Raj Kali Kuer Vs. Ram Rattan Pandey
 INSC 26 (7 April 1955)
BOSE, VIVIAN SINHA, BHUVNESHWAR P.
CITATION: 1955 AIR 493 1955 SCR (2) 186
Hindu Law-Hereditary priestly office of a
Pujari and Panda -Hindu female-Bight 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 deputy has been
well-recognised and it is not contrary to textual Hindu Law nor opposed to
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
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 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 enjoying 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 onthe 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 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
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, 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 difference 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 Commissioner, 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)  L.R. 70 I.A. 57.
(4)  S.C.R. 1005.
(5)  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 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)  XIV B.L.R. 166.
(2) (1951] S.C.R. 1125.
(3)  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
"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
sufficient to state that the deity is, in short, conceived as a living being
and is treated in the same way as the (1)  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 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
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 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
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 (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
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
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
disqualification 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)  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 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
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.
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)  L.R. 48
(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
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)  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 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
Mundul v. Jadoomonee Dossee(2) their Lordships of the Judicial Committee quoted
with apparent approval the following passage from the judgment of the trial
"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 themselves, while they cause their actual
worship to be (1)  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 abovementioned
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 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.