Richards and Tudball, JJ.:— This appeal arises out of a suit brought for possession of certain property on the setting aside of a deed of endowment, dated the 5th of December, 1905. The suit was based on two grounds; first, that undue influence and fraud had been practised, and secondly, that on the date of the endowment the image had not been duly consecrated and that therefore under the Hindu law the gift was invalid. The lower appellate court held that no fraud or undue influence had been established, but found that the idol had no legal existence at the time of the execution of the gift and that therefore the gift is invalid under the Hindu law.
On appeal it is urged that in view of the ruling of this Court in Mohar Singh v. Het Singh, which followed the ruling of the Calcutta High Court in Bhupati Nath Smrititirtht v. Ram Lal Maitra, the decision of the lower court is wrong. The only difference between the case which is now before us and the cases which were the subject-matter of the two above-mentioned decisions, is that the gift in the latter cases came into force on the death of the donor, whereas in the present case the gift was made during the lifetime of the donor. In principle there is no difference whatsoever between the two cases. A trust was clearly created in the present case for the worship of an idol which was to be consecrated and placed in a temple, and the original defendant, Bhola, was made manager and trustee thereof.
Following the two above mentioned decisions we hold that the lower court was in error on this point of law and therefore the suit should have been dismissed.
We allow the appeal and set aside the decrees of the courts below, the plaintiffs' suit standing dismissed with costs in all courts.
Appeal allowed.