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PETITIONER: RAJ KALI KUER

       Vs.

RESPONDENT: RAM RATTAN PANDEY

DATE OF JUDGMENT: 07/04/1955

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. BOSE, VIVIAN SINHA, BHUVNESHWAR P.

CITATION:  1955 AIR  493            1955 SCR  (2) 186

ACT: Hindu  Law-Hereditary priestly office of a Pujari and  Panda -Hindu female-Bight to succeed-Usage.

HEADNOTE: 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 erformed through a competent  deputy  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 performed by  a substitute  except in cases where usage to the  contrary  is pleaded and established. Quaere:-Whether   and  how  far  votive  offerings  can   be appropriated by a Pujari for his emoluments if the temple is a  public institution, (i.e., not a private  family  temple) and whether any usage in this behalf is valid. Case-law and the relevant texts reviewed. Judgment of the High -Court of Patna reversed.

JUDGMENT: 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  the 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 the appellant. S.   P. Varma, for the respondent. 187 1955.  April 7. The Judgment of the Court was delivered by

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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 Pujari 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  Asthan. 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  enjoy- ing  the  emoluments jointly.  The  plaintiff-the  widow  of Rambeyas  Pande-claims  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 11 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, viz., the office of Pujari  and  Panda of the templet cannot be-inherited  by  a female, The contention 188 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 1/2 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  con- sidered 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

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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, therefore, be granted".  They held,  however, "that  she  is  not  debar-red from  being  entitled  to  be maintained out of the estate of her, husband which, in 189 the  particular  case,  happens  to be  no  other  than  the emoluments  attached to the priestly office in the shape  of offerings  made  to the deity which office  was  undoubtedly hereditary".   They further held that "she will be  entitled to  receive  from  the  defendant half  the  amount  of  the offerings  in lieu of her maintenance" and they  varied  the decree  of the trial court accordingly.  The short  question that arises, therefore, for consideration in this appeal  is whether  a  Hindu  female  is entitled  to  succeed  to  the hereditary priestly office of a Pujari and Panda held by her husband  in a temple and to receive the emoluments  thereof. This  is  a question about which there has been  some  diff- erence  of opinion in the decided cases.  It requires  close examination. That religious offices can be hereditary and that the  right to  such  an office is in the nature of property  under  the Hindu  Law  is now well established.  A Full  Bench  of  the Calcutta High Court in Manohar v. Bhupendra(1) has laid this down in respect of Shebaitship of a temple and this view has been  accepted by the Privy Council in two subsequent  cases in Ganesh v. Lal Behary(2) and Bhabatarini v. Ashalata  (3). In  a  recent judgment of this Court reported  as  The  Com- missioner,   Hindu  Religious  Endowments,  Madras  v.   Sri Lakshmindra Thirtha Swamiar(4) this view has been reiterated and  extended to the office of a Mahant.  On the  view  that Shebaiti  is  property, this Court has also  recognised  the right  of  a female to succeed to the  religious  office  of Shebaitship   in   the  case  reported   as   Angurbala   v. Debabrata(5), where the question as to the applicability  of Hindu  Women’s  Right  to  Property Act  to  the  office  of Shebaitship came up for consideration.  On the same  analogy as  that  of  a Shebaiti right, the right  of  a  hereditary priest  or Pujari in a temple must also amount  to  property where  emoluments are attached to such an  office.   Indeed, some  of  the decisions which have recognised  the  Shebaiti right as property appear to be cases where the Shebaiti (1)  A.I.R. 1932 Calcutta 791. (2)  (1936] L.R. 68 I.A. 448. (3)  [1943] L.R. 70 I.A. 57. (4)  [1954] S.C.R. 1005. (5) [1951] S.C.R. 1125. 190 right  combines the priestly office of a Pujari of the  idol with  the office of the manager of the temple, who in  South India, is known by the name of Dharmakarta.  As early as  in Mitta  Kunth Audhicarry v. Neerunjun Audhicarry(1),  it  was recognised  that hereditary priestly office in a  family  is property  liable to partition.  A number of other  decisions to  be 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 Shebaitship  and have come to the conclusion that  while  in

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respect  of Shebaiti right a woman may succeed by  heirship, she  is  not entitled to such succession in respect  of  the right of a Panda and Pujari.  But in making this distinction they  do not negative the idea that the right to the  office of  the  Pujari 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 Shebait. 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. Debabrata(2) and in The  Commissioner, H. R. E., Madras v. Sri Lakshmindra Thirtha Swamiar(3) "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 also 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. Rabindra(4) at pages 495 and 496 and  that  of  Justice  Sadasiva  Aiyar  in  Sundarambal  v. Yogavanagurukkal(5)  at  page 564, as also of  Mukherjea  on ’Endowments (1)  [1875] XIV B.L.R. 166. (2)  (1951] S.C.R. 1125. (3)  [1954] S.C.R. 1005. (4)  A.I.R. 1926 Calcutta.490. (5) A.I.R.   1915 Madras 561. 191 (1952  Edn.) page 201.  If, therefore, it is found that  the recognition of a female’s right to succeed to the hereditary office  of  Pujari  in  a temple  held  by  her  husband  is incompatible with due discharge of the duties of the office, her  right  to  succeed  must  be  negatived.   The  correct approach  to a question of this kind has been laid  down  by the  Privy Council in a case which relates to  a  Mohammadan religious office but would equally be applicable to a  Hindu religious  office.   In Shahar Bano v.  Aga  Mahomed  Jaffer Bindaneem(1) 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 deputy" 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 Pujari 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 Ramabrahma Chatterjee V. Kedar Nath  Banerjee Justice Sir Asutosh Mookerjee 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

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other  like practices.  It is sufficient to state  that  the deity  is,  in  short, conceived as a living  being  and  is treated in the same way as the (1)  [1906] L.R. 84 I.A. 46, 53. (2)  A.I.R. 1923 Calcutta 60, 62. 192 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(1) 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  that 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 personal   touch  of  the  idol,  and,  often  enough,   the recitation  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 Shastras.  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 classes  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 incapacity  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,  Manu, 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 other reason, her incapacity  to discharge,  in person, the duties of the Pujari  appears  to have been well (1)   The  Hindu  Law  of  Endowments  by  Pandit   Prannath Saraswati, T.L.L., 1892. (1897 Edn.). 193 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. "Women,  those uninvested with the sacred thread, (i.e.  the members  of the Dvija class before the  initiation  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 Shastras.  Indeed, all the cases  on  the subject  have  assumed this incapacity of the  female.   The point   of  controversy  has  been  whether  she   is   also

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incompetent  to  get the duties discharged  by  employing  a qualified  substitute.  If her competence 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’8 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 done  through  qualified Brahmin,s.   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 25 194 competent,  succeeding  to  or  occupying  such  an  office, appears to have come into vogue from fairly early times.  It appears,   however,  that  from  the  very  nature  of   the situation, the temporary discharge of the priestly  function by a substitute in the place of the hereditary priest was  a matter  of  inevitable necessity since  the  Hindu  Shastras recognised temporary and casual disqualifications like  that of  butt 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 Padma Purana   and  other  treatises  incapacitated  persons   are directed  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  office.   In Colebrooke’s  translation  of  the Digest of  Hindu  Law  on Contracts  and Successions with a commentary  by  Jagannatha Tercapanchanana  (4th Edition, published by  Higginbotham  & Co.,  Madras, 1874), Vol.  I, Book II, Chapter III,  Section 11,  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 Jagannatha’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 passages 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  but do not in terms refer to the discharge  of  a priest’s  duties in relation to the worship of an idol in  a temple. 195 This  is  all  the more remarkable because by  the  date  of Jagannatha’s   Digest   the  institution   of   worship   of consecrated  idols in temples had become long  since  fairly established.  The probable explanation is that  Jagannatha’s

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Digest  is  a  commentary on selected texts  mostly  of  the various Smrutis from which he 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  Saraswati’s Hindu  Law  of Endowments and has been also noticed  in  the referring judgment in Annaya Tantri v. Ammaka Hengsu(1).  It is pointed out therein that according to Hindu sentiment the performance  of  the duties of an Archaka or Pujari  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  paid 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  by  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, (1)  A.l.P, 1919 ’Madras 598 (F,B.). 196 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 Shastrically 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: (Vide Vol. 1,  page  379,  commentary under placitum 43). "Wives  and others, disqualified by sex for the  performance of  holy  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 sufficiently authoritative, there has been  some difference of opinion as to the correct import thereof.   In Sundarambal  Ammal v. Yogavanagurukkal(1) 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 substitute 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(2),  Justice   Seshagiri 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 Iyer on Hindu and Mahomedan  Endowments

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(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 of (1)  A.I.R. 1915 Mad. 561. (2)  A.I.R. 1919 Mad. 598 (F.B.). 197 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". It  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  passage cannot  be  definitely relied upon as an authority  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 recognition of her right  to  succeed to all property  including  a  hereditary office.  The relevant portions of the discussion are  herein below set out: "It is doubted whether wives and others have a title to this succession, although the partition founded on the  admission of  a  right vesting in Agraharicas  and  other  officiating priests, ought to be similar 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 great-grandson, will be  declared  under  the head of  Inheritance,  what  should reverse  her  title  in this instance?   It  should  not  be argued,  that  the wife can have no right  to  the  village, because as a woman, she is disqualified for the  performance of  holy  rites, and because the wives  of  agraharicas  and others are totally incapable of 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  may have the  benefit  of  property acquired by the substitute, as a sacrificer has the  benefit of  rites  per formed by an  officiating  priest.   However, there is this difference: the sacrificer acquires merit from rites 198 performed  by  an  officiating  priest,  and  none  is  ever acquired by the intermediate performer of the rites; but  if the  duty  of  the officiating priest.  be  performed  by  a 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 authority for this construction. *                     *         *               * The  text which ordains that "a person unable to  act  shall appoint  another to act for him", is the foundation 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

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defiled  person cannot perform a solemn act ordained by  the Vedas:  therefore  wives have no 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 which they  are  qualified.   In regard  to  the assertion, that women,  being  disqualified, cannot appoint a substitute, this must be understood:  being disqualified  for  solemn acts 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 succession, 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 guard it, let it be entrusted to her husband’s heir, as will be mentioned under the title of inheritance.  Here, since  a woman  cannot preserve the office, it should be executed  by her husband’s daughter’s son, or other heir: but the produce 199 should  be  enjoyed  by  the  woman.   However,  should  the daughter’s son be at variance with his maternal grandmother, 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 maternal grandmother  litigate, it must be amicably adjusted". The  concluding  portion seems rather to indicate  that  the more categorical passage underlined above and relied upon is in  the nature of an objection which is being  answered  and that  the final conclusion is the recognition of a right  to succeed by getting the duties of the office performed by the next  male  in succession.  The learned Judges of  the  High Court have in fact noticed this concluding passage but  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 Adalat in Seshu Ammal v. Soundaraja Aiyar(1) wherein it was held,  following the  opinion  of the Sadar Court Pandits, that a  woman  was disqualified by reason of her sex from inheriting the office of Acharya purusha but the same Pandits’ opinion  distinctly recognises  that religious offices like those of an  Archaka or Pujari can be held by a female, by her getting the duties thereof  performed through a competent male substitute.   In Tangirala   Chiranjivi   v.   Rama   Manikya   Rao    Rajaya Lakshmamma(2) it was stated that there was no basis for  the assumption that a minor, a female, or a person unlearned  in the Vedas, will lose the right to service in the temple  and that  the  onus will be on the person who alleges  the  dis- qualification to prove it.  The learned Judges categorically asserted  (apparently  as  being  a  matter  within  general knowledge and experience) that "service in temples is  being performed   by   proxies".   In   Ramasundaram   Pillai   v. Savundaratha Ammal(3) the learned Judges say as follows: (1)  [1863] M.S.D.A. 261. (2) A.I.R. 1915 Madras 505(1). (3) A.I.R. 1915 Madras 725. 200 "It  is undeniable that this and other High Courts  have  in -numerous  cases  acted  on the assumption  (which  was  not

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questioned) that women could hold religious offices and  get the duties performed by 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. Subramania  Archaka(1)  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  authority in the Madras High Court was that of Justice Sadasiva  Aiyar in Sundarambal Ammal v. Yogavanagurukkal (2) . 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. Ammaka Hengsu(3) relating to  the  same topic be (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 agrees to  allow the widow to retain the largest portion of the emoluments of the office and to receive the least as his own  remuneration is given the place of the deputy". The  learned  Judge pointed out that "such a practice was mischievous and that even (1)  A.I.R. 1917 Madras 963(2). (2)  A.I.R. 1915 Madras 561. (3)  A.I.R.1919 Madras 598 (F.B.).         201        if it was sanctioned by usage it ought not to be  recognised        by courts".        There  is certainly force in this comment.  But in a  matter        of  this kind where there is no express prohibition  in  the        texts  for  the performance of the duties  of  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 to the        extent of negativing the right itself.  In such a  situation        what has to be equally emphasised is the duty-aspect of  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 court), when it  is  found        that  the  services are not being  properly  or  efficiently        performed.   In view of the peculiar nature of such  offices        as  combining in them both the element of property  and  the        element  of  duty,  it  cannot  be  doubted  that   superior        authorities  in charge of the institutions or other  persons        interested  have  this  right  which  may  be  enforced   by        appropriate  legal means.  In Raja Peary Mohan  Mukherji  v.        Manohar  Mukherji(1) the Privy Council has  recognised  that        notwithstanding  the  personal  interest  of  a  Shebait  in        respect of his office, 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 which the obligation  of        his office can no longer be faithfully discharged.

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      So  far  as  the Madras High Court area  is  concerned,  the        controversy  has  been  settled by the Full  Bench  case  in        Annaya  Tantri v. Ammaka Hengsu(2) where the view  taken  by        Justice  Sadasiva  Aiyar was specifically overruled  on  the        ground  that  "there were numerous 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        (1)  [1921] L.R. 48 I.A. 258.        (2)  A.I.R. 1919 Madras 598 (F.B.).        26        202        of  the  last male Archaka 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 the 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.        As 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        Narayanbhat(1) where the learned Judges say as follows:        "With  respect to the objection, 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 conformity with his allegations.        The  claim  in  question  in that  case  was  to  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 Mahadev at Baneshvar near  Poona.        In  Sitarambhat  et al v. Sitaram  Ganesh(2)  the  head-note        shows as follows:        "Semble,  that  an hereditary priestly  office  descends  in        default of males through females".        This  is  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(3).  There it was recognised that a woman can  succeed        to a priestly        (1) 3 B.H.C.R., A.C.J. 75.      (2) 6 B.H.C.R. A.C.J. 250.                           (3) [1865] 3 W.R. 179.        203        office and the contention to the contrary was over. ruled on        the ground that the lower appellate court found the same  as        a fact on the evidence and that no one but the defendant had        raised  the  contention.   In Joy  Deb  Surma  v.  Huroputty        Surma(1)  the  same  question  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  deter-        mination  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

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      the  finding  received was and how this matter  was  finally        decided.   In  Radha Mohun Mundul  v.  Jadoomonee  Dossee(2)        their  Lordships  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  carry on the service of the gods.   That  the        properties  in question do not admit of any partition  among        the co-sharers is a fact which must be admitted by me; but I        do  not see any reason why a widow of the family  should  be        incapacitated  from superintending the service of the  gods.        It  is  not urged 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  own  hands, that is,  worship  the  idol  by        touching its person.  Men of other castes simply superintend        the  service of the gods and goddesses established by  them-        selves, while they cause their actual worship to be        (1) [1871] 16 W.R. 282.        (2) 23 W.R. 369.        204        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    a    similar        way?................................ Consequently, there  is        nothing 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(1) it has been recognised        that  according  to custom the palas of Kalighat  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  matter  outside  the        Madras High Court do not appear to be many.  At any rate, no        others  have  been 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 Archaka 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 succeeding to this office  and        getting the duties thereof performed by a substitute was  so        common  and well recognised that it has not  been  seriously        contested  and  brought  up  to  the  Courts.   Further  the        institution of private family temples and the endowments  of        large  and substantial properties for the Deb-seva  in  such        temples  though somewhat uncommon in South India  is  fairly        common  in  Bengal and some other States.  In  view  of  the        Dayabhaga  system of law of succession prevalent  in  Bengal        and the very much larger number        (1)  A.I.R. 1915 Calcutta 161(2).                                    205

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      of occasions for wives and daughters succeeding to a sonless        coparcener  in  Dayabhaga joint families,  the  practice  of        females succeeding to the priestly office and of getting the        duties  performed by other members of the family as  proxies        in  their  places  must, by the very  situation,  have  been        common  in  these  areas.  The case  reported  in  Jalandhar        Thakur  v.  Jharula Das(1) is a case relating  to  Shebait’s        (priest’s) office in the Singheswar temple of Bhagalpur  and        the  facts therein show that there was  unquestioned  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 husband and to get the  duties        of  the office performed by 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 recognition of the plaintiff’s right        to  the  office of the other temple at Gangupal  appears  to        indicate  the  contrary usage.  We are  accordingly  of  the        opinion        (1)  A.I.R. 1914 P.C. 72.        206        that  the claim of the plaintiff-appellant is made  out  and        that she is entitled to succeed.        The discussion above is more germane to the case of a public        temple 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  show  whether        the  temple  in this case falls within this  category.   If,        however, the temple is a private one or the idol therein  is        not one Shastrically consecrated, the case in favour of  the        plaintiff is much stronger and her right cannot be seriously        challenged.   At this stage, it is desirable to mention  one        other  matter.  In the present case the emoluments  attached        to the office are stated to be the daily and other offerings        made  to the deity at the worship by the visiting  devotees.        Both  the parties to this 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 family temple)        and  whether any usage in 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  be        restored.

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