1. Adopting the view most favourable to the plaintiffs that the land in suit originally belonged to the temple and was granted by the temple to the ancestors of the defendants hereditarily for the performance of the vritti of reciting Purans in the temple, we should still be of opinion that no case has been made out for removing the defendants and restoring the lands to the temple. In fairness to the defendants it ought, however, to be said that in our opinion there is very little evidence, and that not of the best quality, to support either of the propositions assumed in the last pre' motive and condition of the former. Where the fact is so, the law is well established that on failure or refusal to perform the duty the interest in the land is resumable.
2. In respect of grants burdened with service resumable for failure or refusal to perform that service the Court would ordinarily require very strong and conclusive evidence before disturbing the practice which has persisted for a long time. ceding observation. The only evidence that the lands ever belonged to the temple consists in a single entry in a revenue record, where it is stated that the land is of the ownership of the God. Beyond that there is absolutely nothing, for I reckon as of no evidentiary value the statements of the witnesses at the present day or the alleged admissions of the father of defendant No. 1 and one admission of defendant No. 1 himself. Nothing is easier than for witnesses to come forward and make a bold statement that such and such land belonged to the temple. It does not appear that any single one of these witnesses was asked how he came by that information. And since it is common ground that the grant, if a grant was ever made, was made some time in the very early years of the 19th century, and since then that every act of ownership has been done by the defendants themselves, it is obviously impossible that any living witness could have any first hand knowledge of such a grant having been made, and therefore, of the ownership of the property having inhered in the temple anterior to such grant. Next it is equally uncertain so far as the evidence recorded in this case goes, assuming that the lands in suit were ever granted to the defend ants by the plaintiff, what the terms of that grant were, whether it was in reality the creation of the hereditary office of vritti for the reciting of Purans, then bestowed hereditarily upon the defendants' family from generation to generation, and the lands in suit assigned as remuneration therefor, or whether it was a grant of lands burdened with the service of reciting Purans in the temple. In our opinion the evidence upon which the lower Court has mainly relied is at least as consistent with the grant having been of the former as of the latter description. And if that were so, the law is well established that the lands so granted are not resumable. Further where there is an interest in land coupled with the duty, and the grant is not forthcoming so that its actual terms may be known, it must always be a matter of great difficulty, and no more than a mere conjecture, to decide whether the interest was so coupled with the duty that the latter could confidently be said to have been the sole motive and condition of the former. Where that is so, the law is well established that on failure or refusal to perform the duty the interest in the land is resumable. But there are innumerable cases of an interest in land, so coupled with the duty as not to fulfil the requirements of the last stated 'definition; and in all those cases it cannot be said that it is settled that the land can be resumed even upon failure or refusal to perform the duty.
3. We are, therefore, assuming a great deal when we begin by-adopting the view most favourable to the plaintiffs, namely, that this was a grant of land burdened with service, the service being the sole motive and condition of the grant. Even were it so, however, it is clear upon the record that there is no satisfactory evidence either that the defendants are incapable of performing or unwilling to perform the duty, which the plaintiff alleged was the motive and condition of the grant, namely, reciting Purans during three months of the year. The plaintiff has sworn that the defendants were called upon to recite those Purans and refused to do so. On the other hand the defendants have in their written statement expressed their willingness to recite the Purans. And beyond the bare word of the plaintiffs there is only the statement of a single witness which can by means of a little interpretation be made to support him. At first that witness said that after asking the defendant why he was not reciting the Purans and the defendant having replied that he was ill, he afterwards went on to say that he was quite willing to do so if his interrogator so t$ wished. The witness, however, immediately corrected the last statement by saying that he understood by ' if he wished' if he were willing to pay him for doing it. However that may be, there is really no evidence worth the name, certainly none upon which we should feel disposed to rely, in support of the conclusion arrived at by the learned Judge below, one of the effects of which would be to deprive the defendants of the enjoyment of lands which they have admittedly held uninterruptedly since 1823, and at the same time to deprive them of what it is quite likely they regard as a privilege rather than a duty, namely, reciting Purans during the three months of the year in the temple. In respect of grants burdened with service resumable for failure or refusal to perform that service the Court would ordinarily, we think, require very strong and conclusive evidence, where the facts are as found in this case, before disturbing the practice which has persisted for a century. No reflection is made upon the competence of the defendants, and it is the defendants' case that so far from having refused to read the Purans, they have foam prevented by the plaintiffs and their adherents from -doing so ; and speaking for myself, I this is much more probably true than that they should have obstinately refused the performance of the duty which is usually regarded as conferring some great honour upon those entrusted with it. It is not an onerous duty, and assuming that lands were held upon condition of performing it, it appears to us that it would be most unjust upon the bare word of the plaintiff that he called upon the defendants to do this service and that the defendants refused to take these lands out of the possession of the defendants and to preclude the defendants' family from reciting the Purans, as they have admittedly been doing for nearly a century. We entertain some doubts whether in view of the observations upon the alternative hypothesis, which the Court might well have adopted, we ought not really to dismiss this suit; but taking the evidence as a whole there may be material enough logically to support the opinion of the learned Judge below that the land was given by the temple to the defendants' family on condition that that family should thenceforward and for ever hereditarily recite the Purans during the stated months in the temple, and we think that so long as there is a descendant of the defendants' family ready and A willing to discharge those duties, he should be allowed to do so and the lands should remain as before in the possession of the defendants and their descendants. We must, therefore, modify the decree of the Court below and substitute for it a decree founded upon the foregoing judgment. Having regard to the fact that in their written statement the defendants absolutely repudiated any duty coupled with the interest they had in the land, and further to the fact that the plaintiffs theoretically have moved in this matter not in their own but in the interests of the public charity, we think that each party should bear his own costs throughout.