1. We have already decided that the office in question is an hereditary one. The question now is whether the transfer of it by the last holder to the plaintiff's father was a valid one. According to general principles a religious office cannot prima facie be made the subject of alienation. The succession to such an office is governed in the first instance by the will of the founder and, in the absence of direct evidence on that point, by usage of the particular institution from which the founder's will may be inferred. A religious office appears to us to stand with reference to alienability on a different footing from private property, it was argued at the last hearing on the authority of the case in I. L. R. 6 B, 298, Mancharam v. Pranshankar, that the holder of a religious office may transfer it to one who is in the line of descent whether he be the next heir or a possible future heir and that the plaintiff's father was in the present instance the next heir. The finding however returned by the Subordinate Judge shows that he was not the sole next heir, because he had three brothers. In I. L. R. 6 M 79 it is observed by the learned judge with reference to a contention that the alienee was of the same caste and sect as the alienor. 'To hold so would tend to public mischief in inducing needy incumbents o hereditary religious offices who desired to sell them to give a dishonest recognition to qualifications which, in fact, were no.t the qualifications demanded by the nature of the office.' Unless the alienee is the sole heir, the alienor might be under the temptation to make the office the subject of bargain and thereby defeat the intention of the founder. It was in this view that we called for a finding at the former hearing. We are not prepared to dissent from the dictum above quoted and to hold that in the absence of special usage an alienation would be valid if made in favor of any person other than the sole immediate heir.
2. It was then argued that in the case before us the brothers of the plaintiff's father consented to the alienation in his favour and that there is evidence to that effect on the record.
3. On looking at the evidence of Lakshman Joishi, one of the brothers, we find no distinct admission regarding the office. Moreover this point was not taken at the last hearing nor were we asked to call for a finding as to the alleged consent. We cannot at this stage allow this point to be raised and order, a new trial regarding it. Of course it is not intended that those who may haye a claim by hereditary right or the legal heir should be in any wise prejudiced by this judgment. We must reverse the decree of the courts below aud dismiss the suit. Under, the circumstances we direct each party to bear his own costs throughout.