[This Appeal first came on for hearing on the 30th day of November and the 3rd day of December 1917, before their Lordships Seshagiri Aiyar, J. and Napier, J.]

Seshagiri Aiyar, J.

The question for consideration in this second appeal is whether the plaintiff, a widow, is entitled to recover possession of the property which was enjoyed by her husband and his predecessors by doing archaka service in a temple. The Courts below have given her a decree for possession. Mr. Sitarama; Rao relying on Sundrambal Ammal v. Yogavana Gurukkal (I.L.R., 38 Mad., 850 [LQ/MadHC/1914/37] ; s.c., I.L.W., 276) has argued at some length that as the plaintiff is not competent to perform the archaka service, she is not entitled to the property. Alying and Hannay, JJ., in Ramasundaram Pillai v. Savundaratha Ammal (1 L.W., 900) and Kumaraswami Sastri and Phillips JJ., in Raja Rajeswari Ammal v. Subramania Archakar (I.L.R., 40 Mad., 105) [LQ/MadHC/1915/613] have dissented from Sunadrambal Ammal v. Yogavana Gurukkal (I.L.R., 38 Mad., 850 [LQ/MadHC/1914/37] ; s.c., I.L.W., 276).

In these circumstances, it becomes necessary to consider the question in some detail as to which of these conflicting views should be followed.

In Sundarambal Ammal v. Yogavana Gurukkal (I.L.R., 38 Mad., 850 [LQ/MadHC/1914/37] ; s.c., I.L.W., 276), Sadasiva Aiyar, J., who delievered the leading judgment lays stress upon the duties attaching to the arachaka office as opposed to rights , and says that the emoluments should go only to those who are competent to perform the services. It is true that from the point of view of the worshipper, it is the fitness of the archaka for the discharge of his duties that has to be considered. From the point of view of the archaka, the question of secular rights is more important. In considering the relative importance of the two functions and in endeavouring to reconcile these two conceptions, the historical aspect of the grant for service in temples may be considered.

It is often said that there is nothing in Hindu Law Texts on the question. It may seem strange that in a country where religion plays such an important part in the daily concerns of the people, there should be so little about succession, &c., to religious institutions and offices in the writings of the rishis or of their commentators. The reason is not far to seek.

In the Vedas and in the ancient Smritis, we do not hear of the founding of temples. It is to the Puranic age that we owe their existence. In Manus days, the only religious teacher was the ascetic Sanyasi. He gave instructions to his disciples, who in their turn spread the light of wisdom among the lay people. There were no places of worship, and no images to worship. It was to Budha that India owes the introductions of fixed places of worship and of ordained orders of preachers. In Budhism there are three essentials: (a) Adoration of Budha, (b) Observance of His laws and (c) the congregation. Budha instituted the order of monks and nuns with a view to religious instruction being imported to the uninitiated. Places of shelter or refuge were founded in order that the world Weary may retire to them and receive religious consolation. From these simple beginnings a disciplined army of Bikshus came into existence, and edifices known as monasteries were erected to afford facilities for prayer, consultation and contemplation. It is to this period that we owe the founding of temples in Southern India. The followers of Budha pursued a policy which was resented by the orthodox. Temples for the worship of Siva and Vishnu were established mostly by non-Aryans at or about this time to circumvent the Budhistic influence.

The second period begins with the advent of Sankara. He found that the ancient worship Of the Elements was losing hold on the popular mind, and that the people were being led by the precepts of Budhism into the track of atheism. He had to fight blind orthodoxy behind him and materialism ahead of him. He adopted a compromise. He founded mutts which took the place of Monasteries. He founded Various orders of Sanyasins who were enjoined to lead celibate lives and to impart religious instruction. He undoubtedly succeeded in driving Budhism from the land: and he laid the foundation for institutions which cannot be said to have fully served the purpose which he had in mind.

The successors of Sankara did not find it easy to console the religiously-inclined by the doctrines of Advaitic philosophy. Sankara was described as the pseudo-Budha. The common people hankered after something more real than is to be had in the severely logical philosophy of Sankara. Three philosophers who gave prominence to the existence of a personal God diverted public attention from Sankaras teachings. The Vaishnavaites, the Madhwas and the Saivities founded independent Mutts where the Dvaitic philosophy was taught. They had to proceed a step further. They accepted control over existing temples and encouraged the construction of new temples in honour of the particular Deity they represented as the Supreme Being.

As this is a rough summary of events, I should not be understood as saying that all the temples in India came into existence only in the way I have described. There were apparently some independent institutions.

By this time, the Puranas had gained a hold on the popular mind, and the worship of the avatars of Vishnu and of the manifestation) of Siva came to be regarded as the essential features of religious life among the people. Rich endowments were made for the upkeep of the temples. But the priests capable of rendering services in these institutions had to be found. It has always been the belief in India that the nearer a man is to God, the farther is he from him. The following slokas from the writings of Vaidyanatha Dikshiter express the ultra thodox and conservative view of the office of an Archaka in a Hindu Temple.

HINDI

(Translitration into Deva Nagari characters and translation by Manga Krishna Menon (Translator)) The above slokas (verses) may be translated thus ;

Saathathapa says:

A Vipra (Brahmin) though well-versed in Vedas , who performs Pooja for the sake of money for a period of three years is known as the Devalaka : such a person becomes incompetent to perform the usual Havya and Kavya rites enjoined on Brahmins.

Again it is said in the Samgraha :

A Yipra , who though he may be well-versed in the four Vedas , is desirous of getting money, and who performs the worship of the gods for the sake of another will be considered equal to a Chandala .

The Devalakas are classed under three heads: Some as Karmadevalakas ; other as Kalpadevalakas ; and the rest as Suddhadevalakas.

He who knows the precepts as ordained in the Aagamas and makes a living by performing worship to Rudra and Kali is called Suddhadevalaka , and is excluded from taking part in all.

A person performing pooja will not become a Devalaka if the worship is conducted in accordance with the sacred injunctions of the Rishis . Therefore with all care the pooja should be conducted according to the precepts of the Vedas , or, done in the Vaidika fashion. He is called a Karmadevalaka who performs the worship of the gods always in a Kamya form ( i. e. , for the sake of attaining some desired object) and is incompetent to perform the ordinary Karmas .

An Archaka even if he is an authority on the four Vedas and knows the rites prescribed in Pancharathra but is devoid of Deeksha or consecration is known as Kalpadevalaka.

Then the propitiatory ceremonies for these sinful acts are prescribed: A Vipra who sells for another the Nitya Karmas such as Snanam (bathing). Ishtapoortham (performance of pious or charitable deeds, performing sacrifices, and digging wells and doing other acts of charity), Uposhanam (fasting) and Vrathams (religious acts) of devotion as are ordained in the Shruthis and Smritis has to undergo by way of Prayaschitam Maghasnanam in the month of Maagha ; and, after performing thrice the Chandrayanam at the Full Moon, should diminish his food by one mouthful every day during the dark fortnight till it is reduced to zero at the New Moon, * * * and so on, then he attains the highest purity.

****

The Archakas having been looked down upon in the above manner, naturally great inducements had to be offered, by liberal grants of land and by the promise of perquisites. That is how the archaka office came to be founded.

I have thus far given a brief outline of the origin and spread of temples and of the manner in which the archaka office was instituted. My survey shows that the founder of the temples looked to the due discharge of the services in the temple as his primary and sole object. The archaka accepted his position as giving him primarily a means of livelihood and to his posterity, and as ultimately enabling him to minister to God. The existence of various Inams in the name of the archakas is irrefutable evidence that rich endowments were granted to them to bind them to the service of the Deity. These endowments Were intended, and in most cases expressed to be, from generation to generation. It may be assumed that the donors were not over-anxious to make hereditary grants to the donees family without regard to the latters capacity to perform religious worship; but the law would hot have permitted them to stipulate that the property shall be enjoyed only by those competent to minister in the temple. They must have trusted to chance to See that the descendants of the donees carried on the good work for which their predecessors were given grants.

Mr. Justice Sadasiva Aiyar asks why, if that must be presumed to have been the intention of the donor, should the inheritance go to persons who by themselves are incapable of discharging the duties. The answer is that Courts and even legislatures must trust to the same chance which the founders calculated upon when they endowed the archaka office. What reason have Courts for holding that a reversioner would be a more welcome minister of religion than the gumastah employed by a widow to perform the services. It would be an ideal to be sought after, if the community interested. In temple worship were to be permitted to select on the death of an archaka a person competent to fill his place. Even in this view, can we trust to society here or elsewhere to be guided in the selection of an archaka solely by consideration of religious merit and fitness There is no guarantee that a nominee of the community would be a fitter archaka than the proxy of the widow. Non constat he would be worse than a male reversioner of the last archaka. Under such circumstances, there cannot be much room for doubt, that society would prefer that the secular rights with the obligations to door to get done the spiritual duties should vest in the line of heirs to whom private property would descend. The confirmation of numerous grants in this Presidency by the Inam Commissoners. In the name of the widows and daughters of the deceased archakas indicates that the Government of the country have recognised the principle of heredity as the only safe guide in such matters. I see no reason why Courts should not be guided by the executive action of the Government in these matters.

I shall briefly refer to one other reason why the principle of heredity should not be departed from in the case of these offices. It is common knowledge that the archakas of a temple form a caste among themselves. They are a select people. In the case of the great temple at Chidambaram, they claim to have come down to Earth with the Deity. They do not intermarry with the other Brahmin sects. Among these people, the moment that a boy is married, he gets a share in the emoluments of the Archaka Office. This testifies to the solicitude of this class of people for an early expansion of the sect. In the case of other Siva temples, the archakas are known as Gurukkals. Unfortunately they are a diminishig race. They are not permitted to take brides from other Brahmin sects; and worship in a temple cannot be performed by a Brahmin who is not a Gurukkal. In the Vaishnava temples, there are two prominent classes of archakas: the Pancharatras and the Vaiganasas. I do not believe even these intermarry. A temple whose services are performed according to Pancharatra rituals cannot be served by a Vaiganasa archaka and vice versa . These limitations show that the field of choice for the archaka service in Hindu temples is very limited. It would often lead to the application of the principle of escheat, if the grants made for their services are not continued in the line of the heirs of the last male archaka.

I have referred to the above considerations out of deference to the Views of my learned brother Sadasiva Aiyar, J. No one shows more anxiety than the learned Judge that the true intent of a grant should so strictly enforced. I respectfully share his anxiety, but as I have shown above, the change that he gives his sanction to while upsetting fixity of tenure and disturbing long understood and enforced notions of rights of property, is not calculated to bring the Courts any the nearer to the administration of the golden rule that competency to minister and capacity to inherit should go hand in hand, I am therefore unable to hold that the widow is not entitled to inherit her husbands property granted for the performance of religious services,

I shall now examine the case law on the point to see how far the learned Judges conclusions are supported by decided cases.

I shall first deal with Mohan Lalji v. Gordhan Lalji Maharaj (I.L.R., 35 All., 283) which apparently has not been considered in any of the three decisions of this Court, and on which Mr. Sitarama Rao naturally laid great stress. The facts of the case must be examined in some detail in order to show that while it does not lend support to the contention of the learned vakil, it can be regarded as an authority for the proposition I have suggested. The temple in respect of which the office was claimed belonged to the Gossain sect of Vallabhachariars. The Vallabhachariars as explained in the Judgment of the High Court of Allahabad in Mohan Lalji v. Mudhsudan Lola (I.L.R., 32 All., 461) from which there was an appeal to the Judicial Committee in Mohan Lalji v. Gordhn Lalji Maharuj (I.L.R., 35 All., 283) are a Vaishnava sect of religious teachers who founded temples. The question before the Judicial Committee was whether the grandson by the daughter of the last male archaka was entitled to succeed to the office and the emoluments in preference to the reversioner of the last male holder. It was found in that case that the Gossain sect of Vallabhachariars took daughters from a sect known as the Bhat in marriage. On the marriage of the Bhat daughter into the Gossain family she was initiated into the mantram of the Gossain sect. The ritual in a Gossain temple was essentially different from the ritual observed by the Bhats in their temples. The Gossain daughters were similarly married by Bhats, and I take it although it is not so mentioned in either the judgment of the High Court or in that of the Privy Council that the Gossain daughter marrying a Bhat husband would be initiated into the mantram of the Bhat sect. I must not omit to mention a statement in the judgment of the Right Honourable Mr. Ameer Ali that the daughters of a Gossain although married into a Bhat family generally remained in the Gossain house. In these circumstances the question was whether in a temple whose rituals were of the Gossain sect, a Bhat grandson of the last male Gossain could inherit the office and the emoluments. The Judicial committee held that he could not. It is stated in the judgment of the Board that after the death of the last male-holder his widow and his daughter were in enjoyment of the office and emoluments. Mr. Sitarama Rao suggested that the widow and the daughter were competent to perform the religious worship in the Gossain temple. There is no express mention of their having officiated in the temples. From my experience of South India I cannot believe that where a large congregation of males assemble for worship, a famale would be allowed to perform religious service within the temple. In the north the Gosha system is prevalent and the seclusion of women is more pronounced than in the south; and I would require very strong, evidence to hold that the widow and the daughter of the deceased male Gossain were as a matter of fact officiating as priestesses in the temple. I must take it that they employed deputies to perform their duties. If my surmise is correct, it lends great support to the proposition that so long as the service can be done by a proxy, there can be no objection to women inheriting the office and emoluments of an archaka.

Then it was argued, if a proxy was held competent to perform the duties why should not a Bhat grandson have been allowed to inherit the office and the emoluments on the understanding that he should employ a Gossain priest to officiate in the temple. The position of a widow or daughter and a grandson are not in part materia . In the case of a grandson, he starts a new line of descendants, and to countenance the employment of a perpetual gumastah in the case of males would not be right; therefore the Judicial Committee held that as a grandson suo moto is entitled to minister in the temple and as the grandson was of Bhat origin and incompetent to perform religious worship in a Gossain temple, he should be discarded in favour of a Gossain reversioner who was competent to perform religious worship by himself. In that judgment, however, it is pointed out that ordinarily the descent of debutter property vesting in, an officiating priest would go to the ordinary heirs of the last holder unless there was some usage or course of devolution or some other circumstance to indicate a different mode of devolution. The conclusion of the Judicial Committee was that in the particular case, the circumstances and the usage pointed to a mode of devolution different from that of the ordinary descent of property. In my opinion, this decision is no authority for the proposition that competency to officiate is, a sine qua non of capacity to inherit. On the other hand, the fact that the widow and the daughter were allowed to inherit the office and the emoluments is a strong indication that service in a temple can be rendered by a proxy so long as the essential nature of the worship is not departed from.

Now, I shall deal with the other cases bearing on the question. In Tangirala Chiranjivi v. Raja Manikya Mao (27 M.L.J., 179) Benson and Sundara Aiyar, JJ., said, The District Judge has assumed that a minor, a female and a person unlearned in the Vedas would lose the fight to the service in the temple. There is no basis for the assumption.

Then it was argued, if a proxy was held competent to perform the duties why should not a Bhat grandson have been allowed to inherit the office and the emoluments on the understanding that he should employ a Gossain priest to officiate in the temple. The position of a widow or daughter and a grandson are not in part material. In the case of a grandson, he starts a new line of descendants, and to countenance the employment of a perpetual gumastah in the case of males would not be right; therefore the Judicial Committee held that as a grandson suo moto is entitled to minister in the temple and as the grandson was of Bhat origin and incompetent to perform religious worship in a Gossain temple, he should be discarded in favour of a Gossain reversioner who was competent to perform religious worship by himself. In that judgment, however, it is pointed out that ordinarily the descent of debutter property vesting in, an officiating priest would go to the ordinary heirs of the last holder unless there was some usage or course of devolution or some other circumstance to indicate a different mode of devolution. The conclusion of the Judicial Committee was that in the particular case, the circumstances and the usage pointed to a mode of devolution different from that of the ordinary descent of property. In my opinion, this decision is no authority for the proposition that competency to officiate is, a sine qua non of capacity to inherit. On the other hand, the fact that the widow and the daughter were allowed to inherit the office and the emoluments is a strong indication that service in a temple can be rendered by a proxy so long as the essential nature of the worship is not departed from.

Now, I shall deal with the other cases bearing on the question. In Tangirala Chiranjivi v. Raja Manikya Mao (27 M.L.J., 179) Benson and Sundara Aiyar, JJ., said, The District Judge has assumed that a minor, a female and a person unlearned in the Vedas would lose the fight to the service in the temple. There is no basis for the assumption.

My experience of life in this Presidency is that in innumerable cases services in a temple are performed by proxies employed by woman. I Mujavar Ibrambibi v. Mujavar Hussain Sheriff (I.L.R., 3 Mad., 95) referring to the competency of a Mahomedan lady to perform the duties of Majuvar of a Durga which was not of a secular nature, Turner, C. J., and Kindersley, J., stated that it was not proved that plaintiff had ever participated in the profits or performed the duties by proxy , thereby indicating that if she had got the service done by a proxy she would have been entitled to the office. In Sheshu Ammal v. Spundararaja Aiyar ((1853) Mad., Sudder Adawlat, 26), the learned Judges state They further explain that an Archaka Meerassee, which is the species of Meerassee involved in Suit No. 111 of 1846, on the file of the Hindu Sudder Ameen referred to by the Civil Judge, and a Poorohita Meerassee; also instanced by the Civil Judge, may descend to a female and the functions thereof be performed by deputy. These are all the Madras decisions, and Mr. Ganapati Aiyar in his book on Religious Endowments after reviewing these authorities has come to the conclusion t hat it has been the uniform practice in Madras to allow females to inherit the archaka service and the emoluments. In Bombay, the same view has been held. In Keshavbhat bin Ganeshbhat v. Bhagirathibai Kom Narayanbhat (3 Bom. H.C. Rep., 75), the learned Judges state the law thus: Finally, with respect to the objection, that a Hindu female cannot perform the duties attached to the office for the maintenance of which the allowance was granted, it may be observed that the defendant has not proved the existence of any usage in conformity with his allegation. So the burden was cast upon the objector to show that the usage was different. At the end of the judgment the learned Judges reserved liberty to the reversioner to bring a separate suit to support his position that a widow was not competent to inherit the office and the emoluments of archaka. In Sitarambhat v. Sitaram Ganesh and Kashiraj Namabhat (6 Bom. H. C. Rep., 250), the learned Judges of whom Couch, C.J., was one proceeded on the assumption that the priestly office would descend in the ordinary line of succession through daughter to her son. The decision in Dhuncooverbai v. Advocate-General (1 Bom. L.R., 743) may be explained away as Sadasiva Aiyar, J., suggests on the ground that the office inherited by the widow was not a purely religious one.

The decisions of the Calcutta High Court also support this proposition. In Poorun Narain Dutt v. Kasheessuree Dossee (3 W.R., 180) the learned Judges say: It has been held in this Court that a woman can be a Mootwullee , and that the profits of a debutter can be received by a female. They held in that case that a woman can succeed to the office. In Joy Deb Surmah v. Huroputty Surmah (16 W.R., 282) an issue was sent down to ascertain whether a female can succeed to a priestly office. The Report does not say what the result of the finding was. In Mitta Kunth Audhicarry v. Neerunjan Audhicarry (14 Beng. L.R., 166), Sir Richard Couch says that the right of performing worship of an idol follows the same line of succession as that of private property. In Mahamaya Debi v. Haridas Haldar (I.L.R., 42 Cal., 455) [LQ/CalHC/1914/307] , Mr. Justice Mukherjee says at page 475, There is no question that a pala in the Kalighat Temple is heritable and it is immaterial whether the heir is a male or female. The custom in this respect is established beyond doubt. These are all the authorities available on the question. None earlier than, 38 Mad., has been cited in which it has been laid down that a female is not entitled to inherit a priestly office and the emoluments. The decisions are practically uniform and it would lead to an unnecessary disturbance of rights of property, if we introduce the innovation that a female is not entitied to succeed to an archaka office or emoluments. As regards the quotation from Jagannathas digest which Mr. Justice Sadasiva Aiyar has extracted in his judgment, I may say that I have read it very carefully and there is no expression in it of any decided view one way or the other. The author quotes the contentions of both sides and leaves the reader to draw his own inference from the two statements. I am rather inclined to think that the weight of argument, if any, is in favour of giving females their right to hold religious office.

Although I have come to this conclusion, having regard to the strong view held by Sadasiva Aiyar, J., and having also regard to the fact that it is necessary that a uniform principle should be enunciated in this matter to guide the Courts below, I think it desirable that the following question should be referred for the opinion of the Full Bench, namely, whether a Hindu widow is incompetent by reason of her sex from, inheriting the service and emoluments of a priestly office held by her husband.

Napier , J.

I agree that this question should be referred to a Full Bench in the terms suggested by my learned brother.

John Wallis, CJ.

[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 perfom them by deputy. The opinion of the pandits in 1853 in 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 Animal v. Yogavana Gurukkal (1914) I.L.R. 38 Mad. 850 who considered that on principle a personally disqualified heir could not inherit the office 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. Gordhan Lalji Maharaj (1912) I.L.R. 35 All. 283 was in accordance with this view and must be taken to have overruled the other cases. In that case the office of archaka had descended to the widow and daughter of the last male archaka, and the question was whether the daughter was to be succeeded by her son or by the reversioner of the last male holder. The Archakas were gossains and there was a usage among them that females continued to belong to their farther s kul or family after marriage. On this ground apparently the daughter had been allowed to fill the office even though married to a 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 p. 288 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 when 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 the numerous decisions of this Court in conformity with the decisions of other Courts by which the widow and daughter of the last male archaka are held entitled in accordance with the established user to succeed to the office of archaka 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 I have a great respect, considers, if I 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 Seahagiri 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 be 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 reconsidered my decision in Sundarambal Animal v. Yogavana Gurukkal (1914) I.L.R. 38 M. 850 in the light of the later decisions of this Court quoted by my learned brother. Mr. Justice Seshagiri Aiyar in his order of reference, 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 myself that my opinion was erroneous. On the other hand, the decision of their Lordships of the Privy Council in Mohan Lalji v. Gordhan Lalji Maharaj (1912) I.L.R. 35 All. 288 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 Gcssain sect in the Privy Council 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 performed the duties through such deputies and not directly. On the contrary, it seems to me clear from the report that the out-of-date unshastraic custom obtaining in the south by which Dharmapathnies (who are Sahadharmacharinees of their husbands) are considered incompetent to pronounce mantrams and do religious duties along with (and even solely in the absence of) their husbands does not obtain among the Ballavacharya Gossains, one of the Vaishnavite sects which are in several respects much more liberal in the treatment of women and birth-sudras than other sects though many Vaishnavite sects might have become very degenerate in 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.

[4] A. general rule has been laid down by their Lordships of the Privy Council that where a person is incompetent to perform the rites of a religious office, it would defeat, the very purpose for which the worship was established if he (including of course "she)" is allowed to inherit the office. Any usage inconsistent with such purpose is clearly invalid in law. See K.P.L.S. Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi (1917) I.L.R. 40 M. 709=33 M.L.J. 1, (P.C.).

[5] I am unable to appreciate any distinction in principle between the incompetency of the claimant to the office by reason of sex and the incompetency due to any other cause. I do not think that the pronouncement of their Lordships of the Privy Council can be got round through any such distinction.

[6] Though "law" is not always logical and though the narrow point referred to us relates to inheritance by a person incompetent by reason of sex alone for performing the duties of a religious office, I do not think that the considerations of the difficulties which are aggressively prominent when we take the four analogous cases (1) of a male heir being incompetent by reason of conversion to another faith when the inheritance opens, (2) of his becoming incompetent after the inheritance opens, (8) of a female heir being incompetent by reason of conversion before the inheritance opens and (4) becoming incompetent after the inheritance opens can be kept out of mind in deciding the present relerence, especially having regard to the provisions of Act 2i of 1850.

[7] Coming to the weight to be given to practice and usage, many pernicious and unshastraic usages have crept into the Hindu religious and social systems during dark medieval days and through efflux of time. Most of them entered gradually and insidiously through the tendency of that subtle materialism which sometimes parades as strict orthodox spirituality. The latter is exalted over the spirit, the so-called hereditary rights are given more importance than the performance of the religious duties, instead of the rights being kept as a very subordinate adjunct and appurtenance of the duties and religious offices and caste status are looked upon more as intended for the means of livelihood and for the enjoyment of worldly power and material possessions than as things bestowed upon one for helping all humanity in its evolutionary progress towards the common goal.

[8] I respectfully agree with my Lord that the law as at present settled by the decision of the Privy Council is that unless the usages in connection with religious institutions and offices are manifestly immoral or opposed to public policy or opposed to the intentions of the founders of a religious trust or manifestly injurious to the trust, the Courts are not entitled to go back for the law to the purer, more liberal and more ancient shastraic fountain heads. The question therefore narrows itself to this : Whether the usage relied on by the respondents is manifestly injurious (both in its material and moral aspects) to the religious institution, and whether it could have been in conformity with the intention of the founder of the trust. It is on this question that I feel that there is real and substantial difference of opinion between myself and the learned judges who have considered this question in this Court since 19

10. My angle of vision in respect of these questions might have been affected by "my longstanding interest and sensitiveness in the cause of Hindu religious and social reform on shastraic lines. I find, however, that after making sincere attempts to allow as much discount as possible to the above factor, my view of the seriousness of the evils of the usage in question his not been materially affected. While the incumbent of a religious office must be allowed to employ a temporary deputy when a temporary disqualification or inability occurs, such as birth and death pollutions, absence from home owing to urgent private affairs, etc., I am clew in my mind that a usage permitting a permanently disqualified claimant to receive the emoluments of a religious office and to appoint his or her own deputy to do the duties is of such a seriously mischievous character that it ought not to be recognised. I regret I am unable to agree with Mr. Justice Seshagiri Aiyar that the performance of the duties through the deputy of a female disqualified heir is not less beneficial to the religious institution than the performance of the next qualified male heir. It is notorious that the deputy is usually chosen on the principle of a Dutch auction. The man who agrees to allow the widow to retail the largest portion of the emoluments of the office and to receive the least as his own remuneration is given the place of deputy. Thus when the usually small remuneration in rice and cash attached to the Arehaka office does not go to the deputy who does the duties, the deputy cannot be expected to perform the duties at all satisfactorily. I do not see why a religious office should be considered less important than any other kind of office. To allow even the office of a peon to be held by a permanently disqualified man because he undertakes to appoint a deputy, out of the remuneration of the office is, in my opinion, entirely mischievous and it ought not to be allowed even if it is sanctioned by usage.

[9] In the result, my answer to the question referred is that so long as a Hindu widow is held incompetent by reason of her sex from doing the duty of a priestly office, she is also incompetent to inherit the service and emoluments of the office.

Spencer, J.

[10] Without laying down any rule as to particular institutions, in which there may be a special custom that females cannot succeed to the office and emoluments, the trend of decisions in this Court has certainly been to treat females as competent to succeed to the archakaship of Hindu temples in this Presidency. See Subraya Kakrannaya v. Subraya Padyaya (1910) 8 M.L.T. 325 : (1910) M.W.N. 445 Tangirala Chiranjivi v. Rajamanikya Rao (1913) 27 M.L.J page 179 Ramasundaram Pillai v. Soundarathammall alias Sankara Vadivu Ammal (1914) 16 M.L.T. 428 Baja Rajesvari Animal v. Subramania Archakar (1915) I.L.R. 40 Mad. 105 and Second Appeal No. 2078 of 1915.

[11] The judgment of Sadasiva Aiyar, J. in Sundarambal v. Yogavana Gvrukkal (1914) I.L.E. 38 Mad. 850 was an exception to the course of decided cases and was not adopted by Tyabji, J., who sat with him. I do not think it contains reasons of such weight to justify a departure from the principle of stare decisis. I would answer the question referred to us in the negative.