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Shri Ram Janki and anr. Vs. Mt. Maktoola and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Case NumberSecond Appeal No. 699 of 1946
Judge
Reported inAIR1952All633
ActsDebt Law; Uttar Pradesh Regulation of Agricultural Credit Act, 1940 - Sections 2(9), 12 and 25
AppellantShri Ram Janki and anr.
RespondentMt. Maktoola and anr.
Appellant AdvocateA.P. Pandey, Adv.
Respondent AdvocateGopalji Mehrotra, Adv.
DispositionAppeal allowed
Excerpt:
.....- endowment of fixed rate tenancy - upkeep of an idol in temple - for benefit of public at large - gift deed may not contain words 'for charitable purposes'. - - the donor provided that baba tri beni das would take possession of the property, manage it in the way he liked & after meeting the expenses of management, would spend the profits on the expenses of the idols. the question, therefore, that requires determination is whether a gift in favour of an idol like the present one is for a charitable purpose. this, to my mind, clearly means that the income from the property would be used for the sewa & puja of the idols. it should be noticed that an endowment for the worship of a god amongst hindus is a form of charity, whereby the brahmanas & the poor specially, & the public generally..........which was fixed-rate tenancy was not valid. it, therefore, passed a decree to the effect that the gift-deed was invalid with respect to the fixed rate tenancy, but was valid with regard to the other items. the defts. have come up in second appeal to this court.2. the argument, on behalf of the applts. before me, is two-fold. in the first place, it has been urged that in view of section 2, sub-section (9) of u. p. act no. xiv [14] of 1940, section 12 would not apply to this deed of gift & therefore, the gift of fixed rate tenancy was also valid. in the alternative, it has been urged that even if it be held that the gift-deed was invalid with respect to the fixed-rate tenancy, the decree of the lower appellate court is incorrect inasmuch as it has overlooked the provisions of section 25.....
Judgment:

Wanchoo, J.

1. This is a second appeal by Sri Ram Janki through Baba Tribeni Das & another. The appellants were defts. in the suit which was brought by the plff. resps. The plffs. sued for cancellation of a deed of gift & for possession of the property comprised in that deed. This deed was executed by one Ram Nandan on 2-7-1942. in respect of certain property situate in village Daunri. The properties were gifted to the idola of Sri Ram Janki installed in a temple in village Daunri which is under the management of Baba Tribeni Das. The donor provided that Baba Tri beni Das would take possession of the property, manage it in the way he liked & after meeting the expenses of management, would spend the profits on the expenses of the idols. The property consisted of fixed-rate tenancy, a grove, a house & some occupancy tenancy. The deed was assailed on a number of grounds. The trial Court dismissed the suit. The lower appellate Court, however, allowed the appeal on the ground that in view of Section 12, United Provinces Regulation of Agricultural Credit Act, No. XIV [14] of 1940, a gift of that part of the land which was fixed-rate tenancy was not valid. It, therefore, passed a decree to the effect that the gift-deed was invalid with respect to the fixed rate tenancy, but was valid with regard to the other items. The defts. have come up in second appeal to this Court.

2. The argument, on behalf of the applts. before me, is two-fold. In the first place, it has been urged that in view of Section 2, Sub-section (9) of U. P. Act No. XIV [14] of 1940, Section 12 would not apply to this deed of gift & therefore, the gift of fixed rate tenancy was also valid. In the alternative, it has been urged that even if it be held that the gift-deed was invalid with respect to the fixed-rate tenancy, the decree of the lower appellate Court is incorrect inasmuch as it has overlooked the provisions of Section 25 of the Act.

3. Section 12 of the said Act reads as follows:

'No proprietor shall mortgage or lease or make a permanent alienation of the whole or any part of his protected land or alienate or charge the produce of such land otherwise than in accordance with the provisions of this Act.'

Section 2, Sub-section (9) runs as under:

''Permanent alienation' means a transfer by sale, exchange, or gift but does not include a transfer by gift for a charitable purpose or a transfer by will.'

The argument, on behalf of the appellants, is that this is a transfer by gift for a charitable purpose & therefore, does not come within the definition of 'permanent alienation' & consequently Section 12, has no application to this deed of gift. On the other hand, it has been argued, on behalf of the plffs-respondents, that the mere fact that the gift was made in favour of certain idols does not necessarily mean that it was for a charitable purpose, though it may be for a religious purpose. The question, therefore, that requires determination is whether a gift in favour of an idol like the present one is for a charitable purpose.

4. It is true that in the gift deed in question before me all that has been mentioned is that the profits arising from the property after meeting the expenses of management will be spent on the expenses of the idols. This, to my mind, clearly means that the income from the property would be used for the sewa & puja of the idols. In Golapchandra Sarkar Sastri's book on Hindu law, modes of charity for Hindus have been enumerated at p. 665. The learned author observes as follows:

'It should be noticed that an endowment for the worship of a God amongst Hindus is a form of charity, whereby the Brahmanas & the poor specially, & the public generally are benefited; the Brahma das being the repositories & preceptors of religion, the Hindus are benefited by what is intended to support the Brahmanas, their spiritual guides; they are deemed public officers or servants.'

It is obvious from the recitals in the deed of gift that this is not a private family temple. It appears to be a temple to which the Hindus generally go for worship, Under these circumstances, an endowment by a Hindu in favour of the idols.installed in such a temple must be considered to be for a charitable purpose. The test of charitable purpose is that it should be for the benefit of the public. It seems to me that if an endowment is made for the up-keep or the expenses of an idol installed in a village temple to which apparently the Hindus are generally entitled to go for worship, the purpose of the endowment is a charitable one, even though the gift-deed itself may not contain the words 'charitable purpose.' Such an endowment is for the benefit of the public at large as worship in a temple can only be for invoking 'divine grace' for the public. I am therefore, of opinion that the purpose of this deed of gift was a charitable one. Under these circumstances, Section 12 of Act XIV [14] of 1940 does not apply to it in view of the exception in Section 2, Sub-section (9) of the Act.

5. In this view of the matter, it is not necessary to consider the alternative case put forward on behalf of the appellants. I may, however, point out that even if it were to be held that this was not a charitable purpose, the decree of the Ct. below is still wrong. In Section 25, Sub-section 2 of the Act, it is provided that:

'.........Where a permanent alienation............has been made otherwise than in accordance with the provisions of this Act............the Court shall revise & alter the terms of such alienation so as to substitute for it a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13, on such terms as the Ct. considers to be equitable & thereupon such mortgage shall take effect in supersession of such alienation.'

Therefore, even if the gift-deed were invalid on the ground that its purpose is not a charitable one, the proper decree to be passed in a case of this kind is to substitute a self-liquidating mortgage for a period of years. In this particular case, if I had decided against the appellants on the first point, I would have fixed that period as twenty years.

6. I, therefore, allow the appeal, set aside the decree of the lower appellate Court & restoring the decree of the trial Court, dismiss the suit with costs to the appellants in all the Courts.


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