JANARDHAN KASHINATH KASAR Vs. JANARDHAN VISHWANATH SHASTRI

JUDGEMENT

(1.) THE success of this first appeal depends upon the question whether the trust created by Ragho Shastri was void or voidable. The trust is in the. nature of a gift of the entire family property to the family deity with a right of management vested in a body of trustees all strangers to the family is beyond dispute. It could not be regarded as a. family settlement for the simple reason that the same doss not purport to make any provision for the author of the trust or for the matter of that, for the plaintiff-respondent. The validity or otherwise of the trust is made by the defendants to rest upon the disputed fact of a relinquishment of his interest by the present plaintiff as per writing dated 6-5-1918, which is not produced in original in the case. That writing is both unstamped and unregistered and as such it is inadmissible in evidence for the purpose for which registration is necessary under Section 49 of the Registration Act. The admitted existence of a writing precludes the proof of the fact of the relinquishment by any secondary evidence as the primary evidence is itself inadmissible. Had the defendant's case been that the release was byparol the matter would have been different of Imam Ali v. Baij Nath Ram Saheb [1906] 33 Cal. 613. The position therefore is that the defendants cannot legally prove the alleged relinquishment of his interest by the plaintiff. So that in the eyes of the law the plaintiff in spite of the so-called attempt at relinquishment continued to be the joint owner of the property of the family of which he was an undivided coparcener along with Ragho Shastri, and he could not be treated as dead on the analogy of the release referred to in Wasantrao v. Anandrao [1904] 6 Bom. 925, quoted with approval in Vinayak v. Laxman [1918] 14 N.L.R. 56.

(2.) THE result therefore is that Ragho Shastri was not competent to make a voluntary settlement by way of trust in favour of the deity so as to bind the plaintiff. The transaction was a nullity and the estate remained wholly unaffected by it, as the learned J.C. pointed out in the aforesaid case at p. 60. C. also Sabha Ram Teli v. Makdu [1899] 12 C.P. 63. There are no equities in favour of an alienee taking under a voluntary settlement as there are in favour of transferees for valuable consideration. I am not prepared to accept the contention of the appellant's pleader that the creation of the trust in dispute must be treated as one on an equal footing with a transfer for valuable consideration as the securing of merit by dedication of property to the service of God must also be treated as forming good valuable consideration though it cannot be measured in coin. If this argument were to prevail then even a gift will have to be treated as one with valuable consideration, which on the face of it is unsound. The only legitimate conclusion therefore is that the trust created by Defendant No. 1 Ragho Shastri was invalid or void ab initio and of no effect and did not in any way affect the plaintiff's interest. The dedication by Ragho Shastri, as also the so-called relinquishment by the plaintiff being thus of no avail, the plaintiff's right of survivorship clothed him with full ownership of the entire property as soon as Defendant No. 1 Ragho Shastri relinquished the world and entered the order of Sanyasi on 1-9-1918.

(3.) THE result is that the lower Court's decree passed in plaintiff's favour must stand. The appeal therefore fails and is dismissed with costs.