Charles Sargeant, C.J.
1. In this case decrees had been obtained against the plaintiff as the representative of his father Govind and brother Vithal, deceased, on money claims against the latter. In execution of those decrees the right, title, and interest of Govind and Vithal in the lands in question were sold to the defendant. The plaintiff now sues to recover the lands on the ground that they had originally belonged to the Athavle family, who sold them to the plaintiff's father as agent for Rambha Patabhirambhat Telang, who, in 1870, by deed of gift, assigned them to Vithal, and the plaintiff, who was then a minor. The Assistant Judge found the facts as alleged by the plaintiff, and also that the lands were assigned to Vithal (Govind and the plaintiff and their descendants in perpetuity as trustees for a religious purpose; that the sale in execution was, therefore,. void; and that the present suit was not barred until twelve years from dispossession there being no necessity to set aside the sale.
2. The gift is in the following terms:' As my eyesight has been somewhat impaired on account of the weak state of my 7 health, I have been unable to perform the worship of god. In order that it may be performed daily, I hereby execute this deed of gift to 'you on condition that you should worship, &c.;, the gods which I have, and I give for the sustenance of both of you brothers the following out of my lands which are situated at Mauze Kurul and Belkada of the Alibag Taluka, and which stand in the name of your father in the Government records as suti ***
The lands as described above have been given in gift to you both. You may maintain yourselves on what may remain out of the profits of the lands in question after deducting Government dues therefrom. I retain no interest whatever in them; you, your sons, and posterity may enjoy them from generation to generation as stated above. You should neither mortgage, nor sell, nor in any way alienate them to any one. You should manage them and subsist on their produce.
3. It was contended for the appellant (the defendant) that this was not a religious endowment to which the law would give effect, the object of it being the worship of a family god, and not for the benefit of the general public. This distinction, which obtains in English law with respect to charities, is not to be found in the Hindu text-writers. The idol itself, as is explained in West and Buhler's Hindu Law, p. 201, is looked on ' as a kind of human entity,' the religious services of which are allowed by Hindu law to be provided for in perpetuity. In Ashutosh Dutt v. Doorga Churn L.R. 6 IndAp 182 no objection was taken to the alleged endowment being in favour of the household idol, but solely that the whole property was not devasthdn. Again, in the case to which we have been referred in the footnote at 15 BL R 176 the Privy Council held there was no endowment, not because it was for the benefit of the idol in the Maharaja's house, but because, as their Lordships say, 'there was no endowment in perpetuity, there being no priest, no public, no one legally interested in the worship of the idol except the Maharaja himself, and nothing to show that the Maharaja intended to establish it for the benefit of his sons or heirs or any body else in perpetuity.'
4. We are of opinion, therefore, that the gift created a religious endowment, as, indeed, has been already presumably ruled by the learned Judges of this Court who decided Second Appeals Nos. 56 and 71 of 1880, confirming the decree of the District Judge, who had similarly construed the above gifts. Such being the nature of the gift, the present suit, as it has been treated throughout without objection by the defendant, is not one by a party to the suit in which the sale was made to set aside the sale, but one by the trustee of the endowment to recover the property. We must, therefore, confirm the decree, with costs.