Ramaswami, J.

1. This appeal concerns two temples known as "Jora Mandir" founded and endowed by Bakshi Bhagwat Lal in the town of Arrah, The plaintiff brought the suit alleging that Bakshi Bhagwat Lal had endowed the properties mentioned in Schedule A of the plaint and had appointed Pandit Aditnath Misser as hereditary mutwalli and Pujari. After the death of Aditnath his son Loknath filled the office. Thereafter Loknaths sons Mahadev and Mahanand agreed that they would remain Mulwalli and Pujari in rotation for one year each. The plaintiff is the grand-son of Mahadev but the defendants had refused to permit the plaintiff to work as Mutwalli and Pujari in his turn. Plaintiff hence asked for partition of "his right of worship in the temple and offerings".

Defendant 1 resisted the plaintiffs claim. He denied that Bakshi Bhagwat Prasad appointed Adinath Misser as Pujari. Bakshi Bhagwat Prasad himself acted as mutwalli in his lifetime. He appointed one Reoti Raman Misser as Pujari on whose death Loknath, Mahadev and Gouri-shankar became successive pujaris. The defendant denied that there was any arrangement between Mahanand and Mahadeo for rotation of office of pujari. The defendant affirmed that the surplus offerings were not utilised for the personal use of the Pujari. But the entire income was exclusively utilised for the rajbhog and other purposes of the temple. The defendant declared that the plaintiff was incapable of performing the work of a pujari. Defendant stated that there had been two previous partition suits in which the plaintiff did not claim partition of the office of pujari or offerings. The defendant hence claimed that the plaintiffs suit was barred by constructive res judicata.

2. The Subordinate Judge held that the plaintiff failed to prove that Aditnath Misser was ever appointed Pujari and mutwalli; and that there had been any arrangement between Mahadeo and Mahanand to work as mutwalli or Pujari by rotation. The Subordinate Judge accordingly dismissed the plaintiffs suit.

3. In appeal the District Judge reversed these findings. He held that "the first or second mutwalli and pujari of the temple was Pandit Aditnath Missir; that the members of the family of Aditnath used to work as mutwalli, and pujari of the dedicated properties and as such the right to work as mutwalli and pujari was heritable among the family members of Aditnath." The District Judge found that the suit was not barred by constructive res judicata. Accordingly he granted the plaintiff a decree for partition, in other words, that plaintiff and defendant 1 will work as "mutwalli, manager or pujari" by rotation for one year each.

4. Against this decree defendant 1 has preferred this appeal.

5. Learned Counsel on his behalf submitted that the lower Courts have failed to appreciate the real questions at issue between the parties. It was urged that the case should be remanded for a new trial after issues have been framed.

6. In our opinion, this argument is well-founded. Both the Courts have failed to distinguish the legal distinction between a "pujari" and a "shebait". Neither the founder Bakshi Bhagwat Lal nor his successors-in-interest were impleaded in the suit. The Courts made no attempt to investigate whether there was any written grant, whether in the absence of such a document, there was direct evidence to prove that founder had nominated a shebait or directed the mode of succession to that office. The appellate Court ought also to have addressed itself to the question whether plaintiff had proved that the devolution was in the ordinary line of descent. The appellate Court failed to consider whether the plaintiff was fit to perform the worship in the temple. In view of the failure of the Courts to appreciate the real questions an issue we propose to set aside the appellate decree and remand the case for a fresh trial.

7. Before doing so it is necessary to indicate the legal principles which provide the setting for the issues to be investigated in the present case. It is important to state that a pujari or archak is not a shebait. A pujari is appointed by the Shebait as the purohit to conduct the worship. But that does not transfer the rights and obligations of the shebait to the purohit. He is not entitled, to be continued as a matter of right in his office as pujari. He is merely a servant appointed by the Shebait for the performance of ceremonies. Where the appointment of a purohit has been at the will of the founder the mere fact that the appointees have performed the worship for several generations, will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priest -- Maharanee Inderjit Kuer v. Chundemun Missir 16 WR 99 (Cal) (A); -- Kali Krishna v. Makham Lal : AIR 1923 Cal 160 [LQ/CalHC/1922/355] (B), and -- Ananda Chandra v. Broja Lal : AIR 1923 Cal 142 [LQ/CalHC/1922/368] (C). If, therefore, there is no proof in this case that Bakshi Bhagwat Lal had appointed Aditnath Misser as Mutwalli but he was appointed merely as Pujari the plaintiff will not be entitled to get a decree.

8. As regards the shebait it is a well-settled rule that the office depends upon the will of the person who establishes the endowment. The rule of law is that the founder has the right to nominate a shebait to direct the mode of succession to the office of Shebait. In -- Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee 16 I.A. 137 (D), Lord Hobhouse stated as follows:

"According to Hindu Law, when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or that there has been some usage, course of dealing, or some circumstances to shew a different mode of devolution."

But in -- Mohan Lalji y. Gordhan Lalji 40 I.A. 97 (E), the Judicial Committee laid down a necessary qualification of the rule to the effect that the devolution in the ordinary line of descent should not be inconsistent with or opposed to the purpose which the founder had in view in establishing the worship or other religious or charitable purpose.

9. A claim to hereditary eight of management can only succeed if it is shown that the founder has laid down such rule as to management in the terms of the original grant. First of all the deed of endowment, if any, must be looked into, to see whether the founder has laid down any rule of succession to the office of shebait. In the absence of a deed of endowment the intention of the founder has to be ascertained by other direct evidence. In the absence of any such direct evidence usage should be governing test. It cannot be predicated as a general rule that in absence of grant or usage, the ordinary rule of inheritance will govern the succession to office of Shebait. Such a proposition is indeed negatived by the Judicial Committee.

"When owing to the absence of documentary or other direct evidence, it does not appear what rule of succession has been laid down by the endower of a religious institution, it must be proved by evidence what is the usage. If usage has not been proved to be according to ordinary law of inheritance, plaintiff cannot succeed under such rule." (Janoki Debi v. Sri Gopal Acharja 10 I.A. 32 (F) ).

The person who relies upon succession by the law of inheritance must prove that the ordinary law applies and must succeed upon the strength of this case.

10. In this context it is well to emphasise that a claim to succeed by hereditary right is looked upon with disfavour by Courts. In -- Phatmabi v. Abdulla Musa Sait : AIR 1914 Mad 714 [LQ/MadHC/1913/171] (G) Sadasiva Ayyar J. stated that.

"The holding of any office should depend on the necessary qualifications, and, while heredity might raise a feeble presumption of fitness to be considered by Courts in arriving at a decision on the question of the successorship to the office, it should not be raised to the dignity of a principle which creates a right of succession to any office, unless the terms of the original foundation of the office constrained the Courts to treat heredity as the factor to be considered in deciding on the right to the office or unless there has been such a precise and uniform course of descent by heredity (almost irrespective of any consideration as to the person best fitted, for the office) as to raise an irresistible inference as to the intention of the original creator of the office."

11. As regards the offerings of the temple, the plaintiff has asked lor partition. But the defendant has denied that the surplus offerings are employed for the personal use of the pujari or shebait. As a general rule, where offerings are made by a devotee to a Hindu idol, the gift is prima facie for the benefit of the idol and the pujari or trustee of the idol has no interest or title in it. According to Hindu law, a consecrated idol in a Hindu temple is a juridical person, a sacred entity capable of possessing proprietary right, and property dedicated to the idol becomes res sacra vide -- "Thackersay v. Hurbhum 8 Bom 432 (H), -- Vidyapurna v. Vidyanidhi 27 Mad 435 [LQ/MadHC/1904/3] (I), and -- Jagindranath v. Hemanta Kumari 31 I.A. 203 (J). As observed by West J. in -- Manohar Ganesh v. Lakshmiram 12 Bom 247 [LQ/BomHC/1887/13] (K)

"it is indeed a strange if not a wilful confusion of thought by which defendants set up the Sri Ranchod Raiji as a deity for the purpose of inviting gifts and vouchsafing blessings, but as a mere block of stone, their property for the purpose of their appropriating every gift laid at its feet. But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the centre of the foundation, this artificial subject of right is as capable of taking offerings of cash or jewels as of land."

In a Calcutta case--Girijanand Dutta v. Sailajanand Dutta 23 Cal 645 [LQ/CalHC/1896/26] (L), the High Court held that the offerings being more or less of a permanent character, being coins and other metallic articles, should be taken to be intended to contribute to the maintenance of the shrine with all its rites, ceremonies and charities and not to become the personal property of the priest. But the general rule is subject to the exception that where there is proof of usage, the pujari or shebait may be allotted a share of the offerings. Again, when the idol is set up temporarily for worship and where the offerings are of perishable nature, such as articles of food, the pujari as the nearest Brahmin available may appropriate the offerings.

12. In the light of these principles the following issues are in our opinion necessary to be determined in this case:

1. Whether Bakshi Bhagwat Lal appointed Pandit Aditnath Missir merely as pujari, or as shebait or as both.

2. Whether Bakshi Bhaswat Lal appointed Pandit Aditnath Missir and his family as hereditary Shebaits of the temple; whether Bakshi Bhagwat Lal prescribed that the devolution should be in the ordinary line of descent.

3. Whether there is proof of usage that surplus offerings of the temple are appropriated by the priest or shebait.

4. Whether the suit is barred by constructive res judicata.

5. Whether the plaintiff is entitled to any of the reliefs claimed.

13. Accordingly we allow this appeal, set aside the decrees of the District Judge and Subordinate Judge and remand the case for being tried afresh on the issues framed as set out above by the Court of first instance.

14. There will be no order as to costs of this appeal. Costs of Courts below will abide the ulti mate result.

Sinha, J.

15. I entirely agree.