1. In this case Musammat Mahesha Kuar asked for a declaration that certain property specified in a deed of November 6th, 1912, executed by her deceased husband Babu Bhan Singh was duly dedicated to and became the property of an idol installed in her house.
2. The learned Subordinate Judge decided that the transaction was invalid as not being (sic) by religious motives. He came to the conclusion that the object of the deed was to keep the property inalienably in the line of Bhan Singh's daughter and daughter's sons, and perhaps also to exclude the operation of an alleged custom of Bhan Singh's caste whereby nephews in default of sons would inherit the property of the donor.
3. The decision of the case must turn on the question of the intention of the donor, and as a guide to that intention we must have regard to his acts and declarations and the conduct of his widow after his death.
4. The deed is a lengthy document, carefully drawn, and is in the usual form. The points of importance are that the donor purported irrevocably to make over to the idol, then stated to be installed in his house and described in the deed as Sri Thakurji, what was substantially the whole of his property, BO that from the moment of the execution of the deed he and his wife had practically no income and property of at least the value of Rs. 30,000 passed from him to the idol.
5. In 1910 he had commenced partition proceedings, and in the deed of endowment he undertook to make an application to the Revenue Court for mutation of names in favour of the idol, whilst his name was to appear therein as manager. During his lifetime he was to be the manager and superintendent and he bound himself always to 'use the income of the wakf property in meeting the expenses of the puja of and raj bhog to Sri Thakurji aforesaid and of repairing the house.' Also he pledged himself always to keep a regular account of the income and expenditure.
6. After his death, the manager ship was to pass to his wife, if alive, and thereafter to his daughter's sons and downwards through their lineage.
7. The donor lived for about 16 months after the execution of the deed.
8. He did not apply that the name of the idol should be entered in the revenue papers, and he used only a fractional part of the income of the property for religious purposes--certainly not more than 1/10th and probably much less than that. The plaintiff did not produce any accounts to show in what way the income had been expended or surplus income applied. Interrogatories were drafted by the defendants on the questions, inter alia, of the value of the property and the expenditure of the ionone and the keeping of accounts object ion was taken to these interrogatories on the ground that answering them would weaken the plaintiff's case, and apparently without exercising any judgment in the matter the order of the Judge was merely that the objection should be filed and defendants' Pleader informed. The Judge ought to have required the plaintiff to answer some of the interrogatories which were directly relevant to the enquiry. The absence of the answers embarrassed the defendants in the lower Court.
9. In that Court a large part of the evidence was directed to tracing out the history of the building of a temple for the reception of the idol and the date of the installation of the idol. As our decision does not depend on whether the contention of the plaintiff or the defendants is the right one on these points, we need not discuss this exhaustively, but we are of opinion that there was in the lifetime of the donor a family idol of Krishnaji, which was the idol indicated for worship in the deed of endowment, that the building of the temple was commenced and practically completed at least before the death of Bhan Singh and the idol duly installed, and we do not accept the story set up by the defendants that the temple was built and the idol installed within one month from the dais of Bhan Singh's death. The circumstances of the building of the temple and the installation of the idol cannot, however, in our view prevail over the other facts which go to show that the donor's motive was to tie up the property and to render such property inalienable for generation after generation. He may also have wished to free it from any danger of descending to his nephews if the alleged custom should be proved, as it appears to have been in one case. We think that the following facts are decisive against the religious intention of the donor--
(a) the transfer of what in the Court below was assumed by both sides to be the whole of his property and agreed in this Court to represent practically all of it;
(b) the failure to obtain mutation of names;
(c) the failure to produce any accounts;
(d) the admitted fact that the expenditure on the idol was at the most 1/10th of the whole income;
(e) the absence of any explanation by the widow on any of the above points and of any account by her of her manager ship and dealing with the income after the death of her husband in 1914.
10. We, therefore, dismiss the appeal with costs and fees on the higher scale.