Authored By : Banerjee, Hamilton Wincup Gordon

Banerjee and Hamilton Wincup Gordon, JJ.

1. The suit, out of which this appeal arises, was brought bythe plaintiffs appellants against the defendant Sailajanund Datta Jha,described as the ojha or high priest of the temple of Baidyanath, for therecovery of the sum of Rs. 18,279-2; and for a declaration that the said amountis realisable by attachment of the surplus of the offerings called charao madeto the deity Sri Sri Iswar Baidyanath, and is recoverable from the defendantssuccessors in office. The main allegations, upon which the claim is based are,that the temple of Baidyanath in the town of Deoghur has from time immemorialbeen under the management of its ojha or high priest; that the offerings madeto the deity in the shape of gifts of money and other things, called charao,were formerly divided between the high priest on the one hand and the Raja ofBirbhum, and in succession to him the British Government on the other, but sincethe relinquishment of its share by the British Government in 1791, the whole ofthe said charao has been taken by the high priest, who is entitled toappropriate to his own use the surplus left after providing for the expenses ofthe worship and the performance of other obligations appertaining to theinstitution; that the office of high priest is elective, but confined to thefamily of the plaintiffs and the defendant, and subject to the finalconfirmation of the ruling power; that the last ojha Isrinund Datta Jha, fatherof the plaintiffs and grandfather of the defendant, gave the plaintiffs anekrar in 1271, stipulating thereby to pay to them and their heirs the sum ofRs. 2,400 annually out of the said charao for their maintenance; that on thedeath of the said Isrinund Datta Jha, disputes having arisen between theplaintiffs and the defendant as to the right of succession to the office ofojha, the defendant by an ekrar, dated, the 27th of February 1878, promised topay the plaintiffs and their heirs Rs. 2,400 annually, and the plaintiffsallowed the office of ojha to pass to the defendant; and that the arrears ofthe said annual allowance of Rs. 2,400 together with interest amount to the sumclaimed in the suit.

2. The defence alleges that the temple of Baidyanath is apublic place of Hindu worship; that the property appertaining thereto includingthe charao or offerings is debutter property belonging to the idol Baidyanath,which the ojha or high priest holds only as manager without having any personalright to the same, save and except the right to maintain himself out of it;that the office of high priest is not elective, but passes by succession byprimogeniture to the eldest son of the last incumbent, and in his default tohis eldest son, and so on; that the ekrars referred to in the plaint cannotcreate any valid charge in the charao or offerings which constitute debutterproperty, nor can they bind any succeeding ojha; and that of the amount claimedonly a portion, namely the sum of Rs. 5,280, is due to the plaintiffs, and thedefendant is personally liable for the same. It appears from the issues thattwo more objections were subsequently taken by the defendant, namely, that apart of the claim was barred by limitation, and that the claim for interest wasnot tenable.

3. The Court below has held that the charao or offerings aredebutter property, and cannot be charged with liability for the plaintiffsclaim; that the ekrar executed by the defendant is not binding on hissuccessors in office, but that the defendant is personally liable under it;that no part of the claim is barred by limitation; and that interest isclaimable for the last three years before suit; and it has accordingly giventhe plaintiffs a decree against the defendant personally for the greaterportion of the claim, disallowing only interest in part.

4. Against that decree the plaintiffs have preferred thisappeal, and the defendant has filed a cross-appeal, valued at Rs. 6,286-7-0,the difference between the amount decreed and the amount admitted to be due.

5. In the appeal it is urged : First, that the Court belowought to have declared that the amount decreed was realisable by attachment ofthe charao or offerings;

Secondly, that the said amount was recoverable from the defendantssuccessors in office; and

Thirdly, that the defendant is not entitled to raise anyobjection against the terms of his own ekrar. And in the cross-appeal it iscontended-

First, that a part of the claim was barred by limitation;

Secondly, that there was no personal covenant to pay, norany valid and legal consideration for the ekrar, and that no personal decreeought to have been made against the defendant; and

Thirdly, that the claim for interest ought to have beendisallowed altogether.

Before proceeding to the determination of the appeal and thecross-appeal, it is necessary to dispose of a preliminary question, namely,whether proper Court fees have been paid on the memorandum of appeal and on thepetition of cross-appeal.

6. The Court fee paid on the memorandum of appeal is Rs. 10,and the learned vakil for the appellants contended that this was the proper feechargeable under clause iii of Article 17 of Schedule II of the Court Fees Act,the object of the appeal being only to obtain a declaration that the amountdecreed is realisable from the surplus of charao or offerings, and isrecoverable from the defendants successors in office, the prayer forconsequential relief, that is, for recovery of the money, having already beengranted by the Court below. He further urged that the cross-appeal could not beheard, unless the respondent paid the fee payable on the amount at which it wasvalued as required by Section 16 of the Court Fees Act. On the other hand, itwas argued for the respondent that, as the declaratory decree asked for by theappellants would not amount to a mere declaration, but must necessarily carrywith it some consequential relief, the fee payable on the appeal was the advalorem fee on the amount decreed as required by Article 1 of Schedule I of theAct; and if that was paid, no additional fee would be payable by the respondentunder Section 16.

7. The point not being altogether free from doubt, wereserved judgment upon it, and allowed the hearing of the appeal and the cross-appealto proceed, upon the parties undertaking through their learned vakils to payany amount that they might be declared liable to pay.

8. After giving our best attention to the point, theconclusion we arrive at is that the memorandum of appeal has been properlystamped, and that the petition of cross-appeal requires to be stamped with thefee payable on the value of the cross-appeal as provided by Section 16 of theCourt Fees Act.

9. It is true that the case does not come under clause iiiof Article 17 of the second Schedule of the Court Fees Act upon a literalconstruction of that clause; for that clause refers to the nature of the suitas the criterion for determining whether an appeal comes under it, and the suithere was clearly not for a declaratory decree without consequential relief. Butthough that is so, still Section 16 of the Act clearly indicates that, where anappeal is only against a part of a decision, and that part relates only to aportion of the subject-matter, the memorandum of appeal is sufficientlystamped, if it bears the Court fee stamp chargeable upon such portion of thesubject-matter. Now, the subject-matter of the suit here was a claim for acertain sum of money, coupled with a claim for a declaration that it wasrealisable from the offerings to the idol and was recoverable from thesuccessors in office of the defendant. The Court below has allowed the formerclaim with a small reduction, the correctness of which is not questioned inappeal, but disallowed the latter; and the appeal is only against that part ofthe decision which relates to the declaration. The memorandum of appeal shouldtherefore be held to be sufficiently stamped, if it bears the Court fee stampchargeable in a suit for a mere declaratory decree, that is, if it bears astamp of Rs. 10 as provided by clause iii, Article 17, Schedule II of the Act.

10. It has been contended that if the declaratory decreeasked for is granted, it will necessarily carry with it some consequentialrelief; that is to say, as soon as the declaration is obtained, the plaintiffswill become entitled to realise their claim out of the offerings, so that itcannot be said to be a declaratory decree without consequential relief. Butthis contention is not sound. The correct view of the matter is that thedeclaratory decree results in consequential relief, not by its own force, butonly by reason of such relief having already been granted.

11. Several cases were cited on each side during theargument, but only two of them can be said to have any bearing upon thequestion before us. These are : Venkappa v. Narasimha I.L.R. 10 Mad. 187 andVithal Krishna v. Balkrishna Janardan I.L.R. 10 Bom. 610. The first-mentionedcase, Venkappa v. Narasimha, may in one sense be regarded as the converse of thepresent one. There the suit was based on a mortgage bond; the first Court madea decree for payment of the money and for sale of the mortgaged property; someof the defendants appealed against the decree, in order, as the report says,"to exonerate the lands from liability for the amount decreed," andthe High Court of Madras held that the Court fee chargeable on the memorandumof appeal was not Rs. 10, but an ad valorem fee on the amount of the decree.The case seems at first sight to favour the contention of the respondentsbefore us; but when the ground of the decision is examined, it does not appearto be quite in point. For the learned Judges say: "The defendants appealedagainst so much of the decree as declared the liability of their property and inorder to be released from the decree. The relief they sought was, therefore,not a mere declaratory decree, but to be released from the decree."

12. In the other case cited, Vithal Krishna v. BalkrishnaJanardan I.L.R. 10 Bom. 610, the suit was brought by a judgment-creditor toestablish the right of his judgment-debtor to certain property and theliability of that property to attachment in execution of his decree, after theproperty had been released from attachment on the claim of a third party; and aFull Bench of the Bombay High Court held that the proper stamp on the plaintwas Rs. 10 under Schedule II, Article 17, Clause (i) of the Court Pees Act.This too is not, therefore, a case quite in point.

13. The language of the Act not being clear, and therebeing no case in point, we think the correct view of the law is that indicatedabove, as being the one most consonant to reason.

14. We shall now proceed to the determination, of the appealand the cross-appeal, taking the appeal first and then the cross-appeal; and weshall consider the grounds urged in each in the order in which they have beenstated above.

15. The first contention of the appellants, namely, that theCourt below ought to have declared that the amount decreed was realisable bythe attachment of the charao or offerings, involves some of the most importantquestions raised and discussed in the argument. In support of this contentionit is urged that the surplus of the offerings left after defraying the expensesof worship and certain other necessary expenses, such as those required forkeeping the temple in proper order, belongs to the ojha or high priest; thatthe defendant was therefore competent to create a charge on such surplus by theekrar on which this suit is based; and that the plaintiffs are entitled to thedeclaration asked for. And the right of the high priest to the surplus of theofferings is sought to be based as well upon the general Hindu law as upon thespecial custom of the shrine. It is further urged that, even if the surplus ofthe offerings be not the property of the ojha, they are still chargeable by himwith the maintenance of members of his family. The attempt made in the Courtbelow to support the plaintiffs claim to a charge on the offerings, even ifthey are the property of the idol, on the ground of the charge being createdfor the benefit of the endowment, was not repeated here, evidently because thecontention was, as shown in the judgment of the learned Subordinate Judge,utterly untenable. In dealing with the first ground of appeal, therefore, wemay confine our attention to the two questions, whether by the general Hindulaw the surplus of the offerings belongs to the high priest, and whether by thespecial custom of the shrine they belong to him or are chargeable by him withthe maintenance of members of his family.

16. Notwithstanding the existence of numerous richly endowedHindu shrines all over India from the earliest times, the Hindu law strictlyso-called is, as Sir T. STRANGE complains (see his Hindu Law, Ed. of 1839, Vol.I, p. 32), meagre in its provisions relating to religious endowments, a factwhich may perhaps be accounted for on the supposition that the high reputationfor piety and purity of character justly enjoyed for the most part by thepriestly classes of ancient India who had the management of the shrines, wasdeemed a sufficient safeguard against breach of duty, so as to render detailedrules of law to regulate their conduct unnecessary. The subject of religiousendowments does not form one of the distinct topics of litigation enumerated byManu (Chap. VIII, 3-6), and Narada (Introduction 16-19), and a few scatteredtexts here and there enjoining kings to establish and endow colleges ofBrahmins, directing the consecration of tanks and other works of publicutility, dwelling on the merits of religious gifts, and providing for thesuccession to religious devotees (see Yajnavalkya, I, 339; II, 132;Colebrookes Digest, III, ii, 4, 6; Manu, IV, 226) appear to be all that isworth notice relating to the subject in the institutes of the early sages. Inthe later Commentaries and Digest there are, it is true, whole chapters devotedto religious gifts and endowments (see, for instance, Hemadris ChaturvargaChintamani, Danakhanda and Raghunandanas Digest, Matha Pratishtha Tattwa); butthey relate mostly to matters of ritual and to the spiritual merit of differentsorts of gifts. There is one passage in the last-mentioned work, namely, a textquoted from the Matsya Sukta, which has some bearing on the present question,and which runs thus:

Having made offerings to a god, the sacrificial fee alsoshould be given to the god. The whole of that should (then) be given to aBrahmin, otherwise (it) is fruitless. [Raghunandanas Institutes, Ed. of 1834,Vol. II, p. 358.]

17. Relying upon this text and upon a remark of Jagannatha,in which the learned author speaks of an idol as a being "whose essence isa text of Scripture" (see Colebrookes Digest, Book V, Ch. I, 2Commentary,2 M Ed 191), the learned vakils for the appellants contend thatofferings made to an idol are only nominally the idols property, but belongreally to the officiating priest. It is argued that according to true Hindunotions, an idol is only an emblem of God, and offerings made to an idol areintended not for the use of the idol, that is a mere symbol, but for the use ofGods creatures in general, and of Brahmins or priests in particular as beingthe most meritorious among them. Whatever weight an argument like this may beentitled to in a purely religious or metaphysical discussion, it cannot, wethink, prevail in its broad generality in a Court of law at the present day.Decisions too clear and authoritative to be doubted or disregarded haverepeatedly laid down that an idol in Hindu law is capable of holding property,and that property dedicated to an idol belongs to an idol and not to thesebait, or priest. See Shibessuri Debia v. Mothoora Nath Acharjo 13 W.R. P.C.18 : 13 Moor I.A. 270, and Prosunno Kumari Debya v. Golap Chand Baboo 14 B.L.R.450 : 23 W.R. 253 : L.R. 2 IndAp 145.

18. If it were necessary to give reasons in favour of a viewso amply supported by authority, we should add that the opinion of Jagannathagoes merely to show that an idol can be the owner of property only in afigurative sense, possession being held by a manager or trustee, and thatdedication of property to an idol is only a mode of creating a trust forreligious purposes in perpetuity, which is allowed by law [see Jaggut MoheeneeDassi v. Sakhi Monee Dassi 10 B.L.R. 19 : 17 W.R. 41 : 14 Moore I.A. 289]. Andas for the text cited above, though it requires the appropriation by a Brahminof offerings made to an idol, it does not show that the Brahmin intended is thepriest attending the idol. What is offered to an idol is required to be devotedto the use of a Brahmin on account of his generally having great religiousmerit; but the Hindu law regards a priest attending an idol as a Brahmin of acomparatively lower order of merit (see Manu, III, 152; Vishnu, LXXXII, 8).Where an idol is set up temporarily for worship, or where the offerings are ofa perishable nature, such as articles of food, the priest in attendance, as thenearest Brahmin available, generally appropriates the offerings; and the sameis the case where the idol itself is the private property of the priest. Butwhere, as in this case, the idol is an ancient one permanently established forpublic worship, and the offerings are generally of a more or less permanentcharacter, being coins and other metallic articles, in the absence of anycustom or express declaration by the donor to the contrary, they are, as theyought to be, taken to be intended to contribute to the maintenance of theshrine with all its rites, ceremonies and charities, and not to become thepersonal property of the priest. However much a Hindu votary may wish that hisofferings to public shrines should ultimately go to the use of meritoriousBrahmins", he can never be supposed to intend, nor does the Hindu lawanywhere allow, that they should become the property of the priest, to besquandered by him or devoted to purposes foreign to the endowment. This view isquite in accord with that expressed by the Bombay High Court in Monohar GaneshTambekar v. Lakhmiram Govindram I.L.R. 12 Bom. 247 [LQ/BomHC/1887/13] .

19. We are, therefore, clearly of opinion that there, isnothing in the general Hindu law to support the appellants contention;

20. Let us next examine how far the special custom of thisshrine helps the appellants. It is admitted by the plaintiff Girijanund in hisdeposition, and it could not very well have been denied upon the evidenceadduced by the plaintiffs themselves (see Government letter of 1791, Ex. 4,that of 1822, Ex. 3, and the Assistant Commissioners Report of 1860, Ex, 7) thatthe temple of Baidyanatb is a public place of worship. But it is urged that bycustom the surplus of the offerings made to the idol after defraying theexpenses of worship belong to the ojha. The custom is said to be traceable inits origin to the fact that the temple was either built by the founder of thefamily of the ojhas or made over to him by the king of Gidhaur who had builtit; and to the further fact that the right to two-thirds of the offerings whichwas formerly claimed and enjoyed by the Rajas of Birbhum and afterwards insuccession to them by the British Government, was subsequently relinquished bythe latter in favour of the high priest in 1791. The custom is said to beproved by evidence showing the mode in which the offerings have been appropriated;and, lastly, it is said to have been recognised by Courts of Justice.

21. The early history of the temple is lost in remoteantiquity. The Siva Purana and the Padma Purana, of which extracts, withtranslations, are given in Dr. Rajendra Lala Mitras paper on Deoghar in theJournal of the Asiatic Society of Bengal, Vol. LII, p. 164, trace the origin ofthe temple to the Treta Yuga, the age of the events narrated in the Ramayana.Side by side with the Hindu traditions there is a Santal tradition of theorigin of the temple, given by Sir W. Hunter (see the Annals of Rural Bengal,p. 191; Statistical Account of Bengal, Vol. XIV, p. 323). But these materialsafford no evidence as to when and by whom the idol was established or thetemple was built. The only evidence adduced to show that the temple was eitherbuilt by some ancestor of the ojhas or was made over to him by the king ofGidhaur consists of the Assistant Commissioners Report of 1860, Ex. 7, and anattested copy of a deposition of the defendant given in a former suit. Thereport, however, considering its recent date, and its admitted basis which ispopular tradition, apparently unverified by any reference to the inscriptionson which the tradition itself is based, can scarcely be of much value, whilethe inference drawn from the inscriptions by the scholar and antiquarian, Dr.Rajendra Lala Mitra (see his paper just referred to) is to the effect that itwas not the temple, but only the portico that was built by the ojha or the kingof Gidhaur. The copy of the defendants former depositions is no doubt evidenceagainst him, but the statements there made are mostly based upon hearsay andupon perusal of a copy of a sanad. The non-production of the original sanad iscertainly matter for adverse comment. But considering the whole of the evidenceadduced on the point, and all the circumstances connected with it, we do notthink there are sufficient materials upon which it can be safely affirmed thatthe temple, as distinguished from the portico, was either built by someancestor of the ojhas, or was made over to him by some one who had built it. Itis quite probable that some semi independent Raja of Gidhaur, within whoseterritory the temple was situate, made it over to one of the ancestors of the presentojha. But though that may account for the right to the managership of thetemple being vested in the family of the present ojha it can afford no safebasis for any inference that the offerings made to the shrine which has been inexistence as a place of public worship from before became the private propertyof the priest. Then as to the effect of the relinquishment by Government of itstwo-thirds share in the offerings, though there can be little doubt that thisshare used to be taken by the Rajas of Birbhum and by the British Government,it is not quite clear in what right it was first claimed by the former. But theGovernment letter of 1791, Ex. 4, by which the right was relinquished, andwhich is headed "Revenue Department, sayer," indicates that it wasclaimed as a sayer or tax (something like what is referred to in RegulationXXVII of 1793). And, though the letter says that the gossains or priests"by whom the offerings had been hitherto received" are "to enjoythe whole" under certain conditions, a statement on which the learnedvakils for the appellants lay great stress, yet having regard to the conditionsmentioned in the letter, and more fully set out in the 7th paragraph of theAssistant Commissioners Report of 1860, Ex. 7, filed by the plaintiffsthemselves, we think it clear that it was never the intention of Governmentthat the offerings should thenceforth become the property of the ojha. It wasargued that the offerings were intended to become the property of the highpriest, subject only to certain trusts. But if that were so, there would havebeen no necessity for his submitting accounts as required by the 9th conditionset forth in the last-mentioned document, the balance left after defraying allnecessary expenses being his property. Again, the trusts imposed are by nomeans certain; they are of a most indefinite character, and the feeding of thepoor and the infirm required by the 10th condition might at any time exhaustthe whole of the offerings. The conditions imposed are, in our opinion,incompatible with the supposition that the offerings were intended to belong tothe ojha. To our minds they clearly indicate that the ojha was regarded only asa trustee or manager of the shrine and of its proceeds, including theofferings; and this view is fully confirmed by the Boards letter of the 20thSeptember 1822, Ex. 5, filed by the plaintiffs, in the concluding paragraph ofwhich the Board say:

With this view we propose requiring from the ojha who may beeventually nominated such periodical accounts as will be calculated to supplythe necessary information respecting the extent and nature of every source ofreceipt and object of disbursement, and we believe that with the exercise of anactive superintendence on the part of the local agents, it will be practicableso far to control the conduct of the ojha in the administration of the temporalduties of his office, as will preclude the possibility of any extensivemisapplication of the funds committed to his charge.

22. The letter of the Local Agent to the Board of Revenue,dated the 23rd February 1825, embodied in the proceedings of the Board, datedthe 1st March following, and Exhibit F, support the same view.

23. It is argued for the appellants that the mode in whichthe offerings have all along been appropriated by the ojha proves that theybelong to him. On the other side, it is contended that such appropriation, evenif established, will only show abuse of trust on the part of the ojha, butinstances of former abuse of trust cannot be pleaded against a trustee who isnow seeking to prevent a repetition of abuse; and the case of Jaggat MohineeDassi v. Sakhi Monee Dassi 10 B.L.R. 19 : 17 W.R. 41 : 14 Moore I.A. 289 iscited in support of this contention. Though that is undoubtedly so, when thetrust is admitted or proved, yet, when the question to be determined is whethercertain property is trust property, or whether it belongs to the allegedtrustee in his own right, instances of the appropriation of such property bythe alleged trustee to his own use, if they are numerous and extend far backinto the past in a continuous series, will be good evidence of his right; butif the instances are only recent or are few and far between, they are notlikely to be of much value, and may be treated merely as instances of abuse oftrust. Now after carefully considering the evidence adduced in this case wemust say that the instances of appropriation proved are of the latterdescription and not of the former. The instances given by the witnesses as wellas those given in the documents are for the most part recent, and they are fewand far between. Moreover, some of the instances deposed to by the witnessesare, when examined, found not to be instances at all of unauthorizedappropriation of the offerings by the ojha to his own purposes. Thus witnessNo. 3, Amrito Saha, admits in cross-examination (see page 27 of the Paper Book)that the dues of the creditors about whose decrees he has spoken, were onaccount of the worship expenses of the mat; while the expenses of sradhs and ofother ceremonies in the family of the ojha, which the ojha is said to havesupplied out of the offerings, may be treated as legitimate expenses which hewas authorized to make out of the temple funds just as he is authorized to maintainhimself out of the same. Then, again, part of the evidence (see the depositionsof Ashutosh Jha, witness No. 2, and of Harihar Lall witness No. 6) proves toomuch, when it seeks to make out that no distinction is made between theofferings and the income of property which is admittedly debutter.

24. It remains to consider the effect of the decisionsreferred to, in which the ojhas right to the offerings is said to have beenrecognised. These are certain decisions of the civil Courts passed in differentstages of a suit for maintenance, somewhat similar to the present, brought byone Sib Datta Jha in the year 1848 against Isrinund Datta Jha, the predecessorin office of the present ojha. They cannot operate by way of res judicata, notbeing judgments inter partes, but they are evidence under Section 13 of theEvidence Act, upon the present question, which is one as to the existence of aright by custom; and they are certainly entitled to careful consideration. Themost important of these decisions is that of the Sudder Dewanny Adalut ofCalcutta, dated the 7th of June 1856, which is reported in the Sudder DewannyAdalut Reports of 1856, page 512, and of which a certified copy is filed withthe record of this case.

25. In that decision, in dealing with the third issue, whichran in these words-" The income of Baijnath has been specially assignedfor the purposes of the temple. Can it be alienated or not the learned Judgesof the Sudder Court say: "The objection raised to the third issue of appellantis beside the question before us, for the agreement upon which this suit isbased is altogether silent regarding the source whence the yearly payments areto be made; but granted for arguments sake that it were otherwise, we- holdthe objection untenable, the precedents of this Court having clearlyestablished that the surplus of the income arising from offerings made attemples may, after all proper and necessary expenses have been defrayed, bedivided amongst the parties interested in any mode that may be agreed toamongst themselves."

26. This passage of the judgment clearly shows that thepresent question did not properly arise in the former suit, and what was saidwith reference to it may therefore be treated as an obiter dictum. Moreover,what was said by the learned Judges has no reference to any special custom ofthe temple of Baidyanath, but refers to offerings made at temples generally.With all respect for the learned Judges, we must say that to the broadproposition of law thus laid down by them, we are unable to assent. Where anyproperty is not wholly debutter, but is only charged with certain religioustrusts, there the surplus which remains after the performance of the trusts isno doubt attachable for the debts of the person beneficially entitled to thesurplus. See Ashutosh Dutt v. Doorga Charan Chatterjee I.L.R. 5 Cal. 438 : L.R.6 IndAp 182. But that is not the case before us. Here the offerings areadmittedly made to the idol (see the deposition of the plaintiff Girijanund,page 16 of the Paper Book). Their very name charao shows that they are placedeither actually or symbolically on the head of the idol when the offering ismade. The purposes, again, to which they are required to be appropriated in thefirst instance, that is, the trusts with which they are said to be charged, areof an indefinite character and may exhaust them completely. And the onlydefinite right which the ojha seems to have in them is to maintain himself andthe dependent members of his family out of them.

27. Such being the case, it would be reversing the order ofthings to say that the offerings constitute the property of the ojha subject tocertain religious trusts, when the correct view to take is, that theyconstitute the property of the idol subject to certain rights of the ojha. Whensome of the most beneficial objects of the endowment, such as the feeding ofthe poor and the infirm (see Clause 10, para. 7 of plaintiffs Ex. 7) are of anindefinite extent, to hold that the ojha is entitled to the surplus of the offerings,would be to place the trustee or manager in a position to cut down theindefinite expenses to the lowest possible limits for his own individualbenefit. Such a view can never be sound.

28. There are two important facts proved in the case, whichmake the correctness of the view we take clear beyond doubt. One of these isthe fact that the ojha, or high priest of Baidyanath is required to be above acertain age and to lead an ascetic life. This is proved by the plaintiffswitness Ashutosh Jha and by their Exhibit 7, the Report of the AssistantCommissioner, dated the 4th May 1860 (see para. 7, Clause 12). The other is thefact proved by the deposition of the plaintiff Girijanund that, besides makingtheir offerings to the idol, pilgrims pay pranamis or fees to the ojha. Thecondition imposed on the high priest that he should lead an ascetic lifeimplies that his temporal wants must be of a very limited nature, so that hecan have no occasion for misappropriating the funds of the shrine; and thepayment of separate fees to him shows that the offerings to the idol are notintended to be appropriated by him.

29. Last of all it was urged in support of the plaintiffsright to enforce the charge claimed that, even if the surplus of the offeringsdo not belong to the ojha, they are still chargeable by him with themaintenance of members of his family; and para. 4 of Exhibit 3 was relied upon.Conceding that the humane provisions of the Hindu law relating to maintenancewould authorize the ojha to maintain out of the temple funds certain of hisrelations in the same way as he is authorized to maintain himself, they canonly be those dependent and helpless members of his family whom he is underthat law bound to maintain; and clearly the plaintiffs in this case do not comeunder that description. Nor can Exhibit 3, which merely contains a specialrecommendation with reference to a particular case, help the plaintiffs much.

30. For all these reasons we are of opinion that the firstground of appeal is not tenable upon any view of the case.

31. The consideration of the second ground need not detainus long. The plaintiffs admit in their plaint (para. 5) that the office of ojhaor high priest is elective, though the election is confined within their familycircle. It is true that the defendant denies this in his written statement; butthe evidence adduced by the plaintiffs (see the deposition of the plaintiffGirijanund and of their witness Ashutosh) shows that the office is not astrictly hereditary one. Their documentary evidence leaves the matter to someextent in uncertainty. The earlier proceedings of the Board of Revenue showthat the Board exercised some control over the appointment of successors to theoffice, though they admitted the office to be as a rule hereditary, while intheir later proceedings they disclaim all authority to control the succession.But whether the office is elective or hereditary, no holder of it can bind hissuccessors in office by any act, unless it is for the benefit of the endowment;and it is clear, as has been shown in the judgment of the Court below, that theekrar upon which the plaintiffs base their claim cannot be said to have beenentered into for the benefit of the endowment. The plaintiffs cannot,therefore, have any right to recover the money decreed from the defendantssuccessors in office.

32. The third ground of appeal is clearly untenable. Aformer abuse of trust, such as is shown by the stipulation in the ekrarcharging the offerings with the allowance to the plaintiffs, cannot be set upagainst a party who seeks to prevent repetition of such abuse in future. Thecase of Jaggut Mohinee Dassi v. Sakhi Monee Dassi 10 B.L.R. 19 : 17 W.R. 41 :14 Moore I.A. 289 is conclusive authority on the point.

33. The grounds urged before us therefore all fail, and theappeal must consequently be dismissed with costs.

34. Turning now to the cross-appeal, we think the firstground ought to succeed to this extent, namely, that the claim in respect ofthe time preceding the last six years before the date of institution of thesuit ought to be disallowed, as barred by limitation. The suit being based uponthe ekrarnama of the defendant which is a contract in writing registered, theperiod of limitation applicable to it is six years under Article 116, ScheduleII of the Limitation Act [see Nobocoomar Mookhopadhya v. Sent Mullick I.L.R. 6Cal. 94]. The Court below has held that the allowance claimed being one formaintenance, the period of limitation applicable to it is twelve years. Thelearned Subordinate Judge evidently thinks that Articles 128 and 129 govern thecase. This view is clearly wrong. Those Articles, in our opinion, apply only tocases in which the right of maintenance is based upon the Hindu law. They canhave no application to a case like the present in which the right is basedentirely upon a contract, merely because the persons claiming under thecontract are Hindus. The application of those two Articles depends not upon thenationality of the plaintiff, but upon the nature of his right; and the words bya Hindu "used in the Articles must be taken to mean" by a personclaiming under the Hindu law." If it were otherwise, and if these wordswere taken literally, it would lead to this anomalous result, that a Hinduservant of a Christian or a Mahomedan, to whom his master may have grantedmaintenance by a deed in consideration of his past services, would be entitledto twelve years limitation in respect of his claim, while a servant of themasters own nationality and creed would be entitled only to six years or threeyears in respect of a similar claim, according as the deed in his favour was orwas not registered. This could never have been intended. As a further reasonfor his decision that no pact of the claim is barred, the learned SubordinateJudge adds that the plaintiffs have the right to appropriate the payment insatisfaction of the earlier arrears; that they have in fact made suchappropriation in the account annexed to the plaint; and that even if they havenot done so, the Court can allow such appropriation to be made now. This viewis not, in our opinion, correct. Granting that the conditions under which theplaintiffs are entitled under Section 60 of the Contract Act to appropriatepayments to the discharge of the earlier debts, were satisfied, we do not thinkthat the account referred to makes any such appropriation. It is a runningaccount in which every year the amount due at the end of the last precedingyear is added to the amount due for the year, and the payment made during theyear is deducted from the same without any specification as to whether thepayment is deducted from the former amount or the latter; and the paymentcannot now be applied under Section 61 of that Act to the discharge of earlierarrears, which are now barred by limitation. Practically the difference is notvery great. The suit was brought on the 16th of January 1891, corresponding tosome time in Magh 1297, the allowance is an annual one; and six years being theperiod of limitation, the claims for the years beginning with 1291 are withintime. The only part of the claim that is barred is the balance due at the endof 1290, which according to the account appended to the decree is Rs. 1,064-8.

35. With reference to the second ground of cross-appeal, itis argued in the first place that as the ekrar in question contains no personalcovenant to pay, but only creates a charge on the offerings which is invalid,no personal decree ought to have been made; and in support of this argument thecase of Narotam Dass v. Sheo Pergash Singh I.L.R. 10 Cal. 740 [LQ/PC/1884/1] is cited. It isnext contended that, even if there was a personal contract, it cannot beenforced, as there was no valid and legal consideration for the contract. Onthe other side it is urged that it is not open to the defendant now to deny hispersonal liability under the ekrar, when in paragraph 13 of his writtenstatement he admitted such liability, and merely questioned the correctness ofthe plaintiffs account and pleaded payment in reduction of the claim. We areof opinion that the admission of the defendant should be taken in its entirety,and that it is open to the defendant to contest his liability for any sum inexcess of that admitted to be due, upon any ground that he may think fit tourge, provided no new case is made in appeal, and the other side is not takenby surprise. We shall therefore examine the argument advanced.

36. Upon the first branch of the argument, it is enough tosay that the question is one of construction of the ekrar; that the case citedis clearly distinguishable from the present, the documents in the two casesbeing very different from one another in their language; and that the ekrarupon which the suit is based contains in our opinion a personal contract topay, when the defendant in that document says to the plaintiffs: "You andyour descendants shall from generation to generation continue to get from yearto year the said sum of Rs. 2,400 from me and my representatives, &c.

37. In support of the second branch of the argument thepreamble of the ekrar is relied upon, and it is urged that upon the death ofIsrinund, the last ojha, either the defendant was entitled to the office, inwhich case the plaintiffs gave up nothing, and so there was no considerationfor the ekrar, or he was not, and one of the plaintiffs was, in which case itwas a sale of the office or a bargaining for it, and the consideration wasillegal, such sale of, or bargaining for, a public office like that of the highpriest of a public shrine being opposed to public policy. And PollocksPrinciples of Contracts (5th edition), page 313; Leakes Law of Contracts (3rdedition), page 624, and the cases of Juggurnath Roy Chowdhry v. Kishen PershadSurma alias Raja Babu 7 W.R. 266, Durga Bihi v. Chanchal Ram I.L.R. 4 All. 81,Narasimma Thatha Acharya v. Anantha Bhatta I.L.R. 4 Mad. 391, Kuppa Gurukal v.Dora Sami Gurukal I.L.R. 6 Mad. 76, Raja Varmah Yalta v. Rapi Varma Kunhi KuttyI.L.R. 1 Mad. 235 [LQ/MadHC/1963/305] are relied upon as authorities. On the other side are citedthe cases of Mancharam v. Pranshankar I.L.R. 6 Bom. 298 and Sitarambhat v.Sitaram Ganesh 6 Bom. A.C. 250.

38. Having regard to the facts of this case, we are ofopinion that this contention is not valid. The ekrar (Ex. 2) no doubt recitesthat both the plaintiffs and the defendant tried to obtain the post of the highpriest on the death of Isrinund, and that this dispute concerning thesuccession was settled by that document; it also recites that Isrinund had byan ekrar dated the 24th Baisakh 1271 granted to the plaintiffs and their heirsin succession an annuity of Rs. 2,400 for their maintenance. The defendantSailajanund is the eldest son of Purnanund, who was the eldest son of the lateojha Isrinund, but who died before his father; and the plaintiff Ghjjanundappears to be the eldest surviving son of Isrinund. The earlier letters of theGovernment and of the Board of Revenue (see Exhibits 3, 5 and 6) show thatsuccession to the office of ojha or high priest, though generally hereditary,is still governed by the elective principle to this extent that the priests or.members of the family of the ojhas have a voice in the determination of thequestion whether the person entitled to succeed by inheritance is alsoqualified by his age (which is required to be above forty years) and hischaracter; and though in their later communications, that is, those of 1839(see Exhibits 19 and 20) they withdraw their control over the appointment ofthe ojha, still they regarded the succession as partially elective, when theysaid "that the priests of the temple should be left at liberty to choosetheir own superior without restriction of age or other qualification."Moreover, it had never been authoritatively settled that the succession to theoffice of ojha was regulated solely by the principle of lineal primogeniture ascontended by the defendant. In that state of things it is impossible to saythat at the date of the ekrar there could not have been any bond fide disputeas to the right to succeed, and that the plaintiffs did not abandon a bond fideclaim. And if that was so, it cannot be said that the ekrar was withoutconsideration. (See Pollocks Principles of Contracts, 5th Edition (page 181),and Miles v. New Zealand Alford Estate Co. L.R. 32 Ch. D. 266.

39. Then as regards the contention that the consideration,if there was any, was illegal as it involved the sale of, or bargaining for, apublic office, we are of opinion that the English cases relied upon andreferred to in Pollocks Principles of Contracts, p. 313, and in Leakes Law ofContract, p. 624 are inapplicable to this case. They are based either upon theprovisions of particular statutes, or upon considerations of public policyinapplicable to an agreement like the one embodied in the ekrar, by whichparties having bond fide claims to a priestly office effected a compromise oftheir disputed civil rights. In two of these cases again, Parsons v. Thompson 1H.B. 322 and Waldo v. Martin 4 B. and C. 319, the decision against theagreement is based upon the ground of the agreement involving a fraud (upon thepublic in the first-mentioned case and upon the individual in whose gift theoffice was in the second).,

40. The Indian cases cited are somewhat in conflict with oneanother, but they do not really affect the question as to the validity of theagreement upon which this suit is based. Juggernath v. Kishen Pershad 7 W.R.266 only decides that the judgment-debtors right as sebait cannot be sold inexecution of a decree. In Durga Bibi v. Chanchal Bam I.L.R. 4 All. 81, the samerule is laid down, with a qualification, however, which favours the appellants.The learned Judges say: "We are of opinion in default of any proof to thecontrary that the right of managing the temple, of officiating at the worshipconducted in it, and of receiving the offerings at the shrine cannot legallypass outside family of the trustee, Sadhu Misr, until absolute failure ofsuccession in his family." In Narasimma Thatha Acharya v. Anantha BhattaI.L.R. 4 Mad. 391, and Kuppa Gurukal v. Dorasami Gurukal I.L.R. 6 Mad. 76, thesale of a priestly office for the pecuniary benefit of the sebaitfia declaredto be invalid, and in Raja Varma Valia v. Ravi Varma Kunhi Kutty I.L.R. 1 Mad.235, the Privy Council held that a custom allowing the sale of the office oftrustees for the pecuniary advantage of the trustees, even if it wasestablished, would be bad in law. On the other hand, the case of Mancharam v.Pranshanker I.L.R. 6 Bom. 298, while affirming the invalidity of an alienationof the office of sebait to a stranger, upholds an alienation made in favour ofa member of the founders family standing in the line of succession; and to thesame effect is the case of Sitarambhat v. Sitaram Ganesh 6 Bom. H.C. 250.

41. These decisions, so far as they relate to publicoffices, are based more or less upon one of two principles, namely, first, thatthe interests of the public might suffer, if bargains relating to publicoffices are upheld, as their effect is to prevent such offices being filled bythe best available persons; and, second, that no such office should be treatedas the private property of any incumbent, and as such capable of being sold byhim or of being brought to sale in execution of a decree against him, as such asale might lead to public inconvenience. The agreement before us obviously doesnot infringe this second principle, as there was no sale of the office of ojhahere. As far as the first-mentioned principle goes, that can hold good only inthose cases in which the office is of such a nature that no one has more claimto it than what his personal fitness gives him, and no one has any right toquestion in a Court of Justice the correctness of the decision of the person orpersons, in whose gift the office is. When, however, as in the case before us,the only persons who can have any claim to the office are members of a familygroup, and the nature of the office is such that claims to it must beultimately determined by the decision of a Court of Justice, and bond fideclaimants to the office compromise their claims by an agreement for a pecuniaryconsideration, the propriety of the agreement has to be judged of not merelywith reference to the above-mentioned principles, but with reference to variousother considerations besides. In fact, conflicting considerations arise in suchcases. On the one hand, it may be said that the rights of the rival claimantshould be determined by the Court, so that the office may be held by the personfound best entitled to it. On the other hand, it is to be borne in mind thatlitigation concerning succession to a public office always involves a certainamount of inconvenience to the public and some waste of the funds of theendowment to which the office appertains; and where the qualifications of therival claimants are evenly balanced, so far as the public are concerned, itwould conduce more to the interests of the public by allowing a compromise thanby prohibiting it, provided the nature of the compromise is such that it doesnot interfere with those interests. We are of opinion that in cases like these,it is not possible to lay down any hard and fast rule of law which can be ofgeneral application. Each case ought to be determined upon its own facts. Andhaving regard to the nature of the office in this case, to the nature of thedispute relating to it, and to the nature of the compromise effected, we arenot prepared to say that the agreement in question is invalid by reason of itsbeing opposed to public policy.

42. It remains only to consider the last ground ofcross-appeal, namely, that relating to the claim for interest. Having regard tothe terms of the ekrar, we are of opinion that interest has been rightlyallowed. The claim is one for a certain sum, payable by virtue of a writteninstrument at a time certain (that is at the end of each Bengali year), withinthe meaning of Act XXXII of 1839; and the rate at which interest has beenawarded, namely, 12 per cent, per annum, may fairly be regarded as notexceeding the current rate, that being the rate allowed by the Legislature incertain oases (Act VIII of 1885, Section 67).

43. The result then is, that the appeal, is dismissed withcosts and the cross-appeal allowed with proportionate costs in both Courts tothis extent, namely, that the sum of Rs. 1,064-8, being the portion of theamount decreed that is barred by limitation, shall be deducted from thatamount; and the appellants are entitled to costs in this cross-appeal inproportion to the amount disallowed; but the order made in the cross-appealwill be subject to the condition that the respondent shall pay within one monthfrom this date the additional Court fee payable on the memorandum ofcross-appeal under Section 16 of the Court Fees Act, that is, the sum of Rs.335, and if this sum is not paid as directed, the cross-appeal shall standdismissed with costs. Except as indicated above, the decree of the Court belowshall stand.

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Girijanund Datta Jha and Ors. vs. Sailajanund Datta Jha(25.02.1896 - CALHC)