valid gift may be made to a charity" not in esse at the time but to come into existence at some uncertain time in the future, provided there is no gift of the property in the first instance, for the benefit of any private corporation or person, or perpetuity in a prior taker. One of the most recent decisions on the subject is that of' Wallis v. Solicitor General for New Zealand (1903) App. Cas. 173 which was heard on appeal by the Judicial' Committee from New Zealand. In that case" certain Maori chiefs had in 1848 given 500 acres of land to the Bishop of New Zealand for a College to be erected thereon for the general purpose of promoting religion. Up to 1898 no College had been erected, and it was found that the land had in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the texts of Hindu Law, is consonant with the principles which have been adopted independently in other systems of jurisprudence. We cannot overlook the fact that as pointed out in the case of Tikam Das v. Haridas 31 B. 583 : 9 Bom. L.R. 560 their Lordships of the Judicial Committee when called upon to decide an analogous question in Ranchordas v. Parbatibai 23 B. 725 : 26 I.A. 71 palced considerable reliance upon the decisions of the English Courts in similar matters, although in that particular instance there is room for doubt whether the actual decision was, in view of the texts to which attention was invited by Sir Subrahmania Ayyar in Parthasarathy Pillay v. Thiruvengada Pillay 30 M. 340 : 2 M.L.T. 198 : 17 M.L.J. 379 quite in harmony with the true doctrine of Hindu jurisprudence. To sum up (I) The view that no valid dedication of property can be made by a will to a deity, the image of which is not in existence at the time of the death of the testator, is based upon a double fiction, namely fist that a Hindu deity is for all purposes a juridical person and secondly that a dedication to the deity has the same characteristics and is subject to the same restrictions as a gif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd had a temple built for its location. They thus carried out the direction in the will and the worship has ever since been carried on. On the 4th of July 1901 the plaintiffs who are the sons of the Guru of the testator brought the pre sent suit for the construction of the will, for a declaration that the trust for the establishment and consecration of the image of the goddess Kali and her worship was void, for possession of the Rungpur properties and for an account and mesue profits. The Court of first instance held that the bequest in favour of the goddess Kali was valid and dismissed the suit. On appeal by the plaintiffs the Division Bench disagreeing with the case of Upendra Lal Boral v. Hem Chundra Boral 25 C. 405 : 2 C.W.N. 295 and some later cases which followed the same, referred the following questions for the decision of the Full Bench. (1) Does the principle of Hindu Law, which invalidates a gift other than to a sentient being capable of accepting it, apply to a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's death and make such a bequest void? (2) Whether the cases of Upendra Lal Boral v. Hem Chundra Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject of dana, or gift, however, is dealt with in some detail by Narada in the Chapter on the subtraction of gifts and in making a subdivision he says "In civil affairs the law of gift is fourfold; (1) what may be given, (2) what may not be given, (3) what is given or a valid gift, (4) what is not given or invalid gifts. Colebrooke's Dig. Vol.1 page 401. In commenting on the above, Jagannath Tarkapanchanan says:-" The rule to be established that gifts made by a man afflicted with disease and the like are void, regards civil gifts, not donations for a religious purpose. This title of law does not extend to a gift made for a religious purpose the donation is valid if it be made by the owner of the thing." Jagannath then quotes the text of...Katyayana: What a man has promised in health or in sickness for a religious purpose must be (given and if he die without giving it, his son shall doubtless be compelled to deliver it. 68. The same text is quoted with approval by the Vidada Ratnakar; see page 136 Biblio-theca Indica series, where the author in commenting upon another text of Katyayana as to invalid gifts says...gift by a person affected with disease (being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property by usage. Be it so, but there cannot be the relation of owner and thing owned. The use of the term property (as God's) may be reconciled in the manner stated. This is. discussed in the second Chapter of the Mimansa of Jaimini." Kul-looka Bhatta in his commentary on the same word says * * * * "the property dedicated for the images and other deities is called Devasivain." It would appear sufficiently clear from the above authorities that the definition of gift referred to by the Dayabhaga, Chapter I Section 21, is a secular gift and not a gift for a religious purpose. This disposes of the applicability of the Tagore case 9 B.L.R. 377 : 18 W.R. 359, and also the case of Bai Motivahu v. Bai Mamubai 21 B. 709 : 24 I.A. 93 which latter case may be further distinguished as being governed by the Mitakshara law. 72. Even if we were to apply the definition as given in the above text of the Dayabhaga to such a gift it would seem absurd to say that a deity is not a sentient being. If the deity exists and it manifests itself in the image upon the invocation of the worshipper with certain mantras it cannot be said to be an insentient being. If it answers to the * * & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive father. It is contended that Anandarnoyi Kali was not in existence during the life-time of the testators although the goddess Kali was, is, and always will be in existence. Suppose a Hindu gives permission to his wife to adopt a son after his death and to name him by a particular name Ram or Syam or Gopal. It cannot be contended with. any semblance of reason that a son adopted by the widow and named as directed by the adoptive father would not be validly adopted because a son of that particular name could not be supposed to have been conceived by relation back to the life-time of the father. It is not necessary to apply the same analogy in the case of a deity as the reasons herein before enumerated will show, but if it were necessary there would be no difficulty to the Hindu lawyer to call it in aid in favour of the gift. 75. I have stated above that in the case of a gift to a God the relation of an owner to the thing owned in its primary sense is considered to be wanting. Who then is the owner of the property? In a secondary sense no doubt the deity is the owner but the Sastras lay down: * * * Gifts are to be given to the deity and the fee for the acceptance of the gift a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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