1. This appeal is on behalf of the plaintiffs in a suit instituted by them for a declaration that defendant 1, Bangshi Nath Deba Sarma Bidhipathak Bardeori, has not been validly appointed joint Daloi of the Kamakhya temple in Assam, and that plaintiff 1, Barada Khata Deba Sarma Deka Bardeori has been validly appointed. The claim of the plaintiffs rests on the following material allegations. They say that only a member of the Deka or Bura family of Bardeoris of the temple is eligible for the appointment as Daloi. The case of the contesting defendants is that any adult male member belonging to any of the four Bardeori families of the temple is eligible for the appointment as Daloi and that Bangshi Nath was duly appointed by a majority of the electors who were entitled to vote at a meeting of which due notice had been given to all the electors.
2. The evidence establishes, although that evidence rests on tradition, the fact that the Kamakhya temple was under the direct supervision of the Hindu kings, that is to say, the Koch kings and thereafter the Ahom kings. Four (it may be five) Brahmins were brought from Kanyakubjya (Kanoj) in bygone ages for the purpose of performing the worship of the Goddess, Kamakhya Debi. The descendants of these Brahmins are grouped into five families, viz. Bura, Deka, Hota, Bidhipathak and Brahma. There is a slight discrepancy in the two versions which is not material. According to one version four Brahmins were imported. According to other five were imported. According to the first version the Deka family is an offshoot of the Bura family but for the purpose of the controversy this small difference is not material. It is also admitted that the Brahma family became extinct in course of time and that after the extinction of that family, which was before the British conquest of Assam in 1826, the adult male members of the four surviving families had the charge of performing and looking after the ceremonies of the said deity.
3. The evidence also establishes the fact that during the time of the Hindu kings, the male members of these families had no concern with the secular management, that is to say, the management of the endowed properties; but their duties were confined to the internal affairs of the temple. The Hindu kings or their representatives appointed a man from outside for the purpose of managing the properties of the endowment and exercising general supervision over the persons who were in charge of the worship of the deity. He was called the sebachalac. The aforesaid families are called Bardeoris. The evidence establishes that for the purpose of the smooth working of the ceremonies, the adult male members of the said families appointed or elected from amongst them, one person as the chief to supervise the worship. He is called the Daloi. At the time of the Hindu kings the selection so made had to be sanctioned by the king or his representative. The question in controversy is whether the man to be selected as Daloi by the Bardeoris, is to be an adult male member of any of the four families, or whether the selection is to be confined to the Bura and the Deka families only. This is the controversy in the appeal which we will have to decide.
4. We proceed on with the narratives just before the conquest of Assam by the British. The Burmese had overrun the province and in the unsettled state, certain events occurred on which there were proceedings after peace and order had been restored by the British Government. Some of these proceedings have important bearing on the question which we have to decide in the present case. After the British conquest in 1826 it appears that the old system continued up to 1842. In 1842 instructions were issued by the British Government to the effect that the said Government or its officers would have no concern with the affairs of the Kamakhya temple. The result of this declaration of policy of the British Government had a twofold effect. One was that the necessity of obtaining the sanction of the ruling authority or of the State, to the appointment of a Daloi selected by the Bardeoris dropped out. The other was that the Daloi who was up to that time only concerned with the internal affairs of the temple, acquired the power of managing the properties of the endowment, that is to say, acquired secular powers. These facts which we have recited are borne out by proceedings taken either before the revenue authorities or before the Sadar Dewani Adalat.
5. The plaintiffs are the members of the Deka and Bura families, and the defendants, except defendant 44, are members of the Bidhipathak and Hota families. Defendant 44, a pro forma defendant, is of the Bura family and he is the surviving Daloi. Before the time of Ganga Prosad Daloi, that is to say before the time when the Burmese overran the province, there was only one Daloi, but at and from the time of Ganga Prosad two joint Dalois have been functioning. The Dalois at the material point of time were Bishnu Prosad, the pro forma defend, ant, a Bura, and Abhoy Kanta, a Deka. Abhoy died on 30th March 1930. On 1st May the notice of a meeting for the election of a second Daloi in place of Abhoy was served on the members of the four Bardeori families, who were entitled to vote, and on that date Bangshi Nath was voted as the second Daloi. He is a member of the Bidhipathak family. Later on, the plaintiffs ignored the said election, held a meeting of their own, and elected Baroda Kanta, a Deka, who is plaintiff 1 and the eldest son of Abhoy Kanta as the second Daloi.
6. It is the admitted case of both sides that the adult male members of the four surviving Bardeori families have the right to elect a Daloi. This right, as the case of both sides is, is a customary right. The eligibility of a person to the post of the Daloi also rests upon an ancient custom of the institution. The controversy between the parties is as to the scope of the said custom which defines the qualification of a candidate for Daloiship. According to the plaintiffs he must be an adult male member either of the Deka or Bura family. According to the contesting defendants, there is no such restriction, and the ancient custom is that any adult male member of any of the Bardeori families is eligible for election or appointment to the office of Daloiship, by the members of the Bardeori families who are entitled to vote. The point in controversy in this appeal is a very short one, viz. to find out what the custom is.
7. The plaintiffs rest their case on three sets of facts : (1) that the adult male members of the Deka and Bura families hold a preeminent position in the institution; they are entrusted with the performance of the more important ceremonies, they are en-titled to more emoluments, and they have a greater number of days as pala, or turns of worship; (2) that all along a Bura or a Deka has been appointed as Daloi, and no instance has been proved in which a person of the Bardeoris, other than a Deka or a Bura had been appointed to the office of a Daloi; and (3) that the oral evidence given by two of their witnesses established the custom as alleged by them. On the side of the defendants oral evidence has been given. Both sides have adduced documentary evidence, but the documentary evidence adduced by the plaintiffs has no bearing on the question which we have to decide. The said documents proved by the plaintiffs, either establish the fact, that members of the four Bardeori families and nobody else have the right to elect the Daloi, or the fact that the members of the Bura or Deka family called Oujaks, get more share of the offerings and they are required to perform more duties In connexion with the worship. Some of the documents produced by the defendants have also no bearing upon the controversy In these proceedings. But there are eight documents, namely Exs. N-1, O, U, F, K, B, C and D, which have a very important bearing on the question in issue. So far as the oral evidence is concerned, we do not feel inclined to proceed upon it. The persons who have deposed on the material point on behalf of the plaintiffs are either members of the Deka or Bura family. They have an interest in supporting the case of the plain, tiffs. The persons who have deposed on behalf of the defendants belong either to the Bidhipathak or Hota family. They are interested in the case of the defendants. The witness Kaliram Bhandari Kaeth who does not belong to any of the four Bardeori families and who was the accountant, does not say anything on the point. He frankly said that he was unable to support either the case of the plaintiffs or of the defendants.
8. We shall therefore proceed upon the documents. The first document is of importance, as we have said in Ex. N (1). It is a judgment of the Sadar Dewani Adalat passed in Suit No. 251 of 1838. The said proceedings arose in the following manner. At the time of the Burmese invasion of Assam, the Ahom King fled westward, that is to say left Assam, and many inhabitants of Assam fled with him to avoid plunder and slaughter by the Burmese. The Nilachal hill, on which is the temple of Kamakhya Debi, was deserted. One Baburam Burphukan who was one of the officers of the Burmese King, appointed one Bishnu Dutt who was not a member of any one of the Bardeori families, to perform the worship of the (Pithasthan) at the Nilachal hill. Thereafter the Burmese were driven out by the British and Assam was ceded to the latter in 1826. It appears that shortly after the restoration of order, one Uma Dutt a member of the Bura family exerted himself, cleared the hills and re-established the worship of the deity. Ganga Prosad claimed to be the Daloi who had been duly appointed before the Burmese invasion. There were proceedings between Bishnu Dutt and Uma Dutt, and the three Sebachalacs, a certain Gossain, before the Revenue authorities. As a result of the compromise between Uma Dutt and Ganga Prosad the latter admitted Uma Dutt as a joint Daloi. Uma Dutt died and his son Prana Nath was also admitted as the joint Daloi. Then proceedings were started between Ganga Prosad and Prana Nath against Bishnu Dutta. The case of Ganga Prosad and Prana Nath was that a Daloi could only be appointed by the members of the four Bardeori families, and a person who was not a member of the Bardeori families could not be appointed a Daloi, because he would not be entitled to touch the idol. Bishnu Dutt's case was that the sebachalac was the only authority to appoint a Daloi and that he in fact was appointed by the Prime Minister of the Burmese King, who gave him a permanent sanad, and his appointment was confirmed by the sebachalac. There were three proceedings between the parties, one before the Assistant Commissioner and two before the Commissioner. Ultimately, the matter came before the Sadar Dewani Adalat. The claim of Ganga Prosad and Prana Nath ultimately succeeded in the Sadar Dewani Adalat. In the judgment of the Sadar Dewani Adalat the pleadings of the parties are set out in full. The written statements filed by Ganga Prosad and Prana Nath are material. They are set out at page 7, Part II of the paper book. There Ganga Prosad and Prana Nath made an unequivocal statement that the custom was that the Daloi must be a member of the aforesaid five houses, that is to say a member of the five Bardeori families.
9. The next document of importance is Ex. O, a certified copy of a judgment (Rabokari) of the special Commissioner of Assam dated 25th June 1853. It records the statement of two succeeding Dalois Durga Pro-sad and Gayanath, the former being a member of the Bura family, and the latter of the Deka family. The statement is that there was the custom of appointing the Dalois out of the five families of Bardeoris. Statements to the same effect were made by the responsible members of the Deka and Bura families which are recorded in Ex. K, at page 110 of Part II of the paper-book, which is a plaint filed in a Munsif's Court. Ex. U is a letter issued to the public by the Daloi Ganga Prosad Dab who was a member of the Bura family. In that letter Ganga Prosad made a statement that the custom was to appoint a fit person out of the members of the five Bardeori families to the office of a Daloi. In Ex. F, which is a judgment of the Revenue Commissioner of Assam, it is stated that the earlier proceedings, namely the judgment of the Sadar Dewani Adalat established, that none but descendants of the Bardeori families could, be a Daloi and that the members of the Bardeori families from generation to generation occupied the post of a Daloi and worked as such. It appears that in the year 1873, the Bardeoris brought an account suit against the then Dalois. The right of the Bardeoris was contested by the Dalois, but the Bardeoris succeeded in getting a decree. Since the said judgment, for the purpose of safeguarding their rights and for the purpose of preventing any Daloi from disputing the rights of the Bardeoris to get accounts, agreements were taken from the Dalois by the Bardeoris on their appointment. Three of such agreements, Ex. B dated 17th November 1880, Ex. C dated 11th December 1893 and Ex. D, dated 27th November 1896, were executed by the Dalois Guru Proaad, Abhoy Kanta and Bishnu Prosad (defendant 44) respectively. In all these documents it is stated that the right of becoming a Daloi and of appointing a Daloi belongs to the members of the five families of Bardeoris.
10. The evidence afforded by these documents which begins from the year 1838 and ends with the year 1896 is that any adult person is eligible for Daloiship who is a member of any of the four surviving Bardeori families, viz. the Bura, Deka, Bidhipathak and Hota families. There is no evidence worth the name, adduced by the plaintiffs, which affects the weight afforded by these documents. These documents contain statements of persons, some of whom are dead and some of whom are living, who were and are members of the said families. They were and are in a position to know what the custom was, and everyone of them was a responsible member of the said families, they being either persons who were Dalois in the past, or are filling the said office at present. It may be that members of the Deka and Bura families have more duties to perform in connexion with the worship. It may be that they have a greater number of days as palas (turns of worships) or get more emoluments. But these facts are not inconsistent with the custom as proved, namely that a Daloi can be a member of any of the four Bardeori families. We do not see any force in the argument that the respondents had not been able to prove any instance of a Bidhipathak or a Hota being appointsd or elected Daloi in the past. They, the plaintiffs, have given the names of persons who had been Dalois in the past, and in an ancient document Ex. D we have the names of some Dalois. But the fact that in the past only Dalois were selected from Bura and Deka families, is after all an equivocal circumstance. That fact cannot do away with the evidence afforded by the documents which we have mentioned above. The further fact that no instance has been proved of a Bidhipathak or a Hota being a Daloi in the past is of very little import, in view of the observations of their Lordships of the Judicial Committee in Raja Ajai Verma v. Mt. Vijai Kumari and Ahmad Khan v. Channi Bibi .
11. We accordingly hold that the plaintiffs have not established their case and that defendant 1 has been validly appointed as the second Daloi of the temple. The appeal is accordingly dismissed with costs, hearing fee ten gold mohurs. The cross objec lion is not pressed; it is also dismissed but without costs.