Norman Macleod, Kt., C.J.
1. There is a private temple of Mahalaxmi at Godhra in the ancestral house of the parties. Some land was assigned to the goddess in Inam by the Seindia Government and the grant was confirmed by the British Government by a Sanadi Exhibit 45, which is aa follows :-
It is hereby declared that the said land shall be continued for ever by the Brtish Government as the Nemnuk Inam property of Shri Mahalaxumi Mata goddesa on the following conditions:-that is to say, the vahivatdara of the said goddess shall continue faithful subjects of the British Government and shall make use of the income of the said land for defraying the expenses of the said institution and for the continuation thereof. In consideration of the fulfilment of which conditions the said land shall be continued for ever aa Nemnuk Inam and it is further declared that the said institution cannot give the said land in sale, gift, or by a deed of inheritance, or otherwise to any other person.
2. The relationship between the parties is shown in the follow, ing genealogical tree :-
| Rauchhod Balkrishna
| (Defendant) (now deceased)
died in 1909 A.D.
died in 1915, leaving
widow, Parsan, who
died in 1919,
leaving 2 daughters
(who are the plaintiff in the suit)
3. Disputes arose between Dalsukh and his nephews, Ranchhod, defendant-appellant, and his brother Balkrishna now deceased, Dalsukh objecting apparently to allowing his nephews to officiate as sevaks and to share in the net profits of the Inam lands. Apart from possessory suits, in suit No. 634 of 1901, under the judgment, Exhibit 66, the nephews succeeded in establishing their equal right with their uncle, and in suit No. 32 of 1905 there was a similar judgment by compromise, the uncle and the nephews taking their turn every alternate year.
4. Dalsukh died leaving a son Ambalal. Ambalal died in 1915 leaving a widow, who died in 1919, and two daughters, the present plaintiffs-respondents. The present suit was by the daughters against Ranchhod Mayaram to establish their equal right to management and net profits,
5. The appellant resisted their claim mainly on two grounds (1) that, being females, they were note entitled, both under the Hindu law and by the usage of the particular temple, to officiate and take the profits; and (2) being both married, they had passed out of the family and therefore could not officiate. Both Courts disallowed these contentions and decreed the claim. The defendant appeals.
6. On the first ground of disability by reasons of their sex, there is no decision of this Court. The point was left open in Keshavbhat bin Ganeshbhat v. Bhagirthibai Kom Narayanbhat (1866) 3 B.H.C.R. 75. But the competence of women to inherit the hereditary priestly office, in default of males, was perhaps assumed in Sitarambhat v. Sitaram Ganesh (1869) 6 B.H.C.R. 250. In Madras, an adverse opinion to such rights was expressed by Sadaaiva Ayyar J. in Sundarambal Ammal v.Yogavanagurukkal I.L.R. (1914) Mad, 850 . That decision, however, was not followed by a subsequent bench of the Madras High Court in Raja Rajeswari Ammal v. Subramania Archakar I.L.R. (1915)Mad. 105 and was overruled by a Full Bench in Annaya Tantri v. Ammakka Hengsu I.L.R (1918) Mad. 836 . which decided that 'a Hindu widow was not incompetent by reason of her sex from inheriting the service and emoluments of a priestly office held by her husband.' Although the question and answer are limited to a Hindu widow and to the priestly office held by her husband, the ratio deci-dendi of the majority extends equally to all Hindu women and to offices held by their father. Similarly, the right of a woman to succeed as a shebait, to her father appears to be assumed on the Bengal aide : Mahamaya Dehi v. Haridas Haldar I.L.R. (1914) Cal 455 .
7. In Mohan Lalji v. Gordhan Lalji Maharaj I.L.R.(1913) All. 283 : 15 Bom. L.R. 606. the question was as to the right of the sons of daughters to succeed to sebait-ship and the property belonging to it, which related to a Vallabha temple. It was held by their lordships of the Privy Council that in view of the peculiar custom among the Vallabha Maharajas of marriage with Bhats and the fact that while the daughters, although they married Bhat. husbands, remained in their father's house, their sons did not so remain but became Bhats, and were disqualified from performing worship, the daughters' sons were not entitled to officiate or to receive the emoluments.
8. In the present case, although the respondents' right to succeed was challenged on the score of their sex in both the lower Courts, it was conceded by Diwan Bahadur Rao for the defendant-appellant in this Court that he could not challenge the plaintiffs-respondents' right on the ground of their sex alone. The only ground urged for the appellant is that by reason of the respondents' marriage, they have passed out of the family of the vahivatdar or officiating priest.
9. For the respondents it is pointed out that practically this ground hardly differs from the first ground of sex inasmuch as every Hindu woman in India is married at an early age; and absence of limitation as to women or daughters in the Sanad is also relied upon,
10. As pointed out by their lordships of the Privy Council in the ease of Mohan Lalji v. Gordhan Lalji Maharaj I.L.R. (1913) All. 288 : 16 Bom. L.R. 606, referred to above, the question is ona of giving effect to the legal wishes of the founder as to the devolution, in other words, of construction of the grant. In the present case, the grant makes it clear, firstly, that the property is an Inam of the goddess; secondly, that the management is to be by the vahivaidar; and, thirdly, that the vakivatdars are not competent to sell, gift, bequeath or alienate the land. As to sex and the consequences of marriage the Sanad is silent.
11. There is no evidence of usage except that it appears that the respondents' mother Parsan did officiate, probably by a deputy, during the four years of her widowhood before her death in 1919, The fact is, however, not decisive against the present contention of the appellant, though it is doubtless decisive against the contention as to sex, which has been given up in this Court.
12. The only other relevant circumstance appears to be that the goddess was originally a private goddess and is still installed in a room in the ancestral house.
13. The respondents' claim really rests upon the right now in question being treated as a heritable right in exactly the same manner as ordinary property under Hindu law. But both by reason of the grant being in favour of the goddess and particularly the third condition of inalienability by way of gift or deed of inheritance, the right to officiate and to enjoy the net profits cannot be placed absolutely on a par with the rights to succession in ordinary Hindu private property. The vahivat in the grant was, in our opinion, meant to be assigned to the family of Dayaram; and the moment any descendant passed out of the family, as for example by adoption or by marriage, the right, ipso facto, ceased. Any other view, such as the one for which the respondents contend, would not only widen the succession beyond undue bounds but would also lead to difficulties even in carrying out the worship for which in this particular case access to the joint family house is necessary. The respondents' sons, or daughters, for instance, could not claim such access as a matter of right, and if the respondents' claim were allowed, in the absence of reasons analogous to the reasons in the Privy Council decision in the case of Mohan Lalji v. Gordhan Lalji Maharaj referred to above, it would ba difficult to disallow the claim of the respondents' children. The case of a widow such as Parsan is different. She has entered the family of the original vahivatdar Dayaram and has remained there, None of the reasons given above against the respondents' claim applied to their mother; and while, therefore, a daughter while unmarried or a widow, being in the family of the vahivatdar, could officiate, the respondents who are now both married and have now left the family of the vahivatdar, are not, in our opinion, entitled to officiate.
14. The appeal must, therefore, be allowed, the decree of the lower Courts set aside, and the suit dismissed with costs throughout against the plaintiffs respondents.
Norman Macleod, Kt., C.J.
15. I agree.