PALLAYYA AND MALLAYYA Vs. RAMAVADHANULU

JUDGEMENT

(1.) We do not think that the judgments of the Subordinate Judge can be supported. We think that his construction of Exhibit I as not amounting to a dedication of the idol and the land in question as a public religious institution is erroneous.

(2.) By Exhibit I the plaintiff dedicated the land to the idol, so that a temple may be built on it, and he adds that in ease a permanent temple is built thereon for the idol, neither he nor his heirs will raise any dispute". These words would be inapplicable if it was a trust for a private family idol which the plaintiff was creating. A stone temple was being created on the site by the 5 defendant though it was not completed at the date of the suit. The District Munsif fully refers to other circumstances which clearly support the view which we take based on the terms of Exhibit I.

(3.) We are clearly of opinion that the dedication of the idol and land to the public is not a gift within the definition of that term in Section 122 of the Transfer of Property Act, In our opinion the word "donee" is not applicable to the public. It must denote an ascertained or ascertainable person or persons by whom or on whose behalf the gift can be accepted or refused. Further under Exhibit 1 there is really no transfer of property (of. Section 122) the plaintiff declaring and constituting himself under Exhibit I the Dharmakarta or trustee of the temple. Exhibit I amounts only to a declaration of trust in relation to immoveable property for a public religious purpose, the plaintiff, the author of the trust, declaring himself to be the trustee without transferring his ownership in the trust properly to another. The Indian Trusts Act No. 11 of 1882 being inapplicable to religious endowments (Vide Section 1), neither is Exhibit I governed by Section 5 of that Act. Though Exhibit I was not voluntarily registered by the plaintiff, its compulsory registration is effectual fur the purpose of the Registration Act and the transaction not being a " gift" within the meaning of the Transfer of Property Act nor governed by the Indian Trusts Act, the decision in Ramamirtha Ayyan V/s. Gopala Ayya I.L.R. 19 M 433 on which the Subordinate Judge relies is inapplicable to the case. We therefore allow second appeals 1431 and 1432 and reversing the decrees of the Subordinate Judge restore those of the District Munsif with costs of defendants 1 to 4 and 7 in this and in the lower appellate Court.