1. The substantial question of law which calls for decision in this appeal, is one of some novelty, and relates to the right of a degraded Brahmin of the class known as Moriporahs, to officiate, in a specified burning ground, at the cremation of all dead bodies brought there, and of the right of a Municipal Corporation governed by the provisions of the Bengal Municipal Act of 1884, to create in favour of a member of this class of Brahmins, an exclusive right of this character. The circumstances tinder which this question arises for consideration, have not formed the object of controversy before us. The plaintiff, a Hindu, lady, alleged that she was a member of the class of degraded Brahmins known as Moriporahs: that her father, and before him, his ancestors used to officiate as priests at the funeral ceremony of all dead bodies brought for the purposes of cremation to the burning ghat within the jurisdiction of the Municipality of Panihati; that this right was hereditary in the family to which she belonged; and that after the death of her father, she had got the ceremonies performed by her husband as her agent. On the 16th March 1905, she applied to the defendant, the Chairman of the Panihati Municipality, for a license to sell firewood at the burning ghat; her offer of an annual sum of Rs. 410 as consideration was accepted, with the result that the Chairman directed that a contract should be executed with her for a term of three years, from 1st April 1905 to 31st March 1908. She paid the money for one year, and was permitted to sell firewood during that period. There was, however, some difference between her and the Municipality as to the terms of the agreement, the latter insisted that one of the terms should be that she could employ an officiating priest at the cremation ceremonies only by virtue of the license; on the other hand, she maintained that the right was hereditary in her family by custom, and consequently no reference should be made in the contract about the performance of thef uneral ceremonies. The result of this dispute was, that on the 20th March 1906, the defendant Municipality granted a license to the second defendant, the consequence of which has been to prevent the plaintiff not merely from solling firewood but also from employing an officiating priest to utter the mantras at the time of cremation. Accordingly, on the 21st March 1906, the plaintiff commenced this action for declaration that the plaintiff has a customary right, hereditary in her family, to utter mantras at the burning ghat in Panihati, and that the defendant Municipality has no power to interfere with the exercise of such right; she further prayed for specific performance of the agreement made with her by the Chairman on the 16th March 1905, and for cancellation of the engagement made by the defendant Municipality with the second defendant on the 20th March 1906, by which the latter was authorized exclusively to sell firewood, and to officiate as priest at the cremation ceremony. The Courts below have concurrently dismissed the suit, but not on identical grounds. The original Court held that the plaintiff had failed to' establish that the alleged customary right was hereditary in her family; it further held that specific performance ought not to be granted of the agreement made by the Chairman, inasmuch as it was ultra vires, in the view that the Chairman could not grant a license for more than one year, nor in respect of a sum exceeding Rs. 500. The Court of appeal below has affirmed the decree of dismissal of the Court of first instance on the ground that the right claimed is of an ecclesiastical nature, and the Civil Court has no jurisdiction to entertain the suit. It has further held that in so far as the suit is for specific performance of the agreement for sale of firewood, the agreement is not legally enforceable, because made by the Chairman without the sanction of the Commissioners at a meeting. The plaintiff has now appealed to this Court, and on her behalf it has been contended that the decision of the Subordinate Judge is erroneous, first, because the right claimed is enforceable in a Civil Court, and secondly, because the contract was not ultra vires and was in any view enforceable as it has been partly performed, and consideration had been paid and accepted in respect of such part. Both these positions have been strenuously contested on behalf of the respondent, and it has further been argued that it was competent to the Municipality to grant to the second defendant an exclusive right of sale of firewood and employment of priests to officiate at the cremation ceremony, and that after such a license had been granted, it was not open to the plaintiff to ask for its cancellation. After careful consideration of the arguments which have been addressed to us, we have come to the conclusion that the claim to officiate as a priest at the cremation ceremony, which has been put forward by the plaintiff on the basis of an exclusive hereditary right vested in her family, is not enforceable, though the view, taken by the Court below as to the maintainability of the suit, is obviously erroneous. We have further arrived at the conclusion that the action of the Municipality, in granting a license to the second defendant which authorizes him exclusively to employ priests to officiate at the cremation ceremony, is entirely ultra vires. Before we deal with the question of the nature of the right to officiate as a priest, it is necessary, therefore, to show that the view of the Sub-ordinate Judge that the suit is not maintainable, is erroneous.
2. It may be conceded that suits in which the principal question relates to the performance of religious rites or ceremonies, are not suits of a Civil nature, and to the same category belong suits for vindication of a mere dignity attached to an office. But it is well-settled that suits in which the principal question relates to the right to an office, are suits of a Civil nature, and not the less so, because the right claimed may depend upon the decision of questions as to religious rites or ceremonies or even religious tenets. Tiru Tata Chariar v. Krishna Sawmi Tata Chariar 2 M. 62 : 6 I.A. 120 and Krishnasawmi Krishna Chariar v. Krishnamacharyar 5 M. 313. Now, suits for offices of a religious character, that is, those in which the title to the office is dependent upon the performance of religious rites and ceremonies, may be divided into two classes, namely, first, religious offices to which fees are appurtenant as of right, and, secondly, religious offices to which no fees are attached, but which entitle the holder thereof to receive such gratuities as may be paid to him. In the former class of cases, that is, in respect of offices to which fees are attached, there is no doubt that a suit will lie for declaration that the office is vested in the plaintiff. [Muhammad v. Sayad Ahmed 1 B.H.C.B. 18.] As regards religious offices of the second class, there has been some divergence of judicial opinion upon the question, whether a suit will lie for an office to which no fees are attached. In this Court, the view has been maintained that a suit by a person claiming to be entitled to a religious office of this description against an usurper for declaration of his right to the office, is a suit of a Civil nature maintainable in a Civil Court [Mamat Ram v. Babu Ram Kanta Surma 15 C. 159; Kali Atia v. Gouri Prasad Surma 17 C. 906 and Dina Nath v. Pratap Chandra 27 C. 30.] The contrary view has apparently been maintained in Madras. [Tholappala Charlu v. Venkata Charlu 19 M. 62; Subbaraya Mudaliar v. Vedanta Chariar 23 M. 23.] In Bombay, distinction has been made between an office which is attached to a particular temple or place, and an office which is entirely personal in character. As regards the former class, it has been held that the suit is maintainable [Limba v. Rama 13 B. 548, Gursangaya v. Tamana 16 B. 281]. As regards the latter, the balance of authority supports the view that the suit is not maintainable, [Murari v. Suba 6 B. 725], though the contrary view was maintained in Sayad Hashim v. Husein Shah 13 B. 429. This distinction between local and personal offices has also been recognised in Allahabad. [Barsati v. Chamru Kandu 4 A.L.J. 715 : A.W.N. (1907) 228 : 29 A. 683; Chunnu Dat Vyas v. Babu Nandan 7 A.L.J. 529 : 6 Ind. Cas. 223]. In the case before us, the plaintiff claims a hereditary right to officiate exclusively as a priest on the occasion of the cremation ceremony of all dead bodies brought for funeral to a particular place, namely, the burning ghat at Panihati. Whether, therefore, we adopt the Calcutta or the Bombay view, the suit is clearly maintainable. The contrary view taken by the Subordinate Judge cannot be supported. Though fees are not appurtenant as of right to the office claimed by the plaintiff, yet the holder of the office does, on performance of the services, receive a gratuity, the amount of which is often regulated by custom and is sometimes possibly stipulated beforehand by the parties. In this view, it is impossible to hold that the suit for the establishment of an alleged right to a religious office of this description, is not a suit of a Civil nature; we must accordingly proceed to consider the nature of the right claimed by the plaintiff, how far it has been established and whether it is enforceable in law.
3. The claim of the plaintiff is sought to be based on a two-fold ground, namely, first, that under the Hindu Law, she is entitled exclusively to perform the usual religious ceremonies at the time of the cremation of all dead bodies brought to the Panihati burning ghat; and, secondly, that she is entitled to a customary right of the same description, as the right has been exercised by her ancestors for many generations. In so far as (hose grounds are concerned, it will be observed that the plaintiff seeks not merely for a declaration that she is entitled to officiate as a funeral priest, but that she is so entitled to the exclusion of all other Brahmins of the class to which she belongs. In our opinion, the exclusive right claimed by the plaintiff cannot be sustained, though the authorities are by no means unanimous. So far back as 1818, it was ruled by the Bengal Sndder Court in the case of Radha Kishen v. Sham Senna 2 Mac. Sel. Rep. 259, that a Hindu, who has employed an officiating priest from genemtion to generation, is not at liberty to discard such priest whilst the latter is capable of performing sacrificial or rather religious duties. This view, which was subsequently affirmed in Chourasee v. Jewan Chund (1837) 6 Mac Sel. Rep. 152 and Kali Churn v. Huree Kristo (l7), was founded on certain texts quoted by Jagannath in his Digest of Hindu Law (translated by Colebrooke, Volume II, pages 163--180). In 1850 however the opposite view was adopted in the case of Hurgobind v. Bhowawe Prasad (1850) Bengal S.D.A. 296, where it was ruled that parties who require religious ceremonies to be performed for their benefit are at liberty to choose the priest by whom they shall be performed, and it was stated that this doctrine had been recognized by implication in Gour Dan v. Ananda Mohan (1849) Bengal S.D.A. 428. The consequence of this conflict of decisions was, that the matter was re-considered by a Full Bench of the Sudder Court in 1852 in the case of Rama Kant v. Gobind Chunder (1852) Bengal S.D.A. 398. It was ruled by a majority of four Judges against one that a suit was not maintainable by a priest with a view to be restored to his office, and to procure the removal of another person who has been employed as priest. Sir It. Barlow, J., observed that the Courts can exercise no control over the faith and conscience of a jujman who refuses to resort to a particular priest, and gives preference to another for the performance of the ceremonies of his religion. Jackson, J., added that it is a personal right in every Hindu to choose his own priest and there is no law to limit the exercise of this right; it may be a sin in him to employ a particular priest or not to employ him, but this is simply a matter of conscience; he may be liable elsewhere to punishment for it, but he is not liable to punishment by the Civil power nor has the Civil power any legal authority to force him to perform a religious duty of this kind. Colvin and Mytton, JJ., pointed out that as admittedly a Hindu may discard a priest who is not 'faultless,' and as the description of what constitutes a fault in a priest fa of the vaguest character, the Civil Court cannot determine whether the refusal to employ a priest, has been justifiable, and that, in fact, if the Courts attempted to control the convictions of jujman on such points it would be to establish the worst kind of tyranny by means of uncertain decisions which could only be passed on the most doubtful and in truth, arbitrary grounds'. The view thus set forth by the majority of the Full Bench has ever since been accepted as good law in this Court. [See Roodurman Misser v. Damoodur Misser (1862) 1 Hay 365: Madhab Chandu v. Nobu Chandra Ojha 5 W.R. 224; Becha Ram. v. Thakurmani 10 W.R. 114 : 8 B.L.R. 53 (Note) and Magju Panday v. Ram Dayal 15 W.R. 531 : 8 B.L.R. 50]. The principle affirmed by the Superior Courts in this Presidency has been adopted in the North Western Provinces [Lalla v. Ganeshi (1856) Agra S.D.A. 509; Hur Lall V. Jeo Rukhan (1862) Agra S.D.A. 314 and Beharee v. Baboo (1867) 2 Agra H.C.R. 80, which were treated as good law in Chunnu v. Babu Nandan 7 A.L.J. 529 : 6 Ind. Cas. 223]. A similar view has been adopted also by the Madras High Court [Rama Kristna v. Ranga 7 M. 424]. The contrary view, however, has prevailed in the Presidency of Bombay where it has been ruled that a village priest can maintain a suit against a jujman, who has employed another priest to perform religious ceremonies, and recover the amount of the fee, which would properly be payable to him if he had been employed to perform such ceremonies [Moolji Purseram v. Nagny (1834) Bom. Sel. Rep. 116; Muncharau v. Amba (1831) Bom. Sel. Rep. 159; Vithal v. Baba Bhut (1872) 1 Bom. P.R. Judg. 471; Sitaram v. Sitaram 6 B.H.C.R. 250; Vithal Krishna Joshi v.. Anant Ramchandra 11 B.H.C.R. 6; Dinanath Abaji v. Sada Shiv Hari Madhave 3 B. 9 and Woman v. Balaji 14 B. 167]. But, though there is this divergence of judicial opinion on the subject, we are not prepared to dissent from the view adopted by the Sudder Dewany Full Court in 1852. The texts, upon which the contrary view was supported in the earlier cases, do not, in our opinion, admit of the interpretation that even a family priest is entitled to compel his employment on the occasion of religious ceremonies. As was observed by Mookerjee, J., in Magju v. Ramdayal 15 W.R. 531 : 8 B.L.R. 50, the texts do not show that there is any hereditary right of priesthood in any family of Brahmins, so as to be capable of enforcement in a Court of Justice, The right of a purohit to officiate at the ceremonies of a family because his ancestors had before him performed similar ceremonies, is not a right enforceable at law, because no one can compel another to employ him as a purohit against his will, and a Court has no power to enforce its order against the conscience of the party. [See the Commentary of Savara on the Mimansa Darsana, Chapter III, Section 7, which states explicitly that a priest can officiate as such only when insisted by the person for whom he performs the ceremonies. To the same effect is Kumarila Bhatta in his Tantra Vartika, Chapter III, Section 7, Sutra 33 and Section 8, Sutra 1]. We must consequently hold that the claim of the plaintiff, in so far as it is sought to be rested on Hindu Law, cannot be supported, and she cannot obtain a declaration that she is exclusively entitled to per-form religious ceremonies on the occasion of the cremation of dead bodies brought to the particular burning grounds.
4. In so far as the claim of the plaintiffs is founded on custom, it is, in our opinion, equally unsustainable. The custom, which she seeks to establish, is that members of the family, to which she belongs, are entitled from generation to generation to officiate as cremation priests at the funeral of all dead bodies brought to the burning ghat at Panihati. It will be observed that the alleged custom is not restricted in its operation to a specified locality; in other words, the case for the plaintiff is not that she is entitled to officiate as cremation priest on the occasion of the funerals of all persons residents within certain specified boundaries, but that she is exclusively entitled to exercise such right in respect of dead bodies brought to the burning ghat at Panihati, no matter where the deceased persons might have resided. This obviously is a custom which no Court of Justice will recognise. As observed by Tindal, C.J., in Tyson v. Smith (1838) 9 A. and E. 406 : 48 R.R. 539 : 1 P. & D. 307 : 1 W.W. & H. 749, a custom to be valid, must have four essential attributes: first, it must be immemorial, secondly, it must be reasonable; thirdly, it must have continued without interruption since its immemorial origin, and fourthly, it must be certain in respect of its rature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. None of these characteristics has been established in respect of the custom asserted in the present case. In the first place, all that the plaintiff is able to prove is that she and her father had officiated as cremation priests in the burning ground at Panihati. This, clearly, is insufficient to establish that the alleged custom has existed from remote times. In the second place, the custom can hardly be regarded as reasonable. If such a customary right in an individual or a family were recognised, it would lead to the creation-of a monopoly. As Dr. Jogendra Nath Bhuttacharya observes in his work on Hindu Castes and Sects, page 130, no doubt, in some burning ghats, certain families claim an exclusive right to administer the sacrament to the dead, and claim heavy fees in the most heartless manner'; but the. question arises, whether such a claim based on a customary right, is sustainable in a Court of Law. Now in order to ascertain whether a particular custom is reasonable or not, we must look to the possible period of its inception; Mercer v. Denne (1904) 2 Ch. 534 at p. 557 : 4 S.E.C. N.S. 81 : 74 L.J. Ch. 71 : 91 L.T. 513 : 53 W.R. 55 : 68 J.P. 479 : 3 L.G.R. 385 : 20 T.L.R. 609 and Johnson v. Clark (1908) 1 Ch. 303 at p. 311 : 77 L.J. Ch. 127 : 98 L.T. 129 : 24 T.L.R. 156. Can it be contended, with any show of reason, that a custom of the description now before us was reasonable at its commencement? The answer must obviously be in the negative, for there could clearly have been no agreement, express or tacit, between the ancestors of the plaintiff and an indefinite body of men that from generation to generation the latter would employ the members of the family of the former as cremation priests. Even if it be assumed, therefore, that the existence of the custom has been proved, it must have resulted from accident or indulgence; in other words, even if it be conceded that by reason of the absence of other degraded Brahmins in the locality, the members of the family to which the plaintiff belongs have, for many years past, discharged the duties of cremation priests, it is clear that they have acquired no monopoly. The voluntary consent of the people to the employment of the plaintiff or her predecessors as cremation priests, cannot confer upon them any exclusive right and the continuance of this state of things, even for generations, cannot confer upon her a legally enforceable right; Salisbury v. Gladstone (1861) 9 H.L.C. 692 at p. 701 : 34 L.J.C.P. 222 : 8 Jur. (N.S.) 625 : 4 L.T. 849 : 9 W.R. 930. If we were to recognise the alleged custom as reasonable, we would have to uphold what must, in the end, turn out to be an oppressive monopoly, and the very first reason assigned in the celebrated case of monopolies [Darcy v. Allen (1602) 11 Coke 84], would be conclusive upon the matter, namely, that if the monopoly was sustained, the person in whose favour the monopoly was created, might charge whatever price he pleased. In the third place, it is clear that the alleged custom has not continued without interruption since its origin, because we find from the record that in 1866, the father of the plaintiff, Ishur Chandra Thakur, brought a suit against one Ram Dhone Boral, who had interfered with the exercise of his office as cremation priest, for possession of the right in question. On the 20th September 1866, the Court of first instance dismissed the suit on the ground that every Hindu was at liberty to choose his priest, and the exclusive right set up by the plaintiff could not be sustained. This decision was affirmed on appeal on the 10th May 1867. In the fourth place, as we have already pointed out, the custom lacks certainty in respect of the locality where it is alleged to obtain, and the persons whom it is alleged to affect; consequently the custom cannot be sustained [Hammerton v. Honey (1876) 24 W.R. 603 and Fitch v. Rawling (1795) 2 H. B1. 393 at p. 399 : 3 R.R. 425]. In this respect, the custom alleged in the present case compares unfavourably with the custom which has been sustained in England under which Sextons have been held to possess an exclusive right to perform their duties and functions and receive fees therefor in respect of burials of parishioners and inhabitants of the parishes of which they are the Sextons. [Gell v. Mayor of Birmingham (1864) 10 L.T. N.S.497; Burial Board v. Thompson (1871) 19 W.R.892 and Wood v. Burial Board (1892) 1 Q.B. 713]. We must, consequently, hold that neither under the Hindu law, nor under any customary right is the plaintiff exclusively entitled to officiate as cremation priest on the occasion of the funeral of dead bodies brought to the burning ghat at Panis hati. In this view of the matter, it become-unnecessary to consider whether the plaintiff is entitled to a decree for specific performance of the contract made by the Chairman of the defendant Municipality on the ground of part performance. Apart from the question of the binding character of the agreement upon the Municipal Corporation, it is manifest that the agreement is not specifically enforceable inasmuch as the object of it was to create in favour of the plaintiff an exclusive right to officiate as cremation priest.
5. The next question which arises for consideration is, whether the action of the Municipality when they granted a license to the second defendant, which created in his favour an exclusive right to employ a cremation priest, was ultra vires. In our opinion, the action taken by the Municipality in this matter is clearly not authorised by the statutory provisions on the subject. Section 259 of the Bengal Municipal Act authorizes a Municipality to provide fitting places to be used as burning grounds, and the Commissioners may impose a fee not exceeding Rs. 2 in respect of every corpse burnt within such burning grounds. Section 260A then authorizes the Commissioners to grant licenses for the sale at burning grounds of fuel and other articles used for the cremation of dead bodies. The Commissioners may, in the event of granting such licenses, prescribe a scale of rates for the sale of such articles, and may punish non-compliance with their orders in this respect, by revocation or withdrawal of the license. The section further provides that a person who sells or offers for sale such articles within three hundred yards of the burning ground without a license, or who sells such articles at a rate higher than what is fixed by the Commissioners at the time of the grant of the license to him, is liable to be fined. It is obvious, from an examination of these provisions, that the Commissioners have no power whatever to authorize any person to provide for the services of cremation priests, much less have they power to create an exclusive right in any person for this purpose. It is also clear that Section 260A was never intended to be so applied as to enable the Commissioners to create a monopoly in favour of any person, even in respect of fuel shops, and there is no conceivable reason why more than one person should not be granted license to keep fuel shops for the sale of the necessary articles at the prescribed rates. In the case before us, however, the Municipality has not only granted an exclusive license to the second defendant for opening a fuel shop, but has also authorized him to provide and charge for the services of a cremation priest. It is not easy to appreciate how, by any stretch of the language used in Section 260A, this action can be justified. The licensee collects from the persons, who bring dead bodies for cremation, a certain specified sum, which includes not only the price of fuel and other articles used for cremation, but also a fee for an officiating priest, and as the licensee has the exclusive right to supply the fuel, the persons who bring the corpse for cremation, are, by this process, compelled to employ the cremation priest whose services are placed at their disposal by the licensee. This is manifestly unjustifiable, and is in excess of the powers vested in the Municipality. The relatives of a deceased person are entitled to employ any cremation priest they choose; the Municipality, any more than the plaintiff, has no right to force upon them the services of any particular priest. In substance, therefore, if the plaintiff has put forward an unsustainable claim for exclusive employment as cremation priest, the defendant Municipality has pursued an equally indefensible course in authorizing their licensee to force upon all persons, who bring dead bodies for cremation, the services of a particular officiating priest. It cannot be disputed that the plaintiff as well as other Brahmins of her class, when invited by the people who bring corpses for cremation, are entitled to officiate as cremation priests at this burning ghat. The relatives in charge of the cremation ceremonies may employ whatever priest they please, and pay him for his services at any rate that may be agreed upon between the. parties.
6. The result, therefore, is that the appeal must be allowed, and the decrees of the Courts below discharged. The plaintiff will have a declaration that she is entitled to perform, through a Deputy, if necessary, the duties of cremation priest at the burning ghat at Panihati; but she has not an exclusive right in this respect. It will further be declared that the defendant Municipality and the licensee from them are not entitled, by the grant of licenses under Section 260-A of the Bengal Municipal Act, to compel any person to employ a particular cremation priest and they have no authority to levy any fee for this purpose. As both parties have put forward claims, which are not entirely sustainable, there will be no order as to costs in any of the Courts.