RADHA RANI DASI Vs. DOYAL CHAND MULLICK

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Fletcher, and raises the question whether a turn of worship of three family deities is capable of inheritance by the sonless widow of a male member of the family, The idols are of considerable antiquity and were established by one Krishta Das Mullick in the early years of the eighteenth century.

(2.) On the 30th July 1368, Mr. Justice Norman, in a litigation between some members of the family, held it established upon the evidence that according to a custom of descent prevalent in that family, a widow without male issue did not take by inheritance her husband s right to a turn of worship. This conclusion was based on numerous instances of exclusion of widows without male issue, and was affirmed on appeal by Sir Barnes Peacock, C.J., and Mr. Justice Macpherson on the 12th January 1869. As pointed out by this Court in the case of Mahamaya Debi v. Haridat Haldar 27 Ind. Cas. 400 : 42 C. 455 : 20 C.L.J. 183 : 19 C.W.N. 208, a turn of worship in respect of alienation or heritability may be subject to the operation of valid customs. In the case before us, the custom of exclusion. of sonless widows has been acquiesced in by members of the family from generation to generation and has been judicially recognised. In this view, there is prima facie no foundation for the claim asserted by the plaintiff.

(3.) Mr. Bose has, however, ingeniously argued on behalf of the plaintiff that the oustom of exclusion is applicable only to a share inherited in a direct unbroken line from the original founder and does not affect a share, like the subject-matter of the present litigation, which was obtained by one member by transfer from another member. Now let us assume that, although as pointed out in Rajeshwar Mullick v. Gopeshwar Mullick 36 C. 226 : 7 C.L.J. 316 : 12 C.W.N. 323, a hereditary religious office is ordinarily inalienable under the Hindu Law, there may be, as explained in Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 42 C. 455 : 20 C.L.J. 183 : 19 C.W.N. 208, a custom validating alienation in favour of a member of the family or of a person standing in the line of succession (not otherwise disqualified, as for example, by personal unfitness). But this does not establish the position that a share so transferred is freed from the inherent restriction which attaches to it, namely, that it cannot devolve by succession on a sonless widow. We need not investigate the origin of this customary restriction; it is not impossible that the custom represents a direction given by the original founder. But whatever the origin of the custom, it is plain that the distinction relied upon by Mr. Bose cannot be recognised. If it were well founded, the members of the family might by mutual transfer free the right of worship from the operation of the custom; in other words, the custom might by this device be entirely extinguished. We hold accordingly that the custom of exclusion of a sonless widow affects a share, whether it has been acquired by inheritance, by transfer inter vivos, or by testamentary devise.