1. The suit which has given rise to this appeal was instituted by the plaintiff-respondent for the partition of a one third share of certain property, comprising landed property, houses and moveables. The parties are descended from one Sewa Ram, who died about 40 or 45 years ago, leaving two sons, Bhagwan Das and Gobardhan Das. The plaintiff is the grandson of Bhagwan Das. His father, Dharam Das, died in 1904, while Bhagwan Das was alive. One of the defendants was Gobardhan Das who died during the pendency of the suit. The other defendants were the descendants of Bhagwan Das.
2. The first question for consideration in this appeal is, whether the property in dispute was joint family property, and whether there had been any partition in the family at or about the time alleged by the defendants.
3. The allegation of the plaintiff was that the property in dispute was joint family property and that the defendants were refusing to make a partition. The defendants pleaded that the villages, Ram Dandi and Gher No. 5 mentioned in the schedule attached to the plaint, were waqf property, endowed for the purpose of a temple to be constructed in the latter and that, excepting house No 10, the rest of the property was their separate property. They further pleaded that Bhagwan Das had separated from Gobardhan Das about 40 years ago and that Dharam Das, the father of the plaintiff, had similarly separated from his father, Bhagwan Das, about 20 years later.
4. The Court below found that the family lived jointly till about 4 or 5 years before the institution of the suit, that there had been no partition, and that the entire property in dispute excepting the moveables, the existence of which was not proved, was property divisible between the parties.
5. The evidence produced by the defendants on the latter point is, as the learned Subordinate Judge points out, very unsatisfactory. On the other hand, several respectable witnesses have been examined on behalf of the plaintiff to prove that the family was joint. One of them, Mohan Lal, is an Honorary Magistrate who pays Rs. 2,000 as revenue and Rs. 1,800 as income-tax. He states that Bhagwan Das and his sons formed a joint family and had a joint business and he supports his statement by producing the entries in his account books which go to show that there were money dealings between him and the firm styled Bhagwan Das-Gobardhan Das which belonged to the parties. He also states that at times Ram Prasad, the plaintiff, and Makhan Lal and others used to come to get money from the firm and to re-pay the same. He further states that to his knowledge there was never a partition in the family and that when the sister of the plaintiff was married, the entire arrangement in connection with the marriage was made and the expenditure connected therewith met by Gobardhan Das and the other members of the family.
6. Another witness, Tika Ram, who pays Rs. 26 as income-tax states that Bhagwan Das and Gobardhan Das ware joint, that the plaintiff Ram Prasad used to get expenses from the family shop, which was managed by Gobardhan Das and that some of the defendants and their sons used to work in that shop.
7. Another witness, Ramji Mal, a physician, similarly deposes that Bhagwan Das and Gobardhan Das formed a joint Hindu family and that whenever he went on a professional visit, Gobardhan Das and Sarab Sukh Das paid his fee for his attendance.
8. The statements of these witnesses are corroborated by certain documentary evidence produced in the case. There is, for instance a copy of a plaint in a suit filed by Gobardhan Das in 1907 for the recovery of money due by certain debtors of the firm. After the institution of that suit an application was made by Bhagwan Das and his two sons, who were then alive, and by the present plaintiff under the guardianship of Bhagwan Das, stating that they were living jointly with Gobardhan Das and that they should be added as co-plaintiffs. This application was allowed, and Bhagwan Das and his sons, Daulat Earn and Sarab Sukh Das, and his grandson, the present plaintiff, were brought on the record. This could not evidently have been done without the consent of the then plaintiff Gobardhan Das. Again, in 1916 the sister of the plaintiff was married and an application was made by Gobardhan Das for permission to take a procession through the streets and for the use of fire-works in connection therewith. In that application he described the sister of the plaintiff as 'his daughter.' It is not possible to attach much significance to the use of the words 'his daughter' in that petition, but from the fact that the application was made by Gobardhan Das, there is reason to think that he was taking an active and leading part in the affair, or, in other words, such a part as would ordinarily be taken by the head or manager of a family in connection with the celebration of a marriage in it. Further, an extract from the Income-tax Register for 1916-1917 has been produced, showing that the present plaintiff and Sarab Sukh Das, Daulat Ram and Gobardhan Das were jointly assessed to income-tax with reference to the income derived from the Sugar-cane Press and houses held by the family.
9. There is also the evidence of Mohan Lal showing that the firm of Bhagwan Das, Gobardhan Das used to take monies from time to time from him.
10. There is, further, on the record a decree which was jointly obtained by Gobardhan Das, Sarab Sukh Das and Daulat Ram against a certain debtor in 1915. The plaintiff was not a party to that decree; but from the fact that the other members of the family were co-plaintiffs with Gobardhan Das there can be no room for doubt that the entire family continued to work jointly till at least 1916.
11. On behalf of the defendants reliance has been placed on a written statement filed by Sarab Sukh Das and others in 1919 in which they stated that Bhagwan. Das and Gobardhan Das were proprietors of the firm styled Bhagwan Das and that they had no concern with the firm. But the object of their disclaiming any connection with that firm obviously was to disavow any responsibility for any liability incurred by the firm and much weight cannot, therefore, be attached to that statement. In connection with the same suit Gobardhan Das, was examined and in the statement which he then made he said that Bhagwan Das was his sharik and brother. That statement is inconclusive and does not necessarily support the defence. On a consideration of the entire evidence we are of opinion that the Court below has come to a right conclusion in holding that the plaintiff was living jointly with the other members of the family including Gobardhan Das. In fact, the father of the plaintiff had died, while the plaintiff was still a minor. He was brought up by his grandfather. The family carried on a joint business in which be took some part in getting money from and making payments to other firms; and the statement of the defendants that a partition had taken place; that Dharam Das had separated 20 years ago from his father, and that Bhagwan Das had separated from Gobardhan Das, cannot be trusted.
12. As regards the property in dispute, some of the purchases were made in the name of one member of the family and others in the name of another member of the family, but, as the family was joint at the time the purchases were made, the presumption is, that they were made with joint family funds. No reliable evidence has been adduced on behalf of the defendants to establish that the purchases made in the names of the different members of the family were made out of their separate earnings; and in the absence of any evidence, the entire property so purchased must be treated as joint family property.
13. The case of the village Ram Dandi, however, stands on a different footing. It was purchased on the 30th June 1906 in the name of Sri Lachmi Narainji, an idol said to have been installed in a temple situated in one of the houses at Chandausi. The purchase was made for a sum of Rs. 5,000 and the greater portion of the consideration was applied to the payment of a debt due to Sarab Sukh Das and of certain other debts due to certain other persons by vendor. There is no evidence to show when the debts were paid; but as the sale-deed stands in favour of, and in the name of Sri Thakurji, known as Sri Lachmi Narainji Maharaj, the presumption that any purchase made in the name of any member of the joint family would be deemed to have been made with joint family funds, would not be applicable. A purchase made in the name of a stranger is prima facie a purchase made by him for his own use. There is evidence to show that in 1895 three idols had been obtained through an official attached to the Rangaji temple of Brindaban and that the expenses of the purchase of those idols were met by the firm of Bhagwan Das-Gobardhan Das. The idols were made of copper and weighed two maunds sixteen seers. They were, according to the evidence of Mohan Lal, placed in a certain shop, from which they were removed about 18 or 19 years ago to house No. 3, where they still exist. The intention of the family evidently was to build a separate temple for the installation of those idols but no temple appears to have been built for the purpose. During the pendency of the suit Gobardhan Das executed a tamlik nama by which he disposed of the greater portion of his property in favour of Sarab Sukh Das, and a deed of waqf, by which he dedicated one-fourth of the house, entered as No. 5 in the plaint, and a one-fourth share of the income of the village Kulaha; the former for the construction of the temple there and the latter for the expenses of its upkeep. In the deed of waqf he stated that an oral dedication had already been made of the gher previously by him and his brother Bhagwan Das. But no evidence has been produced in support of that statement. The effect of the present suit was to create a separation in the family and thereby to give power to Gobardhan Das to dispose of his share in the family property in any way he thought proper. The waqf cannot, therefore, operate except as regards his share of gher No. 5 and of the village Kulaha. As regards the village Ram Dandi the defendants have produced certain account-books, beginning from the 26th September 1906 and ending with the 8th August 1918, wherein the income of the village and the expenses incurred in connection with the temple are detailed. The account-books purport to be in the handwriting of Sarab Sukh, who was not produced; but the evidence of Mohan Lal proves that they were maintained in the ordinary course of business by Sarab Sukh who was in charge of the endowed property. The account-books show that the entire income derived from the village Ram Dandi was applied to the maintenence of the worship of the idols installed in the house and charitable relief. They further go to show that the village, Ram Dandi, had all along been treated as waqf property and that neither Bhagwan Das nor any of his descendants even objected to the use of the income for the purposes aforesaid. If the village Ram Dandi had had been joint family property, it is obvious that the income derived from that village would have been brought into the family hotchpot and used for family purposes. That was not, however, the case. That village must, therefore, be treated as a loaqf property purchased for the benefit of Sri Luchmi Narainji Maharaj, that is, the deity who was to be subsequently installed in a temple to be constructed for his use.
14. It is contended on behalf of the plaintiff that there could be no valid and effective waqf because no temple was actually built and no idols were set up. But, as has already been pointed out, the family had obtained idols to be set up bearing the name borne in the sale-deed, and the income which was derived from the village purchased in his name was used for the purposes of worship and other charitable purposes. In fact, the actual installation of idols or the construction of a temple is not absolutely necessary for validating a deed of waqf made for such a purpose. In Chatarbhuj v. Chatarjit 8 Ind. Cas. 832: 33 A. 253 : 8 A.L.J. 34 where by a deed of gift certain zemindari property was expressed to be given to an idol, which wasnot at the time of execution in existence, and possession of the property was made over to a certain person as pujari, it was held that the deed was valid and created a trust in favour of the idol. In Bhupati Nath v. Ram Lal 3 Ind. Cas. 642 : 87 C. 128 : 10 C.L.J. 355 : 14 C.W.N. 18 it was similarly held that the principle of Hindu law which invalidates a.gift other than to a sentient being capable of accepting it, does not apply to a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's death, nor does it make such a bequest void.' The name given to a deity is only a sacred convention. The deity is supposed or believed to exist from eternity. The idol is virtually treated as a visible symbol of the deity in whose favour the dedication is made or by whom the purchase is to be effected; and the mere fact that the installation takes place afterwards, does not affect the validity of the dedication or of the purpose for which the purchase is made.
15. It only remains to consider how far the properties entered in the deed of waqf executed by Gobardhan Das on the 18th September 1918 were partible. Both the gher and the village Kulaha must be treated as joint family property because they were purchased in the name of some member of the family or another when the family was joint. The family puchased an old ancestral house and oarried on certain sugar-cane pressing business. It possessed the nucleus round which the acquisitions could grow; and in the absence of any evidence to show that these purchases were made by any member or members of the family out of separate funds, they must necessarily be treated as joint family property. But the effect of the institution of the present suit for partition was to create a separation between Earn Prasad and the other members of the family, and Gobardhan Das had, therefore, a right under the Hindu Law, to dispose of his share of the property. The waqf is, therefore, valid so far as his half share of the said property is concerned.
16. In the plaint originally filed, the plaintiff had claimed a one-sixth share, but on the death of Gobardhan Das, he amended the plaint and claimed to own a one-third share in the entire property. The Court below has rightly awarded a one sixth share to him. The claim of the plaintiff ought, therefore, to be allowed in respect of the said one-sixth share except in regard to the village Ram Dandi and a half share of the village Kulaha and gher No. 5 comprised in the waqf of the 18th September 1918.
17. The appeal is allowed in so far that the decree for partition granted by the Court below will be confined to the property other than the village Ram Dandi and a half share of gher No. 5 and of the village Kulaha mentioned in the deed aforesaid. It will be open to the defendants when a partition is effected to remove the idols lying in house No. 3 to such place as may be constructed for their reception either in that portion of gher No. 5 which may be allotted to them or in such other place as they think proper. Subject to these reservations, the decree of the Court below will be confirmed. The plaintiff shall get 5/6ths of his costs and the defendants 1/6th of their costs throughout.