1. This is a plaintiffs' appeal and arises out of a suit brought to recover a sum of money alleged to be due to the plaintiffs on a theka given by them to the defendants for the collection of offerings to a certain deity installed in a temple, and for the cancellation of that theka, and for a perpetual injunction restraining the defendants from interfering with the plaintiffs' right of making the collections themselves.
2. The plaintiffs alleged that they were entitled to 13/48th share of the offerings made at the temple and that, on 24th August 1918, they leased out the said right to defendants 1 to 3, who executed a qabuliat in favour of the plaintiffs on the same date, at an annual sum of Rs. 900 for a period of five years viz., from the beginning of August 1918 to 31st July 1923. The present suit was with respect to the amount to which the plaintiffs claimed to be entitled for the years 1921 and 1922. The plaintiffs' case was that defendant 4 was a member of a joint Hindu family with defendants 1 to 3 and that defendants 1 to 3 had taken the theka for the benefit and advantage of that family and, as such, all the four defendants were liable to answer the plaintiffs' claim. The plaintiffs further alleged that the defendants were habitual defaulters and, not having paid regularly the amount reserved by the lease and the qabuliat to the plaintiffs, had, in accordance with the conditions laid down in the qabuliat and the lease, forfeited their rights as lessees.
3. The suit was contested by defendants 1, 2 and 3 and each of them filed a separate written statement.
4. Defendant 1 alleged that the lease was fictitious and was never acted upon, and that the plaintiffs themselves were never in possession of the temple in question, and had no right to maintain the suit. Defendant 2 contested the suit on three grounds: (1) that he was a minor on the date of the execution of the lease and the qabuliat and the contract evidenced by those documents was not enforceable against him; (2) that he derived no benefit from the lease nor was the lease executed for his benefit or for the benefit of the joint family of which he was a member and (3) that the right to collect the offerings made at the temple are not transferable and a contract in respect of the said offerings is not enforceable and is forbidden by law. Defendant 3 also assailed the right of the plaintiffs to maintain the suit on the last two grounds mentioned above.
5. The trial Court held that defendant 2 had not attained majority on the date of the execution of the qabuliat and the lease and was not bound by the same, and that the offerings made at the temple were not transferable and, accordingly, the plaintiffs were not entitled to maintain the suit. It further held that as the lease had not been produced it could not be said that it was genuine or valid. It further held that the right to receive the offerings not being transferable, defendant 4 was not liable. On these findings that Court dismissed the plaintiffs' suit.
6. The lower appellate Court affirmed the decree of the trial Court on the sole ground that the offerings were not transferable and
the contract with the defendants was void and the sale in favour of the plaintiffs was void and they can obtain no decree from the Court in respect of their alleged right to collect these offerings.
7. and did not record any finding on the remaining issues framed by the trial Court.
8. In appeal before us the decrees of the Courts below are assailed on three grounds: (1) That the plaintiffs having previously obtained a decree on the basis of the very lease and qabuliat, the validity of which was in issue in the present suit, the question of the defendants' liability under those documents was res judicata, and barred the defence now raised by the defendants; (2) that the plaintiffs' title to 13/48th share of the offerings as an auction purchaser cannot be questioned, and (3) that the right to collect the offerings was a transferable right and the agreement evidenced by the lease and the qabuliat was perfectly valid. In order to effectively deal with the arguments addressed to us it is necessary to state a few facts.
9. The deity in question was installed by one Asa Ram, and Asa Ram and his descendants received the offerings made to the deity by devotees resorting to the temple. One of the descendants of Asa Ram mortgaged his right to receive a share of the offerings to Dwarka Das, father of the plaintiff-appellants prior to the year 1874. Dwarka Das put that mortgage into suit and obtained a decree for sale on 16th June 1874. When Dwarka Das proceeded to execute the decree the judgment-debtor objected to the execution on the ground that the offerings made at the temple were waqf and were not saleable in execution of the decree. That objection was disallowed by the Court on 13th May 1879, and it was held in that case, that the property in question was not waqf property and was saleable in execution of the decree. This order of the execution Court was upheld on appeal, on 5th December 1879. A similar objection was preferred by some relation of the judgment-debtor to the execution of the decree and that was also disallowed by the Court on 13th May 1879. The right to receive a share of the offerings was eventually sold in execution of the decree obtained by Dwarka Das and was purchased by him. The judgment-debtor again objected to the sale on the ground inter alia that the offerings made at the temple were not saleable in execution of the decree but the objection was overruled.
10. Thereafter in the year 1895 a suit was brought by some of the descendants of Asa Ram for a declaration that Dwarka Das had not acquired any right, by virtue of the auction purchase made by him, to receive a share of the offerings made to the deity, and for an injunction restraining Dwarka Das from receiving the same. It was alleged in that suit that the male descendants of Asa Ram always served the deity and managed the affairs of the temple; that no one else had a right to worship in that temple or receive the offerings made to the deity, that the right to receive the offerings was not transferable and that Dwarka Das acquired no right by the purchase made by him in execution of the decree of 1874. Dwarka Das contested that suit and one of the issues raised in the case was whether the offerings were dedicated for any charitable purposes and whether they were transferable. The finding of the Court on that issue was as follows:
There is overwhelming documentary evidence to show that the cosharers always treated the property as their exclusive property and mortgaged and sold it to the extent of their shares and thereby outsiders were induced to deal with the property.
11. On this finding the plaintiffs' suit was dismissed. The unsuccessful plaintiffs appealed against the decree of the trial Court and their appeal was dismissed on 6th December 1899. The learned Judge of the appellate Court made the following observations in the course of his judgment:
I agree with the Munsif that the offerings in dispute or the right to receive them cannot be treated as trust property.... Moreover it is wellproved that the offerings have always been dealt with as absolute property of the members in possession, being transferred from time to time.
12. It further appears that a suit brought by one of the present plaintiffs for the recovery of money on the basis of a qabuliat executed prior to the qabuliat in dispute in the present litigation, was decreed ex parte against defendants 1 and 3 on 19th January 1915.
13. It is also in evidence that the present plaintiffs had brought a suit on the basis of the qabuliat and the lease now in dispute for recovery of the theka money against defendants 1 and 3 and that suit was decreed ex parte on 21st March 1921 and the learned Counsel for the appellants contends that the ex parte decree obtained by the plaintiffs bars the defence now raised by the defendants in the suit giving rise to the present appeal The learned Counsel for the respondents argues that the cause of action for the present suit being different from the cause of action on which the former suit was based Section 11, Civil P.C., does not apply and further that the question whether the right to collect the offerings is or is not transferable, being a question of law the former decision cannot operate as res judicata in the present suit. He also points out that only defendants 1 and 3 of the present suit were defendants in the suit that was decreed ex parte in March 1921 and the remaining two defendants of the present suit not being parties to that litigation are not bound by the decree in that suit.
14. If the managing member of the joint family consisting of the four defendants was a defendant in the former suit he would be deemed, in the absence of evidence to the contrary, to have been sued in a representative capacity, and the decree obtained against him would be binding on all the members of the family, However there is nothing in this case to show whether the managing member of the family of the defendants was or was not a defendant in the former suit, and, therefore, it may be that the decree in that suit is not binding on defendants 2 and 4 of the present suit. But in our judgment defendants 1 and 3 are now barred from contesting the plaintiffs' suit on the ground that the right to collect the offerings made to the deity are not transferable. It was open to these defendants to contest the former suit on the ground that the offerings were not transferable and they having failed to make this matter a ground of defence in that suit are now barred from raising that plea. As already stated the former suit was based on the very qabuliat and the lease on the basis of which the present suit was brought and the mere fact that the present suit is for years different from the year for which the former suit was brought, does not entitle defendants 1 and 3 to contest the present suit on a ground on which they could have contested the former suit but failed to do so. The plaintiffs could only be held entitled to a decree in the former suit if the right to collect the offerings was a transferable right and, therefore, the question of the transferability or otherwise of the right to receive the offerings was a matter directly and substantially in issue in the former suit. It is clear that the plaintiffs and defendants 1 to 3 were and are litigating under the same title in the former and in the present suit, and the Court that decided the former suit was competent to try the present suit and, therefore, the case comes within the purview of Section 11, Civil P.C. The question whether or not the right to collect the offerings made to the deity installed in the temple in question is transferable is not a pure question of law. In our judgment the answer to the question must in every case depend on a variety of circumstances which can only be proved by evidence. However, we need not pursue this matter further as in our judgment the plaintiffs are entitled to succeed on the other ground urged on their behalf.
15. Before proceeding to deal with the third point argued by the learned Counsel for the appellants we may note that the learned Counsel for the respondents did not challenge the title of the plaintiff-respondents as auction-purchasers and did not support the decree of the Courts below on the ground that the sale in favour of the plaintiffs was void and, therefore, we are not called upon to deal with the second point argued on behalf of the appellants.
16. It now remains to consider whether or not the Courts below were right in holding that the right to collect the offerings made at the temple in question was not transferable. We are unable to subscribe to the broad proposition laid down by the Courts below that in no case She offerings made to a deity installed in a temple are transferable.
17. A distinction must be drawn between cases in which emoluments are attached to a priestly office, and the cases in which the offerings are made to a deity and the persona who receive the same have not to render services of a personal nature as a consideration for the receipt of the offerings. The emoluments of the former kind are not, in the absence of a custom or usage to the contrary, ordinarily transferable, for the simple reason that they are inseparably connected with a priestly office and it is contrary to public policy to allow such offices to be transferred to a person not competent to perform the worship, either by private sale or by sale in execution of a decree. As has been pointed out in Mancha Ram v. Pran Shankar  6 Bom. 298:
if such property were subject to attachment and sale, the purchaser might be a Mahomedan or a Christian, who would be both unwilling and incompetent to perform the service of the idol and in the case of Dubo Misser v. Srinibas Misser 14 W.R. 409, Mitter, J., further observed that he might be unfit to prepare food for the idol... such an alienation to an improper person would defeat the object of the endowment and in some cases... it might be inconsistent with the presumed intention of the founder of the endowment.
18. As the right to receive the offerings cannot be separated from the duty of officiating at the worship the law disfavours the transfer of such emoluments: vide the cases of Rajah Vurmah Valia v. Ravi Vurmah  1 Mad. 235; Durga Bibi v. Chanchal Ram  4 All. 81 and Mallika Dasi v. Ratanmani Chakervati  1 C.W.N. 493.
19. But when the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of a personal nature, such as officiating at the worship we are unable to discover any justification for holding that such a right is not transferable. That the right to receive the offerings when made is a valuable right and is property, admits of no doubt and, therefore, that right must, in view of the provisions of Section 6, T.P. Act, be held to be transferable, unless its transfer is prohibited by the Transfer of Property Act or any other law for the time being in force. It is maintained by the learned Counsel for the respondents that the right to receive the offerings is a 'mere possibility' of the nature contemplated by Clause (a), Section 6, T.P. Act, and, therefore, is not transferable, and, further, that a transfer of the right to receive offerings made at a temple is void as against public policy. The learned Counsel has relied on the cases of Pancha Thakur v. Bindeshri Thakur  43 Cal. 28, and Pancha Thakur v. Bindeshri Thakur  37 I.C. 960 (on review from 43 Cal. 28, and Paragi v. Gauri Shankar  6 O.L.J. 157. The last mentioned case is distinguishable. In that case the subject of the transfer was the right to receive gifts made by the worshippers at the temple to the officiating priest. In short, the right to receive the gift in that case was a right annexed to the office of the officiating priest and, therefore, the case came within the purview of the principle laid down in the cases noted above in which it was held that when the emolument is attached to a priestly office it is not transferable.
20. The case of Pancha Thakur v. Bindeshri Thakur  43 Cal. 28, undoubtedly supports the contention of the learned Counsel for the respondents. In that case it was held that a right to receive offerings from pilgrims resorting to a temple or shrine is inalienable because
the chance that future worshippers will give offerings is a mere possibility and as such it cannot be transferred.
21. If the learned Judges intended to hold that even if the right to receive the offerings is dissociated from a priestly office or from an obligation to render services involving qualifications of a personal nature, it is not transferable, we, with all respect, are unable to agree with their decision. The right to receive the offerings when made is a definite and fixed right and does not depend on any possibility of the nature referred to in Section 6 (a), T.P. Act. The moment the offerings are made, the persons clothed with the right are entitled to appropriate the same. In short the right to receive the offerings
is not so uncertain, variable and limited as to pass out of the conception of law.
22. It is true that the amount of the offerings largely depends upon the surrounding circumstances, viz., the number of votaries, their generosity and their charitable disposition but the fact that offerings large or small are bound to be made is a certainty and not a mere possibility of the nature referred to in Section 6 (a), T.P. Act, and, therefore, we are unable to hold that the transfer of a right to receive the offerings is prohibited by Section 6 (a), T.P. Act. The view that we take is in consonance with the view taken in the case of Ahmad-ud-din v. Illahi Bakhsh  34 All. 465. In that case the validity of a gift to receive a fixed share of the offerings made at a Mahomedan shrinewas upheld by this Court and it was observed that
the thing gifted in this case must be regarded as being the right of the donor to receive a fixed share in the offerings after they have been made and this is an enforceable right in the sense that it is enforceable in law as against other cosharers in the same.
23. There is no distinction between the right to collect the offerings made in a Mahomedan shrine and in a Hindu temple and if in one case it is not a mere 'possibility' and the right is transferable there is no reason to hold that the right should not be transferable in the other. In the case of Sukh Lal v. Bishambhar [19l7] 39 All. 190, a mortgage by a Maha Brahman of his share in the britjajmani (that is pecuniary interest receivable by way of voluntary donation by virtue of his right to officiate at funeral ceremonies) was upheld. Though the learned Judges in that case observed that
the offerings at a temple do not stand on the same basis as remuneration which Maha Brahmans receive for the services they perform at Hindu funerals,
they did not point out the distinguishing features between the two, and we are unable to discover any. No doubt in one case as in the other the amount of the remuneration or of the offerings depends on future events which may be more or less uncertain but the right to receive the same when those events happen is a definite right. There is no uncertainty about that right. The right is exercised, in the case of a Maha Brahman when he performs the funeral ceremonies and in the case of a right to receive the offerings made at a temple when those offerings are made. In the last mentioned case the contention that the right of a Maha Brahman was a mere possibility within the meaning of Section 6 (a), T.P. Act, was repelled by the learned Judges who decided the case. The case of Pancha Thakur v. Bindeshri Thakur  43 Cal. 28, was, on an application for review re-opened and decided by the Patna High Court: vide Pancha Thakur v. Bindeshri Thakur  37 I.C. 960 (on review from 43 Cal. 28. One of the learned Judges was a party to both the decisions. It was held in that case that a transfer of the right to receive offerings made at a temple is void as against public policy. When the right to receive the offerings is unconnected with any office, it is difficult to' appreciate how a transfer of such a right offends against public policy. The right is a right to receive some property that has a marketable value and, in the absence of cogent reasons, one would suppose that the person getting such property has a right to transfer the same. If after the receipt of the property he can, without in any way violating public policy, transfer the same what difference does it make if he transfers the right to receive the same? It is immaterial to the public at large whether the heirs of the persons who installed the deity or transferees from them take the offerings, for the obvious reason that neither from the one nor from the other they expect services in connexion with the temple.
24. For the reasons given above we hold that the right to receive offerings made at a temple when dissociated from priestly office are transferable. In the present lease it was stated at the Bar that the descendants of Asa Ram received the offerings though they did not perform the worship of the idol nor did any other necessary functions connected with it. That being so, the contention of the defendants that the right was not transferable ought to have been overruled by the Courts below.
25. We may further point out that in the present case the lease was in favour of the persons who themselves had the right to collect the offerings and, therefore, there was nothing against public policy in empowering them by the lease to collect offerings not only of their share but of the plaintiffs share as well.
26. As observed above the lower appellate Court has not decided the other issues framed in the case and as the decision of the lower appellate Court was on a preliminary point and we disagree with that Court the only alternative open to us is to set aside the decree of the lower appellate Court and remand the case to that Court with directions to re-admit the appeal to its original number and to dispose of the same after deciding the other points that call for determination in the case, and we order accordingly. We leave it open to the lower appellate Court to allow or not to allow the parties to adduce additional evidence on the remaining issues. The plaintiffs are entitled to the costs of this appeal. Costs of the Courts below will abide the result.