1. The subject-matter of the litigation which has culminated in this appeal is immoveable property admittedly included in the estate of one Syamlal Misser, who died in 1889. He was succeeded by his widow Puna Koer, who, on the 2nd May 1899, granted two permanent leases of the disputed land to the defendants on nominal rents. Puna Koer died in 1910. On the 20th May 1911 the plaintiff, whose paternal grandfather was the brother of the father of Syamlal Misser, instituted this suit for recovery of possession on declaration that he had succeeded to the estate as reversionary heir and was not bound by the permanent leases granted by the widow. The defendants resisted the claim on the ground that the transactions impeached were lawful, valid and justified by Hindu Law. The Courts below have concurrently found that the leases had been granted to raise money for the excavation and consecration of a tank and for the erection of a wall in connection with a temple founded by Syamlal Misser shortly before his death; and the evidence shows that the premium for the two leases, namely, Rs. 523 was applied for the aforesaid purpose. The Courts below have, however, decreed the suit, in the view that the excavation and consecration of the tank and the erection of the wall were not legal necessities. On the present appeal by the defendants, we have been invited to hold that the objects specified, justified the alienations which are consequently-operative against the inheritance in the hands of the reversionary heir.
2. The test in cases of this description, where a deed by a limited owner with qualified power of alienation is impeached, is, whether the purpose for which the alienation was made was proper or legitimate. The limits of this power were defined by Turner, L.J., in a celebrated passage in the judgment of the Judicial Committee in Collector of Masulipatam v. Cavaly Vencata Narrainpah 8 M.I.A. 529 at p. 550 : 2 W.R. 61 (P.C.) : 1 Suth. P.C.J. 476 : 1 Sar. P.C.J. 820 : 19 E.R. 631. 'The widow cannot of her own will alien the property except for special purposes. For religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity.' To maintain that in every case where an alienation by a limited owner is impeached, legal necessity therefor must be established to support its validity, is to take a narrow and restricted view of the scope of the true rule on the subject. The test is, is the transaction fair and proper, lawful and valid and justified by Hindu Law; necessity is only one of the phases of the test of propriety. This is manifest from the observations of Sir James Colvile in Raj Lukhee Debea v. Gokool Chunder 13 M.I.A. 209 : 3 B.L.R. (P.C.) 57 : 12 W.R. (P.C.) 47 : 2 Suth. P.C. 275 : 2 Sar. P.C.J. 518 : 20 E.R. 529, of Lord Davey in Sham Sundar Lal v. Acchan Kunwar 25 I.A. 183 : 21 A. 71 : 2 C.W.N. 729 : 7 Sar. P.C.J. 417 and of Lord Moulton in Bijoy Gopal Mukerji v. Girindra Nath Mukerji 23 Ind. Cas. 162 : 41 C. 793 : 19 C.L.J. 620 (P.C.) 18 C.W.N. 673 : 12 A.L.J. 711 : 16 Bom. L.R. 425 : 16 M.L.T. 68 : 27 M.L.J. 123 : 1 L.W. 533 : (1914) M.W.N. 430. It is unquestionable then that the widow has a larger power of disposition for religious or charitable purposes or for purposes which are supposed to conduce to the spiritual welfare of her husband than what she possesses for purely worldly purposes. An exhaustive enumeration of these religious or charitable purposes is neither possible nor necessary; but some of them were mentioned by way of illustration in an opinion of the Pandits quoted with approval by Lord Gifford in delivering the judgment of the Judicial Committee in Cossinaut Bysack v. Hurroosoondry Dossee (1820) 2 Morley's Digest 198 : 3 Ind. Dec. (O.S.) 907, affirmed in Privy Council Clark's Rules and Orders 1834 p. 91 : Montriou's Cases on Hindu law, 477 : 1 Ind. Dec. (O.S.) 292 : Morton 85 : 1 Ind. Dec. (O.S.) 945 : Vyavastha Darpan, 1st Ed. 97, 2nd Ed. 89, 'religious purposes include dowry to a daughter, building temples for religious worship, digging tanks, and the like.' The Pandits added 'the widow has a life interest (in both moveable and immoveable property), and is entitled to the enjoyment of the same, and to dispose of the same by gift, mortgage, sale, or otherwise, for the benefit of her departed husband's soul, even without the consent of her husband's kinsmen; in so doing, she will observe moderation.' We may here refer to some very weighty observations, made by Lord Gifford, on the mode of determination of questions of this character by our Tribunals: This being a question purely of Hindu Law, great care must be taken in coming to a decision upon that subject, in order to prevent the judgment of English Judges being warped by impressions made upon their minds in consequence of their habitual application of English Law and the nature of English decisions to which they are accustomed, and to consider in what way, a Hindu Court of Justice would have decided the point.' These remarks could hardly have been borne in mind in some of the decisions quoted before us. It is not necessary for our present purpose to enter upon a minute analysis of the cases on the subject, but reference may be made to the decisions in Mahoda v. Kuleani (1803) 1 Mac. Sel. Rep. 82 : 6 Ind. Dec. (O.S.) 62; Ramchunder v. Gungagovind (1826) 4 mac. Sel Rep. 147 : 7 Ind. Dec. (O.S.) 110; Kartick Chunder Chukerbutty v. Gour Mohun Roy 1 W.R. 48; Runjeet Ram Koolal v. Mahomed Waris 21 W.R. 49; Ram Kawal Singh v. Ram Kishore Das 22 C. 506; Churaman Sahu v. Gopi Sahu 1 Ind. Cas. 945 : 37 C. 1 : 13 C.W.N. 994 : 10 C.L.J. 545; Harmanage Narain Singh v. Ram Gopal Achari 19 Ind. Cas. 417 : 17 C.W.N. 782 Jagjiban v. Deo Shankar (1812) 1 Bor. 394 at p. 436; Kupoor v. Sebak Ram (1816) 1 Bor. 405 at p. 448; Chunnee Lal v. Jussoo (1813) 1 Bor. 55 at p. 60; Gopalla v. Narayana (1850) Mad. S.D.A. 74; Rama v. Manga 8 M. 552; Lakshminarayanna v. Basil 11 M. 288; Vappuluri v. Garinalla 6 Ind. Cas. 240 : 34 M. 288 : 8 M.L.T. 74 : (1910) M.W.N. 222 : 20 M.L.J. 798; Gudimetla Vancatarazu v. Bollozu Kottaya 16 Ind. Cas. 139 : 23 M.L.J. 223 : 12 M.L.T. 230 : (1912) M.W.N. 861; Puran Dai v. Jai Narain 4A. 482 : A.W.N. (1882) 115. These cases generally recognise the doctrine that a Hindu widow, daughter or mother is entitled to alienate a small portion of the estate in her hands for religious purposes, though the actual result reached in individual decisions may be open to criticism upon their special facts. In some of these cases, however, a distinction is drawn between acts of which the religious merit is solely acquired by the female heir and acts of which the religious merit accrues to the deceased or is shared by the female heir with him. As Prannath Saraswati points out, however, in his erudite lecture on the Hindu Law of Endowments (page 167), this distinction is not supported by the texts in the case of the widow, though it may be valid in the case of the daughter or the mother. According to a text of Vrihaspati quoted in the Dayabhaga, Chapter XL, Section 1, the husband and wife participate in the effects of good and civil actions, and this mutual relation is not dissolved by the death of either partner. This is emphasized in another passage (Dayabhaga, Chapter XI, Section 1, Clauses 43 and 44), where it is expressly stated that the widow performs acts spiritually beneficial to her husband from the date of her widowhood, and she is enjoined to be assiduous in the performance of religious duties, because, according to a text of Vyasa, she thereby conveys her husband, though abiding in another world, and herself to a region of bliss. To the same effect, is the Viromitrodaya of Mitra Misra, Chapter III, part 1 Section 3 (Shastri Golap Chander Sarkar's translation, page 136), where reference is made to a text of Katyayana which recognises the right of the widow to make gifts for spiritual purposes and also to mortgage or sell so much as sufficient for such purposes, even in religious ceremonies that are optional, and a fortiori, in those daily and occasional ceremonies which are enjoined by the Shastras and the omissions whereof entail demerit. The Vimmitrodaya (page 141) also maintains that in making gifts for spiritual purposes as well as in making sales or mortgages for the purpose of performing what is necessary in a spiritual or temporal point of view, the widow's right extends to the entire estate of her husband; the author, in fact, reads the injunction as to moderation as restricted to improper temporal uses. This view, however, has not been accepted, and it has been ruled that a gift of a moderate portion of the property of her husband by the widow, with a view to his spiritual benefit, is valid (See Jagannath's Digest, translated by Colebrooke, Book I, Ch. 5, Section 3, Pl. 195; Book If, Ch. 4, Section 1, Pl. 2 & 3; Book V, Ch. 8, PI. 399). 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. Tested in the light of these principles, what is the position of the parties here? Shyamlal Misser had, shortly before his death, founded a temple. His widow raised Rs. 528 by the grant of two perpetual leases with a view to excavate and consecrate a tank and to complete the walls of the temple buildings. The deeds contain recitals that her husband had enjoined her to carry out the works mentioned. These recitals, as pointed out by the Judicial Committee in Brij Lal v. Musammat Inda Kunwar 23 Ind. Cas. 715 : 36 A. 187 (P.C.) : 19 C.L.J. 469 : 26 M.L.J. 443 : 18 C.W.N. 649 : 12 A.L.J. 495 : (1914) M.W.N. 405 : 15 M.L.T. 395 : 16 Bom. L.R. 352 : L.W. 794, are not by themselves conclusive evidence of their truth, and the facts alleged a should he proved aliunde. But obviously, after the death of both Shyamlal Misser and Puna Koer, independent evidence is not a likely to be available for the determination of the question, whether or not the husband gave any specific instructions to the widow. Assume, then, that the alleged instructions have not been proved; still the fact remains (that the widow raised money and applied i the same for completion of the buildings and for the excavation and consecration of a tank in connection with the temple. The I water of the tank would be needed for purposes of ablution and worship, but even apart from this, the excavation and con secration of a tank are acts of high religious merit, as is authoritatively laid down in a series of texts quoted in the Jala-shaotsargatattwa of Kaghunandan and the Chaturbargachintamoni of Hemadri (Denakhanda, Cha. XIII, Asiatic Society's Ed., p. 1003). Many of these texts which extol the religious merit of the construction, consecration and maintenance of tanks and other reservoirs for storage of water, are translated by Prannath Saras wati in his tenth lecture on the Hindu Law of Endowment. We feel no doubt what answer a Hindu Court of Justice would have given, if a question had been raised before it as to the propriety and validity of these acts of the widow from the point of view of Hindu Law. As Lord Gifford said in Cossinaut Bysack v. Hurroosoondry Dossee (1820) 2 Morley's Digest 198 : 3 Ind. Dec. (O.S.) 907, affirmed in Privy Council Clark's Rules and Orders 1834 p. 91 : Montriou's Cases on Hindu law, 477 : 1 Ind. Dec. (O.S.) 292 : Morton 85 : 1 Ind. Dec. (O.S.) 945 : Vyavastha Darpan, 1st Ed. 97, 2nd Ed. 89, 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 whenever such disposition shall be made and must be consistent with the law regulating such disposition. In the case before us, the disposition has been made for the performance of a work of recognised religious merit and cannot consequently be treated as other than lawful, valid and proper.
3. One other question requires consideration, namely, whether the alienation covers a reasonable portion of the property of the husband of the lady; this, as Lord Gifford said, must be determined with reference to the circumstances of the particular disposition. The Courts below did not direct their attention to this aspect of the case, possibly because its true bearing on the question in issue was not realised; and it seemed at one stage as if a remand might be necessary for the investigation of this point on fresh evidence. An examination of the record, however, shows that there are materials sufficient to enable us to come to a conclusion on the matter. Several other suits were instituted, simultaneously with the present suit, for the cancellation of other alienations by Puna Koer. These cases show that Shyamlal Misser left more than ten bighas of land and that the area now in dispute slightly exceeds two bighas. We are of opinion that, in the circumstances of this case, the area alienated did not constitute an unreasonably large fraction of the entire estate. In the case of Ramchunder v. Gnngagovind (1826) 4 Mac. Sel. Rep. 147 : 7 Ind. Dec. (O.S.) 110, the Pandits indicated their opinion that the widow might validly alienate, for religious purposes, three-sixteenths of her husband's property. In Churaman Sahu v. Gopi Sahu 1 Ind. Cas. 945 : 37 C. 1 : 13 C.W.N. 994 : 10 C.L.J. 545 the gift which was sustained, was of a portion of the estate worth more than one-fourth and less than one-third of the total value. In these circumstances, we are unable to say that the alienation was unreasonable in extent.
4. The result is that this appeal is allowed, the decree of the District Judge set aside and the suit dismissed with costs in all the Courts.