Innes and Kindersley, JJ.
1. The question in this appeal is--whether an alienation by a, pujari of his office is one which can be recognized as legal ?
2. First and second defendants, two brothers, acquired jointly in 1869 certain rights of performing puja. in certain temples. They are undivided, but they enjoyed this right severally, each, as is found, taking his turn of performance of the office in accordance with arrangements made by them.
3. On the 12th October 1878 the first defendant sold his right to plaintiff,, who instituted the suit out of which this second appeal arises to enforce the right thus transferred to him, as, since the purchase, the defendants had prevented his enjoyment of it.
4. The District Munsif found in favour of plaintiff against the contention of the second defendant that the enjoyment of the office by his brother was joint, and that he had never enjoyed the specific right of seven and a half days puja which he had pretended to dispose of to plaintiff, and that the sale was not binding on him.
5. The appeal was on the ground that the sale was not completed, and that the first defendant had no right to sell a specific share of the property of an undivided family.
6. The Subordinate Judge, however, dismissed the appeal. He observed that it was admitted that puja-holders can dispose of their right, and that, as the defendants had admitted that the puja was not a conjoint worship, an arrangement for apportioning the joint right must necessarily have been made, and the evidence showed that the first seven and a half days had fallen to first defendant in the arrangement actually come to between him and second defendant.
7. In second appeal, the point that the right claimed is the right of purchase of a religious office is for the first time taken.
8. In the view we take of the case, it is not necessary to notice the other grounds of appeal.
9. Although this objection to the suit is only now taken, we cannot avoid considering it, as it is one of great importance and goes to the foundation of plaintiff's right of suit.
10. We find that the question of the legality of the sale of religious offices has received considerable discussion in all the High Courts.
11. In Kanni v. Achuda 3 M.H.C.R. 380 a Karaima right in a pagoda was declared unsaleable. In special Appeal 759 of 1876 the High Court confirmed the decree of the Lower Appellate Court refusing to recognize as legal the sale of the office of pujari.
12. In Venkatarayar v. Srinivasa Ayyangar 7 M.H.C.R. 32 it was held that the office of Archakar in a temple could not be alienated when the alienation contemplated the introduction of a different ritual.
13. The decision in Rajah of Cherakal v. Mootha Rajah 7 M.H.C.R. 210 regards the sale of a religious trust as illegal. The Privy Council dismissed the appeal from this decision I.L.R. 1 Mad. 235; L.R. 4 IndAp 76 on the ground that no custom which could qualify the general principle of law that such trusts were unsaleable had been established in the case, and that the case disclosed that the sale was for the pecuniary advantage of the trustee--a circumstance which would invalidate any such custom if it had been shown.
14. In Konwar Doorganath Boy v. Raw Chuiider Sen I.L.R. 2 Cal. 347 : L.R. 4 IndAp 58 there is a dictum by the Privy Council that, although in the case of a family idol the consensus of the family might give the existing dedication another direction, this could not be done in the case of a public temple by the consensus of the trustees. The foregoing cases are authorities for the proposition that the alienation of religious trusts and offices is generally illegal, though in some special circumstances it may be held valid. An instance in which such an alienation has been upheld is afforded by Mancharam v. Prasaukar I.L.R. 6 Bom. 298. The Judges in that case upheld an alienation of an hereditary office made in favour of a person standing in the line of succession and not disqualified for the performance of the office by personal unfitness. In Juggarnath Boy Choivdhry Kishen v. Pershad Surmah 7 W.R. 266 the Judges refused to recognize the purchase in execution of a decree of an office which involved the performance of Hindu religious worship on the ground that the purchase might be made by Christians or Muhammadans or other persons whose status might altogether unfit them for the performance of the worship.
15. In Bubo Misser v. Srinivas Misser 5 B.L.R. 617 Mr. Justice MITTER took the same view, and as Mr. Justice MELVILLE observes in the Bombay case already referred to, it is obvious that equal objections must exist to unrestricted alienations of a private character. In this latter case, the alienation was only allowed on the consideration that the office was heritable and the alienee, who was an heir, fitted to perform his duties. It is urged that, in the present case, the alienee is of the same caste and sect as the family of the alienor, and that no objection as to fitness to perform the worship exists in his case. But we are not disposed to hold that this of itself will validate such an alienation. To hold so would tend to public mischief in inducing needy incumbents of hereditary religious offices who desired to sell them to give a dishonest recognition to qualifications which, in fact, were not the qualifications demanded by the nature of the office. It is not necessary for us to determine in this case whether we should be disposed to go the length of what is decided in Mancharam v. Pranshankar I.L.R. 6 Bom. 298 that a purchase by a person standing in the line of heirs or otherwise qualified should be upheld. It is sufficient to say that an alienation to a person not in the line of heirs, though otherwise qualified for the performance of the office, is not one which should be excepted from the general rule against the alienation of hereditary religious trusts and offices.
16. We must reverse the decrees of the Courts below and dismiss plaintiff's suit with costs.