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Sundarambal Ammal and Kamalambal Ammal Vs. Yogavanagurukkal - Court Judgment

LegalCrystal Citation
SubjectTrust and Societies
Decided On
Reported inAIR1915Mad561; (1914)26MLJ315
AppellantSundarambal Ammal and Kamalambal Ammal
Cases ReferredGyanananda Ashram v. Kristo Chandra Mukherji
- - a and attached, to the affidavit of the 1st defendant clearly shows that the 1st defendant (a) agreed to part with a portion of his rights to the pujah right declared in his favour by the decrees of the lower courts in favour of the plaintiffs and (6) further agreed to sell the remaining portion of his rights to the 2nd plaintiff's husband, both agreements being a part of a single transaction in consideration of a sum of rs. 5. these promises therefore are clearly in the nature of alie-nations of rights for a single consideration and neither of them is strictly a compromise of a doubtful claim. that even a religious office can be held by a right of heredity, has now been too well established to be put in question again, though 1 have in a recent case phatma bi v. i said in that.....sadasiva aiyar, j.1. this is a petition put in by the plaintiffs, appellants in the second appeal no. 1333 of 1912 praying for the passing of a decree in accordance with the terms of a compromise signed by the two plaintiffs and by the 1st defendant. the first defendant though he has signed the compromise petition, opposed the application on the grounds (a) that he was induced to sign the compromise through undue influence exerted on him by the 2nd plaintiffs husband, (6) that the agreement was not the result of a bona fide compromise of doubtful claims but was really a sale of a portion of the 1st defendant's rights for a very low consideration and that the sale was also invalid for want of proper consideration and (c) that the compromise is further illegal as it is really an alienation.....

Sadasiva Aiyar, J.

1. This is a petition put in by the plaintiffs, appellants in the Second Appeal No. 1333 of 1912 praying for the passing of a decree in accordance with the terms of a compromise signed by the two plaintiffs and by the 1st defendant. The first defendant though he has signed the compromise petition, opposed the application on the grounds (a) that he was induced to sign the compromise through undue influence exerted on him by the 2nd plaintiffs husband, (6) that the agreement was not the result of a bona fide compromise of doubtful claims but was really a sale of a portion of the 1st defendant's rights for a very low consideration and that the sale was also invalid for want of proper consideration and (c) that the compromise is further illegal as it is really an alienation of a religious office to persons legally incompetent to hold the office (see 17th para of the 1st defendant's affidavit, dated 2nd October 1913.)

2. Having considered the affidavits on both sides, I don't think that there is any force in the objections (a) and (6). No doubt it appears that the 1st defendant was in great pecuniary difficulties when he entered into the compromise, having been arrested by a decree-holder for a debt and having even been obliged to put in an insolvent petition. But the fact that a man is obliged to part with his properties for what he considers an unduly low price owing to his pressing necessities, is not a ground for holding that the contract by which he parts with his rights is affected by undue influence. Under Section 16 Clause 2 of the Contract Act; unless the 1st defendant shows, that his mental capacity was temporarily affected by mental distress or that the 2nd plaintiff's husband stood in a fiduciary relation to the 1st defendant or held a real or apparent authority over him, he (the 1st defendant) cannot get rid of the bargain which he entered into by this agreement or compromise petition.

3. The really important objection therefore is the third objection namely, that the compromise is in the nature of an alienation of a religious office and is unlawful and that it cannot therefore be accepted by the Court under Order 23, Rule 3, which provides that it is only when a suit is adjusted by a lawful agreement or compromise that the Court can order such a compromise to be recorded and can pass a decree in accordance therewith. There is also another objection, or rather another aspect of the same objection, argued before us namely, that a dispute relating to a religious office cannot be lawfully compromised at all between the parties to the litigation in which the right to the religious office was submitted for the adjudication of the Court. The replies to these contentions by the appellants' learned vakil may be summarised thus: (a) the compromise agreement is not in the nature of an alienation of a religious office, but it was a real compromise of a doubtful claim and it merely admits the right of the plaintiffs to a portion of the claim put forward by them in the suit; (b) there is no illegality in compromising the claim to a religious office under litigation, the office being in the nature of a private civil right; (c) even if it is not wholly in the nature of private civil right, still there is no illegality in the compromise of such a claim under litigation.

4. As regards the first question, I have read the Razinama carefully and I feel very little doubt the 1st defendant, for some consideration, really parted by way of alienation, with a portion of his title to the office of archaka in certain temples. Though the Razinamah begins by saying that the parties in consideration of the costs, losses and worry likely to occur to both of them in the prosecution of this second appeal have made ' the under-mentioned arrangements ', it proceeds to say that the plaintiffs (appellants) have consented to discharge the 1st defendant's portion of a common debt and that that is also one of the considerations which led to the compromise. It further appears from the affidavits on both sides that the signing of the compromise petition, by the plaintiffs and the 1st defendant in March 1913 was the result of a more comprehensive agreement, which had been effected by the 2nd plaintiff's husband acting on behalf of the plaintiffs in February 1913. In fact, the document of February 1913 marked as Ex. A and attached, to the affidavit of the 1st defendant clearly shows that the 1st defendant (a) agreed to part with a portion of his rights to the pujah right declared in his favour by the decrees of the Lower Courts in favour of the plaintiffs and (6) further agreed to sell the remaining portion of his rights to the 2nd plaintiff's husband, both agreements being a part of a single transaction in consideration of a sum of Rs. 2500 promised by the 2nd plaintiff's husband.

5. These promises therefore are clearly in the nature of alie-nations of rights for a single consideration and neither of them is strictly a compromise of a doubtful claim.

6. The claim in dispute in this suit is one half share of the pujah miras in the Rock Fort Temple, Trichinopoly. Now this pujah miras involves the duty of the touching, the bathing, and the adorning &c.;, of certain idols in the Rock Fort Temple, the making of offerings to the idols, the reciting of mantrams and the doing of other similar services. These duties form part of the daily temple services and there are other similar services to be performed on occasions of festivals. For the performance of these services, certain emoluments in the shape of fees are given out of the temple funds &c.;,....The Pujah office, is hereditary, i.e., it descends in the line of heirs according to the Hindu Law, but it is admitted that if the next heir under the Hindu Law is a female, she is incapacitated by her sex from performing personally the duties of the office which, as I said before, include the touching of the idols and the recital of the mantrams personally. That is, she cannot do the duties of the office personally and cannot hold the office; personally. I might at once say that in respect of such a religious; office, it is not the right of the office-holder to receive emoluments which is the important or principal right but in my opinion it is the right of the deity to have certain services performed to it which is the primary right. I also think that as regards the religious office itself, the duties of the office should be considered as the substance of the office, the right to receive the emolument being only an appurtenance of the said duties. Even as regards a secular office, say the office of a clerk in a private Bank, when we think of the office, we have more in view the duties of the said clerk than the emoluments which the clerk is entitled to get from his employer. Of course, in the case of a hereditary office, the idea of 'right ' comes a little more into prominence than the idea of the duties attached to the office, but even in such cases, I am inclined to hold that it is the rights that are subordinate and appurtenant to the duties and it is not the duties that are subordinate and appurtenant to the rights. That even a religious office can be held by a right of heredity, has now been too well established to be put in question again, though 1 have in a recent case Phatma Bi v. Haji Abdulla Musa Sait (1913) 26. M.L.J. 115 tried to point out the inconvenience and anamolies flowing from the recognition of a hereditary right in respect of such offices. I said in that decision ' that a claim to succeed by hereditary right to a trustee's office or to a religious office or to any other office should be looked upon with strong disfavour by Court, whether the office was created by a Hindu or a Mussalman or an adherent of any other creed. The holding of any office should depend on the necessary qualifications and, while heredity might raise a feeble presumption of fitness to be considered by Courts in arriving at a decision on the question of the successor ship to the office, it could not be raised to the dignity of a principle which creates a right of succession to any office, unless the terms of the original foundation of the office constrain the Courts to treat, heredity as the factor to be concerned in deciding on the right to the. office or unless there has been such a precise and uniform course of descent by heredity (almost irrespective of any consideration as to the person's fitness for holding the office) as to raise an irresistible, inference as to the intention of the original creator of the office.' Of course, in the case of religious offices, mere heredity alone cannot form a complete qualification entitling the heir to become the owner of such an office. A religious office in a Hindu temple, though it is a hereditary office, cannot surely be acquired through mere heredity. Let us suppose that the $on of the last office-holder has become a convert to another religion. Even though Act XXI of 1850 removed the disqualifications to inherit properties, which disqualifications formerly existed on the score of conversion to any other religion, it did not and could not remove the disqualifications to inherit an office owing to the nature of the office being connected with the Hindu Religion. A temporary disqualification such as minority and curable insanity, death pollutions and birth pollutions and so on, are, no doubt, no obstacles to obtain the right to a religious office by heredity. But permanent personal disqualifications do in my opinion prevent the acquisition of the right to hold a religious office notwithstanding that the condition of being the next heir to the previous holder of the office is fulfilled.

7. As regards the Archaka office in a Saivite temple which has been established according to both Vedic and Tantric rites, it is the settled custom that females by reason of their sex are permanently disqualified from performing the duties of the office of Archaka. This proposition is not only not disputed by the appellants, but the affidavits filed on their own side establish it. It is no doubt an interesting question whether this disqualification by custom is really in accordance with the ancient shastras. I am inclined to the view that Brahmin ladies who have become twice born by the proper sacraments, (the marriage sacrament in later days considered as the only sacrament proper to all ladies even Brahmins by birth) are entitled to pronounce vedic mantras and to hold religious offices, but a discussion of such a question is purely one of academicals interest now and I must resist the temptation to enter upon such a discussion as the question is now settled against the rights of the fair sex on the strength of mediaeval legal authorities. These legal authorities have twisted even a Vedic text (which related to the disqualification of a lady in the Vedic days by reason of the feebleness of the nervous organization to share in the Soma drinks) as a disqualification to her inheriting any property, though the unnatural rigor of that monstrous rule was qualified in favour of the wife, the mother and the grandmother by the argument that these ladies are entitled to inherit by reason of special texts. Taking it then, that a woman is disqualified by her sex from doing the duties of a religious office, can it be said that she can still be the owner of that office by inheritance, overcoming the disqualifications to perform the duties of the office by an expedient of having them performed through a male proxy. I am clearly of opinion that on principle, a personally disqualified heir, i.e.-, permanently disqualified to do the duties of an office, cannot inherit the office while at the same time delegating the duties to others. Whether the permanent disqualification is the result of conversion to any other religion, or insanity or sex I am unable to see why any distinction should be made in the results of such disqualification. I do not see any reason how the disqualification to perform the duties can be logically separated from the disability to inherit the rights, consequent on such disqualification. Coming to the authorities, I shall consider them under three headings (a) those which relate to the alienability of a religious office, (b) those which relate to the disqualification by sex to hold a religious office (c) those which relate to a compromise of litigations involving rights which are not ordinary rights but rights connected with public or quasi public duties (I shall quote only a few authorities under each head.).

8. In Kuppa v. Domswami I.L.R. (1882) M. 76 it was held following Kayaka Ilate Kanni alias Grani v. Yadathil Vellayangot Achuda Pisharodi (1868) 3 M.H.R. 380 and the decision in Special Appeal 759 of 1876 that the sale of the office of temple pujari was invalid. In Kuppu v. Dorasami I.L.R. (1882) M. 76 no objection had been taken in the Lower Courts to the validity of such a sale and yet the High Court upholding the objection raised in Second Appeal, dismissed the alienee's suit. The learned Judges doubt the correctness of the decision in Mancharama v. Pranshankar I.L.R. (1882) B. 298, to the effect that that the sale if made to a person in the line of heirs and qualified to perform the duties of the office is not illegal. In Rajaram v. Ganesh I.L.R. (1898) Bom. 131. Parsons and Banade JJ. approve of the decision in Kuppu v. Dorasami I.L.R. (1882) M. 76. That decision related to the sale of a vriiti office. The learned Judges consider the Bombay decisions as to the alienation of a religious office and make the following remarks ' It appears from the authorities cited, and from others which will be noticed further on, that a distinction has been made by the Courts between Vrittis such as those in dispute in this case, and defined in Ganesh v. Shankar I.L.R. (1886) B. 395 and the right of hereditary service in temples private and public, and between alienation to strangers and to members of the family and, lastly, between compulsory and private alienation. ' Then the learned Judges say that custom and practice must be followed in such cases. In Sennayan v. Sinnappan : (1910)20MLJ654 . Munro and Sankaran Nair JJ- upheld the contention of the respondent's counsel as to the inalienability of a non-hereditary religious office and that a renunciation in favour of even the next senior member of the family by the eldest member who held the office was invalid. Thus the Madras High Court, to use the argument of respondent's counsel in that case, 'has not accepted the position taken by the Bombay and Calcutta High Courts,' namely, that alienation to the next in succession is valid. That the office of Archakas differs in many respects from a purely secular private office goes without saying. In Seshadri Iyengar v. Ranga Pattar (1911) 21 M.L.J. 680 it is stated 'the position of an Archakar though he may have a hereditary tenure in the office, is in our opinion, essentially that of a servant.' He is subject to the discipline of the trustee of the temple. And it is impossible to admit that a servant can alienate his office with its appurtenant emoluments at his pleasure (even to another qualified person) especially without the consent of his master for, by such alienation he would encroach upon the rights'of his master. I might add that as regards Mahomedan religious offices also, the case in Sarkum Abu Turab Abdul Waheb v. Rahaman Buksh I.L.R. (1897) C. 83 has established that the sale of such a religious office is invalid. Macpherson, J. said in his judgment in the case in Juggernath Roy Chowdhry v. Kishen Pershad Burma alias Raja Babu (1867) 7 W.R. 266. ' Such a sale would practically destroy the endowment, or have the effect of defeating the whole object of its creation. There would be no guarantee that the service would be properly kept up, for the purchaser whoever he might be, even if a Mahomedan or a Christian, would have the right of performing the worship of this Hindu idol.' Then in Rajah Muttu Ramalinga Setupati v. Perianayagum Pillai their Lordships of the Privy Council said that the sale of a trusteeship for the pecuniary advantage of the trustee, even though sanctioned by custom, will not be valid. Their Lordships say that they would be disposed to hold that 'that circumstance alone,' i.e., the circumstance that the alienation was for the pecuniary advantage of the vendor, 'would justify a decision that the custom was bad in law.' Hence I am quite clear that the alienation of a religious office by which the alienor gets a pecuniary benefit cannot be upheld even if a custom is set up sanctioning such alienation. Some affidavits on the appellant's side in this case speak to alienations by way of mortgages and sales, in favour of even Vellalas and Chetties, of the Archaka office and its emoluments and the appellants wish us to uphold the validity of even such mortgages and sales to disqualified persons on the ground of practice and custom and to uphold the rights of such disqualified alienees to have the duties performed through a Brahmin substitute. I am inclined to hold that such customs and practices are illegal.

9. Coming to the next set of authorities, it has been no doubt, held that sex is no disqualification for a lady to hold the office of management of a religious trust whether Hindu or Mussalman. The case in Mallikarjuna v. Sridevamma I.L.R. (1897) M. 162, 7 M.L.J. 289 was a case in which a widow succeeded to the trusteeship of a charitable endowment and her right to succeed was not questioned. In Dhun Cooverbai v. Advocate-General (1899) 1 Bom. L.R. 743. a female was held entitled to be the Mohunt of a Bairagi Mutt but it is doubtful whether her right was not recognised in that case on the ground that the custom of that particular Bairagi community did not disqualify a female from holding that office. Managers of several temples have been Sudras. (See Radha Mohun Mundal v. Jadoomonee Dossee (1875) 23 W.R. 369). In fact, several non-Brahmin Tambirans are managers of many temples in Southern India. Hence so far as the question of the management of temples or Mosques is concerned, sex is no disqualification. But as regards the office of temple Pujari or Acharyapurusha or other priestly office in a temple or a mosque or among a community, there are cases which show that disqualification to inherit by reason of sex can exist. In Seshammal v. Soondararaj Ayengar (1853) M.S. D.A. 261, it was held following the opinion of the Sudder Court Pandits, that a woman was disqualified by reason of her sex from inheriting the office of Acharya Purusha. The Pandits clearly say that a lady being the next heir under the ordinary Hindu Law, to the properties left by the last male, cannot by itself entitle her to inherit also the office of Acharya Purusha left by the said male owner (though lands were attached to that office as emoluments) as she was disqualified by reason of her sex from performing the duties of the office. The Pandits seem to have, when pressed with the further questions, attempted to make a distinction between the Acharya Purusha office and the office of Archaka or Purohitha and to have been inclined to hold that these other offices which, though religious offices are not of as high a character as an Acharya Purusha's office may be inherited by females, though females could not perform the duties of these offices and that such female heirs might employ male substitutes to do the duties of these lower offices while themselves enjoying the emoluments ; but that opinion was clearly obiter and no reasons were given or authorities quoted by the Pandits. In Janokee Debea v. Gopaul Acharjea I.L.R. (1877) C. 365 the Calcutta High Court say that a widow who was the heiress of her husband as regards private properties, cannot by reason of that simple fact claim to be entitled also to succeed to her husband's right to hold the office in a temple. The learned Judges say, 'The presumption in her favour from her husband having been in possession would not apply in this case in the same way and with the sape force as if the question were-who was to succeed to her husband's private estate. There the ordinary rule of inheritance must prevail unless displaced by some special rule. Here the very question at issue is whether the rule of inheritance prevails at all. Of course, the duties of the office of Shebait may merely involve the management of the trust and in that case, there is no disability in a female heir to succeed to the office but if it also involves the Archaka duties, I think that sex is a disqualification according to the accepted law. In Mujavar Ibrambibi v. Mujavar Hussain Sheriff I.L.R. (1880) M. 95 the offices in question involved the reading of the Fatiha in a Mosque. The person holding office was called the Mujavar. The learned Judges (Turner, C.J., and Kinderseley, J.) say: 'It appears from the evidence that the office of Mujavar entails the discharge of duties of a spiritual character, such as reading the Fatiha, offering prayers and incense, &c;, which could not conveniently be performed by a woman. There is no satisfactory evidence that the office has ever been held by a woman, except in one instance and that was at a different place, and in that case it is admitted there were in the family in which the office was hereditary no male members by whom its functions could be discharged. Then the learned judges say that the decision in Hussain Bibi v. Hussain Sheriff (1868) 4 M.H.C.R. 23 notices the distinction, which exists between a trusteeship for secular purposes, which can be held by a woman, and an office entailing religious duties, for which a woman is not eligible. Vrihan Naradiya Parana (it may be a spurious Purana but it has been accepted as an authority) says that women and sudras are not competent to touch the images of Vishnu or Siva. In the Padma Purana, the disability of females is assumed in several passages.

10. In Colebrooke's Digest Vol. 1 at page 379 it is said: 'On this point it is argued, that, as the rites cannot be performed by an ignorant or disabled person, the law directs that he shall be forsaken, intending that the rites should be performed by means of a substitute but the ignorant person has property in the sacrificial fees and the like, as the owner of a slave has property in the wealth acquired by the slave, and this construction should be settled on the strength of the admission of 'a property vesting in the heir. The text which ordains that ' a person unable to act shall appoint another to act for him,' is the foundation for 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. No doubt, Mr. Ganapathi Aiyar says in his learned book at page CLVIII 'As usual with the discussions of Jagannatha it is difficult to say what his final opinion is.' But I am inclined to think (differing from the learned author Mr. Ganapathi Aiyar) that the inclination of Jagannatha's opinion was that just as an outcaste cannot inherit a religious office by reason of his permanent disqualification, women also cannot. If I understand the appellant's learned vakil's contention aright, he seemed to admit that it might be a question whether the trustee of the temple has not got a voice in accepting the male substitute thrust by a female heir on the temple to perform the duties of the office and whether the trustee is bound to accept any qualified substitute. If personal disqualification is no hindrance to inheriting the office, why should not a convert to Christianity or Islam convert also inherit the religious office and provide a substitute. In the result, I hold that permanent personal disqualification to perform the duties of the office is also a disqualification to inherit the right to enjoy the emoluments attached to the office.

11. Coming to the last set of authorities, in Manmohini Guha v. Banga Chandra Das I.L.R. (1903) C. 357 it was held that a grant of probate which establishes a right in rem cannot be made merely on the consent of parties and that an agreement or compromise which involve a right affecting not only the parties to the action but the public cannot be compromised so as to oblige the Court to pass a decree in terms thereof. The learned Judges say that ' an agreement or compromise as regards this issue, if its effect is to exclude evidence in proof of the will is not lawful within the meaning of Section 375 of the Code of Civil Procedure, when the Court has not an opportunity of judging for itself whether the will is the will of the deceased person and to what extent the rights of the parties will be affected, if the agreement be allowed to be made a rule of Court.' The Court itself has certain duties in connection with a case in which the judgment in rem has to be pronounced, or in a case, which involves the right of the public or the right to a religious and charitable office, or the right of a minor or other incapacitated person. Where an agreement or compromise attempts to affect such rights after they are brought before the Court for adjudication, it seems to me, that it is not a lawful agreement or compromise. In Muhamad Ibrahim-Khan v. Ahmad Said Khan I.L.R. (1910) A. 503 the learned Judges say: 'A party can refer a matter of a private individual right of a civil nature to arbitration, but he has no power to refer a matter which is not purely of a private civil character, and it is on this ground that a Bench of this Court in Mahadeo Prasad v. Bindeshri Prasad I.L.R. (1909) A. 137 held that the appointment of a guardian to a minor not being a matter of a private right as between parties, was not a question which could be settled by reference to arbitration ; Then the learned Judges say ' the right to the office of a trustee to a public charity cannot also be settled by private arbitration.'

12. As I have shown above the duties of the Archaka office are more important than the rights of the office-holder the rights of the deity to have the duties of the office performed are entitled to much more consideration than the so-called hereditary rights of any particular person to hold the office and it therefore seems to me that the dispute involving the right to such an office when it has once been brought before a Court for adjudication cannot be settled lawfully by a mere Razinama between the parties. To summarise, I hold that the Razinama in this case is not lawful (1) because it is really an alienation of a portion of a religious office, that is the right to receive the emoluments of the office during certain days in the year, (2) because the alienation is made in favour of persons who are permanently disqualified to hold the office and 0) because there can be no lawful compromise made of a dispute in respect of a religious office, the proper performance of the duties of which, concern not merely the parties to the compromise but principally affect the religious trust itself and the Hindu public for whose benefit the religious trust exists.

13. As held in Jenkins v. Robertson (1867) L.R. 1 H.L. Sc. 117, the decree by consent between a plaintiff (who is allowed to represent the public) and the defendants, would not bind the public at large and it is only the result of a contested litigation, which would bind the public. A judgment by consent will not bind the public even if it was not a purchased consent and a fortiori if such consent was a purchased consent. In the present case, the rights obtained by the plaintiffs under the disputed compromise were clearly purchased rights. In Raja M. Bhaskara Setupati and Irulappa Nadan v. Narayanaswami Gurukkal (1901) 12 M.L.J. 360 this Court refused to allow the Raja of Ramnad who was a temple trustee to compromise a dispute with the Shanars which related to the alleged rights of the Shanars to enter the temple, because such a compromise affected the usages of the temple and the rights of other sections of the Hindu public. (See also Gyanananda Ashram v. Kristo Chandra Mukherji (1904) 8 C.W.N. 404.)

14. In the result, this petition 924 of 1913 in which the plaintiffs (appellant's) pray for the passing of a decree in accordance with the terms of the Razinama must be and is dismissed. There will be no order as to costs, as the 1st defendant, having agreed to the compromise, has succeeded in his objections not on the ground of any merits in himself but on the ground of public policy, which requires the Court not to accept the compromise in the interests of the public and of the religious trust.

Tyabji, J.

15. I have had the benefit of reading the judgment prepared by my learned brother. I agree that the compromise cannot be upheld. As he has discussed the law in detail, it is unnecessary for me to do the same. But with regard to the main question, whether a Hindu female can hold the religious office, which is the subject of litigation, I should like to indicate why I have come to the conclusion that the compromise cannot be upheld.

16. The founder of a religious charitable institution has wide powers of laying down the manner in which he requires the institution to be administered, and that power includes the laying down of the method of filling the offices necessary for administering the institution, So that if he desires that the office bearers shall be selected in any particular mode, his desire is, as a rule, given effect to. But his desires will not be given effect to if, for instance they are opposed to public policy or if they are opposed to the fulfillment of the general object of the institution.

17. Where, therefore, the question is whether a particular person should succeed to a religious office, the first matter to which attention must be directed is, in what method did the founder of the institution desire that the succession to the office should devolve? Where the founder has put his desires in writing in the form of a trust deed or sannad or some similar instrument, it only remains to interpret that instrument, and to see whether there is anything in law or in the nature and objects of the institution to prevent these desires being given effect to. But where., as frequently happens, there is no written instrument laying down the terms in accordance with which the institution is to be administered, the course of practice in the past may furnish indications of what the founder must have intended, and this may be supplemented by the general law and also by a consideration of the customs and usages prevailing in similar institutions in the same locality.

18. Where, therefore, the question arises whether a particular person is entitled to hold the office, and that person bases his claim on the hereditary devolution of the office, it must, in the first instance, be determined whether, as a matter of fact, the founder desired that the office should devolve hereditarily. If it is found that he did so desire, then the question will be whether there is any reason why that desire should not be given effect to. If, on the other hand, it is doubtful whether he did so desire, a number of considerations must arise. In the particular case with which we are now dealing, the first question that is involved is whether the office was intended to devolve hereditarily and in such a manner that, if the person indicated by the hereditary principle is a female and if her sex necessarily disqualifies her from performing the functions of the office, still she must be deemed to hold the office having the right to get the functions of the office performed by a deputy. There is no instrument showing what the intentions of the founder were, therefore, to discover whether he could have intended to lay them down as is claimed on behalf of the plaintiff. In considering whether such could have been the intention of the founder, regard must be had to the point whether the hereditary system of selection is merely chosen as an easy mode of selecting the person who is to hold the office, or whether it is intended to provide that the property should belong to the first office holder and his descendants. For this purpose an important consideration appears to be whether the emoluments of the office are commensurate with the duties to be performed by the person holding the office. Thus, if it is found that the functions of the office are such that they may be performed by any member of a large body of persons, and that no special abilities or moral qualities are necessary for enabling the person to perform the duties satisfactorily, in such a case the expenses of getting the duties performed are frequently in the nature of fees paid to Brahmins or other members of the priestly class for conducting the ceremonies, and these fees are fixed within certain limits by custom. The fact that a higher fee may be demanded by one person for performing such ceremonies does not imply that he will perform them better than another; for exhypothesi the functions are such as can be performed equally well by any one of the body of persons who are competent to perform them. Where, then, the functions of the office are of such a nature that the expenses for performing them consist of more or less fixed fees, and where it is found that the emoluments provided for the performance of these functions are far in excess of the necessary usual fees, and where in such a case the office is made to devolve hereditarily these facts may furnish indications that the intention of the founder was that the property should remain in the family of the first office holder but should be charged with the expenses of getting the duties of the office performed, with liberty to the members of the family to perform the duties themselves and thus to save the paying out of fees to a third person.

19. In such a case, therefore, I should be less inclined to hold that a person who would be entitled to the property by heredity should be deprived of that property because that person cannot himself or herself fulfil the functions; for I have started with the assumption that the functions are of such a nature that they can easily and satisfactorily be got to be performed by payment of comparatively small fixed fees. The institution in such a case does not suffer by the heir of the last office holder being the nominal office holder, and the duties being performed by another person.

20. The case, however, is entirely different where the functions of the office are such that they require peculiar qualifications, intellectual or moral, for performing them: as, for instance, if the functions consist of giving expositions, of religious or moral duties. In such a case, where a large income is set apart for the remuneration of the office holder, it may well be inferred that the founder desired that the best available person should be selected to fill the office, and it is obvious that the higher the remuneration offered the greater the chances of obtaining a competent person to discharge the duties. In such a case, to hold that one person should nominally be the office holder and should take the full emoluments provided by the founder for the office, and should, out of a portion of such emoluments, remunerate the person who is actually to perform the functions of the office, would be to get a person to perform the functions on payment of much smaller emoluments than were intended by the founder, and in this way to prevent as competent a person being available for the performance of the functions as had been provided for by the founder.

21. For these reasons, though I am not prepared to lay down broadly that in every case it is opposed to public policy to provide that a religious office should devolve hereditarily even on persons not themselves qualified to discharge the duties of the office neither am I, by any means, of opinion that such a provision can always be given effect to. It seems to me that the question must be decided with reference to the particular facts of the case, including the nature of the functions to be performed by the office holder according to the directions of the founder, the remuneration provided for the performance of those functions, and similar other matters.

22. Now on the facts of this case, it would seem (and my learned brother informs me to the same effect) that the particular office concerned is in its nature such as requires special qualifications for being properly filled. Its functions are not such as can be discharged by any individual; a fit and proper person must be selected for discharging them satisfactorily. The emoluments also are such that no surplus is left after providing a fair remuneration for the office holder; to lessen those emoluments would be to prevent a proper person being selected for holding the office, and for its functions being discharged in the manner that they ought to be discharged.

23. Under these circumstances I agree that we cannot proceed on the basis that the office with which we are dealing can be permitted to be the subject of a compromise by which a female is to hold it in form, and to get its functions performed by a male proxy.

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