Grimwood Mears, Kt. C.J. and Pramada Charan Banerji, J.
1. The father of the plaintiff to the suit out of which this appeal has arisen made a gift of a portion of the family property on the 1st of January, 1911, to a deity for the purpose of a temple. Subsequently a relinquishment was obtained from the manager of the temple, but the relinquishment was cancelled at the instance of the manager upon the institution of the suit. On the 18th of September, 1915, one of the sons of the grantor brought a suit to have the gift set aside, but his suit was dismissed. The present plaintiff, who states that he was imprisoned in jail at the time, brought the present suit for a declaration that his father was incompetent to make a gift of a portion of the family property In favour of the idol.
2. The suit was decreed by the courts below, and on second appeal to this Court the decrees of those courts were affirmed by a learned Judge. He based his judgment mainly upon the text of the Mitakshara contained in paragraph 27 of Chapter I. He was of opinion that the words 'during a season of distress' in that paragraph governed the remainder of the cases which would justify a gift or mortgage or sale and that as it was not proved in the present instance that the gift to the idol was made during a season of distress, it was invalid and not binding on the plaintiff.
3. Paragraph 27 provides that in the case of joint ancestral property a gift, mortgage or sale by one of the members of the family without the consent of the other members is invalid; and paragraph 28 provides an exception to the rule. That paragraph runs as follows: 'Even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress, for the sake of the family and specially for pious purposes.' As we have said above the learned Judge of this Court was of opinion that the words 'during a season of distress' also governed the expressions 'for the sale of the family and specially for pious purposes.' We do not feel ourselves justified in following the view of the learned Judge. In our opinion the three circumstances which are mentioned in paragraph 28 are exceptions to the general rule laid down in paragraph 27 and must be deemed to be disjunctive clauses. The circumstances which would justify transfers are, as stated in that paragraph (1) a season of distress, (2) for the sake of the family and (3) specially for pious purposes. Each one of these clauses seems to us to be an exception to the rule, independently of the other clauses. This appears to have been the view which has been adopted ever since the year 1843. In Gopal Chand Pande v. Babu Kunwar Singh (1843) 5 S.D.A.L it was held that a gift of a small portion of joint family property for pious and religious purposes was a valid gift binding on all the members of the family. That case was decided upon the opinion of the Pandit who was consulted in the matter. No reference was made in that opinion or in the judgment of the Court to the words 'during a season of distress 'as being the governing clause controlling the clause authorizing a gift for religious purposes. This case was followed in this Court in the case of Raghunath Prasad v. Gobind Prasad (1885) I.L.R. 8 All. 76. In Trevelyan's Hindu Law, page 284, the same view was adopted and the rule as laid down in the case decided by the Sadr Dewani Adawlat was stated to be the rule on the subject. In West and Buhler's Hindu Law, at page 203, the same rule was mentioned and this was also the conclusion of Mr. Ghose as stated in his work on Hindu Law, Vol. I, p. 476. We think that there is no sufficient justification for departing from the view which has prevailed on the subject ever since the year 1843.
4. On behalf of the respondent it was contended that having regard to the terms of paragraph 29 the expression 'pious purposes' in paragraph 23 must be held to be equivalent to' indispensable duties' such as the obsequies of the father or the like as mentioned in paragraph 29. We do not agree with this contention. We think that paragraph 29 was the author's commentary on what the rule was stated to be in the preceding paragraphs, specially in paragraph 28. We do not think that the last portion of paragraph 29 was intended to be a limitation of pious purposes as mentioned in paragraph 28. We are unable to agree with the decision of the learned Judge of this Court.
5. We accordingly allow the appeal, set aside the decrees of this Court and of the courts below and dismiss the suit with costs in all courts.