Mathur, J.:— This is an appeal on behalf of the defendants directed against a decree of the learned Civil Judge of Bareilly, dated 21-10-1942. The plaintiff-respondent Mt. Kausilla Devi raised an action for possession of the plots in dispute, known as Sagbari and Nudah Umar Khan, on a declaration that the deed of compromise dated 22-7-1940, was entirely unlawful and ineffectual against her. The allegations set forth in the plaint were, that by a sale deed dated 16-8-1936, the plaintiff purchased the plots in dispute for a consideration of Rs. 10,000 from the relations of her husband with her own money ismfarzi in the name of Goswami Bal Krishna, the predecessor-in-title of the defendants-appellants, that the obtained possession over the property, but Goswami Bal Krishna managed the property, as her agent. That in the year 1940, as Goswami Bal Krishna had cut some trees from the said plots and her lessee Rudra was obstructed by Nabi Buksh who claimed to be a lessee from Goswami Bal Krishna, she served a notice on the latter, in reply to which her proprietary title was denied. That subsequently, Goswami Bal Krishna started proceedings under Section 145 of the Cr PC, against her and also filed a complaint under S. 395, Penal Code, and thus induced her to enter into a compromise dated 22-7-1940, by which she created a waqf of the property in favour of Sri Thakur Radha Krishnaji Maharaj appointing Goswami Bal Krishna as a manager and Sarbarahkar and the latter took upon him-self to have the cases in the criminal Courts struck off. It was contended on these facts that the said deed of compromise was unlawful and void as (a) the plaintiff-respondent could not get an opportunity to obtain independent advise in respect of the compromise; (b) having threatened the plaintiff to implicate her in absolutely false criminal cases and bringing unlawful pressure to bear upon her, the compromise was obtained from the plaintiff; (c) the defendant was the Guru of the plaintiff, hence the plaintiff was under the influence of the defendant and could not refuse his proposal to enter into a compromise; (d) no idol was permanently installed at any place hence no valid waqf could be made nor was it made.

2. The defence of the defendants-appellants was that Goswami Bal Krishna was not a Guru of the plaintiff, that he had purchased the property with his own money and remained in its possession; that the plaintiff had independent advice, and that it was under pressure that Goswami Bal Krishna agreed that the property be made waqt and entered into a compromise.

3. The learned Civil Judge framed seven issues out of which the three following are now material:

“(1) Whether the grove in dispute was purchased farzi in the name of Goswami Bal Krishna from the money of the plaintiff?

(2) Whether Goswami Bal Krishna had purchased the grove in question from his money?

(3) Whether any valid waqf was created with regard to the grove in question? Is the compromise dated 22-7-1940, invalid for reasons stated in Para. 13B of the plaint?

4. His findings on all the three issues were in favour of the plaintiff, and consequently he gave a decree for declaration that the deed of compromise dated 22-7-1940, was not binding on the plaintiff and that the defendants should deliver possession of the disputed property to her. The defendants have filed this appeal and they have challenged the findings of the learned lower Court on all the points. On behalf of the plaintiff-respondent a cross-objection has been filed and it relates only to the costs, as the lower Court, while decreeing her suit, did not allow her the costs of the suit.

5. It appears that out of the consideration of the sale deed dated 26-8-1936, by which the plots in dispute were purchased in the name of Goswami Bal Krishna Rs. 2000 was paid in cash to the vendors as earnest money and Rs. 7,000 was paid in cash before the Sub-Registrar, while for the remaining sum of Rs. 1000 a pro-note was executed by Goswami Bal Krishna in favour of the vendors. Out of this amount of Rs. 7000 paid in cash before Sub-Registrar the sum of Rs. 5000 was raised by mortgaging the plots in dispute in favour of Shib Shankar and another. This mortgage was executed by Goswami Bal Krishna. Prom the evidence on the record it seems clear that the entire sale consideration was provided by Mt. Kausilla Devi out of her own money and some money of Mt. Ganga Devi which she had in her hands. This fact is admitted in the deed of compromise dated 22-7-1940, and is also proved from the oral evidence produced on behalf of the plaintiff. The story of the defendants-appellants that Goswami Bal Krishna provided any part of the money appears to be a myth. He was never possessed of any means or of any property from which he could have that amount. On behalf of the defendants a copy of the savings bank account of Goswami Bal Krishna was produced to show that out of it he drew two sums of Rs. 5000 each, on 3rd August and 11-8-1937 respectively. But that very account shows that he had deposited that amount only a few months before on 11-5-1937. The evidence produced on behalf of Mt. Kausilla shows that she had sent Rs. 1000 each on two occasions to Goswami Bal Krishna for payment to the mortgagees and to Ram Kumar. I have therefore no hesitation in holding that the consideration of the sale deed of 26-8-1936, was provided by Mt. Kausilla Devi. In benami transactions generally it is the source from which the consideration is paid that decides the ownership of the property. In my opinion, that should be sufficient to hold that Mt. Kausilla Devi the plaintiff was the owner of the property.

6. In this case certain considerations have been raised in order to show that although she provided the money Goswami Bal Krishna was the real owner. It has been urged that it was never intended that she should have a beneficial interest in it. It is first argued that no good reason is assigned why the property should have been purchased ismfarzi in the name of Goswami Bal Krishna. Mt. Kausilla Devi has stated that her husband was interested in the property, so she wanted to purchase the same, but her relations to whom the property belonged were not willing to let her have it. At first sight this statement does not seem to be very convincing, but when the facts are further investigated, it would appear that her conduct was quite natural. The property in dispute belonged to a joint family of which the plaintiff's husband was a member. He was taking a keen interest in the property and according to Para 2 of the plaint, had made improvements in it. But subsequently when after the death of the plaintiff's husband there was a litigation the plaintiff was not given any share in the property, but was only allowed a certain sum as maintenance. She was, however, anxious to have this property, but her relations, partly because of the litigation that had ensued between them, and partly on account of the delicacy in settling the price were not willing to transfer the property to her. It was, therefore, not surprising that she got the property in the name of Goswami Bal Krishna who was a spiritual preceptor of at least some members of the family. If this statement be taken as true, it would make it highly improbable that she at any time intended to part with that property by creating a waqf. Great stress has been laid on the fact that after the purchase Goswami Bal Krishna was allowed to remain in possession. If it is true that the relations of the plaintiff were not willing to transfer the property to her, it was necessary at least for some time to keep up appearances and to allow Goswami Bal Krishna to remain in possession. It was necessary to raise an amount of Rs. 5000 by mortgaging the property, and it was, therefore, mortgaged by Goswami Bal Krishna in whose name it stood. For some time after that the income of the property was to go towards the satisfaction of the mortgage and as Goswami Bal Krishna was liable to pay the amount, he remained in possession and paid off the mortgage. In my view, no inference against the plaintiff-respondent can be drawn from this fact of possession. In any case, these considerations are not sufficient for holding, that the general rule of law, that the person, who provides the money is the owner of the property in a benami transaction, is not applicable to this case.

7. The next point to be considered is whether any lawful and enforceable compromise was entered into on 22-7-1910, and whether it did create a valid waqf. There is sufficient evidence to show that Mt. Kausilla Devi had an opportunity of getting independent advice as she was assisted by Babu Surya Prakash a lawyer practising in Bareilly and who was her near relation. I do not think it is necessary to discuss this point any further.

8. The learned Civil Judge has found that as the compromise dated 22-7-1940, contained an agreement for stifling a prosecution, it was opposed to public policy, and was as such, unlawful. He further held that as no idol was in existence at the time of the creation of the waqf, it was not valid. On both these points I am in full agreement with the conclusions of the learned Civil Judge.

9. A great deal of argument has been advanced on the point that according to Indian statute it is only the failure to give information of the commission of certain offences which is punishable by law, and that if a promise is made not to lay information of such an offence it would be unlawful. In my humble opinion this point hardly arises in this case, and it need not be considered. Here the prosecution had already originated on the basis of a complaint, and the only question would be whether it would be against public policy or not, to allow the complainant to drop those proceedings, for a consideration.

10. It is then argued that it is not within the province of a complainant to withdraw a prosecution, and that his duty ends after he has lodged a complaint. I may again point out, with respect, that in this case no question arises whether it was legal or otherwise to compound an offence. It, however, always depends on the nature of the offence, and if it is uncompoundable according to the provisions of the Code of Criminal Procedure, it would certainly be unlawful to compound it for a consideration. Section 252 of the Cr PC, certainly lays down that on ascertaining from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, the Magistrate shall summon such persons to give evidence before him as he thinks necessary. This technicality does throw the responsibility of summoning the witnesses on the Magistrate, but in complaint cases it practically rests with the complainant to proceed with the case or to drop it. If a complainant agrees for a consideration to drop the proceedings merely by absenting himself or not assisting the Court any further that consideration would, in my opinion, be certainly unlawful as opposed to public policy. In this connection reference may be made to illust. (h) of Section 23 of the Contract Act, which lays down:

“A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void as its object is unlawful.”

11. Before proceeding further I may just point out that according to a Privy Council case reported in 16 A.L.J 9051, illustrations are a part of the Statute and are entitled to the same weight. It seems clear to me that if in consideration of not giving his assistance to the prosecution of B, A gets a promise from B to get his things back, he cannot be allowed to enforce that agreement. The intention of the law appears to be that it would be against public policy to permit an agreement like that. The expression ‘public policy’ is a rather elastic term, and it would be difficult to define it and to classify agreements opposed to public policy. But the illustration just cited gives a clue to the intention of the Legislature. I may in this connection refer to a case reported in 1937 A.L.J 3332 which supports the view that I am taking. The two criminal cases for which a provision was made in the deed of compromise that they shall be struck off were, one under Section 145 of the Cr PC, and the other under S. 395, Penal Code. It is true that the proceedings under S. 145 cannot be called a criminal prosecution. The other case under S. 395, Penal Code, was against the servants of Mt. Kausilla Devi, and it is argued that she was not directly concerned with it. It seems from the reading of the complaint which is printed at page 57 of the paper-book that she, Mt. Kausilla Devi, was not named as an accused, but the following allegations were made against her and she was liable to be hauled up and prosecuted:

“So far as I could ascertain at the grove this was done at the instigation of Mt. Kausilla and the stolen property has also been deposited in her house and is still there. In case sufficient evidence is available, a re-guest shall be made for action against Mt. Kausilla Devi also”

12. This was both, an information given against her for an offence under S. 412, Penal Code, and a threat to prosecute her. Mt. Kausilla Devi belongs to a very respectable family and was about 80 years old on the date when she was examined in the lower Court. It is no wonder that she got alarmed at the prospect of being dragged into Court and being humiliated by being tried for such a heinous offence. I do not think that the fact that the complaint was a false one, or that the dispute was of a civil nature matters in the least. Once a prosecution is launched, whatever its merits may be, the position of an accused person is far from enviable. It would be certainly against public policy to uphold an agreement by a person in that predicament to pass a consideration for dropping a prosecution against him. In the present case it appears to me that Mt. Kausilla Devi agreed to create a waqf and to confer unlimited powers on Goswami Bal Krishna and his heir in consideration of the cases under Section 145 of the Cr PC, and S. 395, Penal Code, being struck off. On page 68 of the paper-book the order of the Magistrate dismissing the complaint under S. 395, Penal Code, is printed. It runs:

“Complainant is absent. There is no prima facie evidence of any offence of any kind on this file. Complaint is dismissed and accused are discharged.”

13. Whatever may be the legal duties of a Magistrate, it invariably happens in complaint cases that when a complainant is absent the complaint is dismissed and the accused is discharged. No Magistrate ever takes the trouble of taking upon himself the responsibility of summoning any evidence and prosecuting the case to its logical end. The accused who can, by agreeing to pay a consideration, induce the complainant to stay his hands can reasonably be sure of escaping the consequences. In this view of the matter I think the compromise was opposed to public policy and the consideration of the agreement to create a waqf was unlawful and void.

14. I find no difficulty in believing the evidence of the plaintiff that at the time when the compromise or the deed of waqf was executed no idol of Sri Thakur Radha Krishnaji Maharaj was in existence, and therefore no valid waqf could be made. No great reliance can be placed on the deed dated 22-7-1940, the validity of which is in dispute, for holding the existence of the idol. Even in that deed it is recited that the idol was in possession of Mt. Kausilla Devi and was to be taken to Bindraban on Kunwar Sudi 10th Sambat 1997, the Dasehra day, to be installed in the house of Goswami Bal Krishna. It is palpably false that the idol was taken to Bindraban and installed there, in view of the fact that the suit was instituted before the Dasehra day fixed for taking away the idol. If it has not been installed, it cannot have a juridical existence, because in 7 C.L.R 2783 it was held that an idol cannot be said to have a juridical existence unless it has been consecrated by proper ceremonies and thus has become spiritualised. It has, however, been argued that the existence of an idol is not a sine quo non for the validity of a waqf deed. Reference has been made to a Full Bench case reported in 37 Cal. 1284. What has been laid down in that case is that a bequest to trustees for the establishment of an image and the worship of a Hindu deity after the testator's death was valid. To my mind there is a clear distinction between a bequest or gift made in favour of the idol himself and one made in favour of the trustees. The first fails when the idol does not exist, but the second is not vitiated in accordance with the principles laid down by the Full Bench.

15. A number of cases, namely 25 Cal. 4055, 29 Cal. 2606 and 30 Cal. 5217, were cited on the other side, but it is stated that they have been overruled by the Full Bench case reported in 37 Cal. 128. I find, however, that they have been overruled only so far as they were in conflict with the view of the Full Bench. I do not think that it can be doubted for a moment that the waqf in favour of the idol himself who is not in existence would be invalid. The difficulty can certainly be bridged over by appointing trustees and charging them with the duty of installing an idol. There are also two cases of this Court reported in 33 ALL. 2538 and 53 ALL. 7109. In the first of these cases, it will be seen that a trust was created for the worship of an idol which was to be consecrated and placed in a temple and a certain person Bhola was made a trustee thereof. In the latter case, it was held that a deed of endowment under which property was dedicated to “Sri Ram Chanderji Maharaj the God of the two worlds,” the deity was not associated with any particular idol or shrine, was held to be valid. I do not think any of these two cases can be held to be an authority for the proposition that the waqf of a property in favour of a non-existent idol without the intervention of a trustee would be valid. In my judgment, the plaintiff's suit was rightly decreed even on this ground. I would, therefore, dismiss this appeal with costs to the respondents, and confirm the decree of the learned Civil Judge decreeing the plaintiff's suit.

16. As regards the cross-objection, I think it must prevail. According to Section 35 of the CPC, the costs must follow the result of the suit unless for the reasons given the learned Judge decides otherwise. In this case no reasons are given by the learned Civil Judge. I would, therefore, allow the cross-objection and would modify the decree of the learned Civil Judge by awarding the plaintiff costs in the lower Court as well.

17. Allsop, J.:— This is an appeal against a decree by which the learned Civil Judge of Bareilly declared that a deed of compromise dated 22-7-1940, was not binding upon the plaintiff, Mt. Kausilla Devi, and directed that the defendants should deliver to her the property in suit, that is, certain plots of land described as the Sag Bari and Nudah Umar Khan groves.

18. It appears that part of the land is used for cultivation and part of it is planted with trees. This land was transferred to Swami Bal Krishna by the nephew and grand-nephews of the plaintiff's, husband by means of a deed of sale executed in August 1936 for a sum of Rs. 10,000. Of this a sum of Rs. 9,000 was paid in cash partly as earnest money and partly at the time of registration and the remaining Rs. 1,000 was the subject of a promissory note executed by the vendee in favour of one of the vendors. Swami Bal Krishna was the defendant when the suit was instituted on 24-9-1940. He was impleaded in his own right and as the sarbarahkar of Sri Radha Krishnaji Maharaj. He died while the suit was pending and is now represented by his sons and grandson against whom the decree was passed and who are the appellants before us.

19. The plaintiff's case was that the sale was a benami transaction, that she had supplied the consideration and that it was intended that she should be the owner of the property. The reason given was that Swami Bal Krishna was her spiritual preceptor (guru) and that he persuaded her to buy the property in his name because her relations would be reluctant to transfer it to her. She alleged that she was particularly anxious to acquire this land because her husband and son, who were both dead, had been very interested in it. It is not denied that Bal Krishna remained in possession of the groves after the purchase although the plaintiff alleges that he was acting merely as her manager or agent. Disputes arose between the plaintiff and Bal Krishna in the year 1940. It was alleged in the plaint that she objected to his selling the fruit of the trees to a man called Nabi Bakhsh, but when she was examined as a witness on commission she said that she was displeased with him because he had cut down half the trees in the groves. She has said that she sold the fruit to another man and there was consequently some controversy between the parties. We have on our record a complaint by Nabi Baksh dated 9-5-1940 in which he charged Bal Krishna with cheating, saying that Bal Krishna had sold him the fruit although another man was in possession of it. Bal Krishna made a complaint on 6-6-1940 against two employees of Mt. Kausilla saying that they had committed an offence of dacoity under S. 395, Penal Code, by forcibly removing some arhar from his threshing floor. He mentioned in this complaint that Mt. Kausilla Devi had been making a groundless claim to the Sag Bari grove and had been trying to enter into wrongful possession by the use of force.

20. He also mentioned that he had given information under Section 145 of the Cr PC. The application in which he gave this information is upon our record. We find that there was a settlement on 22-7-1940 and that Mt. Kausilla and Bal Krishna executed the document which is the subject of the learned Judge's decree for declaration. This may be described either as a deed of compromise or as a wakfnama. It recites that Mt. Kausilla Devi had bought the property in dispute with her own funds and the funds of her daughter-in-law, Mt. Ganga Devi, since deceased, in order to create a waqf in favour of Sri Thakur Radha Krishnaji Maharaj, an idol procured by her and in her possession. It also recites that disputes had arisen about the ownership and possession of the property and that cases under Section 145 of the Cr PC and S. 395, Penal Code, were pending. It goes on to say that the parties did not wish to carry on any litigation but wished to settle the dispute about the ownership of the property. Both parties then declared that they had created a waqf of the property in favour of Sri Thakurji Radha Krishnaji Maharaj on certain conditions of which the important ones are that Bal Krishna would be the manager and Sarbarahkar of the property, that Mt. Kausilla and her heirs and representatives would not interfere with his management, that he should take the idol to his house in Bindraban on the Dasehra day and instal it there, that he should use the profits of the property in his discretion for religious purposes, that he should use any balance to pay off the debts incurred for the purpose of acquiring the property, that he should nominate a person to succeed him as manager and Sarbarahkar and if he made no nomination his successor should be the manager after his death and that he would have the cases in the criminal Courts struck off.

21. In spite of this agreement the plaintiff instituted the suit which has given rise to this appeal and contended that the agreement was not binding upon her for various reasons. One of these reasons was that the plaintiff, who was a pardanashin woman, had acted under the influence of Bal Krishna and that she had no opportunity of getting independent advice. The learned Judge of the Court below found that there was no force in this contention. It was admitted by the plaintiff that she had been advised by Surya Prakash, a lawyer practising in Bareilly, who was married to her granddaughter. It also appears from the certificate of registration that her sister's son and an old servant of the family were with her at the time. The learned Judge has pointed out that she and Bal Krishna were not at that time on the best of terms and that he could not have brought any influence to bear upon her. In my judgment the conclusions of the learned Judge are right. I have no doubt that the plaintiff had plenty of independent advice upon which she acted and that she entered into this agreement of her own free will.

22. The learned Judge has found that the document was not binding upon the plaintiff for two reasons. One was that the original defendant had promised to withdraw the criminal cases, a promise which the learned Judge apparently thought was unlawful or contrary to public policy. The other was that the wakfnama could have no effect because there was no idol in existence at the time to whom the property could be dedicated. The learned Judge also found that the plaintiff had supplied the consideration for the deed of sale and that she had acquired a title to the property by means of that deed.

23. In logical sequence the first question to consider should be whether the plaintiff had acquired title to the property by the deed of sale, but, as this question depends in a great measure upon the terms of the compromise, it is more convenient to deal with the latter first.

24. In considering the question whether the agreement was vitiated by the promise to get the criminal proceedings struck off the learned Judge without further discussion has said. “It is therefore obvious that she had agreed to come to terms in order that criminal proceedings may be put an end to. On this ground alone the compromise was liable to be set aside.” He has assumed that the problem is a simple one whereas in my judgment it is very complicated.

25. In the first place, a distinction must be made between a promise not to give information about the commission of an offence and a promise to put an end to a prosecution which has already been originated. In the matter of giving information the Legislature in India has laid down the law quite clearly in Sections 44 and 45 of the Cr PC. The duty on the ordinary citizen is confined within somewhat narrow limits. He is bound to give information only about offences of sedition, rioting, homicide, robbery, dacoity, arson and burglary. The Legislature is presumably the best judge of public policy and it may be assumed that it was not thought advisable in the circumstances of this country to require an ordinary citizen to give information about offences other than those which I have mentioned. A promise not to give information about those offences would amount to a promise to commit a criminal offence and consequently would necessarily be an unlawful consideration. It may be open to question when the matter is one of statutory provision whether it would be contrary to public policy to make a promise not to give information about other offences. The law doubtless would not countenance any form of blackmail or extortion and I suppose there can be no doubt that the law would not enforce a contract which was the result of a threat of exposure or a threat to make a false charge. In the matter of withdrawing prosecutions it is to be observed that under the provisions of Code of Criminal Procedure it does not rest with any private person to decide whether a trial shall continue or not except in so far as the law allows a complainant to compound an offence. It is perhaps too generally assumed that a criminal trial based on a complaint is a contest between the complainant and the accused, but that assumption is not justified by the provisions of Code of Criminal Procedure at least in warrant cases. Section 252 of the Cr PC, is in the following terms:

“(1) When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution……

(2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon to give evidence before him such of them as he thinks necessary.”

26. It will appear that the burden is upon the Magistrate to enquire into the question whether an offence has been committed and to take action as a result of his inquiries. Except in so far as he is required to give the necessary information to the Magistrate about the witnesses and to give evidence, if necessary, the complainant has nothing further to do with the conduct of the prosecution. He may, of course, if the law allows, compound the defence in which case the person accused is entitled to be acquitted. It is necessary here to observe that the word ‘compound’ is not used in the same sense in the English and the Indian law. In the English law, as I understand the matter, the word means to receive an advantage in consideration of a promise to withhold information about the commission of an offence. In India it means to exonerate the offender. It has been suggested that it is unlawful to compound an offence which is not compoundable by law, but here again there is some confusion about the meaning of the term ‘unlawful.’ To compound an uncompoundable offence is unlawful in one sense of the term in that it cannot be done, but it is not unlawful in the sense that it is positively forbidden by law. It is not an offence or a wrongful act of any kind to receive reparation for an injury done in the course of an offence to the person who receives reparation. In some cases it may happen that a promise to compound is, in substance, a promise to commit perjury or to withhold information which a complainant is bound to supply and that would doubtless be an immoral promise which could not support a contract or it may be that a criminal prosecution is launched by way of extortion and in that case again the Courts would not support a contract which was based on a promise not to press the prosecution. Learned counsel for the respondent has drawn our attention to illustration (h) to Section 23 of the Contract Act, which is in the following terms

“A promises B to drop a prosecution which he has instituted against B for robbery and B promises to restore the value of the things taken. The agreement is void as its object is unlawful.”

27. I have already pointed out that there would be no such thing as dropping a prosecution on a charge of robbery. A promise to drop such a prosecution might be a promise incapable of execution and as such might not support a contract, but in so far as it is a real promise I think that the illustration must not be taken too literally in view of the criminal law upon the subject. If A's promise was in substance one to give false information or to withhold information or commit perjury so as to hamper the administration of justice it would doubtless be an unlawful promise and any contract which A was seeking to enforce would be unenforceable, but it is to be noted that the illustration deals with a case where an offence of robbery has in fact been committed.

28. Then our attention has been drawn to the case in (1892) 1 Ch. 17310 in which the Court of appeal refused somewhat reluctantly to enforce a promise to make restitution on behalf of a person who had been guilty of embezzlement because the learned Judges found that part at least of the consideration was promise by the Building Society not to give information of the offence committed. Learned counsel has relied particularly upon the remarks made by Bowen, L.J, that it is a moral duty to prosecute for an offence and that the exercise of that duty should not be made a matter of private bargain. In my judgment re-marks of that kind must be taken in their con-text and it is to be noticed that was a case where a criminal offence had undoubtedly been committed.

29. Learned counsel has also referred to the case in 57 Cal. 130211 but though their Lordships referred to the case which I have just mentioned, the case before them was one in which they held that the threat of a criminal prosecution had been the real occasion of the reference to arbitration with which they were dealing and that there was no bona fide reference for the settlement of civil disputes.

30. Considering the matter in all its aspects I am of opinion that each case must be decided upon its merits and that the Courts should look to the substance of the agreement between the parties. If there is any suspicion of blackmail or extortion or if the contract was based upon a promise really to hamper the administration of law so as to prevent investigation into a criminal charge which was of interest not only to the persons concerned but to the public at large, then I have no doubt the contract should not be enforced. If, however, there is a bona fide civil dispute which the parties have decided to settle and there happen to be subsidiary proceedings in a criminal Court, it seems to me that it would be contrary to public policy and to justice and equity to allow any person to escape his proper legal liabilities on the mere technical ground that there was some understanding that those criminal proceedings would not be pressed to a conclusion.

31. In order to examine the case before us in the light of these observations it is necessary to enquire whether, in the first place, the agreement which the respondent wishes to avoid was forced from her because she was really afraid of the result of the criminal cases. In so far as the case under Section 145 of the Cr PC, is concerned that was not a case involving any criminal charge. That section, in so far as it is relevant, is in the following terms:

“Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land ….. he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader …… and to put in written statements of their respective claims…..”

32. When Bal Krishna suggested that the Magistrate should exercise his powers under this section he was merely giving the information to which the section refers and it is obvious that it could, in no sense, be contrary to public policy that persons concerned in a dispute about land should settle their dispute so as to avoid any future danger of a breach of the peace. The provisions of S. 145 deal with an inquiry primarily into possession over property in dispute and they are of a quasi civil nature. There is nothing in them which should cause any apprehension which would vitiate an agreement to settle the disputes between the parties.

33. The other charge was certainly one of dacoity under S. 395, Penal Code, but it was a charge of a purely technical nature. Dacoity properly so-called is a very serious offence of which the police would not hesitate to take cognizance. The police had refused to take cognizance of this so called offence and it is quite clear that they thought that no criminal liability was involved. Bal Krishna had already informed the Magistrate that there was a dispute about the property and it must have been evident that nobody could seriously think that a real offence had been committed. Mt. Kausilla was not herself charged at that stage with having instigated any real dacoity and as she had the advice of a lawyer who was related to her, she must have been well aware that any threat there was purely an empty one. I do not believe that the agreement which she wishes to avoid was extorted from her in any sense of the term. That being so, I think that the recitals in the agreement must be given due weight. I believe that they set forth the real truth of the matter. I have no doubt that Mt. Kausilla and her daughter-in-law provided part of the money which was used to acquire the property, that is a sum of Rs. 4,000. A further sum of Rs. 5000 was admittedly obtained from a third party in whose favour Bal Krishna executed a mortgage by which he pledged the property in suit. I believe that there really was a dispute about the right to manage the property. Mt. Kausilla doubtless thought that she should have some influence because she and her daughter-in-law had provided the sum of Rs. 4000 and the remaining debt was to be paid out of the proceeds of the property. Bal Krishna, on the other hand, probably thought that he was to use the proceeds of the property according to his own discretion and that Mt. Kausilla should not interfere in his management. There was no question of Mt. Kausilla paying anything to Bal Krishna by way of reparation for the removal of the arhar from the threshing floor. There was merely an agreement that the property should in future be devoted to religious purposes connected with the idol. I think this was a real civil dispute between the parties and that the so-called criminal proceedings which were not in any real sense criminal at all were merely a subsidiary matter. This was doubtless regarded as a somewhat unpleasant dispute between a Hindu lady and her spiritual adviser connected with an idol and it was thought that it would be more dignified and respectable to settle out of Court and to avoid any further legal proceedings whether in the criminal or civil Courts which would lead to publicity. In these circumstances I do not think that the agreement should be held to be void because Bal Krishna agreed not to press proceedings in the criminal Courts. There is no reason to suppose that he tacitly agreed to make any false statement or to hamper the Magistrate in any way if the Magistrate wished to make further inquiries, which he was very unlikely to do in the circumstances, as this was a charge which the police had refused to investigate. In my judgment, therefore, the agreement was perfectly valid. It was not an agreement, in favour of Bal Krishna personally although doubtless the latter might have obtained considerable advantage from it.

34. The other ground given by the learned Judge for holding that the agreement was void does not seem to me to be a good one. The learned Judge's argument depends in the first place upon a finding of fact that there was no idol in existence. The evidence produced by the plaintiff is not of much value. Mt. Kausilla has herself given evidence and she is supported by witnesses who are clearly not impartial. On the other hand, we have her own admission in the agreement that the idol did exist. Even if the agreement cannot be enforced that is no reason for holding that the recitals in it are untrue. There seems to be no reason why the existence of an idol should have been asserted if the idol did not in fact exist. It would have been quite easy for the parties to come to an agreement that the wakf should be created in favour of some other existing idol. Bal Krishna was a recognised guru who had a number of disciples and it is extremely improbable that there were no other idols in existence in which he would be interested. It is to be noticed that his address as given in the plaint is the Gher or enclosure of Sri Radha Ramanji Maharaj in the city of Muttra. Behari Lal, one of the sons of Bal Krishna, has given evidence in the case and has said that the idol to which the property was dedicated was in fact taken by Bal Krishna to his house in Bindraban. In view of the fact that the suit was instituted before the date when the idol was supposed to have been taken away from the custody of Mt. Kausilla this story is probably untrue, but it does not follow that the idol did not exist. I would hold, therefore, that it is not proved that the idol was not in existence.

35. Even on the assumption that there was no idol in existence at that particular time, the authorities are to the effect that a religious settlement in favour of an idol is not necessarily void because the particular idol which is to be installed has not been procured or installed at the time when the dedication is made. I may refer to the case in 37 Cal. 128. It is doubtless true that dedication to an idol which is a pure fabrication in the sense that it never existed and was never intended to exist would be void but there is no reason why a dedication should be void when the intention of a party is to make a real dedication merely because at the time of dedication a particular idol to whom the property is to be dedicated has not been installed. If the question arose about the vesting of the property in the meanwhile it would doubtless be held that it vested in some person in the meanwhile in trout for the idol. Learned counsel has referred us to the cases in 25 Cal. 405, 29 Cal. 260, 30 Cal. 521, but these have been overruled by the case which I have already quoted and there are two cases of this High Court, namely, 33 ALL. 253 and 53 ALL. 710 which support the contention of the appellant. Learned counsel has also referred to the cases in 40 Cal. 23212 and 46 Cal. 95118. These were cases in which it was held that grants to an idol or a God were bad for vagueness and uncertainty. In the latter case however the transfer was to a Bairagi generally for the service of a God and it was held that the Bairagi was the owner of the property, not that there had been no valid transfer. In my judgment the plaintiff failed to prove that the com-promise or wakfnama was not binding upon her.

36. I will now deal with the other point, namely, whether the sale deed in favour of Bal Krishna was benami in the sense that it was understood that the property should be purchased for the benefit of Mt. Kausilla and she was intended to be the real owner of it. This is clearly not a case of an ordinary benami transaction in which a purchaser buys property in the name of another with the intention that he should have the beneficial interest in it. There seems to be no valid reason why Mt. Kausilla should have deceived her own relations or why these relations should have refused to transfer the property to her if they intended to transfer it at all. It seems to me that all the circumstances suggest that the allegations made in the deed of compromise or wakfnama are true and that the real intention was that the property should be acquired for religious purposes. I agree with the learned Civil Judge that the cash consideration apart from the money borrowed came from Mt. Kausilla and Mt. Ganga Devi, her daughter-in-law. It does not appear that Bal Krishna had any property which would have supplied him with sufficient money to acquire the groves in dispute and it is impossible to believe that Mt. Kausilla would have made any claim at all if she had not been concerned with the purchase of the property in some way or that Bal Krishna would have succumbed to the extent of agreeing that she had supplied the money for the purchase of the property if she had not done so.

37. In my judgment, however, the origin of the money is not the sole consideration. If the purchase had been made benami in the name of Bal Krishna merely to deceive the vendors there is no reason why he should remain in possession of the property after the purchase. He was not the natural person to act as the agent or manager of Mt. Kausilla who clearly had other servants and supporters. In my judgment he was put in charge because the intention was that the property should be purchased for the benefit of the idol, that is, for religious purposes. Apart from the statement of Mt. Kausilla that she used to benefit in some measure by the produce of the land there is nothing to suggest that she was ever intended to have any beneficial interest in this property. All the circumstances point to the conclusion that this was not a pure secular benami transfer but that it was a transfer intended from the beginning to benefit the idol or for some religious purposes. I think it an essential element in a benami transaction that the person who claims the property should show that he was intended really to be the owner. At one time a benami transaction was regarded as being one in the nature of a trust, 6 M.I.A 5314 and 13 M.I.A 23215, and the benamidar was deemed to hold the property in trust for the real purchaser. A similar view was expressed in A.I.R 1936 Rang. 25616.

38. It seems to me that the question whether the person who has supplied the consideration is to be treated as the owner of the property really depends upon the intention at the time of the purchase. If there is nothing else it may be presumed that the person who supplied the consideration and in effect purchased the property was intended to be the real owner, but there may be circumstances which rebut this presumption. If A pays a sum of money to B and B in consideration, thereof transfers some land to a school or hospital, it surely would not be presumed in the absence of other evidence that this was a benami transaction and that a was intended to be the real owner of the land. If both Mt. Ganga Devi and Mt. Kausilla supplied the consideration it is unlikely that they were to be joint owners without specification of shares. In the case before us I am satisfied that it was not the intention at the time of the purchase that Mt. Kausilla should have a beneficial interest in the property and consequently I should hold that the property vested in Bal Krishna. Whether it vested in him in his personal capacity or in trust for any idol or for any religious object is a matter with which in this case we are not particularly concerned although I have no doubt that he was intended to use the profits from the property as a religious man for religious purposes.

39. I am not satisfied that Mt. Kausilla ever acquired a title to the property and consequently I would allow the appeal and dismiss the suit with costs in both Courts.

40. By the Court:— As we are not in agreement, we direct that the following questions shall be referred to a third Judge, namely,

(1) Whether Mt. Kausilla Devi became the proprietor of the property in dispute under the sale deed executed in favour of Bal Krishna?

(2) Whether the deed of wakf or compromise dated 22-7-1940, is binding upon Mt. Kausilla Devi?

(3) Whether the wakf is valid?

41. Verma, J.:— This is a defendants' appeal from a judgment and decree of the Civil Judge of Bareilly decreeing the suit of the plaintiff-respondent, Mt. Kausilla Devi. It was heard by a Bench composed of Allsop and Mathur, JJ. There was a difference of opinion between those learned Judges and consequently, under para. 27, Letters Patent, they stated the points on which they differed and those points have been referred to me. They are as follows:

“(1) Whether Mt. Kausilla Devi became the proprietor of the property in dispute under the sale deed executed in favour of Bal Krishna?

(2) Whether the deed of waqf or compromise dated 22-7-1940, is binding upon Mt. Kausilla Devi?

(3) Whether the waqf is valid?”

42. The facts are fully stated in the judgments of the learned Judges who heard the appeal and I do not consider it necessary to repeat them. I may, however, for facility of reference, state that the admitted pedigree of the plaintiff's family is embodied in a statement of parties' pleaders (paper No. 104A) and is to be found at p. 32 of the paper book. The executants of the sale deed of 16-8-1936, (Ex. D), by which the property in question was conveyed to the original defendant, Goswami Balkrishna, for Rs. 10,000, were Ram Gopal (son of Makund Prasad), Ram Kumar and Shanti Kumar (sons of Ram Das), and Krishna Kumar and Jagdish Kumar (sons of Shyam Sunder Lal, who was a brother of Ram Gopal). It has been stated before me that these executants of the sale deed were all the male members of the family in existence at that time. Jagdish Kumar was a minor and was made an executant under the guardianship of his brother, Krishna Kumar, and that fact also leads to the same conclusion.

43. The case has been argued before me at length and I have been taken through the entire record. I have, further, perused the judgments of the learned Judges who heard the appeal and have taken time to consider my judgment. After giving due weight to the arguments addressed tome and carefully considering the reasons given by the learned Judges, who heard the appeal, for their respective opinions, I have reached the conclusion that the questions referred to me should be answered in the way which Allsop, J. answered them; in other words, that question (1) should be answered in the negative, question (2) in the affirmative and question (3) also in the affirmative.

44. As I am in agreement with practically all that Alllop, J. has said in his judgment, it is not necessary for me to state in detail the reasons that have led me to the conclusions at which I have arrived. I may, however, say a few words in modification or amplification of the judgment of Allsop, J.

45. A slight error—of no importance whatsoever so far as the merits go — had better be corrected at once. The appeal in this Court has been filed only by the two sons of Goswami Balkrishna, and the grandsons—being the minor sons of appellant 1 — have been shown as respondents pro forma.

46. As I have said above, I agree with all that Allsop, J. has said in his judgment on all the essential questions that arise in the case, namely, (a) the question of benami, (b) the question whether an intention to drop or stifle any prosecution formed a part of the terms upon which the settlement of 22-7-1940, was based, and (c) the question of the existence or non-existence of the idol of Shri Thakurji Radha Krishnaji Mabaraj and, in either case, the effect on the validity of the wakf created by the deed of 22nd July, 1940.

47. As to (a), the learned Civil Judge was of the opinion that the entire consideration for the sale deed of 16-8-1936, had been provided by Mt. Kausilla Devi. Mathur, J. seems to agree with this opinion. Allsop, J. has come to the conclusion that, out of Rs. 9,000 which were paid in cash (2,000 as earnest money and 7,000 at the time of registration of the deed), Rs. 4,000 must be taken to have come out of the pocket of Mt. Kausilla Devi. The reasons for this apparently are, on the one hand, that Rs. 6,000 out of the total consideration of Rs. 10,000 were admittedly raised by Balkrishna by means of two transactions, viz., a deed of simple mortgage in favour of certain persons for Rs. 5,000 and a promissory note for Rs. 1000 in favour of one of the vendors, both executed by Goswami Balkrishna, and, on the other, that it had not been shown by the defendants that Goswami Balkrishna was a man of substance and that therefore Rs. 4,000 must be taken to have been found by Mt. Kausilla Devi. I may, however, point out in this connection that the onus of proof lay on the plaintiff and that there is really no credible evidence produced by her to prove that she was possessed of funds and that she did actually pay Rs. 4000. She herself is not a witness of truth and I have not the slightest hesitation in rejecting the evidence given by her. Her witnesses are no better. Goswami Balkrishna unfortunately died shortly after the institution of the suit and it is not possible to say what evidence he would have given if he had been alive. As I have said above, there was no burden on the defendants and I am not satisfied that it is right to record a finding in favour of the plaintiff on the ground that the defendants have failed to produce evidence on a point with regard to which no burden lay on them. In any event, it appears to me that the finding that the entire sale consideration came from the pocket of Mt. Kausilla Devi is clearly not sustainable. It was Balkrishna who executed the promissory note for Rs. 1,000 and it was he, and he alone, who was liable for the repayment of the loan to the creditor. The deed of simple mortgage was also executed by Balkrishna and, although one of the remedies available to such a mortgagee is to put the property to sale, there is also a personal liability of the mortgagor. That these debts were ultimately paid out of the profits of the property does not destroy the fact that at the time of the execution and registration of the sale deed in August 1936, Rs. 6,000 out of Rs. 10,000 were found by Goswami Balkrishna by raising loans for which he was personally liable.

48. Even accepting the finding that Rs. 4,000 did come out of the pocket of Mt. Kausilla Devi, it does not necessarily follow that the intention was that Mt. Kausilla Devi should become the proprietor of the property in dispute or that she did, as a matter of fact, become its proprietor. Allsop J. has dealt with this matter in detail and I do not consider it necessary to do more than refer to the following cases, which were cited by the appellant's counsel, in support of the conclusion to which Allsop, J. came: 26 Cal. 22717; 6 Luck. 556 at p. 571-3 and A.I.R 1934 Mad. 67119. I entirely agree with the conclusion of Allsop, J. that it was never the intention that Mt. Kausilla Devi — or, for the matter of that, Goswami Balkrishna — should be the owner of the property and that it was intended from the very beginning that the property would be dedicated to Shri Thakurji Radhakrishnaji Maharaj and should be devoted to religious purposes. I may add that Mt. Kausilla Devi has stated that her “men folk” — in other words, her deceased husband and her two deceased sons—“liked” the property in suit “very much”. The natural inclination of a Hindu, widow, in these circumstances, would be to dedicate such property for religious purposes—an act which would not only bring religious merit to herself but would also benefit the souls of her deceased husband and sons. The first step, according to Hindu law, in a dedication is the sankalp i.e, the resolution to make a dedication. In view of all the facts and circumstances, I have no hesitation in holding that such a sankalp was made by Mt. Kausilla Devi on the day on which the property was acquired, namely, 16th August, 1936. In my judgment, the property became the deity's on that very date and the position of Goswami Balkrishna (and that of Mt. Kausilla Devi, if it be held that she had any sort of title to the property) was nothing more or less than that of trustees.

49. Coming now to question (b), here again I find myself in agreement with what Allsop, J. has held. Having regard to all the facts and circumstances, I am satisfied that the dispute between the parties was entirely of a civil nature. Reference may also be made to the statement to that effect in clause (6) of the deed in question. What appears to have happened was this. Goswami Balkrishna was in possession of the property and was managing it. Mt. Kausilla Devi did not like something which he did. It is also possible that she thought that Balkrishna was behaving in a manner which was inconsistent with the position of a trustee and was acting as if he were the owner of the property. In these circumstances, she purported to sell the fruit of the trees to some one other than the man to whom Balkrishna had sold it, and the harvested crop of the portion of the land which was cultivated was removed by certain persons, apparently under her orders. Balkrisha first filed an application in the Magistrate's Court under Section 145 of the Cr PC. He followed it up with a complaint under S. 395, Penal Code, stating that certain men in the employment of Mt. Kausilla Devi had removed the crop and alleging that they had thereby committed dacoity. Kausilla Devi sent a notice (Ex. 6) to Balkrishna, alleging that she was the owner of property and that Balkrishna was merely her benamidar and calling upon him to execute a deed of relinquishment in respect of the property within three days and to return all the title deeds, accounts etc. to her, and Balkrishna sent a reply (Ex. 7) asserting his own title to the property. Both parties were making false assertions of title and were suppressing the truth, namely, that the property did not belong to either of them but that it had been set apart, and placed in the charge of Balkrishna as a trustee, for dedication to the deity. Subsequently they came together—whether the themselves realised that what they were doing was wrong or others intervened and made them see it—and the settlement evidenced by the deed of 22-7-1940, was the result.

50. In the plaint the attack on the settlement was based on undue influence exercised upon the plaintiff by Balkrishna, and the fact that the plaintiff was an aged pardanashin woman was emphasised and it was alleged that no “independent advice” was available to her—paras 11, 12 and 13(B) of the plaint. The point that the settlement was bad because its object, or one of its objects, was the dropping or stifling of a prosecution was not even mentioned. The learned Civil Judge held that the plaintiff's allegation of undue influence was without foundation and, further, that independent advice in ample measure was available to her. These findings have been accepted by both the learned Judges who heard the appeal. It may be pointed out that the most important person who was advising the plaintiff at that time is Mr. Surya Prakash, who is not only a relation of the plaintiff—having married her grand daughter—but is also a lawyer. It is noteworthy that this gentleman has not thought fit to come into the witness-box. The story related by Mt. Kausilla herself as to her physical and mental condition at the time of the execution and the registration of the deed dated 22-7-1940, is palpably false. It was only at the time of arguments that it was contended that the settlement must be held to be bad on the ground that one of its terms or objects or results was the dropping of a prosecution. This plea was accepted by the Court below on the ground, briefly, that, as the plaintiff was a woman be-longing to a respectable family, she must have been frightened by the prospect of being dragged to the criminal Court and of, possibly, being sent to jail. It appears to me that there is a certain inconsistency between the findings of the Court below. On the one hand, it is found that Balkrishna was not in a position to exercise any influence on the plaintiff and that Mr. Surya Prakash—besides others—was advising her. On the other hand, it is held that the mere fact of the filing of a complaint, alleging that certain crops had been removed by the plaintiff's employees and that consequently dacoity had been committed, frightened not only Mt. Kausilla but also Mr. Surya Prakash out of their wits, so much so that they at once surrendered and agreed to this settlement.

51. I find it difficult to agree with the conclusion that the settlement was the outcome of any fear operating on the mind of Mt. Kausilla. In the first place, the impression left on my mind as the result of a perusal of her evidence is that she is not one of those pardanashin women who are helpless and who can be frightened or imposed upon. She was examined on commission and the learned Civil Judge was not in a better position than we are in appraising the worth of her evidence. She, on her own showing, is a lady who knew her rights and was capable, not only of ordering her servants to look after her interests, but also of going down to the property in person to see things for herself and of taking suitable action. She was obviously a woman of personality and one who would not be trifled with. She is also, as I have shown above, a person capable of inventing and relating on oath a false story. Then, there was Mr. Surya Prakash, a lawyer. I find it impossible to believe that he could have had any difficulty in seeing that the offence of dacoity which had been alleged in the complaint was, at the most, a purely technical one and that Mt. Kausilla Devi ran no risks whatever. So far as the application under Section 145 of the Cr PC, is concerned, it is obvious that it was not a prosecution at all. I have, in all these circumstances, no hesitation in agreeing with Allsop, J., that the finding of the learned Civil Judge is wrong. Allsop, J. has dealt with the case in 57 Cal. 1302, relied upon by the respondent, and I do not consider it necessary to add anything to what he has said.

52. Learned counsel for the appellants contended that, in any event, the matter having gone beyond the stage of contract and having culminated in a conveyance in the shape of the dedication embodied in the deed dated 22-7-1940, illustration (h) to Section 23 of the Contract Act—on which reliance was placed on behalf of the plaintiff, respondent — was not applicable. He cited the decisions in 42 Cal. 28620 and 20 C.W.N 76021. He also relied on a passage in the judgment of Bowen L.J in (1892) 1 Ch. D. 173 at p. 185. Learned counsel for the respondent has, in reply, relied on cl. (h) of Section 6 of the Transfer of Property Act, and has cited the cases in 58 Cal. 123522 and 50 Cal. 92923 at p. 937. Learned counsel for the appellant raised the objection that no reference was made before the Bench by the respondents' counsel to Section 6(h) of the Transfer of Property Act, and to the cases in 58 Cal. 1235 and 50 Cal. 929 and stated that before the Bench reliance was placed on Section 4 of the Transfer of Property Act, which, he submitted, was inapplicable. The objection was that these arguments were not now open to the respondent's counsel. In view, however, of the finding at which I have arrived in the preceding paragraph of this judgment — which is sufficient for the disposal of this part of the case — I do not consider it necessary to pronounce upon these contentions.

53. With regard to question (c), I agree with Allsop, J. in holding that the allegation of the plaintiff that the idol in question did not exist is wrong. In addition to what Allsop, J. has said with regard to this matter, I may point out that it was not alleged in the plaint that the idol did not exist. All that was stated was that “no idol was permanently installed at any place”—para 13(B)(d). It was only when the plaintiff came into the witness-box that she stated that the idol did not exist at all. In order to meet this difficulty, learned counsel for the respondent has contended that the allegation in para. 13(b)(d) of the plaint meant that the idol, though it existed, had not been duly consecrated. I do not find it possible to entertain this argument. In the first place, the word used in para. 13(B)(d) of the plaint, which the translator has rendered as ‘permanently installed’, is sthapit. The meaning of that word is not consecrated, but seated, placed, established, etc. In the second place, in placing this interpretation upon the plaint, the learned counsel is completely ignoring the fact that the plaintiff herself stated in the witness-box that the idol did not exist at all, and not that the idol existed but had not been consecrated. The learned counsel's argument obviously runs counter to the plaintiff's statement. In the third place, no such interpretation appears to have been placed on the plaint and no such argument appears tea have been advanced either in the Court below or before the Bench in this Court. It is clear to my mind that this contention as to consecration is an absolutely new contention which has been sought to be raised for the first time before me. It must, in these circumstances, be held to be without substance and untenable. It may be mentioned that the respondent's counsel sought to derive support for his contention from the fact that in cl. (3) of the deed dated 22-7-1940, it was stated that Balkrishna should take Shri Thakurji Maharaj to Brindaban on the Dasehra day and ‘instal’ Him in his house. The argument was that this showed that the idol had not till then been consecrated. Here, again, it is necessary to refer to the words used in the original. They are “virajman karega”. The exact equivalent of ‘virajman’ is to be found in the Persian expression “raunaq afroz” It is difficult to give a precise translation in. English of these Sanskrit and Persian expressions. I may explain, however, that they are used when one wishes to refer to the presence of some one for whom one has respect or veneration. Put in simple English, they mean ‘seated’, ‘present’, etc. In plain Hindustani, ‘virajman’ means ‘maujud’, ‘baitha hua’, etc. Thus the word used in the deed does not show that Balkrishna was directed to consecrate the idol after taking it to his house at Brindaban. It is obvious that the whole of this idea of consecration arose in the mind of the respondent's learned counsel for the first time when the case was argued before me.

54. Furthermore, it appears to me that it is settled law that, in order that an endowment to the deity may be valid, it is not necessary that the particular image or idol should he consecrated, or even in existence, at the date of the execution of the deed. It is sufficient if the property is set apart and is put in the hands of a trustee until the idol or image is procured, and consecrated, if necessary: 37 Cal. 128 32 ALL. 33724, 33 ALL. 253 and 53 ALL. 710.

55. Learned counsel for the respondent cited the case in 7 C.L.R 278 and urged that it supported his argument. He further contended that the case in 29 Cal. 260 was not overruled by the Full Bench in 37 Cal. 128. He even went to the length of suggesting that the Full Bench of the Calcutta High Court in 37 Cal. 128 had been overruled by the Privy Council in 44 Mad. 83125 and referred to certain sentences in the judgment of Mukerji, J., in 60 Cal. 45226 and argued that they supported this suggestion of his. I consider it sufficient to say that there is no force whatsoever in any of these contentions.

56. With regard to the question whether Balkrishna took the idol to his house at Brindaban or not, Mathur, J. has held that the case of the defendants, that Balkrishna did take the idol, is “palpably false” because “the suit was instituted before the Dasehra day fixed for taking away the idol.” Allsop, J. on the other hand, has referred to the evidence of Behari Lal who said that the idol was in fact taken by Balkrishna to his house in Brindaban, and has observed that, “in view of the fact that the suit was instituted before the date when the idol was supposed to have been taken away from the custody of Mt. Kausilla,” Behari Lal's statement is “probably untrue”. It will be noticed that the two learned Judges are not entirely agreed upon this question of fact. My own opinion is that there is no reason for holding that Behari Lal's statement is necessarily untrue. In the first place, the language used in cl. (3) of the deed dated 22-7-1940, does not, in my opinion, mean that the idol was to be delivered by Mt. Kausilla to Balkrishna and the journey to Brindaban was to be performed by the latter on Dasehra day. It appears to me that what was laid down was that the installation or the keeping of the idol at Balkrishna's house at Brindaban was to take place on Dasehra day. It is improbable that the intention was that the delivery of the idol to Balkrishna, the journey to Brindaban and the installation should all take place on the ??? day. It is open to doubt if it could be accomplished in one day. The main idea, to my mind, must have been that the placing of the idol in a suitable place in Balkrishna's house should take place on Dasehra day. In this view of the matter, it is far more probable that the idol was made over by Mt. Kausilla to Balkrishna on the day on which the deed was executed, i.e on 22-7-1940. It is, in my opinion, probable that the idea of instituting the present suit was conceived later. In all likelihood, sometime after the execution and registration of the deed dated 22-7-1940, some promoters and fomenters of litigation, who unfortunately are present in every district, got busy. I do not believe Mt. Kausilla's statement that even while she was executing and registering the deed she was mentally registering the resolution to challenge it. In the second place, I have no hesitation in holding that Behari Lal is a far more reliable witness than Mt. Kausilla. In any event, the fact—if it be a fact—that Mt. Kausilla dishonestly withheld the idol from Balkrishna and instituted the suit and thus prevented Balkrishna from taking the idol to his house at Brindaban and placing it there cannot invalidate what, in my judgment, was a perfectly valid endowment when it was created.

57. Some stress was laid on behalf of the respondent on the contents of cls. (2) and (4) of the deed dated 22-7-1940, wherein it was laid down that Mt. Kausilla Devi and her heirs and representatives would have no right to interfere with Goswami Balkrishna's management of the dedicated property and that Goswami Balkrishna would have the right to nominate the person who should succeed him as Sarbarahkar and that, in case of his failure to make such a nomination, ‘the successor’ of Balkrishna would be appointed the Sarbarahkar. It was argued that these terms of the deed showed that Mt. Kausilla was not a free agent in the matter of the execution of the deed. In my opinion there is no force in this argument. It must not be forgotten that Goswami Balkrishna was the Guru, i.e the spiritual preceptor, of Mt. Kausilla Devi, and had been her Guru for forty years. The property was being dedicated to religious purposes. It is not unnatural, in these circumstances, that Mt. Kausilla should have desired that the Sarbarahkarship should remain in the hands of her Guru and, after him, in the hands of his nominee or disciple. The main thing was that the Sarbarahkar should have no power to alienate the property and that was laid down in clear language in cl. (8) of the deed.

58. It only remains to notice a somewhat unintelligible argument put forward by the respondent's learned counsel towards the end of his address. He contended that, as the idol also was a party to the suit and as no appeal has been filed on its behalf, this appeal by the other defendants was incompetent or ineffectual. No such contention is mentioned in the judgments of the learned Judges who heard the appeal. In any event, O. 41, R. 4 of the CPC, is a complete answer to this argument.

59. For the reasons given above, I answer the questions referred to me as follows: (1) Mt. Kausilla Devi did not become the proprietor of the property in dispute under the sale deed executed in favour of Balkrishna. (2) The deed of waqf or compromise dated 22-7-1940, is binding upon Mt. Kausilla. (3) The waqf is valid.

60. Let the case be laid, with these answers, before the Bench which had heard the appeal.

61. Allsop and Mathur, JJ.:— In accordance with the decision of the majority of Judges the appeal is allowed and the suit is dismissed with costs in both Courts.

62. The cross-objection is con-sequently dismissed with costs.

63. Appeal allowed.