P.N. Mookerjee, J.
1. In this appeal the dispute relates to the validity of a transaction of sale of a pala of the Kalighat temple and the decision depends upon the true meaning and scope of the relative rule, laid down in the case of Mahamaya Devi v. Haridas Haldar. 20 Cal LJ 183: (AIR 1915 Cal 161 (2) ) (A) and its effect on the rights of the parties in the present case in the particular facts hereof. In the two courts below, the parties differed also on the question of the true nature of the disputed transaction, namely, whether it was a mortgage or a sale, but, the courts below having concurrently held that it was a sale, the appellants have not chosen to reiterate their said contention in this Court that it was a mortgage and not a saleThe appeal has been argued by their learned Advocate upon the footing that the transaction was a sale and not a mortgage and the only contention that has been pressed before us is that the sale of the pala is not valid, it being outside the sanctioned limits as laid down in the case, cited above.
2. The pala in question admittedly belonged to one Narain Das Mukherjee who was a Shebait of the Kalighat deities Sree Sree Kalimata Thakurani. Sree Sree Nakuleswar Mahadev, Sree Sree Shyam Roy and several others. By the disputed transaction, which is dated 17th Baisakh, 1347 B. S. Naraindas sold the pala to the defendant for Rs. 700/-. The plaintiffs, who are the sons of Naraindas instituted the present suit on April 2, 1951, for a declaration that they -- and not the attendant, -- were the owners of the above pala, notwithstanding the above transaction which, according to the plaintiffs, was a mortgage and not a sale, and, in any event, was fraudulent and collusive and, even if it was a sale, not so vitiated, it was invalid in law and did not pass any title to the defendant as the latter was not a competent person to whom the pala could be sold in law. The defence asserted that the disputed transaction was a sale, not vitiated by any defect whatsoever, and that it was perfectly valid in law and fully effective to pass title to the defendant.
3. In the plaint, the competency of the defendant was challenged on the ground that he was not a shebait of the Kalighat deities and belonged to the same gotra as the said deities' shebaits which made it impossible for him to marry a daughter of the said shebaits and as such he was outside the group of persons to whom a pala of the Kalighat temple could be validly transferred in law. This was denied in the written statement where the defendant set up validity of the disputed sale in his favour and claimed title under it.
4. In the courts below, the parties appear to have fought mainly upon the true limits of the rule, laid down in the case of Mahamaya Devi v. Haridas Haldar, (A), cited above regulating transfer of Kalighat palas. There was no dispute that such palas were transferable only to a limited class of persons, as laid down in that case. What that class is the point to be decided. There can be no question that it includes co-shebaits and also potential or prospective shebaits by birth or marriage, this relationship, however, being, In our opinion, existing relationship. We do not think also that shebaits, relationship to whom or to whose family by birth or marriage would entitle a person to be a potential or prospective shebait within the above class, would include only the hereditary shebaits Haldars who are Chatterjees or of Kashyap Gotra and not the shebaits in their daughters' lines who may be Banerjees, Mukherjees etc. Although greater stress is laid in the Judgment on relationship with the hereditary shebaits, reading it as a whole, it seems clear that relationship with other shebaits is also sufficient to bring one within the above class. Co-shebaits, of course, would include those other shebaits & the trend of discussion in the case cited would not justify their exclusion when the question of eligible relationship falls to be considered. Shehaits, however must be distinguished from mere paladars, that is, mere holders of palas, who do not come within the group of hereditary or other shebaits, as mentioned above, and they do not seem to be eligible for purposes of the above relationship, although they may be entitled to acquire and hold the palaby virtue of the custom, noticed in the above decision. Amongst this class, come the hereditary priests of the deities whose purchases have been recognised from very ancient times. Even though only one such instance is noticed and mentioned in the leading Judgment of Mukherjee J., in 20 Cal LJ 183: (AIR 1915 Cal 161 (2) )(A), his Lordship (and with him Beachcroft J., agreed on this point) was inclined to accept the validity of that transaction as coming within the scope of the custom, found and recognised by them. This is apparent from the manner of referring to that transaction, his Lordship seeking to Justify it, that is, to affirm its validity, by citing reasons in that behalf. This position is made perfectly clear when we refer in this connection to the Judgment of the learned Subordinate Judge (who dealt with the case in the trial court in 20 Cal LJ 183: (AIR 1915 Cat 161 (2) ) (A), which was restored by their Lordships. The very important passage at page 187 of the report (Cal LJ): (at p. 163 of AIR), namely.
'The evidence, at the same time, establishes that these transfers have not been unrestricted, but have been confined to co-shebaits or to the members of families to whom a shebait can bestow his daughter in marriage; in other words, there is undisputed and overwhelming evidence, oral and documentary, that in practice palas have been transferred during at least 90 years, though in a limited market in which those along can enter who are qualified to become shebait by birth or marriage.'
is almost a reproduction and elucidation of the relative observations of the learned Subordinate Judge with some of his words, quoted verbatim, as will appear from the following quotation which we set out from those observations.
'The evidence also establishes that these transfers are not unrestricted, but confined among co-shebaits, or the members of such families to whom a shebait can bestow his daughter in marriage.'
The line that follows in the Judgment of Mookerjee, J., namely,
'Only one instance has been traced in which a transfer in favour of an absolute stranger, not connected with the hereditary shebaits by blood or marriage, has been recognised; but the transferee in that case was the hereditary pujari or priest whose function, it must be observed, is entirely distinct from that of a shebait.' appears to Us to accept, putting it only in different language, the relative observations of the learned Subordinate Judge which may be quoted as follows: 'Only one instance has been found of a transfer to a person not connected by blood or marriage with the hereditary shebaits, but in that case, the transferee was the hereditary poojari of the goddess. Thus there could be no doubt about his competence to be a shebait as regards performing the pooja himself or offering cooked food to the goddess.'
5. Clearly, the learned Subordinate Judge was accepting the transaction as valid and so affirming that the relevant custom proved in the case, covered such a transaction and their Lordships also were taking the same view. If that be so the hereditary priest or poojari of the goddess would also be within the competent class of transferees under the custom, recognised and affirmed by their Lordships. In the present records, we have some further recognised instancesof acquisition and holding of palas by such hereditary priests and, as the defendant is admittedly a hereditary priest of the deity, he would be quite a competent and eligible transferee and the transfer to him would be perfectly valid. This view is fully supported by the admission of the plaintiffs predecessor Narandas Mukherjee (who was the Shebait who sold the disputed Pala to the defendant) in his deposition in the famous Kalighat Temple Case (T. S. No. 4 of 1937 of the First Court of the Subordinate Judge at Alipore) which was admitted into evidence as Ext. D without objection. That admission has not been explained or shown to be wrong and 50 it binds the plaintiffs.
6. In the above view. We agree with the learned Subordinate Judge, though on different grounds, that the defendant's title to the disputed pala cannot be challenged and the plaintiffs' suit must fail. This is sufficient for the disposal of the present appeal and we do not think it necessary to go into any other question.
7. In the result, this appeal fails and it is dismissed. We, however, direct the parties to bear their own costs throughout.
8. I agree.