1. The suit out of which this appeal arises was brought on the following state of facts: One Raja Gur Sahai died in the year 1868 possessed of immoveable property of considerable value in the districts of Moradabad and Bulandshahr. He left him surviving two sons and a widow. The sons died in 1273, while still minors and leaving no issue. The widow Rani Kishori Knar thereupon entered into possession of the estate, strictly speaking in succession to her sons, or rather to that one, of her two sons who survived the other. For practical purposes it is sufficient to say that she took possession of the property with the estate of a Hindu widow. Shortly afterwards she went on a pilgrimage in the course of which she visited Allahabad, Banares, Gaya and Jagannath. At the last named place she made an oral gift, or I should perhaps say the promise of a gift, to certain priests of the temple of Jagannath, and this transfer of property was carried into effect by a deed of the 8th of January 1876, executed by Rani Kishori Kuar after her return to Moradabad and registered on the admission of her agent (general-attorney) Ajab Singh. The question whether the donees under this deed of gift had any right to transfer the property thus taken by them does not arise in the present suit. There have been transfers, and the contesting defendant in this case, Kunj Behari Lal, acquired so much of the gifted property as consisted of shares in four villages for good consideration, under a sale deed of the 27th of September 1909. Prior to this Rani Kishori Kuar had died, namely, on the 15th of August 1907; and after much litigation the plaintiff Laltu Singh succeeded in establishing his claim to succeed as the nearest reversioner to the estate of the late Raja Gur Sahai. The object of the present suit is to obtain a decision that the transfer purporting to be effected by the deed of gift, dated the 8th of January 1876, either passed no title at all, or at any rate conveyed no estate lasting beyond the lifetime of Rani Kishori Kuar, and thereupon to recover possession of the gifted property. It is alleged in the plaint that the Pandas of Jagannath had colluded with Ajab Singh already mentioned and with other Karindas and servants of Rani Kishori Kuar and had obtained the execution of this document without the lady's understanding what she was assigning or even comprehending the contents of the deed or its effect upon her interests. Any one reading the plaint would be disposed to assume that this was the main point of the plaintiff's case. The learned Subordinate Judge, however, has lumped the question raised by these pleadings into a single issue along with the wholly different question of the capacity of Rani Kishori Kuar, as a Hindu widow in possession of the property of her late husband, to make a gratuitous transfer of this sort. The result is that the evidence produced on what should have been the main question for trial in the case is scanty and unsatisfactory and that this issue has not been decided at all by the trial Court. The learned Subordinate Judge says that he will presume that the deed of gift was really executed by Rani Kishori Kuar after fully understanding its nature and effect; but he holds that she had no authority as a Hindu widow to make a gratuitous transfer of this property beyond her lifetime. We have had to consider the question of the intelligent execution of the document and it is necessary for us to come to a finding upon the point. The transaction, is an old one, and such oral evidence as the parties endeavoured to produce amounts to little and does not seem worth discussion; but I am impressed with the evidenoe given by the witnesses Shiam Sarup and Nathu Ram as to Rani Kishori Kuar's business capacity and the manner in which she looked after her estate. The lady was illiterate, but she seems to have possessed a considerable degree of intelligence and business capacity. She did not remain shut up in her residence in Moradabad but went about visiting different portions of her property and personally superintending the management of the same. Under such circumstances the mere fact that she never challenged this alienation in her lifetime would warrant the presumption that she fully understood the transaction at the time when she executed the deed of gift. Fortunately the defendant-appellant has been able to bring on the record in this Court a piece of documentary evidence which carries the matter a good deal further. In the year 1893 Rani Kishori Kuar was examined on commission in connection with another litigation. She there stated that she had a distinct recollection of having made the gift now in question to the Pandas or officiating priests of the temple of Jagannathji. She mentioned from memory the most essential portions of the contents of this document, naming the village of Sherpur which formed the principal item of property transferred. Under all the circumstances, and in view of the manner in which this particular point was litigated in the Court below, I think we need have no hesitation in coming to the finding that Rani Kishori Kuar executed this deed of gift with full knowledge and adequate understanding of its contents and of its effect upon her interests.
2. In the Court below various alternative lines of defence were relied on by the present appellant, but most of the pleas embodied in the memorandum of appeal before us have not been pressed. Now that we have already found in favour of the defendant upon the question of the intelligent execution of the document, the only further point for our consideration is the authority of Rani Kishori Kuar to make this transfer. The question of law thus raised is discussed at considerable length in the judgment under appeal and has been very completely argued out before us with reference to a large number of authorities. I think I may say that very little attempt has been made before us to support the decision of the Court below on the line of argument on which it proceeds. The learned Subordinate Judge would seem to have misunderstood the pronouncement of their Lordships of the Privy Council which forms the foundation of the subsequent case-law on the subject, and he has throughout discussed the question of the validity of this gift as if it were in some way connected with the question whether Rani Kishori Kuar would have been entitled to alienate any portion of her late husband's estate in order to meet the expenses of her pilgrimage to the holy places of northern India. The latter question does not arise at all. The lady would seem to have met the expenses of this pilgrimage out of the income of her husband's estate over which income she had full disposing power. 'We have simply to consider whether she had or had not a right to make this particular gift in favour of the idol worshipped in the temple of Jagannath and the attendant priests. The foundation of the case law on the subject is the decision referred to and misrepresented by the learned Subordinate Judge, namely, the case of Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 529 : 2 W.R. (P.C.) 61 : 1 Suth P.C.J. 476 : 1 Sar. P.C.J. 820 : 19 E.R. 631. The important passage frequently quoted in subsequent decisions is to be found at page 551 and may be quoted once more in this place: 'For religious or charitable purposes or those which are supposed to conduce to the spiritual. Welfare of her husband she (i.e., the Hindu widow) has a larger power of disposition than that which she possesses for purely worldly purposes.' In the present case the gift to the temple and to the attendant priests appears on the face of it to be an alienation for religious and charitable purposes. The immediate object of the alienation as cited in the deed itself is for the salvation of my husband and his family members and for my own salvation.' In a recent case before the Calcutta High Court, Khub Lal Singh v. Ajodhya Misser 31 Ind. Cas. 433 : 43 C. 574 : 22 C.L.J. 345, the question of law now under consideration was discussed at great length. Previous authorities were reviewed and a decision was pronounced by a Bench which included one of the most distinguished Hindu Judges who adorned the Bench of that Court. The important principles laid down by him I take to be the following: ''There is a distinction between legal necessity for worldly purposes on the one hand and the promotion of the spiritual welfare of the deceased on the other hand. A gift of a moderate portion of the property of her husband by the widow with a view to his spiritual benefit is valid. Whether an alienation' covers a reasonable portion of the property of her husband is a question which must be determined with reference to the circumstances of each particular disposition.' The point which has been pressed upon us with great learning and ingenuity on behalf of the respondent to this appeal turns upon the meaning to be attached to the words 'with a view to his spiritual benefit' in the principle above laid down. It was contended that those proceedings by means of which a Hindu widow may seek to promote the spiritual welfare of her late husband can be ascertained with certainty from authoritative text books accepted by Hindus generally and that the question whether a particular gift, made under certain circumstances, would or would not be accepted by Hindu opinion as conferring a spiritual benefit upon the deceased husband of the donor was a pure question of law which could be settled upon authority, independently altogether of the question whether the object of the gift was or was not one which any ordinary persons would accept as fulfilling a religious or charitable purpose. When this argument came to be further pressed, with reference to the particular authorities and texts on which it proceeded, it proved to amount to this: that it is only by means of those rites and ceremonies connected with the funeral of the deceased or with the subsequent commemoration of his death, generally known under the name of Sradh, that the spiritual welfare of a deceased Hindu can be promoted. Consequently it was contended that the only gifts made for religious or charitable purposes by which a Hindu widow could be regarded as promoting the spiritual welfare of her late husband would be gifts made in connection with' some Sradh ceremony. The argument is an ingenious one; but the question can scarcely be regarded as coming before us at this stage of its history as purely res integra. There is a mass of case-law on the subject, a great deal of which has been expounded to us on behalf of the parties to the present appeal. It is impossible to point to a single case in which an alienation by a Hindu widow has been set aside only on the ground that it was not made in connection with a Sradh ceremony of the deceased. It is quite true that there are at least two decisions of the Madras High Court in Lakshminarayana v. Dasu 11 M. 288 : 4 Ind. Dec. (n.s.) 201 and in Vappuluri Tatayya v. Garinalla Ramakrishnamma 6 Ind. Cas. 240 : 34 M. 288 : 20 M.L.J. 798. (1910) M.W.N. 222 : 8 M.L.T. 79, in which the fact that the alienation was made in connection with a Sradh ceremony is insisted upon' in such a fashion as to show that it was of considerable importance in the minds of the learned Judges. The question whether this is an indispensable condition to the validity of a gift can be tested by examining a few cases in which such alienations have been set aside. Take for instance the case of Rama v. Ranga 8 M. 552 : 9 Ind. Jur. 383 : 3 Ind. Dec. (n.s.) 378. The learned Judges set forth the objects for which the particular alienation which they were considering had been made. Now that alienation, on the face of it, had nothing to do with a Sradh ceremony of the deceased; but it was not set aside on that ground. It was pointed out that the ceremonies for the sake of which the widow in that case had sold a portion of her late husband's estate were not of the kind regarded by the Hindu religion as indispensable for the spiritual benefit of her late husband, such as funeral obsequies and ceremonies intendent to those obsequies. They then proceeded to hold that they could not justify the alienation, unless such sale is reasonable in the circumstances of the family and the property alienated is but a small portion of the property inherited from her husband.' The principle underlying the decision appears to be that there are ceremonies and, I may add, duties incumbent upon a Hindu widow, in the sense that their performance is regarded as indispensable to the spiritual welfare of her late husband. These duties she is under an obligation to perform and these ceremonies she must carry out, and for this purpose she has a power of alienation in respect of the corpus of the property in her hands, independent altogether of the proportion which the property alienated may bear to the whole. In the case of an alienation for a purpose regarded as indispensable to the spiritual welfare of the late husband, the question will not be, what proportion does the property alienated bear to the entire estate, but only, was the alienation a reasonable one under the circumstances, in the sense that the expenditure incurred was such as might be regarded as suitable to the position of the family. The learned Judges, however, recognised the possibility of alienations made by a Hindu widow for the purpose of doing pious acts for the benefit of her late husband which are not in the nature of spiritual necessities; and with regard to alienations made for such a purpose as this, they say that they would be prepared to take into consideration such questions as the proportion borne by the property alienated to the value of the entire estate. The same sort of principle seems to be implied in Ram Kawal Singh v. Ram Kishore Das 22 C. 506 : 11 Ind. Dec. (n.s.) 338, where the learned Judges finally came to the conclusion that the alienation which they were considering could not be supported, either on the ground that it was a religious necessity (that is to say indispensable to the spiritual welfare of the husband) or that, being for a pious purpose, the property alienated was small in value and represented only a very small portion of the estate inherited. The same may be said of the latest pronouncement of the Bombay High Court in Panachand Chhotalal v. Manoharlal Nandlal 43 Ind. Cas. 729 : 42 B. 136 : 20 Bom. L.R. 1. We have been referred to two decisions of this Court, (1) in Puran Dai v. Jai Narain 4 A. 482 : A.W.N. (1882) 115 : 2 Ind. Dec. (N.S.) 1092. There stress was laid upon the fact that the alienation which the Court had to consider had been made without any reference whatever to the idea of conferring spiritual benefit upon the deceased husband, but apparently for the spiritual benefit of the widow alone. The other case of this Court is that of Balkishan Bharthi v. Sat Ram Singh A.W.N. (1908) 202. This case is of considerable importance as containing a review of the previous case law by the learned Hindu Judge of this Court who is still with us. The principle he desired to affirm is to be found in the Tagore Law Lectures, 1879 at page, 309: 'A gift by a widow of the whole of her husband's estate is invalid; but a gift of a moderate portion of the property made by the widow for the spiritual benefit of her husband may be valid.' In the case then before him the learned Judge found that the gift which he had to consider, comprising as it did practically the whole of her late husband's estate, was one which the widow was not justified in making. On the line of reasoning which be followed it seems clear that he would have affirmed the gift, if it had affected property forming only a small fraction of the entire estate.
3. In this connection we were also asked on behalf of the respondent to attach considerable importance to the fact that Rani Kishori Kuar had taken the estate in succession to her son, and not immediately on 'the death of her husband.' Under the circumstances of the case, I do not think this fact is of serious importance. To begin with, the recital in the deed of gift itself, setting forth that the donor' desired to confer spiritual benefit upon her late husband and upon his family members, is quite sufficient to include the spiritual welfare of these two boys who died before attaining majority. Apart from this I do not think it would be just to take too rigid and technical view of the position of a Hindu widow who had entered into possession of her late husband's estate after a short interval, during which her two minor sons died. She naturally treated the estate as that of her husband and regarded herself as being in possession in virtue of her rights as his widow. It could scarcely be suggested that her power of alienation for the spiritual benefit of the former owner of the estate is so rigidly * limited that in all circumstances the person whose spiritual benefit is sought must have been the last male owner. In the present case for instance, it could scarcely be contended that no alienation of property by way of gift would be valid unless expressly made for the benefit of that particular one of the two sons of Raja Gur Sahai who survived the other and who was, therefore, for a brief interval the sole owner of the estate.
4. Leaving this question for the present, we have to go on to consider what was after all the value of the property transferred under this gift in comparison with the entire value of the Raja's estate. That gentleman executed a Will in the year 1864 to which he appended a specification of his property, showing that ha had Zemindari rights in more than 80 villages and a great deal of house property in Moradabad and in Amroha. Two years later, that is to say in 1865, he received from the Government a formal Sanad, granting him Zemindari property bringing in a total revenue of Rs. 10,195 13-4 for his mutiny services. I think this must have been to some extent a confirmation of a grant previously made; for I find some of the properties included in this Sanad, at page A23, also included in the specification given at the foot of the Will, at pages 19A and 20A. It is clear, however, that the grant received under the Sanad was much less in value than the property dealt with under the Will. Taking the land revenue assessment as a rough test, it would seem that the proprietary rights in the four villages affected by the deed of gift in suit amounted to little more than 1/40 of the property granted to Raja Gur Sahai under the Sanad. Taking the house property into consideration, and forming such rough estimate as seems? reasonably possible, I should feel no hesitation in holding that the value of the property in suit cannot have amounted to more than 1/80th part of the entire estate. There-is another line of reasoning leading to very much the same conclusion. There was evidence given that the income enjoyed by Rani Kishori Kuar from the entire estate was at least Rs. 6,000, a year. The income derivable from the Zamindari property included in the deed of gift would seem to have varied considerably from time to time, if we are to judge from different leases which have been produced in evidence by the two parties. The Government land revenue assessed upon this particular property has apparently risen from Rs. 280 in 1862 to Rs. 545. The plaintiff has proved two leases of the years 1862 and 1863. Under the former the property in question was leased out at a net profit of Rs. 635 a year. Under the latter the net profit must have been Rs. 870. There is certainly no evidence on the record which would justify us in putting the net annual profits derivable from the villages in question at more than Rs. 800. Taking it at that figure, it amounts to about 1/75 of the annual income enjoyed by Rani Kishori Kuar. I think we may come without serious hesitation to a finding that the value of the property dealt with by this deed of gift was not more than 1/15th of the' entire estate, of Raja Gur Sahai as it passed into the hands of Rani Kishori Kuar. There has been something said in argument about that lady's management of the estate during the entire period covered by her possession. On the One hand the appellant relied upon an admission made by the principal plaintiff, to the effect that the income of the property had gone up by something like 25 per cent. since the death of the Raja; and I was disposed at first to assume that this increase represented the result of purchases made by the lady out 'of the surplus income of the estate. That such purchases were made by her seems to be true, as there is a statement to that effect by the lady in her deposition of the year 1893, which does not seem to have been challenged at the time. On the other hand something has been said on behalf of the plaintiff-respondent that this is not the only alienation by the lady which he has been compelled to challenge. It was no part of the case set up in the plaint that there had been other alienations. As a matter of fact, the only evidence is to the effect that the lady, not long before she died, tried to dedicate permanently for the benefit of a temple built by her husband in Moradabad two shops the income of which had always been spent on the temple by the orders of her husband. On the whole this lady's management of the estate does not seem to have been in any way extravagant, and on the evidence as it stands the finding seems to be justified that, even allowing for the alienation contested in the present suit, the lady must have passed on to the reversionary heir an estate certainly not less in value than that which she bad received on the death of the survivor of her two sons, while the probability is that it had increased in value. Under these circumstances I think we need have no hesitation in holding that the gift now in question was a gift of a moderate portion only of the property of her late husband, that it was a gift for religious and pious purposes, and that it was made by the lady, not solely with a view to her own spiritual benefit, but in order that the spiritual merit likely to accrue from the same might benefit herself, her late husband, and her sons. It is obviously impossible to ask a Court of justice to record a finding that any particular act done by the surviving widow either did or did not benefit her late husband in that changed environment to which he may be presumed to have passed after that episode in life which men call death; nor can we accept the contention on behalf of the respondent that gifts for religious or charitable purposes made by a Hindu widow cannot be recognized under the Hindu Law as calculated to confer any benefit upon the soul of her deceased husband unless they be made in connection with particular funeral ceremonies. I think the present alienation should be affirmed as a gift for religious and charitable purposes, reasonable under the circumstances, and effected by the donor in good faith for the spiritual benefit of the late owners of the property as well as for her own. These findings are sufficient to dispose of the appeal, which I would allow accordingly; and setting aside the decree and order of the Court below, would dismiss the plaintiff's suit with costs throughout, including fees in this Court on the higher scale.
5. Three questions arise for decision in this case, one, a question of law, whether a gift by a Hindu widow of property, inherited from her husband, whether through her sons or not, made for religious purposes, whether with a view to the welfare of her deceased husband's soul or not, is binding upon the reversioner Secondly, the question of fact whether under the circumstances of this case the gift which is attacked was in excess of what has been regarded by the law as a reasonable proportion of the whole estate. Thirdly, whether the deceased lady understood and intended to carry out the terms of the deed.
6. It is clearly established that in or about 1876 when she made this gift she was a Pardanashin and illiterate lady possessed of 'great managing power.' It is proved that she managed her affairs with great ability. She took tours to the various villages which comprised the substantial estate which her husband had left. She received and considered applications from her tenants. She met their wishes and endeavoured to remove their grievances. She made purchases by way of accretion to the estate out of the savings at her disposal, She gave on oath in 1893 a fairly clear account of this part of her business, saying that her agents were acquainted with the details. No lease of the estate was made without her sanction, and the plaintiff in this case admitted on oath that the property while in her hands in one way or another increased in value by at least 25 per cent. The evidence clearly shows her to have been, in spite of lack of education, a woman of character and capacity.
7. The terms of the deed attacked are remarkably simple and clear. They have all the appearance of genuineness. She declared in the only way possible that she, as an honest and religious woman, executed this deed of transfer in performance of a promise she had previously given to the Pandas when on a pilgrimage of her own and that she was doing so for the salvation of her husband, his family and herself. She seems to have taken every precaution that there should be no possibility of doubt as to the reality and legality of the transaction and as to the value of the property of which she was so disposing. This deed, according to the first argument presented to us on behalf of the successful plaintiff, is one which the Hindu Law does not permit under any circumstances. I am bound to say that nothing surprises me more than the contrast between the veneration with which these pious acts for the welfare of a departed soul are regarded by the Hindu community and the vehemence and determination with which they are attacked by individual members of that community. The plaintiff in this case is himself a Hindu and would presumably suggest to, if not inculcate upon the members of his own family the very conduct which he asks us as a matter of general Hindu Law to declare to be invalid. If he cares to know my opinion, conduct of this kind seems to me more calculated than anything else to discourage the carrying out in practice of the precepts which the Hindu community teaches. The attempt has hopelessly failed. To my mind the law is well settled, and if it had not been so earnestly argued by Dr. Sapru for the respondent, I should have said it was absolutely unarguable. Whether it is necessary to establish that the intention of the donor was to confer spiritual benefit upon the soul of the departed, or whether it is sufficient in given circumstances that the object of the deed itself is shown to be religious (the latter proposition seems to have been laid down by the Privy Council when they used, the word 'or' in the passage which has already been referred to) does not matter in this case, because the lady clearly put the benefit to her husband's soul and the salvation of the other members of his family before her own. In my opinion the matter is as clearly settled as anything can be by a consistent course of authority from 1861 when the case already referred to was decided by the Privy Council and reported in 8 Moore Indian Appeals [Collector of Masulipatam v. Cavaly Vencata Narterramaph 8 M.I.A. 529 : 2 W.R. (P.C.) 61 : 1 Suth P.C.J. 476 : 1 Sar. P.C.J. 820 : 19 E.R. 631 down to the recent decision in 1915 by Mr. Justice Mookerji, reported as Khub Lal Singh v. Ayodhya Misser 31 Ind. Cas. 433 : 43 C. 574 : 22 C.L.J. 345. It so happens that the last decision was delivered six days' before the judgment in this particular case and was no doubt not known to the learned Subordinate Judge. But I do not think that it contained anything new, and the intermediate cases between those two termini, although they may be cited to justify the statement of the law as contained in Mr. justice Mookerji's judgment, do not add anything to it or take anything from it. The judgment of Mr. Justice Mookerji is an amplification of, and an admirable commentary upon, the judgment of the Privy Council in 8 Moore Indian Appeals [Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 529 : 2 W.R. (P.C.) 61 : 1 Suth P.C.J. 476 : 1 Sar. P.C.J. 820 : 19 E.R. 631]. It shows how accurate the language used in the judgment of the Privy Council was and it may be cited as a correct statement of the old law with a full exposition calculated to remove ambiguity, and I, therefore, cite from it the following passage as a correct statement of the law on the first question in this appeal: 'The true rule thus appears to be that there is a distinction between legal necessity for worldly purposes on the one hand, and the promotion of the spiritual welfare of the deceased on the other hand, and that, within proper limits, the widow may alienate her husband's property, for the performance of religious acts which are supposed to conduce to his spiritual benefit.' He cites also a passage from the judgment of Lord Gifford in Cossinaut Bysack v. Cummolemoney Dossee 2 Morley's Digest 198 : 3 Ind. Dec. (o.s.) 907, showing further the settled and ancient character of this well-known rule of Hinu Law: It is absolutely impossible to define the extent and limit of the power of the widow to dispose of her husband's property for religious purposes, because it must depend upon the circumstances of the disposition.' Mr. Justice Mookerji goes on to point out that a question of fact has always to be determined, namely, whether the alienation covers a reasonable portion of the property of the husband, with reference to the circumstances of the particular disposition, and he cites other authorities which may be found on page 585 of his (Mr. Justice Mookerji's) judgment, one goes back to the year 1826, indicating that 3/16 of the entire estate had been held not excessive, and in another case a gift of property between 1/4 and 1/3 of the whole had been upheld. Many of the authorities cited to the learned Subordinate Judge and referred to in his judgment seem to have been relied on rather for the purpose of confusing him than for any legal purpose which I can discover. He has unfortunately in his judgment confused the question of legal necessity with the question of the validity of a gift, made for religious purposes. It may be that the defendants contributed to this confusion by pleading 'legal necessity' in paragraph 8 of their defence. To my mind no authority bearing upon the question of legal necessity ever had any relevance to this suit and should never have been cited in the Court below. At one time the learned Subordinate Judge in his judgment said that the point raised was fully concluded by authority. At another time he found as a question of fact that the pilgrimage of the lady was absolutely unnecessary, and finally he says: To sum up the lady had no necessity to transfer the property as she bad ample means to defray the expenses for pilgrimage to holy places and for any offerings she may have desired to make.' As my brother has pointed out, this has nothing to do with the deed of gift in suit and possibly explains the error into which the learned Subordinate Judge seems to have fallen. As I have said above, the point is well-settled and is unarguable.
8. There may be on occasions a serious question upon the point whether the gift could be described as religious or charitable at all. This question was not raised in this case; but it has been determined and it is obviously a most important question. The only question about which the reversioner need trouble himself is whether the quantum in proportion to the whole estate is excessive. I am satisfied that this suit was never launched on that basis at all and that the idea never occurred to the plaintiff. The defendant, who seems to have been fully advised as to his legal position, did in paragraph 8 of the written statement open the door to the contention. There is a suggestion that the plaintiff professed to attack the transaction on that ground in issue No. 7 as framed. I do pot think that at the trial it was ever relied on at all. I think the quantum was treated as immaterial. There is a case decided by Mr. Justice Karamat Husain in this Court in which he lays down (the case is not on all fours with this case) that it is unnecessary to find out the income and value of the property. I think the learned Subordinate Judge in this case laid that down at the instance of the plaintiff, the plaintiff knowing that he had no materials to establish 'the fact. At any rate the onus is upon the person having special knowledge of the alienated property. I do not propose to travel over the ground my learned brother has travelled. I think it is sufficient to say that in this case no suggestion of any kind is made even now at the 11th hour that the evidence shows anything approaching 3/16, and no authority of any kind has been quoted to us which discredits in any way the authority of 1826 in which it was held that 3/16 might be disposed of.
9. There is one further question, the 3rd question argued in support of this decree before us by Dr. Sapru, whether the lady understood and intended to carry out the terms of the deed. It is really covered by the uncontradicted evidence to which I referred at the commencement of this judgment, and it is finally set at rest by the deposition which has been put in evidence sworn to by the lady in another suit in 1893. It is quite true that there is no evidence that this document was explained to her at the time and that she was made to understand it. It is difficult to see how there could be. In my experience of oases of this kind where a Pardanashin lady is concerned, certainly where the transaction is dubious; there is generally direct evidence of a number of people who shouted out the contents of the document to her. In this case the circumstances speak for themselves. The deed itself has a ring of genuineness about it. The simplest woman in the world would have no difficulty in understanding it as dealing with her own property if it was read to her at all, and 17 years afterwards, when advanced in years and suffering according to her own account from defective memory and embarrassment in appearing behind the Pardah before a large number of people, she was able to give a fair and honest account of the transaction,
10. On that occasion she showed intelligence of a high order. She 'was asked an almost impossible question for anybody to answer, certainly for an owner of a large estate of this kind to answer, with reference to the profits of a village she had had nothing to do with for 17 years. 'What is the profit of the village you gave?' Being behind the Pardah she wanted to know whether it was her own or her opponent's Pleader who was asking this question. I do not suppose that she was prepared to tell an untruth if it was her opponent's Pleader. She could have known nothing about the subject at all. What was passing in her mind was that it was an impertinent question. Her conduct on that occasion seems to me to be that of an intelligent and capable woman such as is described by the uncontradicted evidence. I am satisfied that this was as genuine a gift for religious purposes as any gift of the kind that was ever made. I agree in the order proposed by my brother.
11. By the Court.--The appeal is allowed, the decree and order of the Court below are set aside and the plaintiff's suit is dismissed with costs throughout.