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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. Hem Chundra Boral (1897) I.L.R. 25 Calc. 405, Rojomoyee Dassee v. Troylukho Mohiney Basset (1901) I.L.R. 29 Calc. 200 and Nogendra-Nandini Dassi v. 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?

73. All these commentators, therefore, understand the definition as limited to secular gifts as contradistinguished from gifts of the nature of jaga, which is a technical word meaning Sradhabibeka, Chandi Charan's Ed. p. 18, "or relinquishment of property intended for a deity or other religious dedications, such as that of the sacred bull at a sradh." The subject of dana or gift, however, is dealt with in some detail by Narada in the chapter on the subtraction of gifts, and in making a subdivision he says: "In civil affairs the law of gift is fourfold--(i) what may be given, (ii) what may not be given, (iii) what is given or a valid gift, (iv) what is not given or invalid gifts. Colebrooke's Dig., Vol. I, page 401. In commenting on the above, Jagannath Tarkapanchanan says:" the rule to be established that gifts made by a man afflicted with disease and the like are void, regards civil gifts not donations for a religious purpose. This title of law does not extend to a gift made for a religious purpose: the donation is valid if it be made by the owner of the thing." Jagannath then quotes the text of (Katyayana):

What a man has promised in health or in sickness for a religious purpose must be given; and if he die without giving it, his son shall doubtless be compelled to deliver it.

74. The same text is quoted with approval by the Vivada Ratnakar: see page 136, Bibliothica Indica Series, where the author, in commenting upon another text of Katyayana as to invalid gifts, says i.e., "gift by a person affected with disease (being invalid) must apply to gifts other than those made for a religious purpose." Raghunandan in his Bangabasi Edition, p, 498 (Shudditatwa) quotes the same text of Katyayana and says i.e., "in the same way the inclusion of a gift by a dying person among invalid gifts has reference to gifts made for other than religious purposes." See also Vyavastha Darpan, 3rd Edition--Vyavastha 713, page 623 (Part I), and the authorities quoted.

78. Even if we were to apply the definition, as given in the above text of the Dayabhaga, to such a gift, it would seem absurd to say that a deity is not a sentient being. If the deity exists and it manifests itself in the image upon the invocation of the worshipper with certain mantras, it cannot be said to be an insentient being. If it answers to the i.e., "come here", "stay here" of the votary, it cannot be said to be insentient. The text

79. "For the use or benefit of the votary Brahman or God, although only existing in spirit and without a second, having no attribute and no body, assumes forms." Shastri's Hindu Law, 3rd Ed., page 420, shows the Hindu idea of the forms attributed to God for the convenience of worship. A particular image may be insentient until consecrated, but the deity is not if the image is broken or lost, another may be substituted in its place and, when so substituted, it is not a new personality, but the same deity and properties previously vested in the lost or mutilated Thakur become vested in the substituted Thakur. A Hindu does not worship the "idol" or the material body made of clay or gold or other substance, as a mere glance at the mantras and prayers will show. They worship the eternal spirit of the deity or certain attributes of the same, in a suggestive form, which is used for the convenience of contemplation as a mere symbol or emblem. It is the incantation of the mantras peculiar to a particular deity that causes the manifestation or presence of the deity or, according to some, the gratification of the deity. According to either view, it is the relinquishment of property, in the name of the deity, for securing its gratification, that completes the gift, and such relinquishments are valid according to Hindu law, even if made by a dying man. It may be true that the illiterate Hindu thinks of the consecrated symbol as the deity and has not any clear idea of the particular attribute of the God-head, that is worshipped in a particular form, but it cannot be said with any approach to truth that the great Rishis and their commentators who declared the Hindu law had such a gross idea of the divinity they worshipped. In this view of the case also, the text of the Dayabhaga relied on in the Tagore case (1) cannot invalidate the gift in favour of a deity whoso image is consecrated after the death of the donor.