Macklin, J. -
(1.)THE question for consideration in these second appeals is whether the right to a turn of worship in the temple of Shri Maruti Dev of Tulsigiri can be transferred. THE temple is endowed, and for that purpose a sanad was issued by Government to the temple in the name of its vahivatdar. THE parties to this litigation are admittedly members of vahivatdar family. In accordance with a custom which is common in such cases the members of the family divided up their turns by a fixed arrangement, and under that arrangement one Ramangouda assumed an obligation to worship with a corresponding right to receive the offerings made by the worshippers for six months in every ten years. One Hanmappa, also a member of the family, had a right of worship amounting to one-fifth of the whole, and to him Ramangouda transferred his one-twentieth share in the obligation of worship and the right to receive the offerings. It may be presumed that the purchase price was based upon the estimated value of the offerings, since the land belonging to the temple, which in practice is managed by the vahivatdars as if it were their private property and has been divided up for that purpose, was not transferred along with the pujarki rights. THE result of this transaction has been two suits, one by the son of the vendor for an injunction to restrain the vendee from receiving offerings and interfering with the exercise of the plaintiff's own pujarki rights, and the other by the vendee to restrain the vendor's son from interfering with the right of worship which he had bought. THE trial Court decided both suits in favour of the vendee, but the lower appellate Court reversed the decision, dismissed the vendee's suit, and allowed the suit by the objector, and the result is the present two appeals to this Court by the vendee. THE lower appellate Court held that the pujarki right in dispute was a public office and as such inalienable either by reason of Section 6 (f) of the Transfer of Property Act, which prohibits alienations of public offices, or on the ground of Hindu law as given in the decided cases. Other questions arose before both the lower Courts, but it is not necessary to refer to them in these appeals.
(2.)THE first question which we have to decide is whether the pujarki right which has been the subject of the transaction in suit is a public office or not. We have heard a good deal of argument on that point based upon the nature of the grant and the nature of the duties which the holder of the office has to perform. Looked at from that point of view the question is not easy to decide, but in our opinion it can be satisfactorily decided on the basis of this right of worship being admittedly partible. It is beyond dispute, and none of the parties contested the fact, that the office of worship as well as the management of the temple itself have been divided among the members of the family. It is an essential characteristic of a public office that it cannot be divided, and we doubt very much if a public office properly so called can ever be heritable. In any case no office which is capable of being divided (as this has been divided) can be treated as a public office at all. THE provisions of the Transfer of Property Act prohibiting alienations of public offices were applied to the Hindu law in 1929, and the division which has taken place was long before that date. Hereditary offices such as those coming under the Watan Act are statutory exceptions to the ordinary rule and can afford no assistance in deciding the point. In these circumstances it seems impossible on any ground whatever to hold that the office of worship in this particular temple is a public office subject to the prohibition contained in Section 6 (f) of the Transfer of Property Act.
The next question then is whether a transfer of this right can be upheld under the Hindu law or on general grounds of public policy. The argument addressed to us for refusing to uphold it is that, however it be regarded, it is alienation for the benefit of the alienor and no custom (even if such custom exists) can be upheld if it gives sanction to such an alienation. The basis of that contention is to be found in a remark of the Privy Council in Rajah Vurmah Valia v. Ravi Vurmah Mutha (1876) L. R. 4 I. A. 76, where at the end of the judgment their Lordships said that if the custom set up was one to sanction not merely the transfer of a trusteeship but (as in that case) the actual sale of a trusteeship for the pecuniary advantage of the trustees, they would be disposed to hold that that circumstance alone could justify the decision that the custom was bad in law. Admittedly, in the case with which we are now dealing, there is a custom of transferring shares from one member of the family to the other, but there is nothing to suggest that a custom of this sort was the kind of custom which their Lordships of the Privy Council had in mind. The case with which they were dealing was the sale of the right of management of a pagoda to an outsider, and it is difficult to imagine any circumstances in which such a sale could be upheld on general grounds. I may mention that there are a number of cases decided by this High Court in which alienations to the profit of the alienor were upheld in spite of the fact that the learned Judges who upheld them had this decision of the Privy Council before them, and for ourselves we do not think that it has any bearing upon the present case. In this connection we have also been referred to a decision of the High Court of Calcutta in Nitya Gopal Banerjee v. Nani Lal Mukherjee (1919) I. L. R. 47 Cal. 990, which was a case of a transfer of a right of worship, as distinct from a right of management, to a member of the family who was in the line of succession, so that it was definitely not an alienation to an outsider. It was there held that no custom of separating worship from management could be upheld as valid, since any such separation would be in effect contrary to public policy as tending to reducing the incentive of the worshipper to perform his dusties satisfactorily. But the fact relating to the endowment in the case with which the Calcutta High Court was dealing were very different from the facts of the case with which we are now dealing when a custom of alienation of this kind is admitted; and moreover it is difficult to say that the land with which the temple is endowed is in any sense a remuneration for the duties of worship, since the endowment is not to the. managers of the temple but to the temple itself, and that being so, it would be impossible for any of the sharers to transfer any of the temple property Moreover in the present case the remuneartion for the duty of worship is taken to be the right to receive the offerings of those who come to the temple, and we are not prepared to hold that allowing a person to assume the duties of worship without the right to manage the land is necessarily contrary to public policy or objectionable on any other ground. It is true that Sir Dinshah Mulla in paragraph 420 of his Hindu Law distinguishes between alienations of this kind for money and alienations by way of gift, but as I shall show afterwards, the Courts in Bombay have always taken a more liberal view of transactions of this kind than the Courts elsewhere, and the remarks of the learned author, however appropriate when applied to parts of India outside Bombay, are, we think, too broadly stated if they are intended to apply to temples in the Province of Bombay. I may refer in particular to the remarks of Mr. Justice Ranade in Rajaram v. Ganesh (1898) I. L. R. 28 Bom, 131, 136, where the difference between Bombay and other parts of India was indicated. The cases decided by this Court which have a general bearing upon the question of the validity of transactions of this kind are: Sitarambhat v. Sitaram Ganesh and Kashiraj Nanabhat, by his father Nanabhat (1869) 6 B. H. C. R. A. C. J. 250, a case of sale; Mancharam v. Pranshankar (1882) I. L. R. 6 Bom. 298, a case of gift; Rajaram v. Ganesh (1898) I. L. R. 23 Bom. 131, a case of gift; Manjunath Subrayabhat v. Shankar Manjaya (1914) I. L. R. 39 Bom. 26, s. c. 16 Bom. L. R. 593, a case of sale of a share in a vritti consisting of a cash allowance; and Raghunath Vithal v. Purnanand Saraswati Swami (1922) I. L. R. 47 Bom. 529, s. c. 25 Bom. L. R. 207, a case of relinquishment. The rule deducible from these cases, we think, is that generally speaking a transfer of a turn of worship by one member of the family entitled to worship to another member of that family need not be considered to be in any way objectionable. As a typical example I may refer to Mancharam v. Pranshankar, where Mr. Justice Melvill said that an alienation to an improper person would defeat the object of the endowment, and in some cases might be inconsistent with the presumed intention of the founder of the endowment; and, while not desiring to lay down any rule regarding such alienations, since laying down a rule might involve the Courts in nice questions of caste distinctions, the learned Judge went on to say (p. 300): But there may be alienations which are free from any of these objections, and in such cases there would appear to be no reason why any restriction should be placed upon the exercise of the ordinary rights of property. Assuming that, for the reasons which we have stated, the alienatton of a priestly office to a stranger would be invalid, it does not follow that an alienation to a member of the founder's family standing in the line of succession would be open to objection.
Sir Dinshah Mulla says that the correctness of this decision has been very much doubted. We are not aware of any doubts having been expressed in any decision of this High Court, and it is a decision, which has been followed by the High Court of Calcutta in Nirad Mohini Dasi v. Shibadas Pal Dewasin (1909) I. L. R. 36 Cal. 975.
(3.)THE lower appellate Court seems to have refused to uphold this particular alienation because it came to the conclusion that to be valid it would have to be to the family as a whole rather than to any individual member of it. THE learned Judge seems to have relied on a remark occurring at p. 533 in Raghunth Vithal v. Purnanand Saraswati Swami. Macleod C. J. there stated: if one of the members of the family wishes to get rid of his duties as well as his rights, he could only do so in favour of the remaining members of the family, and he cannot evade the ordinary rule as to alienations by purporting to surrender his share to the original grantor, or, put in other words, the alienation of a share by one member of the family is invalid whether it is made in favour of an outsider altogether or whether it is made in favour of the original grantor of the office.
The learned Judge of the lower appellate Court was not right in taking this remark in isolation from the rest of the judgment. On a previous page the learned Chief Justice made it clear that although a transfer by one member of the family entitled to hold the office to an outsider would be considered by the Court as invalid, nevertheless a transfer by one member of his share to another member of the family should not be considered in any way objectionable, and in terms the decision was based upon the decision of Mr. Justice Melvill in Mancharam v. Pranshankar, where it was stated that there was no apparent reason why an alienation should not be upheld which is made in favour of any person standing in the line of succession and not disqualified by any personal unfitness. So far as the law in this province is concerned, there seems to be no doubt that an alienation of this kind ought to be upheld by the Courts.