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TMI Blog1955 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 temple cannot be inherited by a female. The contention is set out in the following terms in the written statement : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree 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 difference of opinion in the decided cases. It requires close examination. 6. 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 A.I.R. 1932 Cal 791 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 [1936] L.R. 63 I.A. 448 and Bhabatarini v. Ashalata [1943] L.R. 70 I.A. 57. In a recent judgment of this Court reported as The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar [1954] S.C.R. 1005 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the rights and emoluments are only appurtenant to the duties. See the observations of Justice Page in Nagendra v. Rabindra A.I.R. 1926 Cal 490) and that of Justice Sadasiva Aiyar in Sundarambal v. Yogavanagurukkal A.I.R. 1915 Mad 561 , as also of Mukherjea on Endowments (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 [1906] L.R. 34 I.A. 46 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 appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Jagannath Tercapanchanana (4th Edition, published by Higginbotham Co., Madras, 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 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 definite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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. I, 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 performed by an officiating priest. However, there is this difference : the sacrificer acquires merit from rites 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed 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. 16. 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 [1853] M.S.D.A. 261 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 Acharuapurusha but the same Pandit's opinion distinctly recognizes 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 A.I.R. 1915 Mad 505 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 on 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 [1921] L.R. 48 I.A. 258 the Privy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, that an hereditary priestly office descends in default of males through females. 25. 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 [1865] 3 W.R. 179. There it was recognised that a woman can succeed to a priestly office and the contention to the contrary was overruled 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 [1871] 16 W.R. 282 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 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 Dollo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of occasions for wives and daughters succeeding to a sonless coparcener in Dayabhaga joint families, the practice of females succeeding to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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