ANNAYA TANTRI Vs. AMMAKA HENGSU

JUDGEMENT

(1.) It is well settled that the succession to temple offices is governed by user which is taken to represent the intentions of the founder, and it is not disputed that in this part of India the user in the case of temple Archakas is that the office is hereditary and descends in the ordinary course of succession to women, who are not themselves competent to perform the duties of the office by ministering in the temple and perform them by deputy. The opinion of the Pandits in Sheshu Ammal v. Soundaraja Aiyar (1853) M.S.D.A. 261 shows that this was then the recognised usage. The question appears to have first come before the Court in 1910, but since that time there have been numerous decisions where the user has been recognised and enforced, and all the Hindu members of the Court with one exception have been parties to these decisions. Which also are conformable with the decisions of other High Courts. The only authority the other way is the judgment of Sadasiva Aiyar, J., in Sundarambal Ammal v. Yogavanagurukkal 23 Ind. Cas. 72 : 38 M. 850 : 26 M.L.J. 315 : (1915) M.W.N. 286 : 1 L.W. 276, who considered that on principle a personally disqualified heir could riot inherit the ojfioe and delegate the duties to others. In the argument before us it was again contended that the decision of the Privy Council in Mohan Lalji v. Tikait Sri Gordhan Lalji 19 Ind. Cas. 337 : 35 A. 283 : 17 C.W.N. 741 : 11 A.L.J. 548 : 17 C.L.J. 612 : 15 Bom. L.R. 606 : (1913) M.W.N. 536 : 14 M.L.T. 27 : 40 I.A. 97 (P.C.) was in accordance with this view and must be taken to have "overruled the other cases. In that case the office of Arohaka had descended to the widow and daughter of the last male Arohaka, and the question was whether the daughter was to be succeeded by her son or by the reversioner of the last male holder. The Arohakas1 were Gossains and there was a usage among them that females continued to belong to their father s kul or family after marriage. On this ground apparently the daughter had been allowed to fill the office even though married to & member of the Bhat community who was incapable of filling it. No question arose in that case as to the right of the widow and her daughter after her to fill the office; and it does not appear whether, while they held it, they performed the duties in person or by deputy. What their Lordships had to consider was, whether on the daughter s death the office should go to her son and her descendants, a line of heirs who as Bhats would be incapable of performing its duties, or should revert to the male heirs of the last male holder. Their Lordships at page 288 Page of 35 A.--Ed. observe that the rule as to the Shebaitship being vested in the heirs of the founder must, from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship", and they say later on that to allow the plaintiff s claim to an admittedly Ballav temple, where the rights are performed according to Ballav ritual, which, it is clearly established, they cannot perform, would, in their Lordships judgment, defeat the purpose for which the worship was established." A contrary decision would have involved the devolution of the office to a line of heirs incompetent to perform its duties. Moreover, the plaintiff s claim in that case was not shown to be in accordance with any well-recognised user, which is the best evidence of the founder s intentions. I do not consider that this decision of their Lordships warrants us in overruling tie numerous decisions of this Court in conformity with the decisions of other Courts, by which the widow and daughter of the last male Arcbaka are hold entitled in accordance with the established user to succeed to the office of Arjhaka discharging its duties by deputy and to transmit it to their heirs, who, as male heirs are preferred to female, will generally be competent to perform the duties in person. Sadasiva Aiyar, J., for whose opinion have a great respect, considers, if rightly understand him, that the established custom of female succession to this office is of so mischievous and objectionable a character that it cannot have been intended by the founder. That view is not shared by Seshagiri Aiyar, J., who has considered this aspect of the case in the Order of Reference, or by the other Hindu members of the Court who have considered the question. We should not, in my opinion, he justified in overruling on this ground the numerous decisions of this Court in which the usage" has been recognised and enforced, unless its mischievous character had been established beyond all doubt or controversy. This has not been done and I feel bound to answer the question in the negative. Sadasiva Aiyar, J.

(2.) I have carefully re-considered my decision in Sundarambal Ammal v. Yogavanagurukkal 23 Ind. Cas. 72 : 38 M. 850 : 26 M.L.J. 315 : (1915) M.W.N. 286 : 1 L.W. 276 in the light of the later decisions of this Court quoted by my learned brother Mr. Justice Seshagiri Aiyar in his Order of Referenoe, also of his own keen and yet considerate criticisms (if I may be permitted to say so) of my said decision and also of the opinions of my Lord and of Mr. Justice Spencer on this reference. I am, notwithstanding, unable to convince miself that my opinion was erroneous. On the other hand, the decision of their Lordships of the Privy Council in Mohan Lalji v. Tikait Sri Gordhan Lalji 19 Ind. Cas. 337 : 35 A. 283 : 17 C.W.N. 741 : 11 A.L.J. 548 : 17 C.L.J. 612 : 15 Bom. L.R. 606 : (1913) M.W.N. 536 : 14 M.L.T. 27 : 40 I.A. 97 (P.C.) lends, in my opinion, strong support to my conclusion. With respect, I am unable to agree with Mr. Justice Seshagiri Aiyar that the widow "and daughter of the last male Shebait of the Ballavacharya Gossain sect in the Privy Counoil case must have been not competent to perform the duties of the office and must have "employed deputies to perform the duty", and that their enjoyment of the emoluments of the office during their lifetime must be due to their having per-formed the duties through such deputies and not directly. On the contrary, it seems to me clear from the report that the out of date unshasiraic custom obtaining in the south by which Dharmapathnies (who are Sahadharmacharinees of their husbands) are considered incompetent to pronounce Man-trams and do religious duties along With and even solely in the absence of) their husbands does not obtain among there Ballavaoharya Gossains, one of the Vaishnavite sects which are in several respects much more liberal in the treatment of women and birth Sudras than other, though many Vaishnavite sects might have become very degenerate m other respects.

(3.) I am further unable to see that my conclusion as to Jagannatha s opinion and the weight of the authority of the texts quoted by him being in my favour is wrong.