Full Judgment
Grimwood Mears, Kt. C.J. and Walsh, J.
1. This appeal must be allowed. As we are differing from the learned Judge of this Court who delivered a very full judgment we will just state our reasons. In our view this question is really a question of fact. The only questions which in second appeal the High Court can consider are whether having regard to the established principles the learned Judge of the lower appellate court has rightly directed himself, and whether there is evidence to support the finding of fact at which he has arrived. The principles of law applicable to this case are very clearly laid down in a case heard before Mr. Justice Mookerjee in Khub Lal Singh v. Ajodhya Misser (1915) I.L.R. 43 Calc. 574 where he has pointed out that this being a question purely of Hindu law care should be taken in coming to a decision to prevent English Judges being warped by impressions made upon their minds in consequence of the nature of English decisions to which they are accustomed. We entirely agree with that observation, and we would point out that it is not the function of the Court in considering whether a gift of this kind by a Hindu widow out of her husband's estate is a valid trust, but what were the real purposes for which she made the gift. So stated it follows as a matter of course that the question can be one of fact and one of fact only. The learned Judge of this Court has accepted the fact as found by the lower appellate court, namely, that the gift was made by the widow for the benefit of the soul of her deceased husband. He has, for reasons given, questioned the soundness of that finding of fact: but he has stated that he is bound by it. If his judgment had stopped there, we should have entirely agreed with him. It cannot be said that there was no evidence to support the finding by the lower appellate court. Indeed there was direct evidence by witnesses, and there was the indirect evidence of the natural duty and inclination of a pious widow, and the fact that Gaya is a special place of pilgrimage for the benefit of the souls of deceased persons and also, thirdly, the example set by her husband's inclination to make a similar gift which was defeated by his death and which it would appear from the evidence it was the intention of the widow to complete. The learned Judge has, however, gone on to say that, granted that the widow was under the impression that she was [hereby conferring spiritual benefit on her deceased husband, are the circumstances such that the gift can be upheld? He seems to have held as a matter of law that unless there is some proof that the donee is expected to confer benefit upon the deceased's soul the conditions of a valid gift cannot be established, and he has held that no spiritual benefit was expected to accrue to the deceased husband's soul. This last finding is really inconsistent with the finding of the lower appellate court by which he had rightly held himself to be bound. We have no alternative, the matter having bean conclusively determined by a finding of fact with which we have no right to interfere, but to allow the appeal.
2. We accordingly allow the appeal, set aside the decree of the learned Judge of this Court and restore that of the lower appellate court with costs of both hearings in this Court.