Mookerjee, J

[1] Take the question of estoppel first.

[2] It does not arise at all. A former abuse of trust cannot be pleaded against a trustee

who seeks to prevent a repetition of that abuse, even if he were formerly implicated in the same indefensible course against which he is seeking to protect the trust property: Juggut Mohini v. Sokheemoney (1871) 14 Mad. I. A. 289 : 17 W. R. 41,

44. and Mallika v. Ratanmani (1897) 1 C. W. N. 493.

[3] What do yon say as to the case of Doe v. Horne (1842) 3 Q. B. D. 760, 766 : 61 R. R. 397. In that case the mortgagors were empowered to raise money on mortgage, while here the palms cannot be alienated.

[4] There was no issue on estoppel; that question has been raised here for the first time.

[5] Here the transfer is void under Statute, i.e., Scripture of Hindu Law. For the principle against estoppel, see Bigelow p. 514, Ch. 17, Section 1.

[6] Next, as regards the second contention of the appellant, I submit that the custom of transferring a pala or selling the office of a shebait: even to a person of the same caste or sect can never be reasonable and valid: see Kuppa v. Dorasami (1882) I. L. R. 6 Mad. 76., Juggurnath v. Kishen (1867) 7 W. R. 266. and Raja Vurmah v. Ravi Vurmah (1876) I. L. R. 1 Mad. 235 : L. R. 4 I. A. 76.

[7] To validate such a custom would tend to public mischief in inducing needy incumbents of hereditary religions offices who desire to sell them to give a dishonest recognition to qualifications, which in fact were not the qualifications demanded by the nature of the office. I submit that no custom can validate an act which is clearly against public policy. The offerings made by Hindus to a public shrine constitute a public trust, in which the trustee can never have any beneficiary interest, and any appropriation by them of the same would be a clear breach of trust; no custom recognising such appropriation can alter the character of such a transaction, or validate the same.

[8] See Rajeshwar v. Gopeshwar (1907) I. L. R. 35 Calc. 226, 229., which lays down the rule that shebaits cannot bequeath their office by will to non-shebaits. See also Mitta Kunth v. Neerunjun (1874) 14 B. L. R. 166. Even if the owners of private temples may alter the character of the trust to a certain extent by family arrangement, still the trustees of the Kalighat temple can never do so, because, as both the Courts below have found, it is a public temple.

Beachcroft J.

[9] Then you have been abusing your trust, and you now want the Court" to put you in a position to continue doing so.

[10] Further, the alleged custom of transferability of palas does not bear the requisite characteristics of a valid legal custom. For it is not certain, reasonable, immemorial, legal or moral. The earliest instance of transfer of a pala goes back only to 4th October 1819 or about 90 years before the institution of this suit; not even to the beginning of the establishment of regular Courts of Record in British India, while the foundation of this Trust is lost in the oblivion of mythical ages.

[11] The transfer of palas is an abuse of trust, and by implication, mis-appropriation: Raja Vurmah v. Ravi Vurmah (1867) 7 W. R. 266. For the personal debt of a shebait, trust property cannot be sold; of. the position of the manager of an infant heir.

Mookerjee J.

[12] There is great danger in developing superficial analogies.

[13] If this custom be upheld, extravagance among shebaits will be encouraged. Public policy must be vindicated, whether the plaintiff lose her money or not.

Mookerjee J.

[14] But yon have not got beyond extravagance, encouraged by any possible decision of ours.

[15] Misappropriation does not alter the character of the trust. Even a mourasi mokurari lease of landed property granted to a co-shebait has been held to be void. Regarding the Baidyanath Temple case, is pala or turn of worship the same as charao. No custom was pleaded there; Girijanund v. Sailajanund (1896) I. L. R. 23 Calc. 645.

Mookerjee J.

[16] The contention of the other side is not that the Kalighat temple palas are transferable, as a matter of right under Hindu Law, but that they are so by custom.

[17] Even if such a custom is proved, it is bad in law: see Mallika v. Ratanmani (1897) 1 C. W. N. 493.

[18] Instances of continued abuse of trust for 90 years will not make the custom valid.

[19] Kuppa v. Doraswami (1882) I. L. R. 6 Mad. 76; custom was not pleaded there. See also Golap Ch. Sastri s Hindu Law, p. 486, 491.

[20] The custom found by the District Judge to be in existence relates to private and not public endowments: Janokee v. Gopaul (1877) I. L. R. 2 Calc. 365. See also K. K. Bhattacharyya on Hindu Law, p. 453. A turn of worship, cannot be called a shape. [Mayne s Hindu Law paras, 437, 438.]

[21] As to a foreclosure decree, I submit that a pala or turn of worship has been held in all the reported cases to be moveable property. As a foreclosure decree can only he made with respect to mortgages of immoveable property, the provisions of the Transfer of Property Act which refer to foreclosure of mortgages of immoveable property only, and Order 34 of the Civil Procedure Code of 1908 (applying also to mortgages of immoveable property) are inapplicable to mortgages of palas. There is no provision of Indian Law for granting a decree for foreclosure in the case of pledge, or mortgage of moveables.

[22] Balm Mahendra Nath Roy, in reply. It has been urged, that we cannot have a foreclosure decree because a pala is not immoveable property. See Fisher on Mortgage, 6th Edition, Article 985, p. 505. A pledge presupposes delivery of possession. (Contract Act, Sections 172. 148.)

[23] For the difference between a pledge and a mortgage, I refer to pages 107 and 320 of Ghose s Mortgage. A pledgee can realise his money by sale of the pawn: Harrold v. Plenty (1). Regarding foreclosure of a mortgage of moveables, see Coote on Mortgages, 7th edition. Ch. 49, para I, p. 1019.

[24] [Babu Atul Krishna Roy. See Halsbury s Laws of England, Vol. I, p. 1

23. Section 58 of the Transfer of Property Act refers to mortgages of immoveable property.]

Cur. adv. vult.

Mookerjee J.

[25] This is an appeal by the plaintiff in a suit for foreclosure of a mortgage by way of conditional sale, executed in her favour by the defendants on the 16th August 1905, in renewal of two previous conditional mortgages, dated the 8th October 1900 and 9th December 1901. The earlier mortgages had been granted to secure loans of Rs. 1,400 and 800, respectively. The mortgage now in suit was given to secure the sum of Rs. 2,200 which was to carry interest at the moderate rate of 6 per cent, per annum and was made repayable on the 16th August 1908. The subject-matter of the security consisted of three palas or turns of worship held by the mortgagors in the temple of the goddess Kali at Kalighat. The mortgage money was not repaid on the duo date, and the plaintiff commenced this action on the 13th September 1909, to recover the sum with interest and costs. The plaintiff alleged in the plaint that the palas were transferable according to immemorial custom. The first defendant, who alone contested the claim, set up in his written statement the case that the palas were not transferable by custom, and that even if the alleged custom was proved, no Court should recognise and enforce it, as it was unreasonable and opposed to public policy. The Subordinate Judge held that the palas were transferable by custom in a limited market, that the custom was neither unreasonable nor opposed to public policy, and that the plaintiff was accordingly entitled to a foreclosure decree. On appeal, the District Judge has reversed this decision and has given the plaintiff, only a personal decree against the defendants, as in his opinion the custom of transferability of palas was opposed to public policy and unenforceable in a Court of Justice. On the present appeal by the plaintiff, three substantial grounds emerge for consideration, namely, first, are the mortgagors estopped to deny the validity of the mortgage on the ground that the property given by way of security was inalienable secondly, is the custom of transferability of palas reasonable so that it may be recognised and enforced by a Court of Justice and, thirdly, is the plaintiff entitled to a foreclosure decree, in view of the nature of the property given by way of security Before I deal with these questions, it is necessary to define the custom which, the Courts below have concurrently found, does exist in respect of this particular religious foundation.

[26] The Courts below have found that palas are ordinarily transferred by sale, mortgage, lease and gift, and that they are also the subject of partition and of testamentary devise. This is proved, not merely by oral evidence, but also by evidence of concrete instances in which such transactions have come before Courts and have been upheld as legal. One of the earliest transactions of which we find mention is a mortgage by way of conditional sale of a pala, which was executed on the 4th October 1819 and was foreclosed in due course. We have other instances of conditional mortgages, dated 11th April, 1831 and 29th June, 1831 which were both foreclosed in 1837. We have further a conditional mortgage of the 18th February, 1835, which was foreclosed on the 8th August, 1840, after contest in a suit in which the mortgagor unsuccessfully pleaded that the pala was non-transferable. A more modern instance is a conditional sale of 1864 which was foreclosed on the 16th December, 1867. Instances of sales of palas, specially in recent years, are quite numerous, and it is not disputed that two of the palas in suit were acquired by the father of the first defendant, mortgagor, by purchase. Instances have also been adduced in which palas have been sold in execution of decrees, have been leased out for longer or shorter periods, have been bequeathed like other property, and have, in fact, formed the subject of transfer in some form or other. One of the most recent instances on the record is a decree of this Court, dated 30th August, 1900, which directed possession to be delivered of a pala which had been mortgaged by way of conditional sale, followed by a decree for foreclosure. It has been conclusively proved that 83 palas out of 360 have changed hands permanently. These facts amply justify the concurrent finding of the Courts below that the custom of transfer of palas of the Kalighat shrine has been established beyond the shadow of a doubt; the existence of the custom has been traced back almost to the time of the first establishment of British Courts in this country, and even as early as 1810, the Court found that the custom of transfer was fully established. The evidence, at the same time, establishes that these transfers have not been unrestricted, but have been confined to co-shebaits or to the members of families to whom a shebait can bestow his daughter in marriage; in other words, there is undisputed and overwhelming evidence, oral and documentary, that in practice palas have been transferred during at least 90 years, though in a limited market which those alone can enter who are qualified to become shebait by birth or marriage. Only one instance boa been traced in which a transfer, in favour of an absolute stranger not connected with the hereditary shebaits by blood or marriage, has been recognised, but the transferee in that case was the hereditary pujari or priest whose function, it must be observed, is entirely distinct from that of a shebait. The plaintiff is the widow of one Jnanendra Nath Mookerjee who was the son of the daughter s son of a member of the senior branch of the family of Haldars who are the hereditary shebaits of the goddess Kali. The husband of the plaintiff: was also the son of a daughter of a Haldar, in other words, the husband of the plaintiff was descended from the Haldars on the paternal as also on the maternal side. The plaintiff is, consequently, a possible shebait; in other words, the contingency might have happened which would have entitled the plaintiff to take one or more pains by inheritance. The plaintiff is plainly entitled to the benefit of the custom, and this conclusion does not in any way contravene the well-established rule that a custom cannot be enlarged by parity of reasoning; Arthur v. Bokenham (1708) 11 Mad. 148, 161., Pradyote v. Gopi Krishna (1910) I. L. R. 37 Calc. 322, 326. The plaintiff is conclusively proved to belong to a class of persons to whom palas have hitherto been transferred and the transfers have been recognised as valid. Consequently, if the validity of the custom, is established, there is no conceivable reason, why the plaintiff should not by foreclosure become entitled to the three palas in dispute.

[27] As regards the first question, it has been argued on behalf of the mortgagee that as no mini is allowed to dispute a title which he himself has granted, the mortgagor cannot set up against his mortgagee the title of a third person; this cannot be disputed: Doe v. Pegge (1785) I. T. R. 758., Goodtitle v. Bailey (1777) 2 Cowper 597, 601., Doe v. Vickers (1836) 4 A. & E. 782. Doe v. Clifton (1836) 4 A. & E. 809, 813., King v. Smith (1900) 2 Ch. 425., Debendra Nath v. Mirza Abdul Samed (1949) 10 C. L. J. 150, 163. The rule has been held applicable where the mortgagor is a trustee, acting in a public capacity and not for his own benefit [Doe v. Horne (1842) L. R. 3 Q. B. 760, 766 : 61 R. R. 397., notwithstanding the contrary dictum in Fairtitle v. Gilbert (1787) 2 T. R. 169, 171., Doe v. Hares (1833) 4 B. & Ad. 435, 440.], and the principle has been repeatedly approved and applied in the Courts of the United States that a mortgagor is estopped to deny his title, and cannot set up as a defence for himself against the mortgagee that the property so mortgaged is trust property, which he has no right to mortgage: Bush v. Marshall (1848) 6 Howard 284., Strong v. Waddell (1876) 56 Ala. 471., Jones v. Reese (1880) 65 Ala. 134., Farris v. Houston (1883) 74 Ala. 162., Boisclair v. Jones (1867) 36 Ga. 409., Usina v. Wilder (1877) 58 Ga. 178., McLean v. Smith (1880) 49 Wis. 200. The reason for the rule is concisely pat by Collier C. J. in Stewart v. Anderson (1846) 10 Ala. 504, 508.: "by the mortgage, the mortgagor professes to convey, and thus declares that he has an interest co-extensive with what ho undertakes to transfer; and he will not be heard to way, in contradiction of his own deed, or in opposition to a claim founded thereon, that ho was guilty of ii falsehood and had no estate or interest therein". This principle has been, held inapplicable whore the mortgage is void as contrary to Statute [Brewster v. Madden (1846) 10 Ala. 504, 508.], on the ground that "it is not competent to parties to a contract to estop themselves or anybody else in the face of an Act of Parliament": Barrow s case, (1880) 14 Ch. D. 432, 4

41. Hence, it has been ruled that a corporation, is not estopped from, pleading that a mortgage made by it is ultra vires: Ex parte Watson (1888) 21 Q. B. D. 301, 302. See also Fairtitle v. Gilbert (9), Blackburn v. Cunliffe (1885) 29 Ch. D. 902., British M. B. Co. v. Charnwood, F. R. Co. (1887) 18 Q. B. D. 714, 71

9. But the view has been steadily maintained that trustees for a public purpose are not, by the nature of their office, protected from the operation of estoppel as against the assignees of the original parties to the deed in question: Doe v. Horne (1842) 3 Q. B. D. 760, 766 : 61 R. R. 397., Webb v. Herne (1870) 5 Q. B. D. 642., Biggs v. Assam Tea Co.(1869) L. R. 4 Ex. 387. I am not prepared to accept the view indicated by Banerjee, J., in Mallika v. Ratanmani (1897) 1 C. W. N. 493, which receiver no support from the decision of the Judicial Committee in Juggal Mohini v. Sokheemoney (1871) 14 Mad. I. A. 289; 10 B. L. R. 19; 17 W. R. 41, cited in support of this position; but there are oases where trustees have been allowed to impeach their own grants: Rumonee v. Baluck (1870) 14 W. R. 101, and conflicting dicta arc to be found in Gulam Nabi v. Nagammal (1896) 6 Mad. L. J. 270., and Gulzar v. Fida (1883) I. L. R. 6 All. 24. [Sec Sidhu Sahu v. Gopi Charan (1912) 17 C. L. J. 233, 237. where the earlier cases are discussed.] I am the opinion that in the ease before us, the Court should, not depart from the; ordinary rule that the mortgagor cannot dispute the title of the mortgagee, specially in view of the express declaration of the mortgagors in the fourth paragraph of the mortgage deed that "no objection on their part or on behalf of their heirs or representatives shall be maintainable." But I do not desire to rest the decision, solely oil the ground of estoppel, for, as will presently be seen, there is no substance in the objection raised by the mortgagors.

[28] An regards, the second question, it has riot been disputed on behalf of the mortgagee that in the absence of a custom or usage to the contrary or any term to that effect in the deed of endowment, a religions trust or the right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder: Raja Vurmah v. Ravi Vurmah (1876) I. L. R. 1 Mad. 235 : L. R. 4 I. A. 76., Rama Varma v. Rama Nayar (1882) I. L. R. 5 Mad. 89., Kantian v. Nila Kandan (1884) I. L. R. 7 Mad. 337., Lakshmanaswami v. Rangamma (1902) I. L. R. 26 Mad. 31., Gnanasambandha v. Velu Pandaram (1899) I. L. R. 23 Mad. 271; L. R. 27 I. A. 69., Sarkum v. Rahaman (1896) I. L. R. 24 Calc. 83., Narayana v. Ranga (1891) I. L. R. 15 Mad. 183., Subharayudu v. Kolayya (1892) I. L. R. 15 Mad. 389., Alagappa v. Sivaramasundara (1894) I. L. R. 19 Mad. 211., Rajeshwar v. Gopeshwar (1907) I. L. R. 34 Calc. 828; I. L. R. 35 Calc. 226., Durga v. Chanchal (1881) I. L. R. 4 All. 81., Rup Narain v. Junko (1878) 3 C. L. R. 112., Mallika v. Ratanmani (1897) 1 C. W. N. 493., Rangasami v. Ranga (1892) I. L. R. 16 Mad. 146., Rajaram v. Ganesh (1898) I. L. R. 23 Bom. 131., Ukoor v. Chunder (1865) 3 W. R. 152., Juggurnath v. Kishen (1867) 7 W. R. 266., Kali Charan v. Bangshi (1871) 6 B. L. R. 727; 15 W. R. 339, Dubo v. Srinibas (1870) 5 B. L. R. 617., Ramanathan v. Murugappa (1903) I. L. R. 27 Mad. 192., Trimbak v. Lakshman (1895) I. L. R.

20. Bom. 495., Kuppa v. Dorasami (1882) I. L. R. 6 Mad. 76. There is also authority for the proposition that alienation of a religious office may be validly made in favour of a person standing in the line of succession and not disqualified by personal unfitness, Sitarambhai v. Sitaram (1869) 6 Bom. H. C. R. 250., Mancharam v. Pranshankar (1882) I. L. R. 6 Bom. 298., Annasami v. Ramakrishna, (1900) I. L. R. 36 Calc. 975., Nirad Mohini v. Shibdass (1909) I. L. R. 36 Calc. 375. But the appellant does not invite us to go even as far as this proposition. She asks us to assume that a pala or turn of worship is not alienable, except by custom, and contends that the custom which has been proved in this case should be recognised by the Court: Raja Vurmah v. Ravi Vurmah (1876) I. L. R. 1 Mad. 235 : L. R. 4 I. A. 76., Gnanasamandha v. Velu Pandaram (1899) I. L. R. 23 Mad. 271 : L. R. 27 I. A. 6

9. This raises the question, whether the custom possesses the characteristics deemed essential for the validity of a custom. These essential attributes were specified by Tindal C. J., in Tyson v. Smith (1838) 9 Ad. & E1. 406., in these terms; "A, custom, to be valid mast have four essential attributes: first, it mast be immemorial; secondly, it must be reasonable; thirdly, it mast have continued without interruption since its immemorial origin; and fourthly, it must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect." See also Hurpurshad v. Sheo (1876) L. R. 3 I. A. 259., Raja Vurmah v. Ravi Vurmah (1876) I. L. R. 1 Mad. 235 : L. R. 4 I. A. 76., Lutchmeeput v. Sadaulla (1882) I. L. R. 9 Calc. 698., Ghasiti v. Umrao (1893) I. L. R. 21 Calc. 14

9. In the case before us, the custom obviously satisfies the first, third and fourth requirements. The time when the custom originated is unknown; all that has been ascertained is that, as far as the evidence can be carried back, it has "been in existence. This takes the case out of the rule formulated by Willes J., in Mayor of London v. Cox (1867) L. R. 2. H. L. 239, 258. that "a custom originating within time of memory, even though existing in fact, is void at law." There is no force in the contention that the proof of the existence of the custom should have been carried back by direct evidence to 1793 when the first Regulations were passed by the Indian Legislature, if not to the year 1773, when the Supreme Court was established. It is well settled, that evidence showing exercise of a right in accordance with an alleged custom as far back as living testimony can go, raises the presumption, though only a rebuttable presumption, as to the immemorial existence of the custom. As Tindal, C.J., said in Bastard v. Smith (1837) 2 Moo. & R. 129, 136., yon cannot reasonably expect to have it proved that the custom did in fact exist before time of legal memory; but you are to require proof, as far back as living memory goes, of a continuous, peaceable and uninterrupted use of the custom. To the same effect is the observation of Farwell, J., in Mercer v. Denne [1904] 2 Ch. 534, 550. (1): "not only ought the Court to be slow to draw an inference of fact which would defeat a right that has been exercised during so long a period as the present, unless such inference is irresistible, but it ought to presume everything possible to presume in favour of such a right." It is interesting to note that Vijnaneswara in his Mitakshara enunciated a similar rule (Yajnavalkya, Book 11, 27). On the authority of a text of Katyayana, he holds that "time within the memory of man extends as far as a hundred years", as a man has, according to Sruti, a hundred years duration of life. (Mitakshara, trans., Gharpure, p. 50). Apararka, in his commentary on the same text of Yajnavalkya, treats a period beyond three generations (that is one hundred and five years) as time immemorial, and, refers to an earlier text to show that a period beyond sixty years might be treated as time beyond human memory. In any event, it is well settled that if the existence of the custom has been proved for a long period, the onus lies on the person seeking to disprove the custom, to demonstrate its impossibility; in this case, the mortgagors have entirely failed to meet the evidence of the custom adduced by the plaintiff. There is also no room for serious controversy as regards the certainty and continuity of the custom. The only question, consequently, for consideration is, whether it is reasonable as the appellant contends or unreasonable and opposed to public policy us the respondent asserts. It is indisputable that if a custom be against reason, it has no force in law; but as explained in Co. Litt., 62a, the reason here referred to is not to be understood as meaning every unlearned man s reason, but artificial and legal reason warranted by authority of law; or, as Blacks tone puts it, (Commentaries, Vol. I, p. 77) it is sufficient if ho good legal reason can be assigned against it. When, however, it is said that a custom is void, because it is unreasonable, nothing more is meant than that the unreasonable character of the alleged custom conclusively proves that the usage, even though it may have existed from time immemorial, must have resulted from accident or indulgence and not from any right conferred in ancient times. Salisbury v. Gladstone (1861) 9 H. L. C. 691, 700, 701. It is also well settled that the period for ascertaining, whether a particular custom is reasonable or not, is the time of its possible inception; this is in accord with the observation in the Tanistry Case (1608) Davis 29, 32.: "the commencement of a custom (for every custom hath a commencement, although the memory of man doth not extend to it, as the river Nile hath a spring although geographers cannot Audit) ought to be upon reasonable ground and cause, for if it was unreasonable in the original, no usage or continuance can make it good: Quod ab initio non valuit tractu temporis non convalescet." When tested in the light of these principles, no good ground can be assigned why the custom should be condemned as unreasonable. There is no force in the contention of: the respondents that because the custom contravenes the rule that a religious office is inalienable, it must be pronounced to be against public policy; if this argument were to prevail, all customs would be unreasonable. Since customs in general involve some inconsistency with the general common law of the realm or are contrary to a particular maxim, the fact of this inconsistency is not of itself a ground for holding the custom unreasonable and bad: Tyson v. Smith (1838) 9 A. & E. 406, 4

22. Thus in the Tanistry Case (1608) Davis 29, 33., it is said that "several customs which had been adjudged void in our books as being unreasonable against common right or purely against law, if their nature and quality be considered, will be found injurious to the multitude and prejudicial to the Commonwealth. To the same effect is Co. Litt. 113a; "Consuetudo ex certa causa rationabili usitata privat communem begem." Is there then anything to show that the custom is injurious to the endowment or to the Commonwealth One of the mortgagors has a turn of worship or pala; he is entitled in this character to collect the offerings made to the goddess on the day on which his turn falls; he applies a portion of the income for the worship of the goddess and appropriates the remainder for his personal use. It is not material to consider whether he should not apply the whole of the income for religious and charitable purposes; but let us assume that he and every shebait like him who has a pala may be compelled to do so. He transfers his turn of worship to a person who, in certain contingencies, might in his own right, have been a shebait and might, have held a pala. The transferee, as holder of the pala, is under precisely the same obligation to the endowment as the transferor himself. It is difficult to appreciate how a custom which recognises and validates a transfer to members of a limited circle under these circumstances can be detrimental to the endowment or to the public. There is no question that a pala of 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: Janokee v. Gopaul (1877) I. L. R. 2 Calc. 365, 372. There is also no question that though probably religious offices were originally indivisible, they are now deemed partible: Trimbak v. Lakshman (1895) I. L. R. 20 Bam. 495., Mitta Kunth v. Neeranjun (1874) 14 B. L. R. 166; 22 W. R. 437., Elder Widow v. Younger Widow (1807) 1 Mac. Sel. Rep. 180, Sethuramaswamiar v. Meruswamiar (1909) I. L. R. 34 Mad. 470., Damodardas v. Uttamram (1892) I. L. R. 17 Bam. 271., Nagiah v. Muthacharry (1900)11 Mad. L. J. 215, 222., Limba v. Rama (1888) I. L. R. 13 Bam. 548., Raman v. Gopal (1897) I. L. R. 19 All. 428., Rajeshwar v. Gopeshwar (1907) I. L. R. 34 Calc. 828., Anund v. Boykantnath (1867) 8 W. R. 193., Ram. v. Taruck (1872) 19 W. R. 28., Debendro v. Odit (1878) I. L. R. 3 Calc. 390., Eshan Chunder v. Monmohini (1878) I. L. R. 4 Calc. 683., Goopee v. Thakoordas (1882) I. L. R. 8 Calc. 807. Indeed, the very name pala or turn of worship shows that the right is partible. This involves, by necessary implication, the attribute of transferability as amongst the members of the family of shebaits; partition signifies the surrender of a portion of joint right in exchange for a similar right from the co-owner. There is further no question that a pala has not only been deemed heritable and partible; it has also been treated as devisable, as is illustrated by the case of the Mister of the first defendant, who obtained a, pala under the testamentary devise of her father. This, again, involves the recognition of the transferable character of a pala; the exercise of thy right to make a bequest implies an assertion of the right to make a transfer inter vivos. It follows, consequently, that the customary right to make a sale, mortgage, gift or lease of a, pala in favour of persons within a limited circle is closely associated with and possibly developed out of the heritable, devisable, and partible character of a pala. A custom of this description clearly cannot be characterised on any rational ground as unreasonable or opposed to public policy, it is further worthy of note that this is not a novel view of the true character of such a custom; for, as early as 8th August 1810, the validity of a conditional mortgage of a pala effected on the 18th February, 1835, was upheld in a contested litigation. Since every custom sanctioned by the Courts must be reasonable, it follows that every case where a custom has been upheld by the Courts is an example of a reasonable custom. When the evidence is examined from this point of view, the case for the mortgagee is materially strengthened; for, as is clear from the record, not only the existence but also the validity of the custom has been repeatedly recognised by the Courts during at least 70 years prior to the institution of this suit, while no single instance has been found where its reasonableness has been successfully assailed. The diatom of transferability of a pala in favour of a limited circle of transferees must accordingly be held valid, and no good reason has been assigned why it should be deemed unreasonable or opposed to public policy.

[29] As regards the third question, it has been argued on behalf of the mortgagors respondents that as Order 34 of the Civil Procedure Code of 1908 applies only to mortgages of immoveable property, the plaintiff is not entitled to a decree for foreclosure; and in this connection, reference has been made to Eshan Chunder v. Monmohini (1878) I. L. R. 4 Calc. 683., and Jati Kar v. Mukunda Deb (1911) I. L. R. 39 Calc. 227., to show that a pala or turn of worship is not immoveable property. There is no substance in this contention. It is well settled that foreclosure is a remedy of the mortgagee which is not confined to mortgages of land; it is equally applicable to mortgages of chattels, as decided by the House of Lords in Harrison v. Hart (1726) 1 Comyn. 393; 2 Eq. Cas. Abr. 6., Tancred v. Potts Fonblnque on Equity, 5th Ed., 261 n., Kemp v. West-brook (1749) 1 Ves. Sen. 278. The case before us is cleanly not that of a pledge of a moveable; such a pledgee, as pointed out hi Harrold v. Plenty (1901) 2 Ch. 314., is in a very different position from an ordinary mortgagee, as he has only a special property in the thing pledged and may obtain a sale but not a foreclosure. The plaintiff is a mortgagee, not of immoveable but of intangible property, and he is entitled to foreclose the mortgagor quite as much as a mortgagee of chattels. [Jones, on Chattel Mortgages, 1908, Sections 699 and 776.] It is worthy of note that, as early as 1181, Glanville described in detail a remedy applicable to chattel mortgages which is substantially equivalent to the modern procedure for foreclosure and order absolute on failure of the mortgagor to redeem within the period fixed by the Court [Glanville, Tr. Beames, Book X, Ch.. 6-8; Ed. Beale, 1900, pages 201-210]. It may be added that if the contention of the mortgagors were to prevail, they might find themselves in a worse position, than what they would occupy under a foreclosure decree; for, if the procedure for foreclosure, with its consequent opportunity to the mortgagor to redeem, is not applicable, the mortgagee may very well contend that the contract between the parties must be strictly enforced and that, as the time for repayment has passed away, the title of the mortgagee to the mortgaged property has become absolute; such a result could hardly have been contemplated by the mortgagors.

[30] The result is that this appeal is allowed and the decree of the District Judge discharged. On account taken of the sum due on the conditional mortgage in suit on the 16th. November next, it transpires that the mortgagee will be entitled to Rs. 3,421 for principal and interest up to that date. The decree will direct that if the defendants pay this sum, together with costs of all the Courts with interest thereon (as specified in the decree of this Court) on or before the 16th November 1914, the mortgage will stand redeemed. On default, the mortgage will, be foreclosed after the decree absolute has been made by the Primary Court in due course. The hearing fee in this Court is assessed at thirty gold mohurs.

Beachcroft J.

[31] I agree with the proposed order on the second ground discussed by my learned brother. On the question of estoppel, I prefer to reserve my opinion.