BHUPATI NATH SMRITITIRTHA Vs. RAM LAL MAITRA

JUDGEMENT

(1.) The questions referred for our determination are: (i) Does the principle of Hindu law, which invalidates a gift other than to a sentient being capable of accepting it, apply-to a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's death and make such a bequest void? (ii) Whether the cases of Upendra Lal Boral V/s. Hem Chundra Boral (1897) I.L.R. 25 Calc. 405, Rojomoyee Dassee V/s. Troylukho Mohiney Basset (1901) I.L.R. 29 Calc. 200 and Nogendra-Nandini Dassi V/s. Benoy Krishna Deb (1902) I.L.R. 30 Calc. 521 have been correctly decided, so far as they lay down the proposition that a gift to a Hindu deity, whose image is to be established and consecrated in future, is void?

(2.) The disposition which has led to this reference is contained in the will of Umesh Chandra Lahiri, and is in these terms: (Ka) All my properties shall be placed in the hands of Babu Ram Lal Maitra, son of late Ram Chandra Maitra of Haripur, and the grandsons of my father-in-law, Sriman Kali Prasanna Maitra, Sriman Chandra Maitra, Sriman Pratap Chandra Maitra, Sriman Abhay Govinda Maitra, etc., as trustees. They shall according to the provisions made in para. 4 pay to the persons mentioned in that para., their monthly allowances, as fixed by me: and shall defray the expenses for the performance of rites for the spiritual welfare of my mother, full sister and cousin (father's sister's daughter): and shall pay to my gurudev Srijukta Hari Nath Bhattacharya of village Purbasthali in the district of Burdwan Rs. 10 as barshik and to my purohit Srijukta Srish Chandra Chakrabarty of Salkeah Rs. 5 as barshik, and after defraying the expenses for the sheba and worship, during my turn of the ancestral ijmali bighraha, Iswar Gopal Dev Thakur, Saligram Narain and Iswar Mahadev Thakur, they shall spend the surplus income which may be left in the sheba and worship of Kalee after the name of my mother, i.e., in the name of Iswar Anandamoyee Kalee. The image of the deity shall be established and consecrated at my dwelling-house or at Kashee, and in case any of the persons mentioned in para. 4 dies, then the allowance which I have fixed for him or her, during his or her lifetime, shall, after his or her death, be spent for the worship of the said Iswar Anandamoyee Kalee. (Kha) If the said. Ram Lal Maitra or any of the grandsons of my father-in-law dies, his heirs shall be appointed in his place, in order of seniority and act according to the provisions made in para, (ka) and hold the estate as trustees. If any of those heirs be a minor, then his lawful guardian shall hold the estate during his minority, and when he will have attained his majority then the estate shall pass into his hands as a trustee.

(3.) The will then goes on to provide that if for any reason the image of Iswar Kalee Debee is not established and if the income of the testator's properties is not used for her sheba and worship, then the testator's gurudev and his sons, grandsons, etc, in succession should get his Rangpur properties and possess the same in absolute right from generation to generation