Prabhala Krishnamurthi vs Valluri Lingayya and Another

Venkataramana Rao, J.—This second appeal relates to the validity of a gift made by a Hindu widow in favour of an idol. One Balaki Subba

Rao died in or about 1870 leaving him surviving his widow Balaki Mahalak-shmamma and certain immovable property. The gift relates to 6 acres

out of 12 acres of dry lands left by him. The said Mahalak-shamma built a temple at Itikampadu, hamlet of Naduri village, installed an idol there

called Kasi Visveswaraswami and constituted herself the Dharmakartha and at the time of the installation gifted 7 acres 98 cents of land, part

thereof being 6 acres out of the land left by her husband, and 1 acre 98 cents which according to the deed of gift belonged to her. The gift was

evidenced by a registered deed bearing date May 26, 1915. The deed recited that she built the temple in her little village called Itikampadu ""for the

salvation of my husband who died issueless and for my attaining salvation after my death."" It was alleged in the deed of gift that her husband

desired that she should do some charitable act so that he may attain salvation. The relevant portion of the deed of gift is as follows:

I installed the said deity is that temple o Jeshta Suddha 9 of Keelaka. For performing Nithya Naivedya, Deeparadhana (offering of food, light to

God daily) and Abhishegam as enjoined in the Vedas for the deity installed by me hitherto and for the Panchayathana, that is Ammavaru and other

deities that may be installed hereafter by me or by others; for performing every day or on special occasions Alankarams (decorating the deities

with flowers, jewels and clothes), performing in proper times pujas and other upacharamas, Alayasammarjana (sweeping of the (temple), etc., for

reciting Dharma-kartatnam in my name and in the name of my family members after my death, reciting daily Mantrapushpam and giving of

Rudrapadam for performing these and other acharams, I have gifted away property forming items Nos. 1 and 2 mentioned in the schedule

hereunder so that Sri Swamivtiru (deity) may enjoy them as long as the san and moon last.

On the said date she also executed a kararnama in favour of the plaintiff who is an Archaka and enjoined him to do religious duties mentioned in

the deed of gift and enjoy the property from son to grandson. This suit is to recover possesion of the said property from a tenant left into

possession of the same, but who declined to deliver possession setting up the title of one Prabhala Krishnamurthi, an alleged, reversioner from

whom defendant No. 2 purchased the suit property. The gift is impeached on the ground that it was in excess of the powers of a Hindu widow

and, therefore, not binding on the reversioner and also that the gift was not reasonable having regard to the extent of property left by the husband.

Both the lower Courts have upheld the deed of gift. It was early laid down by their Lordships of the Privy Council in Collector of Masulipatam v.

Cavaly Venkata Narrainappah 8 M.I.A. 500 : 1 Suther 476 : 1 Sar 820 : 2 W.R.P.C. 61 (P.C.), at p. 551 Page of 8 M.I.A.--[Ed.]:

For religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of

disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity.

In some of the earlier cases a very narrow view was taken of the purposes which would conduce to the spiritual welfare of her husband. It was

thought only those acts which areas indispensable in promoting the spiritual welfare entitled her to dispose, of the property. In Kartiek Chund''e?

Ghukurbutty v. Gour Mohun Roy 1 W.R. 48 it was on that ground the power to make a gift to an idol was negatived. The reason was stated thus:

The fulfillment of the moral and religious duties of the deceased are those by which he is to be raised to bliss, not a dedication by the widow of the

nature of that under which the special appellant claims which, under any circumstances, could only be supposed to conduce to the, spiritual benefit

of the widow herself (who made the gift without her husband''s consent).

This view was also taken in a case in Harmange Narain Singh v. Ramgopal Achari, 19 Ind. Cas. 417 : 17 C.W.N. 782. As has been pointed

out by the Privy Council in Sardar Singh v. Kunj Behari Lal 41 A. 503 : 69 Ind. Cas. 36; AIR 1922 P.C. 261 : 49 I.A. 383 : 16 L.W. 871 : 31

M.L.T. 253 : 37 C.L.J. 383 : 44 M.L.J. 708 : 27 C.W.N. 653 : 25 Bom L.R. 648 : 2 P.W.R. 1923 (P.C.) such a view was narrow and largely

influenced by the notion

that justifiable necessity for the validity of religious alienation must be of the same character as in the case of alienation for secular purposes.

In that ease their Lordships point out the distinction between two sets of religious acts, one being compulsory and the other being optional, that

in the one case she could dispose of the whole property and in the other case she could dispose of only a small portion of the estate. Ameer Ali, J.

who delivered the judgment of the Judicial Committee, enunciated the principle thus:

There can be no doubt upon a review of the Hindu Law, taken in conjunction with the decided cases, that the Hindu system recognizes two sets of

religious acts. One is in connection with the actual obsequies of the deceased, and the periodical performance of the obsequial rites prescribed in

the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other relates of acts which although not

essential or obligatory, are still pious observances which conduce to the bliss of the deceased''s soul. In the later cases this distinction runs clearly

through the views of the learned Judges. The confusion which that arisen in this case arises from mixing up the indispensable or obligatory duty with

a pious purpose which, although optional, is spiritually beneficial to the deceased. With reference to the first class of acts, the powers of the Hindu

female who holds the property are wider than in respect of the acts which are simply pious and, if performed, are meritorious so far as they

conduce to the spiritual benefit of the deceased. In one case, if the income of the property, or the property itself, is not sufficient to cover the

expense, she is entitled to sell the whole of it. In the other case she can alienate a small portion of the property for the pious or charitable purpose

she may have in view.

Their Lordships uphold the gift made for the purpose of daily offering to a god in Jaggannadha temple at Puri made in performance of a vow

made by the widow on a pilgrimage to Puri and observe:

In the present case the purpose for which the alienation was made was undoubtedly not for the performance of obsequial rites, or any such duty as

might be regarded as obligatory under the Hindu Law. But at the game time there can be no question that it was a pious act in the Hindu

system....It is clear that the act which the Rani did was fully in accordance with Hindu religious sentiment and religious belief, and was not,

therefore, in excess of her powers.

Thus it will be seen from this decision that any act which can be considered pious and meritorious according to the notions of the Hindus and

which could conduce to the spiritual salvation of the husband will entitle a Hindu widow to make a gift of a reasonable proportion of the property

inherited by her from her husband. So far as the Hindu system is concerned, the construction of temples, the installation of deities and the creation

of an endowment for a deity are all considered, pious and meritorious acts which remove the effect of sins with a view to happiness in this world

and in the next. Mr. Saraswathi in his book on Endowments points out at p. 26 the distinction between what are called ''Ishta'' works and ''purtha''

works and how the erection of temples would come under what are called ''purtha'' works. The passage from Varaha Purana cited by him points

out the relative efficacy of the said two classes of works:

By Ishta he obtains heaven, and in purtha he attains final emancipation. Wells with flights of steps, wells, tanks, temples and groves are called

purtha works.

Dealing with gifts of land Mr. Saraswathi further points out at p. 136:

The permanence of the benefit conferred, is no doubt the principal reason for the high position which the Shastras accord to the gift of land as a

source of religious merit. Ordinarily, the gift contemplated is the gift of land to pious Brahmins in their own rignt as Bhahmotta, but special rewards

are also promised for the gift of lands to the gods (devottar). Thus in the Vishnu Dharmottara it is said that the donor of land for the erection of a

temple attains the abode of the particular deity to whom the temple is dedicated. In the Siva Dharma it is declared that he who dedicates to Siva

cultivated land, dwells in bliss in the Rudra loka for as many kalpas as there are (dandas) poles of land found on measurement. In the Varaha

Purana, the bestower of a skin of land to Vishnu is promised fortune and prosperity for seven births, and it is also mentioned there that he who

dedicates a field or a hous3 for the enjoyment of Vishnu is released from all sins.

Therefore, as observed by Misra, J. in AIR 1927 450 (Oudh) :

It is a well-established religious belief amongst the Hindus of this country that the erecting of a temple and making an endowment for its upkeep is

considered to be an act of high religious merit, and as one, which, if done by a widow, would benefit not only her soul tut also the soul of her

husband.

That this is the prevalent notion among Hindus, and such acts would come under the description of religious acts which would make it

competent to a widow to alienate the property, was early recognized by the Privy Council in Kasinath Baizack v. Hurrow Sundari 2 Moo. Dig 198

(P.C.). Lord Giffard quotes with approval the opinion of Pandits who stated that religious purposes would include building temples for religious

worship, digging tanks and the like. So far as our High Court is concerned, the strict view taken in early Calcutta cases was not followed and the

distinction between what are called spiritual necessities and pious acts was always maintained and among the pious acts pilgrimages, sacrifices and

gifts to Brahmins on ceremonial occasions were recognized. In Tatayya v. Ramakrishnamma 34 M. 288 : 6 Ind. Cas. 240 : 20 M.L.J. 798; (1910)

M.W.N. 222 : 8 M.L.T. 74, which was cited with approval by their Lordships of the Privy Council in Sardar Singh v. Kunj Behari Lal 41 A. 503 :

69 Ind. Cas. 36; AIR 1922 P.C. 261 : 49 I.A. 383 : 16 L.W. 871 : 31 M.L.T. 253 : 37 C.L.J. 383 : 44 M.L.J. 708 : 27 C.W.N. 653 : 25 Bom

L.R. 648 : 2 P.W.R. 1923 (P.C.), a gift by a daughter of a small extent of her father''s property to a Brahmin in connection with the performance

of father''s shradha on the occasion of the Godavari pushkarani, was upheld. In that case their Lordships observed that though it was not possible

to define the spiritual purpose, it should be such as is regarded by the Hindu community as reasonable and proper though not absolutely necessary.

Therefore, though the erection of temple, installation of a deity, and the creation of an endowment, may not be absolutely necessary, there can be

no question that they are regarded by the Hindu community as reasonable and proper and conducive to the spiritual, salvation of one''s soul. The

tendency of later decision has always been in accordance with this view vide Khub Lal Singh v. Ajodhya Misser 43 C. 574 : 31 Ind. Cas. 433;

AIR 1916 Cal. 792 : 22 C.L.J. 345, Ram Surat Mahton Vs. Hitanandan Jha and Others, , Vishwa Nath Govind v. Narayan AIR 1935 Nag. 217:

158 Ind. Cas. 454 : 18 N.L.J. 239 : 8 R.N. 83 : 31 N.L.R. 18 Sup and Lachmi Prasad v. Jag Mohan 18 C.L.J. 633 : 22 Ind. Cas. 594; AIR

1914 Cal. 416. Therefore, the gift in this case was perfectly within the competence of Mahalakshmi.

The next point urged is, though it may be competent to a Hindu widow to make a gift to benefit her husband''s soul, if the gift is intended only

for the benefit of her own salvation, it must be deemed invalid and the gift in this case would come within the latter rule. No doubt the distinction

has been maintained in some scases between the gifts made for the salvation of the widow and the gifts made for the benefit of the husband''s soul.

But it has been pointed out that that distinction is unsound. According to the Hindu notions a wife is declared to be half the body of her husband

equally sharing the fruit of pure and impure acts and the soul of the decased husband participates in every religious act performed by the widow. In

Khub Lal Singh v. Ajodhya Misser 2 Moo. Dig 198 (P.C.), Mookerjee, J. deals fully with this aspect of the matter. See also Dhavle, J.''s

treatment of it in Thakur Prasad and Others Vs. Mt. Dipa Kuer and Others, where the learned Judge after a discussion of the authorities observes:

On the text of Brihaspathi it is difficult to see how it is possible for a Hindu widow to aim at any spiritual good for herself in which the soul of her

deceased husband would not participate.

See also AIR 1928 217 (Nagpur) . It is unnecessary to pursue this matter further and express any final opinion thereon when it is remembered

that the gift in this case is expressly made for the benefit and salvation of her husband''s soul as also her own. The gift is exactly on the lines of the

gift which was upheld by their Lordships of the Privy Council in Sardar Singh v. Kunj Bahari Lal 41 A. 503 : 69 Ind. Cas. 36; AIR 1922 P.C. 261

: 49 I.A. 383 : 16 L.W. 871 : 31 M.L.T. 253 : 37 C.L.J. 383 : 44 M.L.J. 708 : 27 C.W.N. 653 : 25 Bom L.R. 648 : 2 P.W.R. 1923 (P.C.).

Another contention raised by Mr. Konda Kottiah is that, it is an essential requisite for the validity of such a gift that it must have been made on

some suitable occasion enjoined under the Hindu Shastras such as the performance of a sradha and the like. He relies for this contention on the

observations of the Madras High Court in Tatayya v. Ramaknshnamma 34 M. 288 : 6 Ind. Cas. 240 : 20 M.L.J. 798; (1910) M.W.N. 222 : 8

M.L.T. 74 and that of Kulwant Sahay, J. in Radha Madhab Jiu Thakur and Another Vs. Rajendra Prasad Bose and Others, In Tatayya v.

Ramkrishnamma 34 M. 288 : 6 Ind. Cas. 240 : 20 M.L.J. 798; (1910) M.W.N. 222 : 8 M.L.T. 74 the following observation occurs:

We think we are warranted in holding that if the property sold or gifted bears a small proportion (which it is impossible to define more exactly) to

the estate inherited and the occasion of the disposition or expenditure is reasonable and proper according to the common notions of the Hindus, it

is justifiable and cannot be impeached by the reversioner.

And in Radha Madhab v. Rajendra Prasad Bose (14) at p. 744, Kulwant Sahay, J. says:

It is necessary that the gift for pious purposes must be on some appropriate occasion.

I do not think that the learned Judges of the Madras High Court meant to lay down that it was only on certain occasions that the gift of the kind

in question should be made and otherwise the gift is invalid. The observations were made with reference to the facts of the particular case where

the gift was made on an appropriate occasion. Ordinarily such gifts are made on such and similar occasions. But it does not follow that if the gift is

not made on such ""occasions it is necessarily invalid. There is no warrant either in the decided cases or in the texts of Hindu Law for this new

principle. In fact it would not be consistent with strict notions of Hindu Law to lay down such a rule according to which a widow assiduous in the

performance of religious duties, conveys her husband though abiding in another world and herself to a region of bliss. She is enjoined to lead an

ascetic life and live for the benefit of her husband''s soul. In Smrithi Chandrika in Ch. XI, paras. 30 and 31, we find it stated thus:

A widow thus possesses independent power to make gifts for religious objects and, therefore, the same author Brihaspathi enjoins, by the

following passage the constant presentation of gifts by a widow for religious purposes. A widow actively engaged in meritorious observances and

facts, constant in the duties of her widowhood, making daily religious gifts, even if wanting a son, shall reach the heavenly abodes.

The daily making of religious gifts, as directed in the above passage, would be impracticable, if the widow wore held to possess no

independent power. It is hence to be understood that the law does not deny the independent powers of a widow even to make a mortgage or sale,

for the purpose of providing herself with funds necessary for the discharge of religious duties.

If this is the life which she has been enjoined to lead, it would not be in accordance with Hindu Law to restrict her power of making gifts for

religious purposes which conduce to her husband''s soul only on appropriate occasions. No doubt the gift in this case has been made 45 years

after the husband''s death. The Privy Council observed in the recent AIR 1935 190 (Privy Council) , dealing with the validity of and adoption

which has been made years after the husband''s death, that because the natural span of her life was drawing to a close, it would be legitimate that

she should think of such an adoption and it was not unnatural that she should think of making an adoption for the spiritual salvation of her husband.

Therefore, having regard to the advanced age of the widow it was perfectly legitimate on her part to think of making a religious gift which would

conduce to the salvation of her husband''s soul and in my opinion it would be perfectly competent to a widow in view of her approaching end of

her life to make a reasonable gift of her husband''s property. The last argument of Mr. Kotiah is that the gift in this case cannot be considered to be

reasonable. It is argued that in the deed of gift it is recited that the property she inherited was only 12 acres and she made a gift of nearly half the

property namely 6 acres, and the view of the lower Courts that the property was considerable was based on a mistaken reading of the written

statement of his client and the sale-deed Ex. 4. True, both the lower Courts have acted on them and found that the property inherited and

subsequently augmented consisted of 21 acres of wet land and 17 acres of dry lands and the gift of 6 acres of dry lands would only be about one-

sixth of the property and, therefore, the gift was reasonable.

I am inclined to think that the view taken by the lower Court of the estimate of the husband''s property in the circumstances of this case was

perfectly correct. In the written statement it is distinctly stated in para. 4 that all the immovable and movable property including the suit property

belonged to her husband and whatever property she died possessed of was properly either inherited or property subsequently acquired with its

aid. In view of that admission, though prima facie the onus of proving the extent of the property left by the husband may be on the plaintiff, it is

shifted on to the defendant and it is incumbent upon him to prove that the admission made by him in the written statement was not correct. But he

declied to do so though invited by the Court to slate exactly with reference to this recital in the written statement what his attitude was. It must,

therefore, be held that the property of the husband on the date of the gift was as found by both the lower Courts, and in view of the said finding a

gift of one-sixth of the property is not unreasonable.

I am inclined to upheld the gift on another ground also. It is stated in the deed of gift that her husband desired that she should do some

charitable act so that he may attain salvation. The recital has to be accepted as correct in view of the fact that the widow is dead and that it would

not be possible to get any independent evidence of such a statement and in the absence of any evidence to show that that recital is false, one may

act on the truth of that recital. Irrespective of any question regarding the extent of the property the gift made by the widow in pursuance or such

direction would be perfectly valid and as she would be making the gift according to his directions and as his agent and it would not strictly be an

act of the widow. In the result the second appeal fails and is dismissed with costs. (Leave refused.)