April 7

SUPREME COURT REPORTS

RAJ KALI KlJER

RAM RATTAN PANDEY

[VIVIAN BosE, JAGANNADHADAS and

SINHA JJ.}

[ 1955]

Hindu Law-Hereditary priestly office of a Puiari and Panda -Hindu female-Right to succeed-Usage.

Though a female is personally disqualified from officiating as a Pujari for the Shastrically installed and consecrated idols in the temples, the usage of a Hindu female succeeding to a priestly office and getting the same performed through a competent Cleputy has been well-recognised and it is not contrary to textual Hindu Law nor opposed to public policy. Subject to the proper and efficient discharge of the duties of the office being safeguarded by appropriate action when necessary, a Hindu female has a right to succeed to the hereditary priestly office of a Pujari and Panda held by her husband and to get the duties of the office p<:rfom1ed by a substitute cxtcpt in ca:ses wh\.'ft: uage 10 the ontrary i::; pleaded and established.

Quacrc :--Whether and how far votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institutioni (i.e., not a private f; unily temple) and whether any usage in this bclnlf is valid.

C<1:>c-la\\' and the relevant texts revie\rcd.

Judgment of the lligh Court of Patna reversed.

CIVIL APPELLATE 'JURISDICTION: Civil Appeal No. 136 of 1953.

Appeal by Special Leave from the Judgment and Order dated the 4th day of May 1949 of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 1918 of 1947 against the Decree dated the 23rd day of July 1947 of the Subordinate Judge; Arrah in Appeal No. 137 of 1946 arising from thct Decree dated the 29th March 1946 of the Court of the 2nd Munsif at Arrah in Suit No. T.S. 120 of 1943.

R. C. Prasad, for tpe appellant.

S. P. Varma, for the respondent.

1955. April 7. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by leave granted under article 136(1) of the Constitution against the second appellate judgment of the High Court of Patna. It relates to the office of P11jari and Panda of a famous temple in the town of Arrah in the State of Bihar, known as the temple of Aranya Devi and Killa Ki Devi. The appellant before us-a woman--brought this suit claiming joint title to the office along with the defendant and as such entitled to perform the Puja either by herself or through her Karinda and to get a half share in the income of offerings of the said A stha11. It is the admitted case that this office belongs to the family of both the parties and that the duties of the office were being jointly performed by the defendant and his deceased brother, Rambeyas Pande, and that they were enjoying the emoluments jointly. The plaintiff-the widow of Rambeyas Pande-daims to have succeeded to her husband's share in this property and bases her suit on the said claim. In the written statement the defendant raised three main defences, two out of which are (1) the plaintiff was not. the legally wedded wife of his brother,_ Rambeyas Pande, and (2) during the life time of Rambeyas Pande, there was a division between them with reference to the office of Pujari and Panda belonging to this family in respect of two temples (a) at Arrah and (b) at Gangipul, that the office of Pujari at Gangipul was given to the plaintiff's husband and that the temple of Aran Devi at Arrah was given to the defendant and that since then, i.e., for about l l years prior to the date of the suit, the plaintiff's husband had no connection with the office of Pujari in this temple nor with the receipt of any offerings therein. Both these contentions were found against the defendant by the trial court as well as by the first appellate court and they have become conclusive. The further and third defence raised by the defendant was that the property in suit, riz., the office of Pujari and Panda of the tern:. pie cannot be inherited by a female. The contention

Raj Kali Kuer v.

Ram Ratran Pandey

J955

Raj Kali Kuer

'/ ..

Rain Rattan Pandey

Jaganuadhadn.~ J.

is set out in the following terms in the written statement:

"The plaintiff is not at all entitled to the office and the post of Pujari and Panda of Arun Devi and she is not entitled to get 112 share or any share in the income and offering of the said Asthan, nor has she got any right to perform Puja as a Panda personally, or through her karinda and to get the income, etc.

This is against the custom and usage and practice and also against the Sastras. The property in suit is such as cannot be inherited by a female".

It is the question thus raised which has got to be considered in this appeal.

The trial Court held against this contention in the following terms:

"No authority has been cited nor any custom proved to show that female cannot inherit a property of this nature".

The first appellate Court also affirmed this view as follows:

"The defendant's objection that the plaintiff being a female is not authorised to hold the office of a priest of the Aranya Debi temple is not borne out by any evidence or material on the record. There is nothing to show that by reason of her sex she is debarred from holding this office either by religion, custom or usage. Moreover admittedly she holds the office at the Gangi temple".

On the findings arrived at by the trial court and the first appellate court, the plaintiff got a decree as prayed for declaring her right to half share in the office and for recovery of mesne profits on that footing. On second appeal to the High Court, the learned Judges went into the question at some length and were of the opinion that "the plaintiff being a female is not entitled. to inherit the priestly .office in question and her claim to officiate as a priest in the temple by rotation cannot be sustained. The declaration sought for by her that she is entitled to the office of Pujari cannot, the.refore, 'be granted". The.¥ he\~, .however, "that she 1s not debarr~ from bemg entitled to be maintained out of the estate of her husband which, in

Ru} Kali J(µ8r

"' Ram JlatlW!

P,,,..y

Jl.

!do~ with the.office of the manager of thetemple, who m ...:outh India, is known by the name of Dharmakarta. As early as in Mitt a K unth A udhicarry v.

Neerunjun A udhicarryC), it was recognised that hereditary priestly office in a family is property liable to partition. A number of other decisions to he noticed in the later part of this judgment recognise this position. The learned Judges of the High Court in their judgment in the case under appeal, have attempted to distinguish the present case from that of the case of the Shehailship and have come to the conclusion that while in respect of Shehaiti right a woman may succeed by heirship, she is not entitled to such succession in respect of the right of a Panda and Pujari.

ut in making this distinction .they do not negative the idea that the right to the office of the Puiari itself is property to which a female could succeed, but for her supposed disqualification. The disqualification is said to arise with reference to the duties attached to this office, and it is said that in this respect it differs from the office of a Shehait.

Now there can be no doubt that while in one sense the right to such a religious office is property it involves also substantial elements of duty. As has been stated by this Court in Angurbala v. Dehahratai') and in The Commissioner, H.

E., Madras v. Sri Lakshmindra Thirtha Swamiar(') "both the elements of office and property, of duties and personal interest are blended together <in such offices) and neither can be detached from the other". It must <:1lso be recognised that in respect of such offices especially where they are attached to public institutions, the duties are to be regarded as primary and that the rights and emoluments are only appurtenant to the duties. See the observations of Justice Page in Nagendra. v.

Rahtndra(') at pages 495 and 496 and that of Justice Sadasiva Aiyar in Su1:darambal v. Y ogavanag11rukka!(') at .page 564, as also of Mukherjea on Endowments

0) [1875] X!VB.L.R. 166.

(2) [1951] S.C.R. 1125.

• (3) [1954] S.C.R. 1005. (4)_A.!.R. 1926 Ca!cut<a 490.

(5) A.I.R. 1915 Madras 561.

(1952 Edn.) page 201. If, therefore, it is foui1d that 1955 the recognition of a female's right to succeed to the Roi .kali ,; t111I hereditary office of Pujari in a temple held by her v. husband is incompatible With due discharge Of the Rpn':;, laJI duties of the office, her right to succeed must be nega- -- tived. The correct approach .to a .. question of this 4~1iaM J. kind has been laid down by the Privy Council' in a case which relates to a Mohammadan religious office hut would equally be applicable to '1 Hindu religious office. Jn Shahar Bano v. Aga Mahomed Jafjer Bindaneein(') their Lordships, after noticing the view taken by the learned Judges of the Calcutta High Court, that "there is no legal prohibition against a woman holding a mutwalliship when the trust, by its nature involves no spiritual duties such as a woman could not properly discharge in person or by depury" approved this view of the High Court and said ''it appears to their Lordships that there is ample authority for that proposition" The question, therefore, that requires consideration in the present case 'is whether the office of the Puiari and Panda in a temple involves such duties as could not be discharged by a female in person and if so, whether she is also incompetent to get the same discharged by a deputy.

Now for this purpose it is desirable to have a clear idea of the duties of a Pujari in an ordinary Hindu temple. A Pujari has to perform the prescribed daily worship of the image as well as the special worship of a periodical nature on particular occasions and for prescribed festivals during the year. In Ramahrahma

Chatterjee v. Kedar Nath Banerjee(') Justice Sir Asutosh Mookerjce indicated the daily routine of worship in the following passage:

"The normal type of continued worship of a consecrated image consists of the sweeping of a temple, the process of smearing, the removal of the previous day's offerings of flowers, the presentation of fresh flowers and water, and other like practices. It is sulfcient to state that the deity is, in short, conceived as a living being and is treated in the same way as the

(I) f l'J06f L.R. 311.A. 46. 53.

!'2) :\.IR 1923 Cdc:1::a 60, 62.

llifi Kall &!kt

" Ram.Rat1an

Pandey

!iiatd•.adhatfasJ.

master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest".

In Saraswati's Hindu Law of Endowments(') the nature of the daily worship of a consecrated idol in a temple 'is set out at pages 134 and 135 in detail. It must be recognised t.hat the daily worship differs according to the tenets and usages of the religious sect for which the temple is intended and the idol is consecrated. But whatever may be the details of the worship and the variations therein, there can be no doubt .that the ministration of various services involving personitl touch of the idol, and, often enough, the recita.tion of religious hymns inclusive of Vedic hymns are amongst the normal and essential features of a Pujari' s duties, at any rate in temples where the worship is conducted according to the Shastias. It is

also undisputed that according to Hindu Shastras the functions of a Pujari can be performed only by certain . limited classes and involves special qualifications and that these classt:s may vary with the nature of the institution. Now, whatever may have been the position in early times; of which there is no clear historical evidence, it appears to have been well established in later times that a female, even of the recognised limited classes. cannot by herself perform the duties of a Pujari. Even at a time when the institution of temple worship had probably not come into general vogue, the incapitcity of a woman to recite Vedic texts, to offer sacrificial fire, or to perform sacramental rites, is indicated in certain texts of Manu. (See Sacred Books of the East, Marni, Vol. 25, pages 330 and 437, Chapter 9, section 18 and Chapter 11, section 36).

Whether it is on the basis of these texts or for some either reason, her incapacity to discharge, in person, the duties of the , Pujari appears to have been well

(1) The Hin4u La\\· ofEndown1cnts by Pandi! Pranna1h Sa.rnswali, T.L.L.,

1892. (1897 Edn.).

settled in later times as appears from the following text from Brihan-Naradiya Purana quoted in Saraswati"s Hindu Law of Endowments at page 136.

Ro/Kali Kuer

v." /tam Rat11111 "W h . <l . h h h d Pandey omen. t ose unmveste wit. t e sacred t rea , ·- (i.e. the members of the Dvija class before the initia- Jawamrud/,.uJa, 1 tion ceremony has been performed for them), and Sudras are not competent to touch images of Vishnu or Siva. A Sudra, one uninvested with the sacred thread, a woman or an outcaste, having touched Vishnu or Siva, goes to hell'.

This passage, in terms, refers to the images of Vishnu and Siva but it may reasonably be assumed, in the absence of any evidence to the contrary, that in practice the incapacity of a female to discharge the duties of a Pujari by herself extended. at any rate, to all public temples where an image of whatever form had been consecrated and installed according to the Shasrras.

Indeed, all the cases on the subject have assumed this incapacity of the female. The point of controversy has been whether .she is also incompetent to get the duties discharged by employing a qualified substit11te. If her competern.:e in this behalf is recognised and can be accepted there is no reason why she should not be held entitled to succeed to the office.

Thus the really important question for consideration in this case is whether the duties of the Pujari's office can be got done by a substitute and if so is there any particular reason or clearly established usage, against a female employing such a substitute and thus becoming entitled to the office.

In early Hindu society a priestly office could have relation only to the performance of various kinds of Vedic rituals and sacrifices either of a daily and routine nature or of a periodical and special nature.

In theory a Brahmin is to perform such functions for himself by himself while persons of other classes should get them do.ne through qualified Brahmins.

On principle a priest in the Hindu concept is chosen as such with reference to his personal qualities and competence. The system of hereditary priesthood, however, with the possibility of persons not fully

I9S:S competent, succeeding to or occupying such an o!Iice, /t, Q Kati Kuer appears to have come into vogue from fairly early v. times. It appears. however, that from the very /tam Rslttan f h h h f Pand•Y nature o t e situation. t e temporary disc arge o d-d 1 .the priestly function by a substitute in the place of Jntmma ha as the hereditary priest was a matter of inevitable necessity since the Hindu Shastras recognised tempornry and casual disqualifications like that of birth and death pollution. But there does not appear to be any indication in the early books of any general practice about the functions of priestly office being discharged by proxies. In comparatively later days, however, there is clear indication of such a practice. In Saraswati's Hindu Law of Endowments at page 56, it is stated that in the Padmct Purana and other treatises incapacitated persons are ciirected to have the worship performed through Brahmins. This statement is with reference to the performance of service of an idol and has presumably reference to the incapacity of persons occupying a priestly ollicc. In Colebrooke's transla.- tion of the Digest of Hindu Law on Contracts and Successions with a commentary by Jagannatha Tercapanchanana (4th Edition, published by Higginbotham & Co., Maras, 1874), Vol. I, Book II, Chapter III, Section II, pages 360 to 381 deal with the topic of partnership among priests jointly officiating at holy rites. A perusal thereof and particularly of placita 28 to 44 containing citations from various Smrutis with Jaga11natha's commentary thereon, clearly indicate that the institution of hereditary priestship, became established by that date and that the performance of such priestly functions by substitutes had definitely come into vogue. Various rules are propounded as to the sharing of remuneration between the substitute priest and the hereditary priest when the former happens to perform the functions in the place of the latter. It is to be noticed that these pasages from Jagannatha's Digest refer in terms only to priestly office by way of officiating at holy rites, i.e., sacrifices and other Vedic or Shastric functions hut do not in terms refer to the discharge of a priest's duties in relation to the worship of an idol in a temple.

This is all the more remarkable because by the date 1955 of Jagannatha 's Digest the institution of wor- Raf xa1t'xu" ship of consecrated idols in temples had become long /tam "&,,11111 since fairly established. The probable explanation is l'Undey that Jag; annatha's Digest is a commentary on selected .1. -tllratltn J texts n1ostly of the various Smrutis from which he agann• ·· quotes and that in the days of the Smrutis the temple worship does not appear to have come sufficiently into vogue. The historical origin and growth of temple worship has been fully dealt with in Saraswti's Hindu Law of Endowments and has been also noticed in the referring judgment in A nnaya Tantri v. A mmaka Hengsu(1). It is pointed out therein that according to Hindu sentiment the performance of the duties of an A rchaka or Puiari for an idol has been considered sinful and it required inducements by way of liberal grants of land and promise of substantial perquisites to attract competent persons for the office of Pujari or Archaka. This, in course of time and with the change in social conditions and economic values, rendered the offices of Panda and Pujari in almost all the famous shrines in India, a lucrative affair, and has enabled the hereditary priests to get the functions discharged by pai4 substitutes and themselves enjoy a substantial margin of income. Here just in the same way as the patronage of the kings or the society may. have been a great incentive to the development of the system of discharge of hereditary priestly functions by substitutes in relation to sacrificial and Vedic religious rites, the phenomenal development and worship of idols in temples and the substantial emoluments which in course of time rendered the discharge of priestly office lucrative must have brought into vogue the employment of substitutes for performance of the duties of the priests not only for sacrificial or other religious rites but also for temple worship.

Whether and how far this practice is permitted bv the Shastras is not the question before us. But it cannot be denied and is indeed a matter of common knowledge, that at the present day, hereditary priestly offices are, as often as not, performed by proxies,

(I) A.T.R. 1919 Madras 598 (F.B.).

Raj Ka/; Kuer v. -Ram Rattan

Pandey

J"'qnadl1ad,,. 1.

the choice of proxy being, of course, limited to a small circle permitted by usage. The question for consideration of the courts is, whether, in this state of things, a female is to be excluded from succession to the hereditary office of Pujari on account of her well recognised personal disqualification to officiate as such Pujari for the Shastrical/y installed and consecrated idols in the temples and whether she is to be denied the capacity to retain the property by getting the priestly duties efficiently discharged through a competent substitute. The only basis for the alleged denial is a passage from .Jagannatha's Digest which is as follows: IVide Vol. T, pa_ge 379, commentary under placitum 43).

"Wives and others, disqualified by sex for the performance of h,1!y rites, cannot appoint a substitute; as defiled person cannot perform a solemn act ordained by the Vedas, therefore wives have no property in the office of priest"

Now apart from the question whether this passage can be taken to be st.:fficiently authoritative, there has been some difference of opinion as to the correct import thereof. In Sundaramhul A mmal v. Y ogavanagurukka/(') this passage has been relied upon by Justice Sadasiva Aiyar as showing that women are incompetent to discharge the functions of a priest even through a subsiitute and that, therefore, they have no right of succession to the office. The learned Judges of the High Court in the present case have also relied on it.

In Annaya Tantri v.

Ammaka Hengsu('), Justice Scshagiri Aiyar in his referring judgment has referred to this passage and was of the opinion that it does not express a specific view. In Ganapathi Iver on Hindu and Mahomedan Endowments (2nd Edn.) the learned author while commenting on this very passage says as follows at page 453 of his book:

"Jagannatha there considers the question whether wives and others have a title to the succession to this priestly office.

As usual with the discussions nf

(1).A.J.R. 1915 M;1d. '.'ifil.

(2) A.LR. 1919 Mad. ;9H I F.R.J.

Jagannatha it is difficult to say what his final opinion is.

But we should certainly think that Jagannatha's opinion is that women can inherit doing the duties through a substitute, but enjoying the emoluments attached to that office".

le appears on a careful consideration of the disputed passage with reference to its context, that this view of the learned author is correct. In any case the pass;; gc cannot be definitely relied upon as an author:ty for the contrary view. The discussion in connection with which this passage occurs in the commentary is under placitum No. 43 in Section II of Chapter III, Book II, which is a text from Narada relating to hereditary priests. The statement relied on occurs at a place where there .is an attempt to reconcile the disqualification of the female to discharge the functions of a hereditary priest, and the reconition of her right to succeed to all property including a hereditary ofllce.

The relevant portions of the discussion are herein below set out:

"It is doubted whether wives and others have a title to this succession, althouh the partition, founded on the admission of a riglit vesting in Agraharicas and other officiating priests, ought to be

imilar to the partition of inheritance in general. As the wife's title to succession, on failure of heirs in the male line as far as the greatgrandson, will be declared under the head of Inheritance. what should reverse h<'r titk in this instance? Jt should not be arnued. tliat the wife can have no right to the 1village, hecauseas a woman, she is disqualified for the performance of hnly rites. and because the wives of agraharicn~ and others .are totally incapable nf receiving

tila delivered as a gift to priests. The tila may be received, and the rites be performed, through the intervention of a substitute.

Let it not be argued, that. were it so, a property in the sacrificial fee and regular dues would vest in the substitute. The wife n1ay have the benefit of property acquired by the substitute, as a sacrificer has the benefit of rites perfNme<l by an officiating priest.

However, there is this difference: the sacrificer acquires merit from rites

26-8 SCIIND/82

RafKa/i Kwr

Ram Rattan

Pandey

/Qlfannadhadas . ./.

Raj Kan Klirtr

Ram 'Jf.attdtl

l'e11dry

performed by an officiating priest, and none is ever acquired by the intermediate performer of the rites; b\1l if the duty of the officiating priest be performed hy rr substitute. property in the sacrificial fee is at first vested in the substitute, and through him, in the widow entitled thereto. It is alleged. that there is no a11thority for this construction. * * *

The text which ordains that "a person unable to act shall appoint another to act for him", is the foundat10n of this construction: but the property of an outcaste, or other person disqualified for solemn rites. is absolutely lost, in the same manner with his right to the paternal gold, silver, and the like.

This will be explained in the fifth book on Inheritance.

Wives and-others, disqualified by sex for the performance of holy rites. cannot appoint a substitute: as a defiled person cannot perform a solemn act ordained by the Vedas: therefore wives have 110 property in the

office of priest".

At the end of the discussion there is the following significant passage:

"Therefore the difficulty is thus reconciled; women are entitled to that only for whk:h they are qualified. In regard to the assertion. that women, being disqualified, cannot appoint a substitute. this ml'st be understood: being disqualified for solemn

act~ ordained by the Vedas, they cannot appoint a substitute for such acts; but, qualified for worldly acts, nothing prevents their appointment of a substitute for temporal affairs: and the right should devolve on the next in uccession, under the , text quoted in another place (Book 5. v. 477) and because women are dependent on men.

Grain and similar property may be consumed by a woman entitled to the succession: but gold. silver. and the like. should be preserved: if she cannot 11uard it, let it be entrusted to her husband's heir, as will be mentioned under the title of inheritance.

Here. since a woman cannot orcserve the office, it should be executed by her husband's daughter's son, or other heir; but tlie produce

2 S.C.R.

SUPREi\1£ COURT REPORTS 199

should be enjoyed by the woman .. However, should the daughter's son be at variance with his maternal grandh1other, it may be executed by another person: he is not entitled to his maternal grandfather's property, if that grandfather leave a wife: and should the maternalgrandmother litigate, it must be amicably adjusted''.

The concluding portion seems rather to indicate that the rnore categorical passage underlined above and re!ied upon is in the nature of an objection which is heing answered and that the final conclusion is the reCl\gmtion <"i a right to succeed bv getting the duties of the office performed by the next male in succession.

The learned Judges of the High Court have in fact noticecl this concluding passage hut have missed its correct import.

It is desirable now to consider how this question stands with reference to the decided cases in the various High Courts. A fairly substantial number of cases appear in the reports of the Madras High Court,. One of the earliest decisions is that of the Madras Sadar

Diwani Ada lat in Sesllll A mmal v. So1111daraja A iyarO whre111 it was held, following the opinion of the Sadar Court Pandits that a woman was disqualified

by reason of her sex from i11heriting the office of A charyapurusha but the same Pandits' opinion distinctly recognises that religious offices like those of an Arc/10ka or P'ulari can be held by a female, hy her getting the duties thereof performed through a competent male substitute. In TanKirala Chiranjfri v. Rama Manikya Rao Rajaya Lakshmamma(') it was stated that there was no basis for the assumption that a

minor, a female, or a person unlearned in the Vedas. wili lose the right to service in the temole and that the onus will be on the person who alleges the disqualificatioD to prove it. The learned Judges categorically asserted (aoperently as being a matter within general knowledge and exoerience) that "service in temoles is being performed bv proxies". In Ramasundaram Pillai v. Savundaratha A mmaU') the learned Jud_ges say as follows:

(l) [1853] M.S.D.A. 261. (2\ A.l.R. 1915 Madra• 505(1).

(3) A.T.R. 1915 Madras 725.

195$

Raj Kali Kucr

"· Ram Rott<111

PtJJ1dey

Ja/llUl1lllliharlal

Raj 'KaU Kur

' Rmii Jldttan

Pandey

"It is undeniable that this and other High Courts have Ill numerous cases acted on the 2_ssumption

(which was not qnestioned) that women could hold religious offices and . get the duties performed by

Jogamwdhadm J. Proxy".

They further say

"It may be that the parties concerned are so accustomed to the idea of female office-holders with proxies that it has usually not occurred to them to question the legality of such a state of affairs and that in the absence of contest, the Courts have somewhat too readily assumed it to be legal without requiring proof of a valid custom in support of it".

In Rajeswari Ammal v. Subramaflia Archaka(') the learned Judges state as follows:

"We are of the opinion that a female is not under Hindu law or custom. disqualified from succeeding to a hereditary religious office and getting such duties as she may be disqualified by reason of her sex from performing, performed by proxy"

The only dissentient view against this current of allthority in the Madras High Court was that of Justice Sadasiva Aiyar in Sundarambal A mmal v.

Y ogavanagurukka/O. He expressed a strong opinion that .the practice of allowing the priestly office to be performed by a substitute excepting for merely temporary occasions or casual purposes. is wholly opposed to public policy and that it should not be recognised.

In a later judgment in Annaya Tantri v. A mmaka Hengsu<') relating to the same topic he (Justice Sadasiva Aiyar) stated as follows:

"It is notorious that the deputy is usually chosen on the principle of a Dutch auction.

The man who a.!!rees to allow the widow to retain the largest portion of the emoluments of the office and to receive the ]east a~ his QWn remuneration is given the place of the deputy".

TJ1e learned Judge pointed out that

"sllch a practice was mischievous and that even

(I) A.l R. 1917 Madros963(2).

(2) A.1.R. 1915 Madras 561.

(3) A.l.R. 1919 Madras 598 (F.R).

if it was sanctioned by usage it ought not to bl;! re- 1955 cognised by courts".

Raj Kali Kuer

There is certainly force in this comment.

But in a &;11 :'~ 1"

11 matter of this kind where there is no express prohibi- ~'~-e tion in the texts for the performance of the duties of Jaramwd!zadus J. the Pujari's office by the appointment of substitutes and where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted on to the extent of negativing the right itself. In such a situation what has to be equally emphasised is the duty-aspect oi the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest taking appropriate steps through _ cotirt), when it is found that the services are not being properly or efficiently performed. In view of the

peculiar nature of such ottices as combining in them both tht: element of property and the element of duty, it cannot be doubted that superior authorities in

char~~ of the institutions or other persons interested have this right which may be enforced by appropriate

legal means. In Raja Peary Mohan Mukh<'l'ji v. Ma110- 'liar M uklwrji(') the Privy Council has recognised that notwithstanding the personal interest of a Slwbait in respect of his oftice, the performance of the duties thereof has got to be safeguarded and that he can be removed where he has put himself in a position in \Vhich the obligation of his office can no longer be faithfuliy discharged.

So far as the Madras High Court area is concerned. the controversy has been seWed by the Full Bench case in A1111aya Tantri v. Ammaka HengsuO where the view taken by Justice Sadasiva Aiyar was specifical!Y overruled on the ground that "there were nu-. merous decisions of the Madras High Court in conformity with the decisions of the other High Courts by which the widow and the daughter and the daughter

(!) [19211 L.R. 4R I.A. 258. (.2) A.J.R. 1919 Madras 598 <F.B.).

Raj Kali Ku.er

Ra11z Ruttflit

Pandey

Jaga1uiadhudus J..

of the last male A rchaka are held entitled in accordance with the established user to succeed to the office of Archaka discharging his duties by deputy and to transmit it to their heirs, who as male heirs are preferred to female, and will generally be competent to perform the duties in person". These decisions of tne Madras High Court seem to recognise both the factum and validity of the usage as one that has been accepted by the courts not only within its own jurisdiction but also within the jurisdiction of the other High Courts. It is urged, however, that there is no such usage that can be definitely said to be established with reference to the decisions of the other High Courts.

A~ regards the other High Courts doubtless the actual cases appearing in the reports about this point are not many. In the Bombay High Court one of. the earliest decisions is the case in 1866 of Keshavbhat bin 'Ganeshbhat v. Bhagirhibai kom NarayanbhatC) where the.learned Judges say as follows:

"With respect to the otJjection. that a Hindu female cannot perform the duties which attach to the office for the maintenance of which the allowance was granted, it may be observed that the defendant had not proved the existence of any usage in confotmity with his allegation".

The claim in question in that case was 10 an annual allowance paid from the Government Treasury to the 'members of a family for the maintenance of certain religious services at the temple of M ahadev at Baneshvar near Poona. In Sitarambhat et al v. Sitaram Ganesh(') the head-note shows as follows:

"Semble, that an hereditary priestly office descends in default of males through females".

This i8 apparently the assumption on which that judgment appears to have proceeded though the matter does not appear to have been specifically so decided. In Calcutta one of the early cases is Poorun Narain Dutt v. Kasheessuree Dosee('). There it was recognised that a woman can succeed to a. priestly

(I) 3 11.H.C.R, A.C'.J. 75.

(2) 6 B.H.C.R. A.C.J. 250.

(3) [1865] 3 W.R. 179.

office and the contention .to the contrary was over- 1955 ruled on the ground that the lower appellate court Raj Kali K11er found the same as a fact on the evidence and that no Ramvfl.attan •Orte but the defendant had raised the contention. In Pandey !Joy Deb Surma v. Huroputty Surma(') the same ques- J"g"'m-;; dhadas J. tion was raised, viz., whether according to Hindu law a woman can succeed to the priestly office and reliance appears to have been placed for that contention on the passage from Colebrooke's Digest already above referred to. In view of this contention the learned- .Judges remitted the case to the lower court for determination of the question whether with reference to any particular custom or rule of Hindu law a woman is entitled to succeed to the priestly office. In that case it was the office of the Dolloi of the temple. It does not appear what the finding received was and how this matter was finally decided. In Radha Mohun

Mu11dul v. Jadoommiee Dossee(') their Lorships of the Judicial Committee quoted with apparent approval the following passage from the judgment of the trial Court:

"They (the members of the family) merely say that as the said properties are of a debuttur character, they are not susceptible of division among the shareholders; and that since the plaintiff is a childless widow. she is not competent to c; arry on the service of the gods. That the properties in question do not admit of any partition among the co-shares. is a fact which must be admitted by me; but I do not see any reason why a widow of the family should be incapacit11ted from superintending the service of the gods. It is 11ot uned by the defendants that any such rule has been laid down in the family, and that under it the widows have been excluded from the above superintendence.

On the other hand. among the Hindoos.

Persons belonging to no other caste except that of Brahmins can perform the service of a god with his mvn hands. that is. worhip the idol by touching its person. Men of other castes simply suoerintend the ser<1ir.e of the gods and goddesses established bv themselves. while they causetheir actual worshipto he

(I) [1871] 16 W.R. 282.

(2) 23 W.R. 369.

Raj Kall Ktitt

Ram Rattan

J'andej

Jagannadhadas I.

204 SUPREl'vfE COURT REPORTS [1955]

performed by Brahmins.

Thus, when persons of the above description can conduct the service of idols in the above-mentioned manner, why should not the widows of their family be able to carry on worship in . 1 ? c a s1m1 ar way. . . . . . . . . . .. . . . . . . . . . . onsequently, there 1s nothmg to prevent the Court from finding that the plaintiff has a right to hold possession of the debutter properties enumerated by the defendants in the 12th paragraph of their written statement, and to superintend the service of the gods conjointly with the other co-sharers".

In Mahamaya Debi v. Haridas. Haldar(') it has been recognised that according to custom the palas of

Ktlighat shrine in Calcutta are heritable and that it was immaterial whether the heir is a male or a female.

This must necessarily have involved the recognition of the capacity of the female to get the worship performed by a male substitute who is to be taken from a limited class. As has been already noticed, the reported cases dealing with this math<r outside the Madras High Court do not appear to be many.

At ariy rate, no others have bee)l brought to our notice dealing with this question directly, though there are many cases relating to the question of succession to the office of Shebait and the performance of duties thereof by proxy, which is a matter distinguishable from a case relating to the office of Pujari or A rchaka simpliciter. The paucity of decided cases in the reports of the other High Courts may very well be due to what has been pointed out in one of the Madras cases, viz., that the practice of females 3ucceeding to this office and getting the duties thereof performed by a sn bstitute was so common and well recognised that it has not been seriously contested and brought up to the Courts.

Further the institution of private familv temoles and the endowments of latge and substantial properties for the Deb-seva ii:i such temoles though somewhat uncommon in South India is fairlv common in Bengal and some other. States. •Jn view of the Dayahhaga system of law of succession prevalent in Bengal and the very much larger number

(I\ A.r.R. 1915 Calcutta 161\2).

of occasions for wives and daughters succeeding to a

195.S sonless coparcener in Dayabhaga joint families, the 1:11/ Kali xi.er practice of females succeeding to the prie~Jy office Rom v.Ra 1 and of getting the duties performed by other mem- Pande; "n bers of the family as proxies in their places must, by J, -;,;;;""' J the very. situation, have been common in these areas. aaa11n ai (fhe case reported in Jalandhar Thakur v. Jharula Das(') is a case relating to Shebait's (priest's) office in the Singheswar temple of Bhagalpur and the facts therein show that there was umtuestioned female succession to the office. It is a clear indication of the prevalence of the usage of female succession to priestly office in the State of Bihar from which the present case arises .

. A careful review, therefore, of the reported cases on this matter shows that the usage of a female succeeding to a priestly office and getting the same .performed through a competent deputy is one that has been fairly well recognised. There is nothing in the textual Hindu law to the contrary.

Nor can it be said that the recognition of such a usage is opposed to public policy, in the Hindu law sense. As already pointed out the consideration of public policy can only be given effect in the present state of the law, to the extent required for enforcing adequate discharge of the duties appurtenant to the office.

Subject to the proper and efficient discharge of the duties of the office, there can be no reason either on principle or on authority to refuse to accord to a female the right to succeed to the hereditary office held by her hushand and to get the duties of the office performed hy a substitute excepting in cases where usage to the contrary is pleaded and established. In the present case such a usage was pleaded by the defendant

in his written statement but no evidence of it was given.

Indeed as pointed out by the first appellate Court, the plea that there has been a partition of the offices of the two temples and the implied re· cognition of the plantiff's right to the office of the other temple at Gangupal appears to indicate the contrary usage. We are accordingly of the opininn

(1) A.T.R. 1914 P.C. 72. 27-8 SCT 1NDl82

19S5

Raf .Kali }(11er

•• Ram Ratu1n

Pa11dey

Jagannadhadas.J.

April 7

that tht: claim of the plantiff-appellant is made out and that she is entitled to succeed.

The:: discussion above. is more germane to the case of a public t"mple wherein the idol has been Shastrically installed and consecrated and the worship is in accordance with the Shastras. There is nothing on the record to shbw whether the temple in this case falls within this category. If; however, the temple

s a private one or idol therein is not one Shastri cal!y consecrated, the case in favour of the plaintiff is much stronger and her right cannot be seriotisly challenged.

At this stage, it is desirable to mention one other matter.

In the present case the emoluments attached to the office ar.e stated to be the daily and other offerings made to the deity at the worship hy the visiting devotees.

Both the parties to thi~ case have come up to Court on the common footing that it is this which constitutes the emoluments.

Whether and how far such votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private famiiy temple) and whether any usage i'l this behalf is valid is a matter which does not arise before us in this case.

In the result, the appeal must be allowed with costs throughout and the decree of the trial court must he restored.

RAO SHIVA BAHADUR SINGH v.

THE STATE OF VINDHYA PRADESH AND

ANOTHER

fMUKHERJEA C.J., S. R. DAS, VIVIAN BOSE, STNHA

and IMAM J.T.] .

Constitution of India-Art. 145(3)-Cottstruction of-Supreme Court-Whether competent to split Up the case for he purpose of hearing and decision.

Held (Per MUKHERJEA C:T, DAS, VIVIAN HOSE. and IMAM .TJ SINHA J. dissentini:) that a Constitution Bench of five or more Judges before which a cace happrns to be posted in the first. instance