Suraj Kumar Singh and Others vs Radha Krishnaji

Dhavle, J.—This appeal arises out of a suit brought by the sons of an actual reversioner for getting a deed of dedication of "wakfnama" executed in 1894 by their relative Mt. Pankhawati Chaudhrain, a Hindu widow, declared inoperative, and for recovery of possession of the properties covered by the deed. Mt. Pankhawati was the wife of one Mathur Lal Singh, who separated from his brother Brij Lal in the year 1277 of the mulki era (corresponding to 1869 A.D.) and died the following year. Bijoy Gopal, the father of the plaintiffs, who died in 1927, was the only son of Brij Lal to survive Mt. Pankhawati who died in 1333 (1925 A.D.); he was thus the sole actual reversioner and has been succeeded by the plaintiffs. Nanihal was another son of Brij Lal''s and father of Raghunath who, as a minor under the guardianship of Mt. Pankhawati''s sister''s husband Dharanidhar, was appointed she-bait by the "wakfnama" in question. It appears from Ex. B, the judgment in a suit brought by Mt. Pankhawati herself in 1913 to have the wakfnama set aside as fictitious, that Raghunath died in 1313; and the defendant in the present suit was the idol Shri Radha Krishnaji through shebait Sharat Sundari Dasi, widow of Raghunath.

The wakfnama dedicated certain properties yielding a yearly income of Rs. 600 to a Thakurbari which, according to the deed, had been erected, and pujas and sevas instituted, by Mathur Lal Singh himself. The deed speaks of the endowment being made in accordance with the wishes and oral instructions of Mathur Lal. The Subordinate Judge who tried the suit found that the defence story that the endowment was made in consonance with the desires of Mathur Lal Singh was neither more nor less than a myth, that contrary to the statement in the deed, there was no temple built by Mathur Lal himself, and that though Mt. Pankhawati constructed a temple, it was not shown that she really did this for the spiritual welfare of her husband. Raghunath had been living with her and was being maintained by her, and the learned Judge apparently believed that the wakfnama was executed under the influence of her manager Nanihal with the real object of assigning some properties to his minor son Raghunath. He also found that the proportion of property dedicated was in excess of the power of a Hindu widow to alienate for the spiritual benefit of her husband. He accordingly held that the endowment was not binding upon the plaintiffs and decreed the suit. An appeal was heard by the Additional District Judge and allowed the suit being dismissed with costs. The plaintiffs have therefore appealed, and it has been contended on their behalf that the learned District Judge, having, agreed with the lower Court that there was no satisfactory evidence to show that Mathur Lal had actually enjoined his wife to dedicate the property, erred in proceeding to find that it was not solely with a secular object that the dedication was made, and in holding on "a perusal of Ex. 4," the wakf deed, that,

the thought of her husband was uppermost in the Musammat''s mind at the time the deed was executed.

There is force in this contention. The plaintiffs had not denied the construction of a temple by the widow, and their case was that the dedication was not bonafide (i.e. for the spiritual benefit of her husband) but really for the maintenance of Raghunath and his heirs: see para. 7 of the plaint. That does not mean that the dedication was made solely with a secular object. Nor is it easy to see how a widow bent on the spiritual good of her husband would indulge in such myths as that her husband had erected the Thakurbari and that he had orally instructed her to dedicate some properties, which we do find in the deed of dedication, she could hardly have hoped to deceive the deity. The learned District Judge has also not referred to Ex. 1, a document executed by Mt. Pankhawati shortly after her husband''s death, promising to conserve the property that had come to her from Mathur Lal for Brij Lal and his heirs. He has also not considered Exs. 6 and 7, judgments, which in the words of the trial Court,

go to show that Nanihal Singh was acting as the manager of Mt. Pankhawati from 1801 to 1315 M.S.

These materials have an obvious bearing on the real object of the dedication, and the omission to consider them vitiates the view of the learned Judge that the thought of her husband was uppermost in her mind. On his own findings of fact, the statement in the deed of dedication, that the temple was erected by her husband, was "not true," and the statement there that he had enjoined her to dedicate the property in the manner she did was "most improbable." The only inference in the circumstances would be that the husband''s name was taken in the deed only because it was felt that it was necessary to do so in order to justify the alienation.

The learned Judge also shows a misconception of the plaintiffs'' case when he finds that Ex. 4 is not a sham document as the temple and the deity "are genuine and do exist," for this is not what was ever denied by the plaintiffs. He speaks of three classes of cases in which a Hindu widow can alienate her husband''s property: (1) for legal necessity; (2) for the spiritual necessity of her deceased husband; and (3) for acts "which are calculated to confer spiritual benefit on his soul." He accepted the defence contention that the wakfnama came under the third category, but he did not notice that that deed makes no reference to the spiritual benefit of the deceased husband of the lady. He did himself (as I have already indicated) disbelieve, in agreement with the lower Court, such statements in the deed as that her husband had erected the temple and established pujas and sevas there, and that he had instructed her orally to dedicate -some property for its upkeep, which was the justification made out in the deed itself for the alienation of the property, but he nevertheless upheld the alienation on the authority of Khub Lal Singh v. Ajodhya Misser AIR 1916 Cal 792. That, however, was not a case where the alleged instructions of the husband were found to be untrue. There was, moreover, in that case a temple founded by the husband, and the widow had by the leases impugned raised money for the excavation and consecration of a tank and the erection of a wall in connexion with the temple. And the alienations were not (as here) in favour of one possible reversioner in preference to others--the lessee was a Singh while the lady belonged to a Misra family. The excavation and consecration of the tank in connexion with the temple founded by the husband stands on a very different footing from the temple in this case which was built years after the husband''s death and was, so it has been found as a fact, falsely attributed to the husband. The ''law is well settled that it is not competent to a Hindu widow to alienate any portion of her husband''s property for her own spiritual benefit, especially where it is accompanied by a temporal benefit to one of the possible reversioners to which he was not entitled see Kartick Chunder v. Gour Mohun (1864) 1 WR 48 and other cases discussed in Thakur Prasad and Others Vs. Mt. Dipa Kuer and Others, . But this aspect of the matter has escaped the District Judge, who erroneously addressed himself to such questions as whether it can be said that the wakfnama was executed "solely with a secular object,"

thinking of none else except her own self and the object of her affection, namely, Raghunath Prasad son of Nanihal Singh

and whether the admission of the first witness for the plaintiffs the pujas are performed in the temple

does not give a direct lie to the entire case of the plaintiffs that the wakfnama is more apparent than real.

Raghunath takes a benefit under the wakfnama to the exclusion of the actual reversioner and his heirs, and this benefit is conferred on him at a time when his father was looking after the widow''s affairs, and conferred on a basis of false allegations regarding the erection of a temple by Mathur Lal Singh and his wishes and oral directions that it should be endowed. That a temple was actually built by Mt. Pankhawati and that the income of the dedicated property was applied at least in part for its services will not suffice to support the alienation: see Bishen Dayal v. Mt. Jaiseri Kuer AIR 1918 Pat 230. The Hindu law recognizes the validity of the dedication or alienation of a small fraction of a deceased husband''s property by a Hindu female for the continuous benefit of the soul of the deceased owner (Sardar Singh v. Kunj Bihari Lal AIR 1922 PC 261, but this principle cannot apply in the circumstances of the present case. The learned Subordinate Judge, who scrutinized the evidence carefully and dealt with the questions that properly arose, and unlike the lower appellate Court kept in mind the distinction between the spiritual benefit of the husband as distinguished from her own, found no satisfactory evidence that she had constructed the Thakurbari for the spiritual benefit of her husband, and had aimed at it in doing so; and he found that the real object of the wakfnama was to assign some properties to Raghunath Prasad and his heir, though:

To give a show of validity to the wakfnama, it was necessary that there should be a Thakurbari.

In my opinion these findings have not been properly displaced by the lower appellate Court. The learned District Judge wrongly read Ex. 4, after his agreement with the trial Court about the falsehood of the recitals, to mean that the Musammat had dedicated the properties for the spiritual benefit of her husband. We have not been referred to any evidence, apart from Ex. 4, which the learned District Judge has taken to show that the thought of her husband was uppermost in her mind at the time the deed was executed, in support of the conclusion that it was for the spiritual benefit of her husband that the Musammat had dedicated the properties. The learned District Judge states without qualification that:

It is permissible under the Hindu law for a widow to dedicate some of her husband''s properties for a religious purpose such as the construction of a temple and the installation of an idol therein.

The distinction between the spiritual benefit of the husband and that of his widow cannot be ignored under the Hindu Law as it is settled at present, and the "pious observances," on which a Hindu widow may spend money by alienating her husband''s estate, must be such as "conduce to the bliss of the deceased''s soul," Sardar Singh v. Kunj Bihari Lal AIR 1922 PC 261. The learned District Judge differed from the trial Court and held, mainly on a consideration of the necessities of the temple, that the proportion of the property dedicated was not "at all excessive. A temple, however modest it may be, can hardly be run on less than this amount." This, however, is immaterial in view of the fact that the alienation was not for the benefit of her husband''s soul and cannot therefore be supported irrespective of its extent. There was also a question of estoppel raised in the case on which the lower Courts have differed. This arose on Ex. A, a sale deed of 1919 by plaintiff 1 in favour of the then living sons of Nanihal Singh, which recites at the end that the dedication now in question, was not benami but real. The learned Subordinate Judge found that the recital had been "surreptitiously inserted," having regard to the fact that it was not to be found in the compromise which led to the kabala. The learned District Judge on the other hand took the view that it must be presumed, the sale deed being registered, that the recital was properly made, and that being an admission it bound plaintiff 1. But the admission, such as it was, was not made in favour of the defendant deity or his Shebait at all, and the learned advocate for the respondent has not attempted to support the view of the lower appellate Court.

As the learned District Judge was in error in holding that under the Hindu Law the widow had power to make this dedication,'' the appeal ought, in my opinion, to be allowed. I would accordingly decree the plaintiffs'' suit with costs in all Courts.

Agarwala, J.

I agree.