Macpherson and Wilkins, JJ.
1. The appellant, in order to succeed in his suit, must show that there has been a valid gift or dedication of the property to the idol, and that he is entitled to be the shebait.
2. Behari Lal Boral, who was the former owner of the property, made a will on the 17th Bysak 1280. In it he expressed his intention to establish the service of an idol, to construct a temple, and to appoint his wife Atarmoni to be the shebait. In the event of his being unable to effect this, he provided that she shall, by virtue of his will and in the exercise of powers equal to big own, establish the service of an idol, and by making a will in favour of it, manage the properties, construct a temple, and perform the sheba. Then there are certain provisions relating to the management and restricting alienation, and authorising her to appoint another person to be the shebait, The will concludes by providing that if Atarmoni died before doing those acts, the heirs of his spiritual preceptor and his family priest and his heirs should maintain the sheba and manage the properties.
3. On the 19th Bhadra 1280 he executed an anumatipatro. This refers to the will and its provisions, and authorises Atarmoni to adopt one to five sons in succession. It provides that during her lifetime she should possess and manage the properties left by him; that on her death the dattaka son should be the shebait, and that if be died unmarried his spiritual preceptor and his priest with their sons, grandsons, &c.;, in succession, should be the shebaits and as such possess the properties and perform the shebas. Behari Lal die(sic) without making any further disposition of his property, and at the time of hit death there was no idol in existence. Atarmoni did not take out probate of her husband's will, and in the ordinary course of succession she would as his widow and heiress take his estate. In 1875 she established an idol, and in 1883 she adopted a son who died soon after the adoption. Atarmoni died in. 1887, having made a will by which she appointed the appellant to be the shebait. The respondent is the brother of the adopted son.
4. We agree with the learned Subordinate Judge that Behari Lal made no devise of his property to his widow or to the idol, and that his widow succeeded as his heiress. Beading together the will and the anumatipatro it could at the most be said he gave a life-estate to his widow with power to make a gift to an idol to be established by her, or that he appointed her executrix with a similar power. It does not seem to us to matter much which view is taken. If there was a gift to the idol it was bad because there was no idol in existence at the time of his death, if there was a power to make such a gift the power was ineffective, because, on the authority of Bai Motivahoo v. Bai Mamoobai (1897) I.L.R. 21 Bom. 709: L. B. 24 I. A 93 we think that the power must be to convey to a person who was in existence either actually or in contemplation of law at the death of the testator, and the idol to which the dedication is said to have been made was not then in existence.
5. We are unable to agree with the learned Vakil for the appellant that the idol was in existence in contemplation of law. The deity, no doubt, is always in existence, but there could be no gift to the deity as such, and there was no personification of the deity, to whom the gift could have been made or who was capable of taking it. We must hold, therefore, that there was no valid gift or dedication to this idol either by Behari Lal directly or by his widow under the powers conferred upon her by the will.
6. It is argued that, assuming there was an intestacy, and that Atarmoni succeeded as her husband's heiress, the gift of the whole of the property to the idol would still be good because it was made in accordance with the w(sic) expressed wish and intention of her husband. But Atarmoni adopted a (sic) under her husband's authority and the adoption related back to the (sic) of her husband's death. On the adoption the widow was divested the adopted son took. Even assuming that she kept the life-estate she h(sic) power to make a gift which would enure after her death. We may observe also that the anumatipatro in effect revoked the power of appointing a shebait conferred on her by the will. An adoption being made, the succession to the shebaitship was regulated. In our opinion the appellant cannot in any view of the case succeed, and the appeal must be dismissed with costs.