Macpherson and Ameer Ali, JJ.
1. These two appeals, which arise out of one suit, are preferred by the plain tiffs and by the defendant respectively.
2. The plaintiffs are the reversionary heirs of Kuldip Narain Singh, who died a good many years ago, leaving a widow, Dhanesh Kunwar. She, having inherited his estate, died in 1886. The defendant is the pujari of an idol to which Mouzah Ahmadpore Khas, which it is sought to recover in this suit, was dedicated and given by Danesh Kunwar in 1865.
3. The plaintiffs allege that the permanent alienation of her husband's property for such a purpose is invalid. The defence is that the mouzah was the self-acquired property of the widow, and, that even if it was not, the alienation was good and effective.
4. The Subordinate Judge found that the mouzah belonged to Kuldip Narain, and devolved on his widow as heiress, and that she had no power to alienate it permanently by dedicating and giving it to the idol. He consequently gave the plaintiff's a decree, excluding only a small portion of the land, and it is to this excluded portion that the plaintiffs' appeal (No. 199) relates. The appeal of the defendant (No. 217) raises the same questions which were raised in the lower Court, and it will be convenient to consider this first.
5. The finding that the mouzah belonged to Kuldip Narain, and that it was not acquired by his widow, is unquestionably right for the reasons given by the Subordinate Judge, and has hardly been questioned before us. The point which has been pressed is the validity of the alienation.
6. It is argued, on the strength of certain texts in the Mitakshara, that the widow had absolute power to alienate for religious purposes property which she inherited from her husband, and in support of the argument two cases, reported in Borrodaile's Reports, Vol. I, pp. 394 and 415 (Edition of 1862, pp. 436, 448) were cited. Those cases are of very ancient date, the facts are not fully reported, it does not appear what proportion the property alienated bore to the whole estate, and in so far as they may purport to support the argument broadly put forward, they are not consistent with the later cases on the subject.
7. In the Collector of Masulipatani v. Cavaly Vencata Narainapah 8 Moo. I.A. 550 their Lordships say that 'for religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, the widow has a larger power of disposition than that which she possesses for purely worldly purposes.' No case has gone the length of holding that the power of disposition for pious and religious purposes is unqualified. In the case of Lakshmi Narayana v. Dasu I.L.R. 11 Mad. 288 the alienation was uphold, on the ground that it related to a very small piece of land, and was, for an indispensable religious necessity, not for the spiritual welfare of the widow, but for that of her husband. In the case of Rama v. Ranga I.L.R. 8 Mad. 552 it was held that the pious purpose must be in the nature of a spiritual necessity, unless at least the alienation was reasonable in the circumstances of the family, and the property alienated was but a small portion of the property inherited from the husband. In the case of Puran Dai v. Jai Narain I.L.R. 4 All. 482 much the same view was taken.
8. Here the idol to which the land was given was not established by Dhanesh Kunwar's husband, but by his mother. The husband had not in his lifetime thought it necessary to make any provision for the maintenance of the idol, and the dedication was prima facie one more for the widow's own spiritual welfare than for that of her husband. The property alienated was, moreover, of considerable value, and, according to the only evidence there is on the subject, represented nearly one-third of the estate inherited. The alienation cannot, therefore, be supported, either on the ground that it was for a religious necessity, that is to say, for the spiritual welfare of her 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. We think, therefore, that the Subordinate Judge has rightly held that it cannot hold good against the reversioners, and that the defendants' appeal fails.
9. The Subordinate Judge was, however, wrong in excluding, from the land decreed, the bungalow house, thakurbari, and the garden attached to the thakur-bari, and the land generally referred to in the zurpeshgi lease executed by Kuldip Narain on the 4th July 1857. He has done so on the ground that Kuldip Narain, having excluded these properties from the operation of the lease, exercised no right of ownership over them. This, however, is not a proper inference. All that can be said is that he wished to, and did, retain them in his own possession, and so excluded them. Apart from the deed of 1865 executed by Dhanesh Kunwar, it is not alleged that there was any dedication or any alienation of the excluded properties, and if the deed fails, it must fail also as regards these.
10. The result is that the defendants' appeal fails and must be dismissed with costs, and that the plaintiffs' appeal succeeds. The decree will be amended by striking out the words 'save and except the bungalow house, thakurbari, and the garden attached to the thakurbari, and gods and their ornaments, &c;, which are stated in the zurpeshgi deed of Kuldip Narain bearing date the 4th July 1857.' The plaintiffs will get their costs in their appeals.