Raj Kali Kuer vs Ram Rattan Pandey

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 136 of 1953

Decision Date: 7 April 1955

Coram: B. Jagannadhadas, Vivian Bose, Bhuvneshwar P. Sinha

In the matter titled Raj Kali Kuer versus Ram Rattan Pandey decided on the seventh day of April, 1955, the Supreme Court of India rendered its judgment. The opinion was authored by Justice B. Jagannadhadas, and the bench was composed of Justices B. Jagannadhadas, Vivian Bose and Bhuvneshwar P. Sinha. The petitioner was Raj Kali Kuer and the respondent was Ram Rattan Pandey. The date of the judgment was 07/04/1955 and the decision was reported in 1955 AIR 493 and 1955 SCR (2) 186. The case concerned the application of Hindu law to a hereditary priestly office of a pujari and panda and examined whether a Hindu female could succeed to such an office. The headnote recorded that although a female was personally disqualified from officiating before Shastrically installed and consecrated idols, the customary practice of a Hindu woman succeeding to a priestly office and performing the duties through a competent deputy was well-recognised and did not contravene textual Hindu law or public policy. Subject to the proper and efficient discharge of the office’s duties, a Hindu woman possessed a right to succeed to the hereditary office held by her husband and to have the duties carried out by a substitute, unless contrary usage was pleaded and proven. The Court also posed the question of whether votive offerings could be appropriated by a pujari for personal emoluments when the temple was a public institution rather than a private family temple, and whether any usage supporting such appropriation was valid. After reviewing the relevant case law and texts, the judgment of the High Court of Patna was reversed. The civil appellate jurisdiction for this appeal was Civil Appeal No. 136 of 1953, filed by special leave from the judgment and order dated 4 May 1949 of the Patna High Court, which itself arose from appellate decree No. 1918 of 1947 against a decree dated 23 July 1947 of the Subordinate Judge, Arrah, in appeal No. 137 of 1946, which in turn originated from a decree dated 29 March 1946 of the Court of the Second Munsif at Arrah in Suit No. T.S. 120 of 1943. Counsel for the appellant was appointed, and counsel for the respondent was appointed. The judgment was delivered by Justice Jagannadhadas, who explained that the appeal was granted under article 136(1) of the Constitution against the second appellate judgment of the Patna High Court. The dispute concerned the office of pujari and panda of the well-known Aranya Devi and Killa Ki Devi temples in Arrah, Bihar. The appellant, a woman, had instituted suit asserting a joint title to the office together with the respondent, claiming entitlement to perform the puja either personally or through a deputy and to receive a half share of the income from the offerings at the said shrine. It was admitted that the office belonged to the family of both parties and that the

The Court observed that the duties of the priestly office were previously performed jointly by the defendant and his now-deceased brother, Rambeyas Pande, and that both of them had shared the emoluments arising from that office. The plaintiff, who is the widow of Rambeyas Pande, asserted that she had succeeded to her husband’s share in the said property and based her suit upon that claim. In the written statement filed by the defendant, three principal defences were raised. Two of those defences were as follows: first, the plaintiff was not the legally wedded wife of the deceased brother, Rambeyas Pande; second, during the lifetime of Rambeyas Pande a division had occurred concerning the priestly office belonging to the family with respect to two temples, namely the temple at Arrah and the temple at Gangipul. According to the defendant, the office of pujari at Gangipul had been allotted to the plaintiff’s husband, while the office at the Aranya Devi temple in Arrah had been allotted to the defendant, and that for approximately eleven years before the filing of the suit the plaintiff’s husband had had no connection with the pujari office at that temple nor had he received any offerings there. Both the trial court and the first appellate court rejected these two contentions and held them to be conclusively false.

The third defence pleaded by the defendant was that the property in dispute, namely the office of pujari and panda of the temple, could not be inherited by a female. The written statement expressed this contention in the following terms: “The plaintiff is not at all entitled to the office and the post of pujari and panda of Arun Devi and she is not entitled to get one-half share or any share in the income and offerings of the said Asthan, nor has she got any right to perform puja as a panda personally, or through her karinda and to get the income, etc. This is against the custom and usage and practice and also against the Sastras. The property in suit is such as cannot be inherited by a female.” The trial court examined this argument and held that no authority had been cited nor any custom proved to demonstrate that a female could not inherit a property of this nature. The first appellate court affirmed the trial court’s view, stating that the defendant’s objection that the plaintiff, being a female, was not authorised to hold the priestly office of the Aranya Devi temple was not supported by any evidence or material on record. The appellate court further observed that nothing showed that the plaintiff’s sex barred her from holding the office by reason of religion, custom or usage, and that she admittedly held the office at the Gangi temple. Relying on the findings of both the trial court and the first appellate court, the plaintiff was granted a decree declaring her right to a one-half share in the office and ordering recovery of mesne profits on that basis.

On the second appeal to the High Court, the judges examined the matter in detail and concluded that the plaintiff, being a woman, could not inherit the priestly office that was in question and that her claim to officiate as a priest in the temple on a rotational basis could not be sustained. Accordingly, the Court held that the declaration sought by the plaintiff, which would have recognized her entitlement to the office of Pujari, could not be granted. Nevertheless, the Court also observed that the plaintiff was not prohibited from receiving maintenance out of the estate of her husband; in this case the estate consisted of the emoluments attached to the priestly office in the form of offerings made to the deity, an office that was undeniably hereditary. The Court further held that the plaintiff would be entitled to receive from the defendant one-half of the amount of those offerings as her maintenance and consequently varied the decree of the trial court in accordance with this finding.

The short question presented for consideration in the present appeal is whether a Hindu woman may succeed to the hereditary priestly office of a Pujari and Panda held by her husband in a temple and may receive the associated emoluments. This issue has attracted divergent opinions in decided cases and therefore requires a careful examination. It is now well established that religious offices can be hereditary and that the right to such an office is, under Hindu law, of the nature of property. A Full Bench of the Calcutta High Court, in Manohar v. Bhupendra(1), articulated this principle with respect to the Shebaitship of a temple, and the Privy Council subsequently affirmed it in Ganesh v. Lal Behary(2) and Bhabatarini v. Ashalata(3). The Supreme Court, in the recent judgment of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar(4), reiterated this view and extended it to the office of a Mahant. On the premise that a Shebaitship constitutes property, the Court has also recognized a woman’s right to succeed to the religious office of Shebaitship in Angurbala v. Debabrata(5), where the applicability of the Hindu Women’s Right to Property Act to such an office was considered. By analogy, the right of a hereditary priest or Pujari, when attached to emoluments, must likewise be treated as property. Several decisions that have identified the Shebaitship right as property involve cases where the Shebaitship combines the priestly role of a Pujari with the managerial role of the temple’s trustee.

In South India the hereditary priestly office of a temple is known as the Dharmakarta. As early as in Mitta Kunth Audhicarry v. Neerunjun Audhicarry (1) the Court recognised that a hereditary priestly office in a family is property that may be subject to partition, and a number of later decisions cited in this judgment reaffirm that position. The learned judges of the High Court, in their judgment on appeal, attempted to distinguish the present matter from the earlier cases concerning Shebaitship. They concluded that, although a woman may succeed to a Shebaiti right by inheritance, she is not entitled to succeed to the right of a Panda or Pujari. In drawing that distinction they nevertheless did not deny that the office of the Pujari itself is property to which a female could in principle succeed; rather, they argued that the woman is disqualified because of the duties attached to that office, and that this disqualification differentiates the Pujari office from a Shebaiti office. It is clear that, while the right to such a religious office constitutes property, it also involves substantial duties. The Court has previously observed in Angurbala v. Debabrata (2) and in The Commissioner, H.R.E., Madras v. Sri Lakshmindra Thirtha Swamiar (3) that “both the elements of office and property, of duties and personal interest are blended together in such offices and neither can be detached from the other.” Moreover, when these offices are attached to public institutions, the duties must be regarded as primary, with the rights and emoluments merely ancillary. This view is supported by the observations of Justice Page in Nagendra v. Rabindra (4) at pages 495-496, by Justice Sadasiva Aiyar in Sundarambal v. Yogavanagurukkal (5) at page 564, and by Mukherjea’s commentary on Endowments (1915 Madras 561). Consequently, if it is found that recognising a woman’s right to succeed to the hereditary office of Pujari presently held by her husband would be incompatible with the proper discharge of the office’s duties, that right must be denied. The appropriate approach to such a question was laid down by the Privy Council in a case concerning a Mohammedan religious office, a principle that equally applies to Hindu religious offices. In Shahar Bano v. Aga Mahomed Jaffer Bindaneem (1) the Lords, after noting the view of the learned judges of the Calcutta High Court that “there is no legal prohibition against a woman holding a mutwalliship when the trust, by its nature, involves no spiritual duties such as a woman…,” approved that view, stating that “it appears to their Lordships that there is ample authority for that proposition.”

In the earlier decision the Court affirmed the view expressed by the High Court that a woman “could not properly discharge in person or by deputy” the duties of a temple priest, noting that “there is ample authority for that proposition.” The matter that the present case requires the Court to examine is whether the offices of Pujari and Panda in a Hindu temple involve responsibilities that a female cannot perform personally, and, if that is so, whether she is also unable to have those responsibilities carried out through a deputy. To address this issue the Court finds it necessary to set out clearly what the duties of a Pujari normally comprise in an ordinary Hindu temple. A Pujari is required to carry out the prescribed daily worship of the deity’s image, as well as the special worship that occurs periodically on particular occasions and on the festivals fixed for the year. In the case of Ramabrahma Chatterjee v. Kedar Nath Banerjee Justice Sir Asutosh Mookerjee described the ordinary daily routine of worship as follows: “The normal type of continued worship of a consecrated image consists of the sweeping of a temple, the process of smearing, the removal of the previous day’s offerings of flowers, the presentation of fresh flowers and water, and other like practices. It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest.” The treatise Saraswati’s Hindu Law of Endowments sets out the detailed nature of daily worship of a consecrated idol on pages 134 and 135, explaining that while the exact form of worship varies according to the doctrines and customs of the particular religious sect to which the temple belongs, certain essential elements are common. Irrespective of the specific variations, there can be no doubt that the administration of various services that involve direct physical contact with the idol, and often the recitation of religious hymns, including Vedic hymns, form an integral part of a Pujari’s duties, especially in temples whose rites follow the Shastras. It is also an established principle that, according to Hindu Shastras, the functions of a Pujari may be performed only by members of certain limited classes, and that these classes are required to possess special qualifications, which may differ depending on the nature of the institution. While early historical practice is not clearly documented, later custom appears to have solidified the view that even a woman belonging to the recognised limited classes is unable to perform the duties of a Pujari by herself.

In this case, the Court noted that a woman was historically considered incapable of acting as a Pujari. Even before temple worship became widespread, certain passages of the Manu text indicated that a woman could not recite Vedic hymns, offer sacrificial fire, or perform sacramental rites (see Sacred Books of the East, Manu, Vol. 25, pages 330 and 437, Chapter 9, section 18 and Chapter 11, section 36). Whether this prohibition arose from those passages or from another source, the incapacity of a woman to personally discharge the duties of a Pujari was recognized in later periods. The Court referred to a passage quoted in Pandit Prannath Saraswati’s The Hindu Law of Endowments (1892, 1897 edition, page 136), which cited the Brihan-Naradiya Purana: “Women, those uninvested with the sacred thread … and Sudras are not competent to touch images of Vishnu or Siva. A Sudra, one uninvested with the sacred thread, a woman or an outcaste, having touched Vishnu or Siva, goes to hell.” Although the passage specifically mentioned images of Vishnu and Siva, the Court reasoned that, in the absence of contrary evidence, the same restriction likely applied to all public temples where any consecrated image was installed according to the Shastras. All earlier cases on the subject had assumed this female incapacity. The controversy, therefore, turned on whether a woman could fulfil the duties of a Pujari by employing a qualified substitute. If such competence were recognised, the Court held that there would be no reason to deny her succession to the office.

The Court further explained that the central question for determination was whether the functions of the Pujari’s office could be performed through a substitute, and whether any established usage or explicit rule prohibited a female temple administrator from employing such a substitute. In early Hindu society, a priestly office was traditionally linked to the performance of Vedic rituals and sacrifices, whether daily, routine, or periodic. By principle, a Brahmin was expected to carry out these rites personally, while members of other castes were required to have them performed by qualified Brahmins. The selection of a priest was theoretically based on personal qualities and competence. Nevertheless, the hereditary nature of priesthood allowed individuals who might not be fully competent to inherit or occupy the office, a practice that appeared to have arisen relatively early. The Court observed that, given the nature of the situation, the temporary delegation of priestly duties to a substitute was often necessary, as Hindu Shastras recognised temporary disqualifications such as impurity caused by defilement or death. Although early scriptures did not clearly describe a general practice of proxy performance, later authorities, including Saraswati’s Hindu Law of Endowments (page 56), recorded that incapacitated persons were directed to have worship performed through Brahmins, indicating acceptance of substitute performance for those unable to fulfil priestly functions themselves.

In this case, the Court observed that the use of a substitute in place of a hereditary priest had always been a matter of unavoidable necessity because the Hindu scriptures recognized temporary and casual disqualifications such as impurity arising from bodily functions or death. However, the Court noted that the early texts did not contain any indication of a general practice of performing priestly duties through proxies. The Court then pointed out that in comparatively later periods clear evidence of such a practice existed. For example, Saraswati’s Hindu Law of Endowments, page fifty-six, stated that the Padma Purana and other treatises directed incapacitated persons to have worship performed by Brahmins. The Court explained that this remark referred to the performance of services to an idol and implied the incapacity of persons who held a priestly office. The Court further referred to Colebrooke’s translation of the Digest of Hindu Law on Contracts and Successions, with commentary by Jagannatha Tercapanchanana, fourth edition, published by Higginbotham & Co., Madras, 1874, volume one, book two, chapter three, section eleven, pages three-sixty to three-eighty-one. Those sections dealt with partnership among priests jointly officiating at holy rites. A review of those passages, especially placitas twenty-eight to forty-four containing citations from various Smṛtis together with Jagannatha’s commentary, clearly indicated that the institution of hereditary priesthood had become established by that date and that the performance of priestly functions by substitutes had definitely come into vogue. Various rules were prescribed regarding the sharing of remuneration between a substitute priest and the hereditary priest when the former performed the functions in place of the latter. It was noted that Jagannatha’s Digest referred only to priestly office in the context of officiating at holy rites, that is, sacrifices and other Vedic or scriptural functions, and did not expressly address the discharge of a priest’s duties in relation to the worship of an idol in a temple. This omission was remarkable because by the time of Jagannatha’s Digest, the institution of worship of consecrated idols in temples had long been established. The Court suggested that the probable explanation lay in the fact that Jagannatha’s Digest was a commentary on selected Smṛti texts, and that in the era of the Smṛtis temple worship had not yet become sufficiently prevalent. The Court then referenced the comprehensive treatment of the historical origin and growth of temple worship in Saraswati’s Hindu Law of Endowments and also cited the judgment in Annaya Tantri v. Ammaka Hengsu. That judgment pointed out that, according to Hindu sentiment, the performance of the duties of an Archaka or Pujari for an idol was regarded as sinful, and that substantial grants of land and promises of significant perquisites had to be offered to attract competent persons to the office of Pujari or Archaka. The Court concluded that, over time, changes in social conditions and economic values had transformed the offices of Panda and Pujari into lucrative posts, encouraging hereditary priests to employ paid substitutes and to enjoy a considerable margin of income.

In the course of history, almost all of the well-known shrines throughout India had become a lucrative enterprise. This profitability allowed hereditary priests to have their duties performed by paid substitutes while they themselves retained a considerable margin of income. In a manner similar to the encouragement that royal patronage or societal support had given to the development of a system whereby hereditary priestly functions related to sacrificial and Vedic rites were discharged by substitutes, the spectacular growth of idol worship in temples and the substantial emoluments that gradually attached to the priestly office created a strong incentive to employ substitutes for the performance of priestly duties not only in sacrificial or other religious rites but also in temple worship. The Court noted that whether this practice was permissible under the Shastras was not the matter before it. It was, however, indisputable and widely acknowledged that in the present day hereditary priestly offices were frequently performed by proxies, the selection of which was restricted to a narrow circle sanctioned by customary usage. The citation for this observation was recorded as (1) A.I.R. 1919 Madras 598 (F,B.). The issue that the Court was called upon to examine was whether, in this prevailing situation, a woman should be barred from succeeding to the hereditary office of Pujari on the ground of her recognized personal disqualification to officiate before Shastrically installed and consecrated idols, and whether she should be denied the ability to retain the associated property by having the priestly duties efficiently discharged through a competent substitute.

The only foundation for the alleged denial was a passage extracted from Jagannatha’s Digest, quoted as follows: “Wives and others, disqualified by sex for the performance of holy rites, cannot appoint a substitute; as defiled person cannot perform a solemn act ordained by the Vedas, therefore wives have no property in the office of priest” (see Vol. 1, page 379, commentary under placitum 43). The Court observed that, beyond the question of whether this passage possessed sufficient authority, there existed divergent opinions concerning its correct interpretation. In the case of Sundarambal Ammal v. Yogavanagurukkal, Justice Sadasiva Aiyar relied on the passage to conclude that women were incompetent to discharge priestly functions even through a substitute and thus possessed no right of succession; the learned Judges of the High Court in the present matter also adopted this view. Conversely, in Annaya Tantri v. Ammaka Hengsu, Justice Seshagiri Aiyar, while referring to the same passage, expressed the opinion that it did not articulate a specific rule. Further commentary was provided in Ganapathi Iyer on Hindu and Mahomedan Endowments (2nd Edn.), where the author, on page 453, remarked that Jagannatha considered the question of whether wives and others held a title to succession to the priestly office, indicating that the passage could not be definitively relied upon as authority for a contrary position.

In examining the passage that concerns the priestly office, the Court observed that the usual discussions of the authorities cited in (1) A.I.R. 1915 Mad. 561 and (2) A.I.R. 1919 Mad. 598 (F.B.) reveal that the ultimate view of Jagannatha is not clearly expressed. Nevertheless, the Court concluded that Jagannatha’s opinion appears to be that women may inherit the office by performing the duties through a substitute, while still receiving the emoluments that are attached to that office. Upon a careful consideration of the disputed passage together with its surrounding context, the Court affirmed that the learned author’s interpretation is correct. However, the Court also noted that the passage cannot be conclusively relied upon as an authority for the opposite view. The discussion in which the passage is found forms part of a commentary entitled placitum No. 43 in Section II of Chapter III, Book II, which is a text attributed to Narada dealing with hereditary priests. The specific statement under consideration occurs at a point where the commentary attempts to reconcile two apparently contradictory positions: the disqualification of a female from personally discharging the functions of a hereditary priest, and the simultaneous recognition of her right to succeed to all property, including the hereditary office itself. The Court therefore set out the pertinent portions of that discussion, which begin by questioning whether wives and other women have a title to succession, although the partition is based upon the admission of a right vested in agraharicas and other officiating priests, and should be analogous to the general partition of inheritance. The passage proceeds to state that a wife’s title to succession, in the event of failure of male heirs up to the great-grandson, will be declared under the head of inheritance, and that no argument should be made that the wife lacks a right to the village merely because, as a woman, she is disqualified from performing holy rites or from receiving the ceremonial gift of tilā delivered to priests. It further explains that the tilā may be received and the rites performed through a substitute, and that it should not be argued that a property in sacrificial fees and regular dues would vest in the substitute. The wife may enjoy the benefit of property acquired by the substitute, just as a sacrificer enjoys the benefit of rites performed by an officiating priest, with the distinction that merit accrues to the sacrificer and not to the intermediate performer. When a substitute performs the priest’s duties, the property in the sacrificial fee initially vests in the substitute and, through him, in the entitled widow. The Court noted that the passage acknowledges the absence of an explicit authority for this construction, yet it relies on the text that declares “a person unable to act shall appoint another to act for him” as the foundation for the argument. Finally, the passage observes that the property of an outcaste or any other person disqualified from solemn rites is absolutely lost, in the same manner as his right.

In this case, the Court explained that the rule concerning inheritance applied only to paternal property such as gold, silver and similar valuables, and that a full exposition of the principle would be provided in the fifth book on inheritance. The Court further observed that wives and other persons who are disqualified by sex from performing sacred rites are not permitted to appoint a substitute for those rites, because a defiled person is unable to carry out a solemn act prescribed by the Vedas; consequently, women have no right to the office of priest. At the conclusion of the discussion, the Court quoted a significant passage that clarified the apparent difficulty: women are entitled only to those rights for which they are qualified. The passage explained that although women are disqualified from performing the sacred acts ordained by the Vedas and therefore cannot nominate a substitute for those specific acts, they are qualified to handle temporal affairs and may therefore appoint a substitute for worldly matters. In such cases, the right would pass to the next person in the line of succession, as stated in another passage (Book 5, verse 477), because women are dependent on men. The Court noted that a woman who is entitled to succession may consume grain and similar property, but gold, silver and comparable assets must be preserved; if she is unable to safeguard such assets, they should be entrusted to her husband’s heir, a point that would be discussed under the heading of inheritance.

The Court then turned to the practical implication that, since a woman cannot maintain the office herself, the duties should be performed by her husband’s daughter’s son or another appropriate heir, while the produce or benefits should be enjoyed by the woman. However, if the daughter’s son were to fall out with his maternal grandmother, the duties could be carried out by another person, because the son is not entitled to his maternal grandfather’s property if the grandfather left a wife. In the event that the maternal grandmother initiated litigation, the matter should be settled amicably. The Court interpreted this concluding portion as indicating that the earlier categorical statement, which had been treated as an objection, was being answered, and that the final conclusion recognized a woman’s right to succeed by having the duties of the office performed by the next male in the line of succession. The learned judges of the High Court had indeed noticed this concluding passage but, according to the Court, had failed to grasp its proper meaning.

The Court considered it necessary to examine how this issue had been addressed in the decisions of various High Courts. It observed that a considerable number of cases could be found in the reports of the Madras High Court. One of the earliest authorities was the decision of the Madras Sadar Diwani Adalat in Seshu Ammal v. Soundaraja Aiyar, where the Court, following the opinion of the Sadar Court Pandits, held that a woman was disqualified by reason of her sex from inheriting the office of Acharya purusha. Nevertheless, the same Pandits’ opinion distinctly recognized that religious offices such as those of an Archaka or Pujari could be held by a female, provided that the duties were performed through a competent male substitute. In another case, Tangirala Chiranjivi v. Rama Manikya Rao Rajaya Lakshmamma, the Court stated that there was no basis for assuming that a minor, a female, or a person unlearned in the Vedas would lose the right to service in the temple, and that the burden of proof rested on the party alleging disqualification.

In this case, the Court observed that a woman or any individual who lacks learning in the Vedas would not automatically forfeit the right to serve in a temple; rather, the burden of proof lies with the party asserting such disqualification. The learned judges expressly stated, as a matter of common knowledge and experience, that services in temples are frequently carried out through proxies. Referring to the earlier decision of Ramasundaram Pillai v. Savundaratha Ammal, the judges cited the authorities [1863] M.S.D.A. 261, A.I.R. 1915 Madras 505(1) and A.I.R. 1915 Madras 725, and remarked that it is undeniable that this and other High Courts have, in numerous cases, acted on the assumption—without questioning—that women could occupy religious offices and have their duties performed by a proxy. The judges further explained that it may be that the parties involved have become so accustomed to the concept of female office-holders using proxies that they rarely consider the legality of such an arrangement, and that, in the absence of any contest, the courts have tended to accept the practice as lawful without demanding proof of a valid custom supporting it. The Court also referred to the decision in Rajeswari Ammal v. Subramania Archaka, where the judges expressed the view that, under Hindu law or custom, a woman is not disqualified from succeeding to a hereditary religious office, and that any duties which she might be unable to perform personally because of her sex may be carried out by proxy. The only dissenting opinion within the Madras High Court’s body of authority was delivered by Justice Sadasiva Aiyar in Sundarambal Ammal v. Yogavanagurukkal. Justice Aiyar strongly contended that permitting the priestly office to be performed by a substitute, except for temporary or casual occasions, is wholly opposed to public policy and should not be recognized. Justice Aiyar reiterated his criticism in a later judgment, Annaya Tantri v. Ammaka Hengsu, stating that the selection of a deputy is commonly conducted on the basis of a Dutch auction, where the individual who agrees to allow the widow to retain the largest share of the office’s emoluments and accepts the smallest personal remuneration is appointed as deputy. He described such a practice as mischievous and warned that even if it is sanctioned by usage, courts should not recognize it, citing A.I.R. 1917 Madras 963, A.I.R. 1915 Madras 561 and A.I.R. 1919 Madras 598 (F.B.). While the Court acknowledged the force of Justice Aiyar’s observations, it noted that where the sacred texts contain no explicit prohibition against the performance of a Pujari’s duties through appointed substitutes, and where the office has evolved into a hereditary property right, public-policy considerations cannot be pressed to the extent of negating the right itself. In such circumstances, the Court indicated that a different approach is required.

In this matter the Court underscored that the office in question carries not only a proprietary element but also a duty-bearing aspect which must be given equal weight. Accordingly, the Court held that the superior authorities who are charged with overseeing the temple have a vigilant responsibility to control the incumbent of the priestly office, or to enable other interested persons to obtain appropriate relief through the courts, whenever the services are found to be performed inadequately or inefficiently. Because such offices uniquely combine property rights with the obligation of service, the Court said it is clear that the higher temple authorities or other persons having a legitimate interest possess a right to enforce proper performance of those duties by suitable legal processes. The Court referred to the decision in Raja Peary Mohan Mukherji v. Manohar Mukherji, where the Privy Council observed that, despite a Shebait’s personal interest in his office, the performance of the duties attached to that office must be protected, and that a Shebait may be removed when his position prevents him from faithfully discharging his obligations.

The Court then turned to the position of the Madras High Court. It noted that the controversy in that jurisdiction had been resolved by the Full Bench decision in Annaya Tantri v. Ammaka Hengsu, which expressly overruled the earlier view expressed by Justice Sadasiva Aiyar. The Full Bench observed that many judgments of the Madras High Court, consistent with rulings of other High Courts, had held that the widow and the daughter of the last male Archaka were entitled, according to established usage, to succeed to the Archaka office, to discharge the duties by a deputy, and to transmit the office to their heirs, with male heirs generally preferred and presumed capable of performing the duties personally. The Court explained that these Madras decisions recognized both the factual existence and the legal validity of such usage, and that this recognition had been accepted not only within the Madras jurisdiction but also by other High Courts. Nevertheless, the Court observed that it could not be said definitively that a uniform usage existed across all other High Courts, noting that reported cases on the point were relatively few. The Court cited an early Bombay High Court decision, Keshavbhat bin Ganeshbhat v. Bhagirhibai kom Narayanbhat (1866), in which the judges remarked that the plaintiff had failed to prove any customary usage allowing a Hindu woman to perform the duties attached to an office that entitled her to a government allowance. The claim in that case concerned an annual allowance paid from the Government Treasury for the maintenance of certain religious services at a temple, and the Court emphasized the lack of evidence establishing a prevailing custom supporting the plaintiff’s position.

The Court described that the claim involved an allowance paid from the Government Treasury to the members of a family for the maintenance of certain religious services at the temple of Mahadev at Baneshvar near Poona. In the case of Sitarambhat et al v. Sitaram Ganesh the head-note recorded the proposition that “it seems that an hereditary priestly office descends in default of males through females”. The judgment appeared to proceed on this assumption, although the matter was not expressly decided on that point. In Calcutta, an early decision was Poorun Narain Dutt v. Kasheessuree Dosee, where the court recognised that a woman could succeed to a priestly office and rejected the opposite contention. The lower appellate court had found the matter to be established on the evidence, and no party other than the defendant had raised any contrary argument. In Joy Deb Surma v. Huroputty Surma the same question was raised – whether Hindu law permitted a woman to succeed to a priestly office. The judges relied on a passage from Colebrooke’s Digest and consequently remitted the case to the lower court to determine, with reference to any particular custom or rule of Hindu law, whether a woman was entitled to succeed to the priestly office of the Dolloi of the temple. The record does not disclose the ultimate finding or the final disposition of that proceeding.

In the matter of Radha Mohun Mundul v. Jadoomonee Dossee the Judicial Committee quoted with apparent approval a passage from the trial court’s judgment. The trial judge observed that the family members merely asserted that the properties in question were of a debuttur character and therefore not subject to division among shareholders, and that because the plaintiff was a childless widow she was allegedly incapable of performing the service of the gods. The judge accepted the factual premise that the properties could not be partitioned, but found no reason to hold that a widow of the family was disqualified from supervising the worship of the deities. The defendants did not demonstrate any rule within the family that excluded widows from such supervision. Moreover, the judge noted that among Hindus only Brahmins are permitted to perform worship themselves by touching the idol, whereas members of other castes merely supervise the worship performed by Brahmins. Consequently, the judge concluded that there was no impediment to the widow’s right to hold possession of the debuttur properties and to superintend the service of the gods together with the other co-sharers. In Mahamaya Debi v. Haridas Haldar the court recognised that, according to custom, the palas of the Kalighat shrine in Calcutta were hereditary and that the gender of the heir was immaterial. This decision implicitly acknowledged a woman’s capacity to have the worship performed by a male substitute drawn from a limited class. The Court noted that reported cases on this subject outside the Madras High Court were few, and no other authorities had been cited.

In this case the Court observed that if the description previously given permits a person to conduct the service of idols in the manner mentioned, there is no reason why the widows of that family should be barred from carrying on worship in a similar way. Consequently the Court declared that nothing prevented it from finding that the plaintiff possessed a right to hold possession of the debutter properties enumerated by the defendants in the twelfth paragraph of their written statement, and that she could also superintend the service of the gods jointly with the other co-sharers. The Court then referred to the decision in Mahamaya Debi v. Haridas Haldar, noting that that case recognized, according to custom, that the palas of the Kalighat shrine in Calcutta are heritable and that the gender of the heir – male or female – was immaterial. Such a ruling necessarily implied recognition of a woman’s capacity to arrange for worship to be performed by a male substitute drawn from a limited class. The Court further observed that reported cases dealing with this specific issue outside the Madras High Court are few. It added that, although many cases address succession to the office of Shebait and the performance of duties by proxy, those matters are distinct from a case concerning the office of Pujari or Archaka in the ordinary sense. The scarcity of decided cases in other High Court reports may be explained by a point made in one of the Madras decisions, namely that the practice of females succeeding to this office and having the duties performed by a substitute was so common and well recognised that it rarely gave rise to litigation. The Court also noted that while private family temples and large endowments for Deb-seva are somewhat uncommon in South India, they are fairly common in Bengal and several other states. In view of the Dayabhaga system of succession prevailing in Bengal and the relatively frequent instances of wives and daughters succeeding a sonless coparcener in Dayabhaga joint families, the practice of females succeeding to the priestly office and obtaining performance of the duties by other family members acting as proxies must, by circumstance, have been common in those regions. The Court cited the case reported in Jalandhar Thakur v. Jharula Das, a matter concerning the Shebait’s office in the Singheswar temple of Bhagalpur, where the facts demonstrated unquestioned female succession to the office. This case provides a clear indication of the established usage of female succession to priestly offices in the State of Bihar, the jurisdiction from which the present matter arises. A careful review of the reported authorities, therefore, shows that the usage of a female succeeding to a priestly office and obtaining performance of the duties through a competent deputy has been fairly well recognised and is not contradicted by any textual Hindu law or public policy.

In this case the Court observed that the performance of the priestly duties through a competent deputy has long been recognized as valid practice. The Court found that no provision in the written Hindu law opposes this recognition, and it could not be said that such a customary usage runs counter to public policy as understood in Hindu law. The Court explained that public-policy considerations may be applied only to the extent that the current state of the law requires them for the proper discharge of the responsibilities attached to the office. Accordingly, provided that the duties of the office are carried out properly and efficiently, there is no principled or authoritative basis for denying a woman the right to succeed to a hereditary priestly office that belonged to her husband, nor to prevent her from having the duties performed by a substitute, except where a contrary custom is pleaded and proven. The defendant, in his written statement, pleaded that a contrary custom existed, but the Court noted that no evidence was produced to support that claim. Moreover, the Court referred to the finding of the first appellate Court that the defendant’s allegation of a partition between the offices of two temples, together with the implied acceptance of the plaintiff’s claim to the office of the other temple at Gangupal, actually suggested the opposite custom. On this basis, the Court held, citing the authority A.I.R. 1914 P.C. 72, that the plaintiff-appellant’s claim is established and that she is entitled to succeed to the office. The Court added that the discussion is particularly relevant when the temple in question is a public temple in which the idol has been installed and consecrated according to scriptural rules and worship follows the Shastras. The record, however, does not indicate whether the temple involved falls within that category. The Court observed that if the temple is a private family temple or if the idol has not been consecrated according to scriptural procedure, the plaintiff’s case is even stronger and her right cannot be seriously contested. The Court then turned to the question of the emoluments attached to the priestly office, noting that both parties agreed that the emoluments consist of the daily and other offerings made by worshippers to the deity. The Court said that whether such votive offerings may be appropriated by the priest as his remuneration in a public temple, and whether any customary right to do so exists, are issues that do not arise for determination in the present proceeding. Accordingly, the Court allowed the appeal, ordered costs against the respondents throughout, and restored the decree of the trial court.