C.C. Ghose, J.
1. The facts involved in this appeal, shortly stated are as follows: The plaintiffs are certain idols established many years ago by the predecessor-in-interest of the present shebait Raja Narasingh Malla Ugal Sanda Deb. He is a ward under the Court of Wards and is represented by the Manager, Khagendra Nath Banerji. On behalf of the idols the case as formulated in the Court of first instance was that defendants 1 to 6 were pujaris of the said idols, and have been so for a long period, that in fact many years ago the ancestor of defendants 1 to 6 was appointed priest or pujari of the said idols, that certain properties were made over to the said ancestor in order that he should meet the daily and occasional expenses of the worship of the idols out of the usufruct of the properties and that there should be no wages or salary attached to his office as pujari but that he should be able to remunerate himself out of the said usufruct and would generally act under the supervision of the idol's she-baits. The allegation further was that in 1329 it was ascertained that in respect of certain of the properties so made over to the ancestor of defendants 1 to 6 the said defendants had been guilty of misconduct in that they had granted a permanent lease to a certain person and in respect of certain other properties they had granted an usufructuary mortgage. It was also alleged that there had been neglect by defendants 1 to 6 in the performance of the duties of their office as pujaris and that in the events which had happened it was prayed that it might be declared that the alienation referred to in the plaint were not binding as against the deities and that the Raja as such shebait was entitled to dismiss defendants 1 to 6 from, their office as pujaris, they having been guilty of misconduct.
2. Various defences were taken by the defendants, the principal ones being that the lands which had been granted to the ancestor of the defendants were so granted for the performance of the worship not of the plaintiff idols but of certain other idols in the house of defendants 1 to 6.
3. It may be stated at the outset that both Courts came to the conclusion that there was no substance whatsoever in the defendants' contention and that the finding of both the Courts was that the lands in question were the debutter properties of the idols referred to in the plaint in this suit and that the lands had not been granted to the ancestor of defendants 1 to 6 for defraying the expenses of the worship of any idols other than those referred to in the plaint.
4. The question then arises as to what was the character of the lands so held by the defendants; had those lands been granted to the ancestor of the said defendants burdened with certain services or had those lands been granted to the defendants or their predecessor in lieu of their services as pujaris of the said idols? The Court of appeal is apparently of opinion that the lands so granted were burdened with certain services and were not lands which were granted to the ancestor of the defendants in lieu of service, as pujari of the said idols; and, in that view of the matter, the Court of appeal below came to the conclusion that the land's so granted were not resemble; and although it incidentally observed that the alienation could not bind the deities, it omitted to make any declaration one way or the other in respect of the alienation in favour of the deities and against defendants 1 to 6 and their transferees.
5. Now the character of the grant of the lands in question has got to be determined first and reliance has been placed upon the fact that there is no written grant forthcoming to explain how these lands came to be granted to the ancestor of, the said defendants or what were the conditions imposed by the grantor at the time of the grant and it is argued by the learned advocate for the respondents that, in the circumstances of this case, the view taken by the Court of appeal below namely, that it was a grant burdened with services should be upheld and further that in accordance with the view taken by the Judicial Committee in several cases it ought to be held that the character of the grant being as described above the plaintiffs should not be held to be entitled to resume the grant in the events which have happened. On the contrary it has been argued by the learned advocate for the appellants that the view taken by the Court of appeal below does not amount to a clear finding of fact but that the question has to be considered from the entire facts which can be gathered from the judgments of the two Courts below and it ought to be held as a matter of law that having regard to the character of the services which the ancestor of the defendants and the said defendants were expected to perform, the grant in question was really a grant for remunerating the pujaris for the services rendered by them as such and for making provision for the expenses of worship from time to time. It is unsatisfactory that no grant was forthcoming in this case and therefore for the purpose of determining the question in issue regard must be had to such surrounding circumstances as might throw light upon the elucidation of the point under discussion.
6. The defendants are not the shebaits. It is conceded that they were appointed under the shebaits and by the shebaits. They were appointed as pujaris, that is to say, persons who would be charged with the duty of performing the rituals according to the directions which might be given to them from time to time by the persons in authority, namely, the shebaits. It is true that the grant was made a long time ago and it is true that, at any rate, for at least two generations the office of pujari of the idols in question has been in the family of the defendants. That is a circumstance no doubt to be taken into consideration and given its proper weight. At the same time regard must be had to the fact that the whole object of the grant was apparently to provide for the proper and necessary worship of the idols and also for the purpose of remunerating the person who would perform the duties of the office of pujari. The pujari might not inaptly be called a minor ecclesiastical dignitary employed under the shebait. Those being the circumstances and regard being had to what was the central idea underlying the grant it ought not in my opinion to be held that the nature of the grant could not be anything else but a grant burdened with services. Such matters as may usefully be taken into consideration in determining the question tend in favour of the view that it was a grant for remunerating the pujari for the services rendered by him; or in other words, shortly put, it was a grant in lieu of wages. That in my opinion, is consistent with the facts which are to be found in the judgments of the two Courts below and I am therefore of opinion that it ought to be held that it was a grant in lieu of wages. That being my view of the nature of the grant, I now proceed to determine the question as to whether or not, having regard to the events which have happened, the plaintiffs have made out a sufficient case for an order directing the dismissal of defendants 1 to 6 from their office of pujaris and for the necessary consequential reliefs.
7. The plaintiffs, own case is that the office of pujaris has been in the family of the said defendants for at least several generations. There is also the fact to be taken into consideration that whatever may have happened in the past, the pujaris are now not unwilling to perform the duties of their office. In fact, we are informed by the learned advocate for the respondents that at the present moment the said defendants have been performing the duties of pujaris. In my opinion, subject to what is about to be stated below as regards the declarations to which the Raja as shebait of the said idols may be held to be entitled to, and without prejudice to the rights of the plaintiffs in the future it ought not to be directed that at the present moment that the defendants 1-6 are liable to dismissal from their office as pujaris. If, as a matter of fact, they are willing to provide for the expenses of the worship out of the usufruct of the lands in question, there is no reason, having regard to the circumstances present in this case, why defendants 1 to 6 should not be allowed a locus penetentiae and to continue in their office as pujaris. In that view of the matter, without prejudice to the right of the shebaits to ask at any future date, should the occasion arise, for the removal of defendants 1 to 6 from their office as pujaris I think that, in the present circumstances the plaintiffs have not made out a sufficient case for their removal from the office of pujaris. But this, as I have just indicated, is on the footing that they will perform the duties of the office of pujaris in strict accordance with the directions which may be given to them from time to time by the shebaits and that they will undertake to provide out of the usufruct of the lands in question whatever expenses may be required for the proper and necessary worship of the idols, Should it appear that defendants 1 to 6 show by their conduct that they are recalcitrant in the performance of the duties of the pujaris on the footing indicated above, it would be open to the plaintiffs to take the necessary steps for their removal as they may be advised. Liberty to the plaintiffs to apply.
8. I now come to the question as to what the form of relief should be in this case. If I am right in the view which I have taken of the nature of the grant to the ancestor of defendants 1 to 6 it follows that the lands were debutter lands of the idols referred to in the plaint and that defendants 1 to 6 being custodians of the lands in their capacity as pujaris of the idols, were not entitled at any time to alienate or dispose of the debutter lands in the manner in which they have done; and that they were guilty of misconduct; in other words, it ought to be declared that these alienations (within which expression I include all the alienations effected by means of the documents which are Exs. 10, 11 and 12 in this case) are not binding upon the deities and that such declaration should be given not only against the alienees who are parties to this appeal but also against defendants 1 to 6 who were the alienors.
9. The result therefore is that there ought to be a declaration in manner indicated above. There ought to be a declaration that the nature of the grant of these lands was as stated in an earlier portion of this judgment and that in the circumstances of the present case, subject to what has been stated above, it is not necessary to direct the removal of defendants 1 to 6 from their office as pujaris.
10. The result is that there will be declarations in manner indicated above and the appeal will be allowed to the extent indicated above. As regards the costs of this suit and of the appeals there will be no costs on either side.
11. I agree.