Authored By : Mookerjee, Ernest Edward Fletcher

Mookerjee, C.J.

Appeal No. 344.

1. This is an appeal by the find two Defendants in a suitfor recovery of possession of land upon declaration of title as shebaits. ThePlaintiffs-Respondents are orthodox vaishnabs, members of a family of Mondals,and are shebaits of a Sree Sree Iswar Mohaprabhu Thakur. Their case is that in1893, the Defendants, who are members of a family of Chatterjees, wereappointed pujaris or officiating priests under an agreement between theparties, that the Defendants have acted in contravention of the term of theagreement and have thereby forfeited the office; but that, notwithstandingthis, they have wrong-fully retained possession of the disputed land which theywere entitled to hold only during their incumbency as pujaris of the Thakur. Onthese allegations, the Plaintiffs seek to recover possession of the land.

2. The Courts below have found that the allegations of thePlaintiffs are substantially correct, that the interest in the land is vestednot in the Defendants as pujaris hut in the Plaintiffs as shebaits, and that,under the terms of the agreement between them, the Defendants have forfeitedall claim to the religious office held by them. This decision has been attackedon behalf of the Appellants on the ground that the contract was void, becauseit contravened the rule against perpetuities. In our opinion, there is nofoundation for this argument.

3. The agreement between the parties was made and filed in aprevious rent-suit, and the decree of the Court was made in accordancetherewith. The record has been destroyed and a copy of the decree is notavailable : but it is plain that the decree must have incorporated the terms ofthe compromise by reference, if not expressly. Apart from this, the petition ofcompromise has been produced before us and we are in a position to judge therelative rights of the parties therefrom. Para. 2 of the petition defined theduties of the Chatterjees as pujaris of the Thakur. It recited that 14 bighasof land were placed in their possession in order that the income might beapplied for the purpose of worship and maintenance in the manner directed.Para. 3 prescribed in the following terms the conditions on breach whereof theoffice of pujari would be forfeited : "The Chatterjees further stipulatethat if they make default in conducting the sheba and other works, etc., inaccordance with the above rules or if any of the Chatterjees themselves or ifany of their sons, sons sons and descendants in succession ever take todrinking or meateating or cook flesh or commit adultery then ten respectableprincipal gentlemen of different respectable Brahmin, Kayestha and Kaibarttafamilies of Joypur village, shall, with respect to the said offence, hold a sittingand judge and the person, who would be declared guilty shall be for oncepardoned after undergoing expiration ceremony. If such a thing occurs again,then they shall be competent to deprive the delinquent of the light of makingsheba and the delinquent would be deprived of the right of worship and work ofsheba and of holding and enjoying the debutter land dedicated forshebait." Directions are then given as to the steps to be taken for theappointment of a successor in the event of removal of a pujari for misconduct.The Courts below have found that the Chatterjees have been guilty ofmisconduct, misconduct of such a grave character as disqualified them fromholding the religious office in question. The Court of first instance pointedout that the evidence showed beyond doubt that the Defendants had actedcontrary to the terms of the compromise, inasmuch as they ate goat flesh whichis an domination in the case of pujaris of Mohaprobhu Thakur they had besidesconverted the pucca temple of the Thakur into a store-room for keeping thearticles of their shop and thereby damaged the paint on the image of the Thakurand had not only neglected to discharge the duties of the office held by thembut had actually rendered it impossible to hold the annual Mahotsab ceremony.The Courts below have also found that, in these circumstance (sic) respectablegentlemen of the village assembled and after full investigation removed theDefendants from their spiritual office. The decision of a body, so constitutedin accordance with the agreement of the parties, is operative, if theirproceedings were regularly conducted, us appears, to have been the case [JuroRam v. Gobind Deb 12 C.L.J. 497 (1910)]. In these circumstances, the Defendantshave clearly no right to retain possession of the land in suit.

It has been argued, however, that the contract was void forremoteness. This contention is based on a manifest fallacy. The Appellants havereferred to the case of Anath Nath Maitra v. Kumar Keshub Chandra Ray 14 C.W.N.601 (604) (1910), which is an authority for the proposition that the ruleagainst perpetuities prohibits the creation of such future interest as maypossibly vest after an indefinite period, for the reason that the existence ofsuch interest may render it impossible for the owner to alienate his estate,discharged of it, before the emergence of the condition, and that event maypossibly never occur. In the present case, no interest in land was created infavour of the pujaris. Consequently, the well-established rule applies thatpersonal contracts are not affected by the rule against perpetuities. As anauthority in support of that proposition reference may be made to the decisionof the House of Lords in the cases of Walsh v. Secretary of State for India 10H.L.C. 367 (1863) and Witham v. Vane Challis on Real Property 440. In ouropinion, the agreement was valid, the conditions annexed to the office werelawful, and as soon as the Defendants were disqualified for the religiousoffice by reason of their misconduct, they became disentitled to retainpossession of the land whose income was in funded to be applied by the pujarisfor the maintenance and worship of the Titular.

There is manifestly nothing wrong in principle that theholder of a spiritual office should be subject to discipline and should beliable to deprivation for what may be called misconduct from an ecclesiasticalpoint of view or for flagrant and continued neglect of duty. In the case beforeus, the matter has been simplified by an express agreement which defines thenature and scope of the offences and provides a tribunal authorised to hold anenquiry and to pass a sentence of deprivation. It is plain that although, sofar as Hindus are concerned, there is now no State church and no EcclesiasticalCourt, there is nothing to prevent Civil Courts from determining questions suchas those raised in the present litigation and from holding that the pujari hasbeen removed from his office on valid grounds. [Anandrav v. Shankar I.L.R. 7Bom. 323 (327-329) (1883), Vasudeo v. Vamnaji I.L.R. 5 Bom. 80 (1880), Venkatav. Subba I.L.R. 13 Mad. 293 (305) (1890), Krishnaswami v. Samaram I.L.R. 30Mad. 158 (164) (1906), Kooni Meera v. Mahomed Meera I.L.R. 30 Mad. 15 (16)(1906), Soobbuo v. Tacoo [1857] Mud. (sic) Dec.) 80, Ramcharan v. Rakhalal DasI.L.R. 41 Cal. 19 (29)(1913). Elayatwar v. Nambarumal I.L.R. 28 Mad. 298 (304)(1899). Subbaraya v. Chellappa I.L.R. 4 Mad. 315 (1881) and Vanama v. KrishnaSwami 16 M.L.J. 130 (154-159) (1905)].

The result is that the decree of the District Judge isaffirmed and this appeal dismissed with cost.

This judgment will govern the other appeal (S.A. No. 707 of1915) which is accordingly dismissed with costs.

Ernest Edward Fletcher, J.

I agree.

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Nafar Chandra Chatterjee and Ors. vs. Kailash Chandra Mondaland Ors. (19.05.1920 - CALHC)