. ·• ' \ \ .

'. \ ''' 164

SUPREME COURT .REPORTS [1955]

 1955 High Court already pronounced against his conviction after a full hearing in the presence of both the parties . u.!.s~hoJ>ra on notice being issued by the High Court in that bestate of &mbay half.· This right of his is not curtailed by anything contained in the earlier provisions of section 439 nor BhagwatiJ. by anything contained in either section 369 or section ·· 430 of the Criminal Procedure Code.

A}ril 6

We are therefore of the opinion that the decision reae, hed by the High Court of Bombay in the case under appeal was wrong and must be reversed. We accordingly allow the appeal and remand the matter back to the High Court ofJudicatureatBombaywith . a direction that it shall allow the Appellant to show cause'against his conviction and dispose of the same ticcording tq law. ·· ·

BY THE CouRT.-The appeal is allowed and the order of the High Court of Bombay is . set aside, and thematter is sent back to the High Court with a direction that it shall allow the appellant an opportunity to show cause against his conviction and dispose of the matter according to law. .

l\IAHARAJ UMEG SINGH AND OTHERS

THE STATE OF BOl\IBAY AND OTHERS.

[l\ImrnERJEA, C.J., DAS, BHAGWATI, VENKATARAMA

 AYYAR and JAFE~ lllIAM JJ.]

Bombay Merged Territories and Areas (J agirs Abolition) Act, 1953 (Bombay Act XXXIX of 1954)-Whether ultra vires-Agreement of Merger with, and letters of guarantee to, .Rulers of States by the G<YL- . ernment of India-Clause 5 of the letters of guarantee-Scope-Legislative powers of States under Article iU6 of the Constiiution-Limita• tion• thereon-Article'363 of the Constitution-Bar to Courts' jurisdiction-Fundamental rights-Articles 14, 19(1)(/), 31(2) of Con stitution-Applicability in view of Article 81-A(2)( a). · ·

Under Article 246(2) and (3) of the Constitution, the Legislature of a State has plenary powers to legislate with respect to matters enumerated in Lists II and III of the Seventh Schedule to

he Co11stitutio11.

The legislative competence of the State Legisl~·

ture can only be circumscribed hy express prohibition contained in the Constimt[on itsdf and u.nless there is any provision in the Constitution expressly prohibiting legislation on a subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislture enjoys to legislate on the ropics enumerated in Lists II and III of the Seventh Schedule to the Consticution. In view of Ar.icle 246 of the Constitution, no curtailment of legislative competence can be spelt out of the terms of Clause 5 of the Letters of Guarantee given by the Dominion Government to the Rukrs of "States" subsequent to the agreemnts of Merger, which guaranteed, inter alia, the continuance of Jagirs in the merged "St1tes". Indeed, Clause 5 of the Letters of Guarantee itself saved the legislative right of the State of Bombay subject to the limitation that enactments of the State shall not be discriminatory in nature.

Attac1<s on the validity of the said Act on the basis of the rights guaranteed by Articles 14, 19(l)(f), and 32(2) of the Constitution cannot be countenanced in view of Article 31-A(2)(a) of the Constitution.

Article 363 (1) of the Constitution barred the jurisdiction of Courts in disputes arising out of any provision of the agreements of merger and the Letters of Guarantee.

Held, that Bombay Act XXXIX of 1954, the impugned Act, was intra vzres the State Legislature.

Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 Dismi, sed.

Petition No. 364 of 1954 Adiourned.

Vajesingji v. Secretary of State (51 I.A. 357), Secretary of State v. Sardar Rustam (68 I.A. 109),_ State of Savaiella v. Union of India (1951 S.C.R. 474), Thakur Jagannath v. The United Provinces ([1943] F.C.R. 72), Thakur Jagannath v. The United Provinces ([1946] F.C.R. 111), referred to.

0RIGWAL JurusmcnoN: .Petitions under Article 12 of the Constitution for the enforcement of fundamental rights

K. L. Ga11ba, (Gopal Singh, with him), for the Petitioners in Petitions Nos. 337 to 343 and 481 of \954.

K. l. Gauha, (S. D. Sekhri, with him), for the Petitioners in Petitions Nos. 344, 446 and 349 of 1954.

K. l. Gauba. (R. Patnaik and S. D. Sekhri, with himL for the Petitioner in Petition No. 345 of 1954.

22-8 SCJ/ND.'82

19$5

Maharaj -Umeg Singh and "'thers

The State ef Bombay and otkrs

Maharaj Umeg Sin, I• dhd otltrs

v •

K .. L. Gauba, (N. C. Chakravarthy and S, D.

Sekhri, with him), for the Petitioner in Petition No. 347 of 1954.

.so~%;':,; d:{hers K. L. Gauba, (8. Moropant and S. D. Sekhri, with him), for the Petitioner in Petition No. 348 of 1954.

Rajni Patel and M. S. K. Sastri, for the Petitioner in Petition No. 364 of 1954.

Rajni Patel and I. N. Shroff, for the Petitioners in Petitions Nos. 365 and 366 of 1954.

 J. 8. Dadachanji and Rajinder Narain, for the Petitioner in Petition No. 690 of 1954.

M. C. Setalvad, Attorney-General for India, C. K.

Daphtary, Solicitor-General for India (P. 4. Mehta, R. H. Dhebar for P. G. Gokhale, with them), for the Respondents in all Petitions.

1955. April 6. The Judgment of the Court was delivered by

BHAGWATI J.-These petitions under article 32 of the Constitution are directed against the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, Bombay Act XXXIX of 1954 which was passed by the Legislature of the State of Bombay to abolish jagin in the merged territories and merged areas in the State of Bombay. The Bill. was passed by the Legislature on the .22nd September 1953 and received the sanction of the Upper House on the 26th September

1953. The President gave his assent to it on the 13th June 1954 and by a notification dated the 15th July 1954 it was brought into effect from the !st August

1954. In view of the notification the Petitioners filed these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the State of Bombay from giving effect to its provisions. On application~ made to this CQurt on the 31st July 1954 the operation of the impugned Act was stayed pending the hearing and final disposal of the petitions,

The Petitioners in Petitions Nos. 337, 344, 345, 346, 195$ 347 and 349 of 1954 are relations of the Ruler of the Mdharai Umet erst while State of Idar. The Petitioners in Petitions Sinth and o111ers Nos. 338 and 342 of 1954 are relations of the Ruler of The Stte of the erstwhile State of Chhota Udaipur. The Peti- Bombayandother tioners in Petitions Nos. 339 and 341 are relations of the Ruler of the erstwhile State of Devgad Baria. The Petitioner in Petition No. 343 of- 1954 is a relation of the Ruler of the erstwhile State of Rajpipla. The Petitioners in Petition No. 340 of 1954 are jagirdars of the erstwhile State of Rajpipla. The Petitioner in Petition No. 3415 of 1954 is a relation of the Ruler of the erstwhile State of Ba:nsda. The Petitioners in Petitions Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of Idar and Lunawada respectively. The Petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the erstwhile State of Mohanpur. The Petitioners n Petition No. 690 of 1954 are the holders of personal Inams from the erstwhile State of Rajpipla.

All the petitioners except the last claim to be hereditary jagirdars under grants made by the respective

States for the maintenance of themselves, their families and dependants and hold the jagirs as 'Jiwai Jagirs'. The holders of the personal Inams in Petition No. 690 of 1954 used to pay salami to the erstwhile State of Rajpipla and are included within the definition of "jagirdar" being holders of jagir villages within the meaning of the definition thereof contained in the impugned Act.

The Petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in the patta or territory of Moti Moree comprised in the erstwhile State of Idar as the Bhumia or under-lord and contends that his holding does not fall within the definition of jagir as given in the impugned Act and that therefore in any event the State of Bombay is not entitled to enforce the impugned Act against him.

All these Petitioners have challenged the vires of the impugned Act mainly relying upon the agreements cf merger entered into by the Rulers of the respective St1tcs with the Dominion of India on or about the J 9th March 1948 and the collateral letters of guarantee

B/iazwari J.

J9jS passed by the Ministry of States in their favour on Maharaj Umeg subsequent dates, the contents of which were regarded Singh an4 otliers as part of the merger agreements entered into by them

Th;;,~,. 'If with the Dominion of India.

BtJprbay and otlrers Tht merger agreements were in the form given in Appendix XIII to the White Paper at page 183: BhagwatiJ.

"FORM OF MERGER AGREEMENT SIGNED

BY RULERS OF GUJARAT AND DECCAN

STATES

AGREEMENT MADE THIS day between the Governor-General of India and the of Whereas in the immediate interests of the State and its people, the of is desirous that the administration of the State should be integrated as eariy as possible with that of the Province of in such manner as the Government of the Dominion of India may think fit; It is hereby agreed as follows:···-

ARTICLE I.

The of hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the State and agrees to transfer the administration of the State to the Dominion Government on the day of 1948 (hereinafter referred to as "the said day").

As from the said day the Dominion Government will be cqmpetent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.

ARTICLE 2.

Tlie shall with effect from the said day be entitled to receive from the revenues ef the State annually for his privy purse the sum of rupees free of taxes. This amount is intended to cover all the expenses of the Ruier and his family. including expenses on account of his personal staff, maintenance of his residences .

marriages and other ceremonies, etc. and will neither be increased nor reduced for any reason whatsoever.

The said sum may be drawn by the m four equal instalments in advance at the beginning of 'each quartei: by presenting bills at the State Treasury or at such other Treasury as may be specified by the Dominion Government.

ARTICLE 3.

The shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) helonging to him on the date of this agreement.

The will furnish to the Dominion Government before the day of 1948 an inventory of all the immovable property, securities and cash balance held by him as such private property.

Ir any dispute arises as to whether any item of property is the private property of the or State property, it shall be referred to such officer with judicial experience as the Dominion Government may nominate and the decision of that officer shall be final and bfoding on both parties.

ARTICLE 4.

The shall be entitled to all personal privileges enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August 1947.

ARTICLE 5.

The Dominion Government guarantees the succession, according to law and custom, to the gadi of the State and to the personal rights, privileges, dignities and titles.

In confirmation whe;:reof Mr. Vapal Pangunni Menon, Secretary to the Government of India in the Ministry of States, has appended his sigmtture on behalf and with the authority of the Governor-General of India and has appended his

Maharaj Umi!g Singh and others v.

The State of Sombay and others

BhagwatiJ.

Maharaj Un1e1

Signature on behalf of himself, his heirs and successors, of Singh and others Dated v. ,• Secretary to the Government of India, Ministry of The State of Bombay wrd others

BliagwatiJ ...

States".

The l!!tters of guarantee' subsequently executed by the Ministry of States in favour of the respective Rulers contained the following guarantees:-

"(!) Your privy purse will be fixed in accordance with the formula applied in relation to the fixation of the privy purse of the Deccan States Rulers whose States have merged into the Bombay Province.

The amount will be fixed in perpetuity to you, your heirs and successors, and will neither be increased nor reduced for any reason whatsoever. Tt will be free of ail taxes, whether imposed by the Government of Born bay or by the Government of India and it will not be taken into account in the assessment of your world income to income-tax or super-tax.

(2) The cash balances and other assets of your State on the day you transfer the administration of your State to the Dominion Government will, as far as possible, be spent for the benefit of the people of your State.

(3) You will be entitled to the full ownership, use and enjoyment of all Darbari or private properties (as distinct from State Properties) belonging to you on the date of your making over the administration of your State to the Dominion Government.

Darbari properties will include palaces, houses, residence>, guest houses, stables, garages, quarters, outhouses. etc. which are at the date of transfer of administration in bona fide personal use or occupation of the Ruler or member~ of his family or personal staff. irrespective of whether the property is situated in the Capital, or at any other place in the State, or in Bombay, or anywhere else outside.

14) The continuation in service of the permanent members of the public services of your State is hereby guaranteed on conditions which will be no less advantageous than those on which they were serving

on lst April 1948. In the event of continuation of service not being possible in any case, reasonable compensation will be paid.

< 5) Pensions, gratuities, annuities, and allowances. granted by the State to the members of its public services who have retired or have proceeded on leave preparatory to retirement before 1st April 1948 as also the enjoyment of the ownership of Khangi villages. lands, jagir, grants, etc. existing on 1st April

1918 are hereby guaranteed. This guarantee is without prejudice to the right of Government of Bombay to issue any legislation which does not discriminate against the States and their subjects.

(6) AH emblems, insignia, articJes and other paraphernalia of the Ruler will be considered as belonging to. and be regarded as his private property.

(7) No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken <tfter the l st of April 1948 and is considered by the Government of fodia to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final.

<R) No enquiry shall be made nor shall proceeding~ lie in any Court in India against you, whether in a oersonal capacity or otherwise, in respect of anything done or omitted to be done by you or under vonr authority during the period of your administration of the State.

(9) Every question of disnuted succession in reg.ard to a Gujarat State which has signed an agreement integrating the administration of the State with that of the Province of Bombav shall be decided bv a CNmcil of Rulers of Gujarat States after referrin!! it to the Hi!!h Court of Bombav and in accordance with the ooinion given by that Hi!!h Court. All questions relating to the rh?hts. dfonities and orivileges of tht3 Ruler will also he considereo bv the Council of Rulers who shaJI make suitable recommendationc; to the Government of Bombay and the Government of India. The Council shall consist of the Rulers of all

Maltaraj Umeq Singh and orhs

The State of Bomba;• and others

Blrafwati J.

1955 full _jurisdictional Gujarat States, whether salue or Maharaj Umeg non-salute. No ruler who is less than 21 years of age Singh ai; others shall however be a member of the Council. The

BoTlbie s1a1de 01, Council will elect one of its members to be the Presi- ,,, ay an ot11ers . , -- dent of the Counc1l. The President and the members Bhagwari.f. of the Council will hold office for a term of five years from tht date on which they enter upon the duties of their respective offices.

2. The contents of this letter will be regarded as part ot the merger agreement entered into by you with the Governor-General of India".

The contention which has been urged before us by the Petitioners relying upon clause 5 of the Letters of Guarantee aforesaid is that the enjoyment of the <Jwnership of the jagirs existing on the !st Ap_ril, 1948 was guaranteed, that this guarantee was binding on the State of Bombay, that the State of Bombay and therefore the State Legislature had waived the right, it any, or in any event had no legislative competence to enact any legislation depriving the holders of the jagirs oi their right of ownership over the same, and that even though the Government of Bombay has reserved to itself the right to issue any legislation which did not discriminate against the states and their subjects, the impugned Act was ultra vires inasmuch as no legislation could be undertaken which would have the effect of depriving the holders of the jagirs of their ownethip over the same and the provisions of the impugned Act were in any event discriminatory against the States and their subjects or in other words the impugned Act was confiscatory and also discriminatory.

Jt was contended on the other hand on behalf of the State of Bombay that the agreements of merger and the letters of p; uarantee were executed bv the Dominion of India and were not binding on the state of Bombay, that the Petitioners were not parties to the aitreements of mer11er and letters of p; uarantee and that thev were not entitled to enforce the same. that even if they be treated as parties thereto the disoute between the parties arose out of the provisions of the . a'!reements and covenants which were entered into or

executed before the commencement of the Constitution by the Rulers of the respective states and to which the Government of Dominion of I1, dia was a party and that therefore this Court had no jurisdiction to interfere in the said disputes by virtue of the provisions of article 363 of the Constitution, that the State Legislature had plenary powers of legislation within the ambit of its sphere unless the Constitution itself expressly prohibited legislation on the subject either absolutely or conditionally, that no sucli prohibition could be soelt out of the terms of clause 5 of the letters of guarantee and that the impugned Act was intra vires the power of the State Legislature and could not be challenged. Once that position was established it was further ur_ed that the jagirs in w1estion were estates within the definition of the expression in article 3 l-A(2)(a) of the Constitution and the impugned legislation being a legislation providing for the acquisition by the State of the estates and the rights therein or for the extinguishment or modificaticm of the same could not be challenged as void on the ground that it was inconsistent with or abridged any of the rights conferred by any provisions of Part Ill of the Constitution, and that therefore the impugned Act could not be challenged as violative of any of the fundamental rights of the Petitioners. It was also urged that none of the provisions of the impugned Act were confiscatory or in any manner whatevr discriminatory, fair and adequate compensation having been provided for the abolition of the jagirs and the States and their subjects not having been dealt with in any discriminatory manner as compared wifh the subjects of the original State of Bombay.

As regards the contention that the agreements of merger and the letters of guarantee were executed by the Dominion of India and were not binding on the State of Bombay it was urged on behalf of the Petitioners that the Government of the Dominion of India was certainly bound by those guarantees and this ohliQation of the Dominion Government devolved upo~ the Province of Bombay when the erstwhile State5 which were parties to the agreements of merger

Z3--S ~IiND/82

Maharaj Umeg Singh and others v.

The State of Bombay and'others

Bhagwat I J.

1955 and the letters of guarantee became merged in the Mn/UJrlli Umeg Province of Bombay, under clause 8 of the States' Sin;'il and 01/iers Merger (Governors' Provinces) Order, 1949 (Appendix

Thelia1eof XLIV. White Paper, Page 297), that these obligations

!k>mhnyandotlie~<were thus deemed to have been undertaken by the

Ilha11wa1i J..

Dominion Government on behalf of the absorbing Province, viz., the Province of Bombay and were binding upon the Province of Bombay, and that when the Constitution came into force from the 26th January

1950 all rights, liabilities and obligations of the Government of each Governors' Province whether arising out of anv contract or otherwise were under article 294 of the- Constitution to be the rights, liabilities and obligations respectively of the Government of each corresponding State and these obligations of the Province of Bombay accordingly became the obligations of the State of Bombay. It was further urged that the State of Bombay was thus bound by all the obligations which had been undertaken by the Dominion Government under the agreements of merger and letters of guarantee above referred to, and it could not lie in the mouth of the State of Bombay to repudiate the same.

This argument is not without force, but we do not consider it necessary to decide this question because even assuming that the State of Bombay was bound by these obligations, the question still remains how tar the Petitioners before us are entitled to enforce these obligations against the State of Bombay.. The Petitioners were certainly not parties to these agreements of merger and letters of guarantee ea nominee.

They could only claim to be parties to the same by reason of the fact that the Rulers of the erstwhile States did not negotiate these agreements of merger or obtain the letters of guarantee '.lnly in respect of their personal rights and properties but also represented the States and their subjects in the matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were entitled to the benefit of whatever obligations were under- . taken by the Dominion of India qua. the States and their subjects. It is therefore arguable that the Rulers

of the erstwhile States as also their subjects would be m a position to enforce these obligations. This position was however sought to be negatived by relying upon the following observation of their Lordships of the Privy Council in Vajesingji .Joravarsingji v. Secre tary of State for India in Council(') at page 360: -

"But a. summary of the matter is this: when a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hither to unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers. recognised. Such rights as he had under the rule of predecessors avail him nothing.

Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights. that does not give a title to those inhabitants to enorce these stipulations in the municipal Courts.

The nght to enforce remains only with the high contracting parties".

These observations were quoted with approval in Secretary of Stltte v. Sardar Rustam Khan & Others<') at page J 24. It was therefore urged that it will he the high contracting parties, viz., the Rulers of the respective States who would be in a position to enforce these obligations and not the Petitioners for whose benefit these obligations were undertaken by the Dominion Government

We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple. reason that the Petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee thev would be faced with the bar to the maintain- , ability of the petitions under article 363 of the Constit11tion which lays down that neither the Supreme

(I) 51 Indian :\ppcals 357.

(2) 68 Indian Appeals 109.

Maharaj Umeg Singh and other.<

The State Qj Bombay and others

Bhagwati J.

l9SS Court nor any other Court shall have jurisdiction in Maha; aJ umeg any dispute arising out of any provision of a treaty, Siniftand others agreement, covenant. engagement, sanad or other

The;,~,. of similar instrument which was entered into or executed Bombay and others before the commencement of the Constitution by any

Bha;;;;;,; J.

Ruler of an Indian State and to which the Government of the Dominion of India ............... was a party.

If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations.

It was therefore urged on behalf of the Petitioners that thi: dispute between the parties did not arise , out of the provisions of the agreements of merger and the letters of guarantee which were entered into or .executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party. According to the Petitioners they merely challenged the vires of the impugned Act and relied upon clause 5 of the letters of guarantee in order to establish the position that the State Legislature had no legislative competence to legislate

(Ill the subject of the abolition of .iagirs. That was, it was submitted, not a dispute arising out of the agreements of merger and letters of guarantee but arose out of the act of the State Legislature in enacting the impugned Act in direct contravention of the guarantee incorporated in clause 5 of the letters of guarantee. This argument however would not avail the Pt:titioners, because if one looked into the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of the letters of guarantee. The Petitioners relied upon clause 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that the State Legislature had enacted the impugned Act which it had no power to enact having regard to clause 5 of the said letters of guarantee and were wrongfully depriving the Petitioners of the jagirs, the ownership of which had been guaranteed thereunder. The whole of the petitions were nothing else except the

claim to enforce the Petitioners' rights under the 1955 letters of guarantee, and the disputes therefore were Maharaf Umeg clearly in respect of the agreements of merger and Singh and others the letters of guarantee and were covered by article The Site of 363< 1) of the Constitution. A similar ::ontention had Bombay and oriJers been raised on behalf of the plaintiffs in State of Bhagwati J.

Seraikella and Others v. Union of India and Anot.her( 1 ) and was repelled by Kania, C.J. at page 490 as under:-

"The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. The State next complains that, acting beyond the powers given over under the Instrument of Accession, the Dominion of India aJJ.d the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make, having regard to the Instrument of Accession, and are wrongfully interfering with the administration of the State beyond the rights given to them under the Instrument of Accession. The whole plaint is nothing else except the claim to enforce the plaintiff'~ rfo:ht under the Instrument of Accession. The

dispute~ therefore in my opinion clearly fs in respect of this Instrument of Accession and is covered by Article 363(1) of the Constitution of India. The question of the validity of the different enactments and orders is also based on the rights claimed under the Instrument of Accession so far as the plaintiff is concerned"

It could not therefore be urged that what the Petitioners were doing was not to enforce the obligations undestaken by the Dominion . Government under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of Dominion of India was a party within the meaning of Article 363 of the Constitution.

(I) 1951 S.C'.R. 47·1.

SUPREME COURT REPORT8 [i955]

1955 It that was the position the jurisdictwn of this Maharaj umec Court was ousted and this Court could not interfere Singh u11d others in those disputes. Assuming however that the Peti-

The 1tte of tioners wer!: entitled to enforce the obligation and Bombay and others guarantee incorporated in clause 5 of the letters of

BhacwatiJ. guarantee the further difficulty in the way of the Petitioners is that the State Legislature was fully competent to enact the impugned Act notwithstanding the terms of the guarantee. The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until . there is any provision in the Constitution expressly prohibiting legislation on the sub1ect either absolutely or conditionaJly, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists II & III of the Seventh Schedule to the Constitution. It was concecied on behalf of the Pet; tioners that the topic cf legislation which was covered by the impugned Act was well within List II of the said Schedule and the vires of the impugned Act could not be challenged on that ground.

The ground of attack was that the Dominion Government. and therefore the State Government had waived its right to legislate on the topic of the abolition of jagirs or had in any event put a fetter or limitation or their power to issue any legislation in that behalf by the terms of the guarantee contained in clause 5 of the letters of guarantee. It was contended that under the terms of clause 5 an absolute guarantee had been given by the Dominion Government in regard to the.enjoyment of the ownership of jagirs and that the Dominion Government and there" fore the State of Bombay were precluded from enacting anv legislation which had the effect of destroying that ownership. This contention however could not be supported by the terms of clause 5 which embodied in the first part thereof the terms of the guarante, and went on to provide in the second part that this guarantee was without prejudice to the right of the Government of Bombay to issue any legislation which did not cliscriminte against the States and their

sub.iects. It was therefore not an absolute g11arantee but was circumscribed or cut down by the reservation of the power to make law with respect to jagirs provided such law did not discriminate against the State.s and_ their subjects. The right of the Government of Bombay which was th11s reserved covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such ownership. The right of the Government of Hom bay to issue any legislation with regard to the enjoyment of the ownership of jagir hmds was expressly reserved and this right covered also legislation in regard to the abolition of the jagirs and the Government of Bombay was therefore entitled under the terms of this clause 5 to issue any legislation iPregard to the same provided however that such legislation did not discriminate against the States :rnd their subjects. That was the only fetter or limitation, imposed upon the right of the Government of Bombay to issue any legislation in regard to the enjoyment of the ownership of jair lands and if that fetter or limitation could also be imposed on the State Legislature the Petitioners would have had a right to challenge the impt>gned Act on the ground that it discriminated

againt the States and their subjects.

The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of Jegi, lation within the ambit of the legislative heads specifie<l in the Lists TI & III of the Seventh 'Schedule to the Cor<:titution onld only be imposed by the Constitution itself nd not by any obligatio11 which had been undertaken by either the Dominion Government or the Province of - Bombay or even the State of Bombay. Under Article 246 the State Legislature was invested with the oower to legislate on the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution and this power was by virture of article 245(1) subject to the provisions of the Constitution. The Constitution itself laid down the fetters

Mahara Unlf'g Singh and other.f

The State of Bomba)' a11d others

B/iagwmi J.

1955 or limitations on this power, e.g., in article 303 or

Maharaj Umq article 286(2). But unless and until the Court came Singh and others h . v. to t e conclusion that the Constitution itelf had ex-

BoTlb" Statde 01, pressly prohibited legislation on the sub1"ect either m ay an 01'1trs b l I . . . -. a so ute y or cond1t1onally the power of the State Bhagwatl J.

Legislature to enact legislation within its legislative 'Competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists IT & III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there the State Legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay. The Petitioners would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the States and their su biects were discriminated against, hut they would not be able to have their grievance redressed by this Court for the simole reason that the State Legislature was at all events competent to enact the impugned Act not being fettered at all by the terms of clause 5 of the letters of guarantee. The provisions ot article 294(b) of the Constitution which is said to have transferred the obligations of the Government of the Province to the State of Bombay w0uld not by involving the transference of the obligation undertaken by the Dominion Government in clause 5 of the letters of guarantee to the State Government impose a fetter or limitation on the legislative competence of the State Legislature to en-act legislation on any of the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution. The remedy of the Petitioners would be elsewhere and not in this forum. The learned Judges of the Federal Court gave an answer to a similar complaint of the Taluqdars of Oudh made by them against the

United Provinces Tenancy /\ct XVII of 1939 in Th11kw

JrrgannMh Raksh Singh v. The United Provinces(') at page 87:-

Maharaj Umeg Singh alJd others "We desire, however, to point out that what they The s~re of are now claiming is that no Legislature in India has Bombay and others any right to alter the arrangements embodied in their Bhag.;; tiJ. sanads nearly a century ago; and, for all we know, they would deny the right of Parliament itself to do so. We hope that no responsible Legislature or Government would ever treat as of no account solemn pledges given by their predecessors; but the readjustment of rights and duties is an inevitable process, and one of the functions of the Legislature in a modern State is to effect that readjustment, where circumstances have made it necessary, with justice to all concerned. It is however, not for this Court to pronounce upon the wisdom or the justice, in the broader sense, of legislative acts; it can only say whether they were validly enacted,. ............................. "

These observations were quoted with approval by Their Lordships of the Privy Council in Thakur Jag(lnnath Baksh Singh v. The United Provinces(')" at page 122 and we also would observe in the same strain that we are not concerned with the policy of the State Legislature in enacting the impugned Act for abolition of jagirs but we are only qoncerned with the question whether the impugned Act was validly enacted.

No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires the State Legislature, the only ground of attack being that it was in contravention of the guarantee given in clause 5 of the letters of guarantee.

But that position is of no. avail to the Petitioners.

Considerable argument was addressed before us based on the comparison of the provisions of the various Acts of the Bombay State Legislature enacted during the years 1949 to 1953 in regard to the abolition of the various tenures obtaining within the State of Bombay with the provisions of the impugned Act, with a view to show that the provisions of the im- pugned Act were discriminatory against the States

(1) 1943 F.C.R. 72

~4-B SCI/ND. 82

(2) 1946 F.C.R. 11 t.

1955 anp their subjects within the meaning of clause 5 Maharaj UAreg of the letters of guarantee. We have not thought it Singh and orlier.v necessary to refer to the same in view of .the conclu-

Thc s~~'' ef sion which we have reached above that the impugned Bombay and others Act was intra vi res the powers of the State Legislature

Bhagwatil. and the State Legislature was C]Uite competent to enact the same.

Even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested, the jagirs of the Petitioners (except in the case of the Petitioner in Petition No . .364 of 1954) were all estates within the meaning of the term as defined in Article 3 l-A(2)(a) of the Constitution and even if the impugned Act provided for the acquisition of the estates or of any rights therein or for the extinguishment or modification of any such rights the impugned Act could not 'be challenged as void on the ground that it was inconsistent with or took away or abridged any of the fundamental rights conferred by Part III of the Constitution.

Any challenge therefore on t.he ground of the impugned Act violating the fundamental rights of the Petitioners under article 14 or article 19(])(f) or article 31(2) of the Constitution was not available to the Petitioners. On the other hand if the grievance was that the impugned Act had brought about discrimination in breach of clause 5 of the letters of guac

rantee then the dispute clearly arose out of the letters of guarantee and wou Id by article 363 be placed beyond the jurisdiction of this Court. The Petitions of the Petitiopers except Petition No. 364 of 1954 which would be dealt with immediately hereafter therefore fail and are liable to be dismissed,

Petition No. 364 of 1954

In addition to -the grounds common to all the Petitions which we have already dealt with above the Petitioner in Petition No. 364 of 1954 claims that he is the owner of the 60 villages in the Putta or territory of Moti Moree compriSed in the erstwhile State of Idar as the Bhumia or underlord and contends that his holding does not fall within the definition of

jagir as given in the impugned Act. In support of his 1955 contention he has traced the history of Moti Moree Maharaj umeg since 1250 A.O. and in any event since 1800 A.O. Si11gtumdotlzers when the then Chieftain of Moti Moree entered into The s~te of a treaty with the Maharaj a Zalimsinh of Modasa Bombay and others whereby in consideration of payment of Rs. 361 Blzagwati J. annually the said Zalimsinh agreed to protect Moti Moree against the attacks of the neighbouring State of Ooongarpur. He has pointed out that thereafter Modasa was absorbed into the Taluka of Amnagar in 1821 and subsequently in about 1849 it reverted to Idar State and continued with the Idar State until the latter merged into the Province of Bombay in

1948. He contends that he and his predecessols were enjoying and exercising full sovereign rights over Moti Moree ever since the said treaty of 1800 and their position had remained unchanged, their only liability being to pay Rs. 361 annually for protection.

He further contends that they were enjoying the rights of excise and customs and revenue, that they did not pay and revenue to the Stale of Idar and enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds, village sites, etc. and that when the Ruler of ldar wanted that there should be uniform customs levy thi; oughot'it the State, the said Ruler had to give compensation to the Petitioner and had also similarly negotiated with them and had to pay compensation to them in respect of salt, opium, excise, etc. He has pointed out that Rs. 457 for customs, Rs. 40 for opium and Rs. 7 for salt were being paid annually by the erstwhile State of Idar and thereafter _by the Government of State of Bombay to him by way of compensation for these sovereign rights of his, which amounts were set off against Rs. 361 being the annual payment of protection which he paid as aforesaid to them. These rights of his recognised by the erstwhile State of Idar and also by the State of Bombay constituted him a Thakur or underlord of Moti Moree and he contends that his estate of Moti Moree is not a--jagir within the definition of the trm given in the impugned Act.

Our attention has also bee_n drawn in this behalf to

1955 Bombay Gazetteer, Vol. 5 (1880), page 398, where Mahuruj umeg Mori (Meghraj) is described as the estate of the origi- Singh and others nal landlords Bhumias othenvise described as petty

Th' siate of chiefs and underJords and to page 409 where the Bombay and others underlords (Bhumias) are stated to be the earlv chiefs Bhagwati J. who settled in Idar at least not later than the Rathod conquest (about 1250).

The State of Bombay on the other hand has denied the several allegations contained in the petition and contends that in the year 1891 the erstwhile State of Idar had conferred upon the Thakore of Moti Moree the powers of a Third Class Magistrate as an act of :'grace", that in 1902 the management of the estate was taken over by the erstwhile State of ldar and one Kamdar Mathurlaji Wa.'i appointed as Japtidar, that in 1910 the management was lifted as a special case and the arrears of Nazrana were ordered to be recovered in instalments by the erstwhile State of Idar, that in several documents Moti Moree was described as Bhomia Jagir within the definition of the term Jagir as given in the impugned Act and that the sum of Rs. 361 was still being regularly. paid even after merger as "Kichari hak"~ It therefore contends that the Thakore of Moti Moree, the Petitioner is a jagirdar and Moti Moree is a jagir within the meaning of the definition thereof given in the impugned Act.

These allegations and counter-allegations do not however carry the matter any further. In order to exclude Moti Moree and the Petitioner from the operation of the impugned Act it will be necessary for the Petitioner to establish satisfactorily that Moti Moree is not a jagir within the definition thereof given in the impugned Act. Even though the allegations of the Petitioner go far enough to make it probable that Moti Moree was neither held by the Petitioner and his ancestors under a grant or was not recognised as a Grant by the Ruler of the erstwhile State of lclar, that would not be enough to enable us to grant him the relief prayed for by him. The question requires to be completely thrashed out and adjudicated upon by a Court of Law after going into the evidence

adduced before it by both the parties. The learned 1955 Attorney-General appearing for the State of Bombay Maharllf umeg has t_herefore submitted that this question should be Singh and others enquired into by a proper tribunal and the Petitioner The Iire of should be referred to a civil suit in order to establish Bombay and others his rights. .

Blzagwati J.

We accordingly feel that the Petition No. 364 of 1954 should be adjourned till after the disposal of a civil suit to be filed by the Petitioner in the proper Court for a declaration that Moti Moree is not a jagir within the definition of the term a~ given in the impugned Act and for consequential reliefs. The learned Counsel for the Petitioner has given us to understand that a formal notice under Section 80 of the Civil Procedure Code in this behalf has already been served by the Petitioner on the State of Bolllbay. We therefore order that the Petitioner do file the necessary suit within 3 months from this date and this petition do stand adjou:rned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile.

We may record here that the learned Attorney-General on behalf of the State of Bombay has also given his undertaking not to take any steps against the Petitioner in the meanwhile.

Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand dismissed. Petition No. 364 of 1954 will stand adjourned sine die till after the disposal of the , civil su'it to be filed by the Petitioner as above indicated. If no such suit is filed within the aforesaid period this petition will also stand dismissed.

Each party will bear and pay the respective costs of

he petitions.

section 439

section 369

High Court of Bombay

High Court ofJudicatureatBombaywith .

IAHARAJ UMEG SINGH AND OTHERS

THE STATE OF BOl\IBAY AND OTHERS

DAS

BHAGWATI

Bombay Act XXXIX of 1954

Clause 5

Articles 14, 19(1)(/), 31(2)

Article 81

Article 246(2)

Seventh Schedule

Seventh Schedule

Clause 5

Clause 5

State of Bombay

Articles 14, 19(l)(f)

Article 31

Article 363

Bombay Act XXXIX of 1954

[1943] F.C.R. 72

[1946] F.C.R. 111

0RIGWAL JurusmcnoN

Article 12

K. L. Ga11ba

Gopal Singh

K. l. Gauha

S. D. Sekhri

K. l. Gauba

R. Patnaik

Maharaj -Umeg Singh

K .. L. Gauba

N. C. Chakravarthy

S, D.

Sekhri

K. L. Gauba

Moropant

Rajni Patel

M. S. K. Sastri

I. N. Shroff

Dadachanji

Rajinder Narain

M. C. Setalvad

C. K.

Daphtary

Mehta

R. H. Dhebar

P. G. Gokhale

article 32

Bombay Act XXXIX of 1954

26th September

1953

13th June 1954

31st July 1954

Dominion of India

iazwari

BtJprbay

BhagwatiJ.

Government of the Dominion of India

Dominion Government

15th day of August 1947

Dominion Government

Vapal Pangunni Menon

Government of Born bay

Government of India

Bombay

1st April

1918

Government of Bombay

Government of fodia

India

Maltaraj Umeq Singh

State of Bomba;•

Blrafwati

clause 5

Government of Dominion of I1

article 363

clause 5

article 3

State of Bombay

Bhagwat

clause 8

26th January

1950

article 294

article 363

Supreme

(I) 51 Indian :\ppcals 357

Maharaj Umeg Singh

State Qj Bombay

Bhagwati

Maha

clause 5

clause 5

clause 5

clause 5

clause 5

Kania

State of Bihar

Article 363(1)

Constitution of India

Government of Dominion of India

Article 363

clause 5

BhacwatiJ.

Seventh Schedule

clause 5

clause 5

clause 5

Government of Hom

clause 5

Article 246

Seventh Schedule

article 245(1)

Mahara Unlf'g Singh

State of Bomba

article 303

article 286(2)

Singh

Seventh Schedule

clause 5

article 294(b)

clause 5

Seventh Schedule

Oudh

Parliament

clause 5

1943 F.C.R. 72

1946 F.C.R. 11

clause 5

Article 3

article 14

article 19(])(f)

article 31(2)

clause 5

article 363

Putta

Moti Moree

Idar

Blzagwati

Ooongarpur

Modasa

Amnagar

Government of State of Bombay

Mahuruj umeg Mori

Bombay

Kamdar Mathurlaji Wa

Section 80


April 7

SUPREME COURT REPORTS

RAJ KALI KlJER

RAM RATTAN PANDEY

[VIVIAN BosE, JAGANNADHADAS and

SINHA JJ.}

[ 1955]

Hindu Law-Hereditary priestly office of a Puiari and Panda -Hindu female-Right to succeed-Usage.

Though a female is personally disqualified from officiating as a Pujari for the Shastrically installed and consecrated idols in the temples, the usage of a Hindu female succeeding to a priestly office and getting the same performed through a competent Cleputy has been well-recognised and it is not contrary to textual Hindu Law nor opposed to public policy. Subject to the proper and efficient discharge of the duties of the office being safeguarded by appropriate action when necessary, a Hindu female has a right to succeed to the hereditary priestly office of a Pujari and Panda held by her husband and to get the duties of the office p<:rfom1ed by a substitute cxtcpt in ca:ses wh\.'ft: uage 10 the ontrary i::; pleaded and established.

Quacrc :--Whether and how far votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institutioni (i.e., not a private f; unily temple) and whether any usage in this bclnlf is valid.

C<1:>c-la\\' and the relevant texts revie\rcd.

Judgment of the lligh Court of Patna reversed.

CIVIL APPELLATE 'JURISDICTION: Civil Appeal No. 136 of 1953.

Appeal by Special Leave from the Judgment and Order dated the 4th day of May 1949 of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 1918 of 1947 against the Decree dated the 23rd day of July 1947 of the Subordinate Judge; Arrah in Appeal No. 137 of 1946 arising from thct Decree dated the 29th March 1946 of the Court of the 2nd Munsif at Arrah in Suit No. T.S. 120 of 1943.

R. C. Prasad, for tpe appellant.

S. P. Varma, for the respondent.

1955. April 7. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by leave granted under article 136(1) of the Constitution against the second appellate judgment of the High Court of Patna. It relates to the office of P11jari and Panda of a famous temple in the town of Arrah in the State of Bihar, known as the temple of Aranya Devi and Killa Ki Devi. The appellant before us-a woman--brought this suit claiming joint title to the office along with the defendant and as such entitled to perform the Puja either by herself or through her Karinda and to get a half share in the income of offerings of the said A stha11. It is the admitted case that this office belongs to the family of both the parties and that the duties of the office were being jointly performed by the defendant and his deceased brother, Rambeyas Pande, and that they were enjoying the emoluments jointly. The plaintiff-the widow of Rambeyas Pande-daims to have succeeded to her husband's share in this property and bases her suit on the said claim. In the written statement the defendant raised three main defences, two out of which are (1) the plaintiff was not. the legally wedded wife of his brother,_ Rambeyas Pande, and (2) during the life time of Rambeyas Pande, there was a division between them with reference to the office of Pujari and Panda belonging to this family in respect of two temples (a) at Arrah and (b) at Gangipul, that the office of Pujari at Gangipul was given to the plaintiff's husband and that the temple of Aran Devi at Arrah was given to the defendant and that since then, i.e., for about l l years prior to the date of the suit, the plaintiff's husband had no connection with the office of Pujari in this temple nor with the receipt of any offerings therein. Both these contentions were found against the defendant by the trial court as well as by the first appellate court and they have become conclusive. The further and third defence raised by the defendant was that the property in suit, riz., the office of Pujari and Panda of the tern:. pie cannot be inherited by a female. The contention

Raj Kali Kuer v.

Ram Ratran Pandey

J955

Raj Kali Kuer

'/ ..

Rain Rattan Pandey

Jaganuadhadn.~ J.

is set out in the following terms in the written statement:

"The plaintiff is not at all entitled to the office and the post of Pujari and Panda of Arun Devi and she is not entitled to get 112 share or any share in the income and offering of the said Asthan, nor has she got any right to perform Puja as a Panda personally, or through her karinda and to get the income, etc.

This is against the custom and usage and practice and also against the Sastras. The property in suit is such as cannot be inherited by a female".

It is the question thus raised which has got to be considered in this appeal.

The trial Court held against this contention in the following terms:

"No authority has been cited nor any custom proved to show that female cannot inherit a property of this nature".

The first appellate Court also affirmed this view as follows:

"The defendant's objection that the plaintiff being a female is not authorised to hold the office of a priest of the Aranya Debi temple is not borne out by any evidence or material on the record. There is nothing to show that by reason of her sex she is debarred from holding this office either by religion, custom or usage. Moreover admittedly she holds the office at the Gangi temple".

On the findings arrived at by the trial court and the first appellate court, the plaintiff got a decree as prayed for declaring her right to half share in the office and for recovery of mesne profits on that footing. On second appeal to the High Court, the learned Judges went into the question at some length and were of the opinion that "the plaintiff being a female is not entitled. to inherit the priestly .office in question and her claim to officiate as a priest in the temple by rotation cannot be sustained. The declaration sought for by her that she is entitled to the office of Pujari cannot, the.refore, 'be granted". The.¥ he\~, .however, "that she 1s not debarr~ from bemg entitled to be maintained out of the estate of her husband which, in

Ru} Kali J(µ8r

"' Ram JlatlW!

P,,,..y

Jl.

!do~ with the.office of the manager of thetemple, who m ...:outh India, is known by the name of Dharmakarta. As early as in Mitt a K unth A udhicarry v.

Neerunjun A udhicarryC), it was recognised that hereditary priestly office in a family is property liable to partition. A number of other decisions to he noticed in the later part of this judgment recognise this position. The learned Judges of the High Court in their judgment in the case under appeal, have attempted to distinguish the present case from that of the case of the Shehailship and have come to the conclusion that while in respect of Shehaiti right a woman may succeed by heirship, she is not entitled to such succession in respect of the right of a Panda and Pujari.

ut in making this distinction .they do not negative the idea that the right to the office of the Puiari itself is property to which a female could succeed, but for her supposed disqualification. The disqualification is said to arise with reference to the duties attached to this office, and it is said that in this respect it differs from the office of a Shehait.

Now there can be no doubt that while in one sense the right to such a religious office is property it involves also substantial elements of duty. As has been stated by this Court in Angurbala v. Dehahratai') and in The Commissioner, H.

E., Madras v. Sri Lakshmindra Thirtha Swamiar(') "both the elements of office and property, of duties and personal interest are blended together <in such offices) and neither can be detached from the other". It must <:1lso be recognised that in respect of such offices especially where they are attached to public institutions, the duties are to be regarded as primary and that the rights and emoluments are only appurtenant to the duties. See the observations of Justice Page in Nagendra. v.

Rahtndra(') at pages 495 and 496 and that of Justice Sadasiva Aiyar in Su1:darambal v. Y ogavanag11rukka!(') at .page 564, as also of Mukherjea on Endowments

0) [1875] X!VB.L.R. 166.

(2) [1951] S.C.R. 1125.

• (3) [1954] S.C.R. 1005. (4)_A.!.R. 1926 Ca!cut<a 490.

(5) A.I.R. 1915 Madras 561.

(1952 Edn.) page 201. If, therefore, it is foui1d that 1955 the recognition of a female's right to succeed to the Roi .kali ,; t111I hereditary office of Pujari in a temple held by her v. husband is incompatible With due discharge Of the Rpn':;, laJI duties of the office, her right to succeed must be nega- -- tived. The correct approach .to a .. question of this 4~1iaM J. kind has been laid down by the Privy Council' in a case which relates to a Mohammadan religious office hut would equally be applicable to '1 Hindu religious office. Jn Shahar Bano v. Aga Mahomed Jafjer Bindaneein(') their Lordships, after noticing the view taken by the learned Judges of the Calcutta High Court, that "there is no legal prohibition against a woman holding a mutwalliship when the trust, by its nature involves no spiritual duties such as a woman could not properly discharge in person or by depury" approved this view of the High Court and said ''it appears to their Lordships that there is ample authority for that proposition" The question, therefore, that requires consideration in the present case 'is whether the office of the Puiari and Panda in a temple involves such duties as could not be discharged by a female in person and if so, whether she is also incompetent to get the same discharged by a deputy.

Now for this purpose it is desirable to have a clear idea of the duties of a Pujari in an ordinary Hindu temple. A Pujari has to perform the prescribed daily worship of the image as well as the special worship of a periodical nature on particular occasions and for prescribed festivals during the year. In Ramahrahma

Chatterjee v. Kedar Nath Banerjee(') Justice Sir Asutosh Mookerjce indicated the daily routine of worship in the following passage:

"The normal type of continued worship of a consecrated image consists of the sweeping of a temple, the process of smearing, the removal of the previous day's offerings of flowers, the presentation of fresh flowers and water, and other like practices. It is sulfcient to state that the deity is, in short, conceived as a living being and is treated in the same way as the

(I) f l'J06f L.R. 311.A. 46. 53.

!'2) :\.IR 1923 Cdc:1::a 60, 62.

llifi Kall &!kt

" Ram.Rat1an

Pandey

!iiatd•.adhatfasJ.

master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest".

In Saraswati's Hindu Law of Endowments(') the nature of the daily worship of a consecrated idol in a temple 'is set out at pages 134 and 135 in detail. It must be recognised t.hat the daily worship differs according to the tenets and usages of the religious sect for which the temple is intended and the idol is consecrated. But whatever may be the details of the worship and the variations therein, there can be no doubt .that the ministration of various services involving personitl touch of the idol, and, often enough, the recita.tion of religious hymns inclusive of Vedic hymns are amongst the normal and essential features of a Pujari' s duties, at any rate in temples where the worship is conducted according to the Shastias. It is

also undisputed that according to Hindu Shastras the functions of a Pujari can be performed only by certain . limited classes and involves special qualifications and that these classt:s may vary with the nature of the institution. Now, whatever may have been the position in early times; of which there is no clear historical evidence, it appears to have been well established in later times that a female, even of the recognised limited classes. cannot by herself perform the duties of a Pujari. Even at a time when the institution of temple worship had probably not come into general vogue, the incapitcity of a woman to recite Vedic texts, to offer sacrificial fire, or to perform sacramental rites, is indicated in certain texts of Manu. (See Sacred Books of the East, Marni, Vol. 25, pages 330 and 437, Chapter 9, section 18 and Chapter 11, section 36).

Whether it is on the basis of these texts or for some either reason, her incapacity to discharge, in person, the duties of the , Pujari appears to have been well

(1) The Hin4u La\\· ofEndown1cnts by Pandi! Pranna1h Sa.rnswali, T.L.L.,

1892. (1897 Edn.).

settled in later times as appears from the following text from Brihan-Naradiya Purana quoted in Saraswati"s Hindu Law of Endowments at page 136.

Ro/Kali Kuer

v." /tam Rat11111 "W h . <l . h h h d Pandey omen. t ose unmveste wit. t e sacred t rea , ·- (i.e. the members of the Dvija class before the initia- Jawamrud/,.uJa, 1 tion ceremony has been performed for them), and Sudras are not competent to touch images of Vishnu or Siva. A Sudra, one uninvested with the sacred thread, a woman or an outcaste, having touched Vishnu or Siva, goes to hell'.

This passage, in terms, refers to the images of Vishnu and Siva but it may reasonably be assumed, in the absence of any evidence to the contrary, that in practice the incapacity of a female to discharge the duties of a Pujari by herself extended. at any rate, to all public temples where an image of whatever form had been consecrated and installed according to the Shasrras.

Indeed, all the cases on the subject have assumed this incapacity of the female. The point of controversy has been whether .she is also incompetent to get the duties discharged by employing a qualified substit11te. If her competern.:e in this behalf is recognised and can be accepted there is no reason why she should not be held entitled to succeed to the office.

Thus the really important question for consideration in this case is whether the duties of the Pujari's office can be got done by a substitute and if so is there any particular reason or clearly established usage, against a female employing such a substitute and thus becoming entitled to the office.

In early Hindu society a priestly office could have relation only to the performance of various kinds of Vedic rituals and sacrifices either of a daily and routine nature or of a periodical and special nature.

In theory a Brahmin is to perform such functions for himself by himself while persons of other classes should get them do.ne through qualified Brahmins.

On principle a priest in the Hindu concept is chosen as such with reference to his personal qualities and competence. The system of hereditary priesthood, however, with the possibility of persons not fully

I9S:S competent, succeeding to or occupying such an o!Iice, /t, Q Kati Kuer appears to have come into vogue from fairly early v. times. It appears. however, that from the very /tam Rslttan f h h h f Pand•Y nature o t e situation. t e temporary disc arge o d-d 1 .the priestly function by a substitute in the place of Jntmma ha as the hereditary priest was a matter of inevitable necessity since the Hindu Shastras recognised tempornry and casual disqualifications like that of birth and death pollution. But there does not appear to be any indication in the early books of any general practice about the functions of priestly office being discharged by proxies. In comparatively later days, however, there is clear indication of such a practice. In Saraswati's Hindu Law of Endowments at page 56, it is stated that in the Padmct Purana and other treatises incapacitated persons are ciirected to have the worship performed through Brahmins. This statement is with reference to the performance of service of an idol and has presumably reference to the incapacity of persons occupying a priestly ollicc. In Colebrooke's transla.- tion of the Digest of Hindu Law on Contracts and Successions with a commentary by Jagannatha Tercapanchanana (4th Edition, published by Higginbotham & Co., Maras, 1874), Vol. I, Book II, Chapter III, Section II, pages 360 to 381 deal with the topic of partnership among priests jointly officiating at holy rites. A perusal thereof and particularly of placita 28 to 44 containing citations from various Smrutis with Jaga11natha's commentary thereon, clearly indicate that the institution of hereditary priestship, became established by that date and that the performance of such priestly functions by substitutes had definitely come into vogue. Various rules are propounded as to the sharing of remuneration between the substitute priest and the hereditary priest when the former happens to perform the functions in the place of the latter. It is to be noticed that these pasages from Jagannatha's Digest refer in terms only to priestly office by way of officiating at holy rites, i.e., sacrifices and other Vedic or Shastric functions hut do not in terms refer to the discharge of a priest's duties in relation to the worship of an idol in a temple.

This is all the more remarkable because by the date 1955 of Jagannatha 's Digest the institution of wor- Raf xa1t'xu" ship of consecrated idols in temples had become long /tam "&,,11111 since fairly established. The probable explanation is l'Undey that Jag; annatha's Digest is a commentary on selected .1. -tllratltn J texts n1ostly of the various Smrutis from which he agann• ·· quotes and that in the days of the Smrutis the temple worship does not appear to have come sufficiently into vogue. The historical origin and growth of temple worship has been fully dealt with in Saraswti's Hindu Law of Endowments and has been also noticed in the referring judgment in A nnaya Tantri v. A mmaka Hengsu(1). It is pointed out therein that according to Hindu sentiment the performance of the duties of an A rchaka or Puiari for an idol has been considered sinful and it required inducements by way of liberal grants of land and promise of substantial perquisites to attract competent persons for the office of Pujari or Archaka. This, in course of time and with the change in social conditions and economic values, rendered the offices of Panda and Pujari in almost all the famous shrines in India, a lucrative affair, and has enabled the hereditary priests to get the functions discharged by pai4 substitutes and themselves enjoy a substantial margin of income. Here just in the same way as the patronage of the kings or the society may. have been a great incentive to the development of the system of discharge of hereditary priestly functions by substitutes in relation to sacrificial and Vedic religious rites, the phenomenal development and worship of idols in temples and the substantial emoluments which in course of time rendered the discharge of priestly office lucrative must have brought into vogue the employment of substitutes for performance of the duties of the priests not only for sacrificial or other religious rites but also for temple worship.

Whether and how far this practice is permitted bv the Shastras is not the question before us. But it cannot be denied and is indeed a matter of common knowledge, that at the present day, hereditary priestly offices are, as often as not, performed by proxies,

(I) A.T.R. 1919 Madras 598 (F.B.).

Raj Ka/; Kuer v. -Ram Rattan

Pandey

J"'qnadl1ad,,. 1.

the choice of proxy being, of course, limited to a small circle permitted by usage. The question for consideration of the courts is, whether, in this state of things, a female is to be excluded from succession to the hereditary office of Pujari on account of her well recognised personal disqualification to officiate as such Pujari for the Shastrical/y installed and consecrated idols in the temples and whether she is to be denied the capacity to retain the property by getting the priestly duties efficiently discharged through a competent substitute. The only basis for the alleged denial is a passage from .Jagannatha's Digest which is as follows: IVide Vol. T, pa_ge 379, commentary under placitum 43).

"Wives and others, disqualified by sex for the performance of h,1!y rites, cannot appoint a substitute; as defiled person cannot perform a solemn act ordained by the Vedas, therefore wives have no property in the office of priest"

Now apart from the question whether this passage can be taken to be st.:fficiently authoritative, there has been some difference of opinion as to the correct import thereof. In Sundaramhul A mmal v. Y ogavanagurukka/(') this passage has been relied upon by Justice Sadasiva Aiyar as showing that women are incompetent to discharge the functions of a priest even through a subsiitute and that, therefore, they have no right of succession to the office. The learned Judges of the High Court in the present case have also relied on it.

In Annaya Tantri v.

Ammaka Hengsu('), Justice Scshagiri Aiyar in his referring judgment has referred to this passage and was of the opinion that it does not express a specific view. In Ganapathi Iver on Hindu and Mahomedan Endowments (2nd Edn.) the learned author while commenting on this very passage says as follows at page 453 of his book:

"Jagannatha there considers the question whether wives and others have a title to the succession to this priestly office.

As usual with the discussions nf

(1).A.J.R. 1915 M;1d. '.'ifil.

(2) A.LR. 1919 Mad. ;9H I F.R.J.

Jagannatha it is difficult to say what his final opinion is.

But we should certainly think that Jagannatha's opinion is that women can inherit doing the duties through a substitute, but enjoying the emoluments attached to that office".

le appears on a careful consideration of the disputed passage with reference to its context, that this view of the learned author is correct. In any case the pass;; gc cannot be definitely relied upon as an author:ty for the contrary view. The discussion in connection with which this passage occurs in the commentary is under placitum No. 43 in Section II of Chapter III, Book II, which is a text from Narada relating to hereditary priests. The statement relied on occurs at a place where there .is an attempt to reconcile the disqualification of the female to discharge the functions of a hereditary priest, and the reconition of her right to succeed to all property including a hereditary ofllce.

The relevant portions of the discussion are herein below set out:

"It is doubted whether wives and others have a title to this succession, althouh the partition, founded on the admission of a riglit vesting in Agraharicas and other officiating priests, ought to be

imilar to the partition of inheritance in general. As the wife's title to succession, on failure of heirs in the male line as far as the greatgrandson, will be declared under the head of Inheritance. what should reverse h<'r titk in this instance? Jt should not be arnued. tliat the wife can have no right to the 1village, hecauseas a woman, she is disqualified for the performance of hnly rites. and because the wives of agraharicn~ and others .are totally incapable nf receiving

tila delivered as a gift to priests. The tila may be received, and the rites be performed, through the intervention of a substitute.

Let it not be argued, that. were it so, a property in the sacrificial fee and regular dues would vest in the substitute. The wife n1ay have the benefit of property acquired by the substitute, as a sacrificer has the benefit of rites perfNme<l by an officiating priest.

However, there is this difference: the sacrificer acquires merit from rites

26-8 SCIIND/82

RafKa/i Kwr

Ram Rattan

Pandey

/Qlfannadhadas . ./.

Raj Kan Klirtr

Ram 'Jf.attdtl

l'e11dry

performed by an officiating priest, and none is ever acquired by the intermediate performer of the rites; b\1l if the duty of the officiating priest be performed hy rr substitute. property in the sacrificial fee is at first vested in the substitute, and through him, in the widow entitled thereto. It is alleged. that there is no a11thority for this construction. * * *

The text which ordains that "a person unable to act shall appoint another to act for him", is the foundat10n of this construction: but the property of an outcaste, or other person disqualified for solemn rites. is absolutely lost, in the same manner with his right to the paternal gold, silver, and the like.

This will be explained in the fifth book on Inheritance.

Wives and-others, disqualified by sex for the performance of holy rites. cannot appoint a substitute: as a defiled person cannot perform a solemn act ordained by the Vedas: therefore wives have 110 property in the

office of priest".

At the end of the discussion there is the following significant passage:

"Therefore the difficulty is thus reconciled; women are entitled to that only for whk:h they are qualified. In regard to the assertion. that women, being disqualified, cannot appoint a substitute. this ml'st be understood: being disqualified for solemn

act~ ordained by the Vedas, they cannot appoint a substitute for such acts; but, qualified for worldly acts, nothing prevents their appointment of a substitute for temporal affairs: and the right should devolve on the next in uccession, under the , text quoted in another place (Book 5. v. 477) and because women are dependent on men.

Grain and similar property may be consumed by a woman entitled to the succession: but gold. silver. and the like. should be preserved: if she cannot 11uard it, let it be entrusted to her husband's heir, as will be mentioned under the title of inheritance.

Here. since a woman cannot orcserve the office, it should be executed by her husband's daughter's son, or other heir; but tlie produce

2 S.C.R.

SUPREi\1£ COURT REPORTS 199

should be enjoyed by the woman .. However, should the daughter's son be at variance with his maternal grandh1other, it may be executed by another person: he is not entitled to his maternal grandfather's property, if that grandfather leave a wife: and should the maternalgrandmother litigate, it must be amicably adjusted''.

The concluding portion seems rather to indicate that the rnore categorical passage underlined above and re!ied upon is in the nature of an objection which is heing answered and that the final conclusion is the reCl\gmtion <"i a right to succeed bv getting the duties of the office performed by the next male in succession.

The learned Judges of the High Court have in fact noticecl this concluding passage hut have missed its correct import.

It is desirable now to consider how this question stands with reference to the decided cases in the various High Courts. A fairly substantial number of cases appear in the reports of the Madras High Court,. One of the earliest decisions is that of the Madras Sadar

Diwani Ada lat in Sesllll A mmal v. So1111daraja A iyarO whre111 it was held, following the opinion of the Sadar Court Pandits that a woman was disqualified

by reason of her sex from i11heriting the office of A charyapurusha but the same Pandits' opinion distinctly recognises that religious offices like those of an Arc/10ka or P'ulari can be held by a female, hy her getting the duties thereof performed through a competent male substitute. In TanKirala Chiranjfri v. Rama Manikya Rao Rajaya Lakshmamma(') it was stated that there was no basis for the assumption that a

minor, a female, or a person unlearned in the Vedas. wili lose the right to service in the temole and that the onus will be on the person who alleges the disqualificatioD to prove it. The learned Judges categorically asserted (aoperently as being a matter within general knowledge and exoerience) that "service in temoles is being performed bv proxies". In Ramasundaram Pillai v. Savundaratha A mmaU') the learned Jud_ges say as follows:

(l) [1853] M.S.D.A. 261. (2\ A.l.R. 1915 Madra• 505(1).

(3) A.T.R. 1915 Madras 725.

195$

Raj Kali Kucr

"· Ram Rott<111

PtJJ1dey

Ja/llUl1lllliharlal

Raj 'KaU Kur

' Rmii Jldttan

Pandey

"It is undeniable that this and other High Courts have Ill numerous cases acted on the 2_ssumption

(which was not qnestioned) that women could hold religious offices and . get the duties performed by

Jogamwdhadm J. Proxy".

They further say

"It may be that the parties concerned are so accustomed to the idea of female office-holders with proxies that it has usually not occurred to them to question the legality of such a state of affairs and that in the absence of contest, the Courts have somewhat too readily assumed it to be legal without requiring proof of a valid custom in support of it".

In Rajeswari Ammal v. Subramaflia Archaka(') the learned Judges state as follows:

"We are of the opinion that a female is not under Hindu law or custom. disqualified from succeeding to a hereditary religious office and getting such duties as she may be disqualified by reason of her sex from performing, performed by proxy"

The only dissentient view against this current of allthority in the Madras High Court was that of Justice Sadasiva Aiyar in Sundarambal A mmal v.

Y ogavanagurukka/O. He expressed a strong opinion that .the practice of allowing the priestly office to be performed by a substitute excepting for merely temporary occasions or casual purposes. is wholly opposed to public policy and that it should not be recognised.

In a later judgment in Annaya Tantri v. A mmaka Hengsu<') relating to the same topic he (Justice Sadasiva Aiyar) stated as follows:

"It is notorious that the deputy is usually chosen on the principle of a Dutch auction.

The man who a.!!rees to allow the widow to retain the largest portion of the emoluments of the office and to receive the ]east a~ his QWn remuneration is given the place of the deputy".

TJ1e learned Judge pointed out that

"sllch a practice was mischievous and that even

(I) A.l R. 1917 Madros963(2).

(2) A.1.R. 1915 Madras 561.

(3) A.l.R. 1919 Madras 598 (F.R).

if it was sanctioned by usage it ought not to bl;! re- 1955 cognised by courts".

Raj Kali Kuer

There is certainly force in this comment.

But in a &;11 :'~ 1"

11 matter of this kind where there is no express prohibi- ~'~-e tion in the texts for the performance of the duties of Jaramwd!zadus J. the Pujari's office by the appointment of substitutes and where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted on to the extent of negativing the right itself. In such a situation what has to be equally emphasised is the duty-aspect oi the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest taking appropriate steps through _ cotirt), when it is found that the services are not being properly or efficiently performed. In view of the

peculiar nature of such ottices as combining in them both tht: element of property and the element of duty, it cannot be doubted that superior authorities in

char~~ of the institutions or other persons interested have this right which may be enforced by appropriate

legal means. In Raja Peary Mohan Mukh<'l'ji v. Ma110- 'liar M uklwrji(') the Privy Council has recognised that notwithstanding the personal interest of a Slwbait in respect of his oftice, the performance of the duties thereof has got to be safeguarded and that he can be removed where he has put himself in a position in \Vhich the obligation of his office can no longer be faithfuliy discharged.

So far as the Madras High Court area is concerned. the controversy has been seWed by the Full Bench case in A1111aya Tantri v. Ammaka HengsuO where the view taken by Justice Sadasiva Aiyar was specifical!Y overruled on the ground that "there were nu-. merous decisions of the Madras High Court in conformity with the decisions of the other High Courts by which the widow and the daughter and the daughter

(!) [19211 L.R. 4R I.A. 258. (.2) A.J.R. 1919 Madras 598 <F.B.).

Raj Kali Ku.er

Ra11z Ruttflit

Pandey

Jaga1uiadhudus J..

of the last male A rchaka are held entitled in accordance with the established user to succeed to the office of Archaka discharging his duties by deputy and to transmit it to their heirs, who as male heirs are preferred to female, and will generally be competent to perform the duties in person". These decisions of tne Madras High Court seem to recognise both the factum and validity of the usage as one that has been accepted by the courts not only within its own jurisdiction but also within the jurisdiction of the other High Courts. It is urged, however, that there is no such usage that can be definitely said to be established with reference to the decisions of the other High Courts.

A~ regards the other High Courts doubtless the actual cases appearing in the reports about this point are not many. In the Bombay High Court one of. the earliest decisions is the case in 1866 of Keshavbhat bin 'Ganeshbhat v. Bhagirhibai kom NarayanbhatC) where the.learned Judges say as follows:

"With respect to the otJjection. that a Hindu female cannot perform the duties which attach to the office for the maintenance of which the allowance was granted, it may be observed that the defendant had not proved the existence of any usage in confotmity with his allegation".

The claim in question in that case was 10 an annual allowance paid from the Government Treasury to the 'members of a family for the maintenance of certain religious services at the temple of M ahadev at Baneshvar near Poona. In Sitarambhat et al v. Sitaram Ganesh(') the head-note shows as follows:

"Semble, that an hereditary priestly office descends in default of males through females".

This i8 apparently the assumption on which that judgment appears to have proceeded though the matter does not appear to have been specifically so decided. In Calcutta one of the early cases is Poorun Narain Dutt v. Kasheessuree Dosee('). There it was recognised that a woman can succeed to a. priestly

(I) 3 11.H.C.R, A.C'.J. 75.

(2) 6 B.H.C.R. A.C.J. 250.

(3) [1865] 3 W.R. 179.

office and the contention .to the contrary was over- 1955 ruled on the ground that the lower appellate court Raj Kali K11er found the same as a fact on the evidence and that no Ramvfl.attan •Orte but the defendant had raised the contention. In Pandey !Joy Deb Surma v. Huroputty Surma(') the same ques- J"g"'m-;; dhadas J. tion was raised, viz., whether according to Hindu law a woman can succeed to the priestly office and reliance appears to have been placed for that contention on the passage from Colebrooke's Digest already above referred to. In view of this contention the learned- .Judges remitted the case to the lower court for determination of the question whether with reference to any particular custom or rule of Hindu law a woman is entitled to succeed to the priestly office. In that case it was the office of the Dolloi of the temple. It does not appear what the finding received was and how this matter was finally decided. In Radha Mohun

Mu11dul v. Jadoommiee Dossee(') their Lorships of the Judicial Committee quoted with apparent approval the following passage from the judgment of the trial Court:

"They (the members of the family) merely say that as the said properties are of a debuttur character, they are not susceptible of division among the shareholders; and that since the plaintiff is a childless widow. she is not competent to c; arry on the service of the gods. That the properties in question do not admit of any partition among the co-shares. is a fact which must be admitted by me; but I do not see any reason why a widow of the family should be incapacit11ted from superintending the service of the gods. It is 11ot uned by the defendants that any such rule has been laid down in the family, and that under it the widows have been excluded from the above superintendence.

On the other hand. among the Hindoos.

Persons belonging to no other caste except that of Brahmins can perform the service of a god with his mvn hands. that is. worhip the idol by touching its person. Men of other castes simply suoerintend the ser<1ir.e of the gods and goddesses established bv themselves. while they causetheir actual worshipto he

(I) [1871] 16 W.R. 282.

(2) 23 W.R. 369.

Raj Kall Ktitt

Ram Rattan

J'andej

Jagannadhadas I.

204 SUPREl'vfE COURT REPORTS [1955]

performed by Brahmins.

Thus, when persons of the above description can conduct the service of idols in the above-mentioned manner, why should not the widows of their family be able to carry on worship in . 1 ? c a s1m1 ar way. . . . . . . . . . .. . . . . . . . . . . onsequently, there 1s nothmg to prevent the Court from finding that the plaintiff has a right to hold possession of the debutter properties enumerated by the defendants in the 12th paragraph of their written statement, and to superintend the service of the gods conjointly with the other co-sharers".

In Mahamaya Debi v. Haridas. Haldar(') it has been recognised that according to custom the palas of

Ktlighat shrine in Calcutta are heritable and that it was immaterial whether the heir is a male or a female.

This must necessarily have involved the recognition of the capacity of the female to get the worship performed by a male substitute who is to be taken from a limited class. As has been already noticed, the reported cases dealing with this math<r outside the Madras High Court do not appear to be many.

At ariy rate, no others have bee)l brought to our notice dealing with this question directly, though there are many cases relating to the question of succession to the office of Shebait and the performance of duties thereof by proxy, which is a matter distinguishable from a case relating to the office of Pujari or A rchaka simpliciter. The paucity of decided cases in the reports of the other High Courts may very well be due to what has been pointed out in one of the Madras cases, viz., that the practice of females 3ucceeding to this office and getting the duties thereof performed by a sn bstitute was so common and well recognised that it has not been seriously contested and brought up to the Courts.

Further the institution of private familv temoles and the endowments of latge and substantial properties for the Deb-seva ii:i such temoles though somewhat uncommon in South India is fairlv common in Bengal and some other. States. •Jn view of the Dayahhaga system of law of succession prevalent in Bengal and the very much larger number

(I\ A.r.R. 1915 Calcutta 161\2).

of occasions for wives and daughters succeeding to a

195.S sonless coparcener in Dayabhaga joint families, the 1:11/ Kali xi.er practice of females succeeding to the prie~Jy office Rom v.Ra 1 and of getting the duties performed by other mem- Pande; "n bers of the family as proxies in their places must, by J, -;,;;;""' J the very. situation, have been common in these areas. aaa11n ai (fhe case reported in Jalandhar Thakur v. Jharula Das(') is a case relating to Shebait's (priest's) office in the Singheswar temple of Bhagalpur and the facts therein show that there was umtuestioned female succession to the office. It is a clear indication of the prevalence of the usage of female succession to priestly office in the State of Bihar from which the present case arises .

. A careful review, therefore, of the reported cases on this matter shows that the usage of a female succeeding to a priestly office and getting the same .performed through a competent deputy is one that has been fairly well recognised. There is nothing in the textual Hindu law to the contrary.

Nor can it be said that the recognition of such a usage is opposed to public policy, in the Hindu law sense. As already pointed out the consideration of public policy can only be given effect in the present state of the law, to the extent required for enforcing adequate discharge of the duties appurtenant to the office.

Subject to the proper and efficient discharge of the duties of the office, there can be no reason either on principle or on authority to refuse to accord to a female the right to succeed to the hereditary office held by her hushand and to get the duties of the office performed hy a substitute excepting in cases where usage to the contrary is pleaded and established. In the present case such a usage was pleaded by the defendant

in his written statement but no evidence of it was given.

Indeed as pointed out by the first appellate Court, the plea that there has been a partition of the offices of the two temples and the implied re· cognition of the plantiff's right to the office of the other temple at Gangupal appears to indicate the contrary usage. We are accordingly of the opininn

(1) A.T.R. 1914 P.C. 72. 27-8 SCT 1NDl82

19S5

Raf .Kali }(11er

•• Ram Ratu1n

Pa11dey

Jagannadhadas.J.

April 7

that tht: claim of the plantiff-appellant is made out and that she is entitled to succeed.

The:: discussion above. is more germane to the case of a public t"mple wherein the idol has been Shastrically installed and consecrated and the worship is in accordance with the Shastras. There is nothing on the record to shbw whether the temple in this case falls within this category. If; however, the temple

s a private one or idol therein is not one Shastri cal!y consecrated, the case in favour of the plaintiff is much stronger and her right cannot be seriotisly challenged.

At this stage, it is desirable to mention one other matter.

In the present case the emoluments attached to the office ar.e stated to be the daily and other offerings made to the deity at the worship hy the visiting devotees.

Both the parties to thi~ case have come up to Court on the common footing that it is this which constitutes the emoluments.

Whether and how far such votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private famiiy temple) and whether any usage i'l this behalf is valid is a matter which does not arise before us in this case.

In the result, the appeal must be allowed with costs throughout and the decree of the trial court must he restored.

RAO SHIVA BAHADUR SINGH v.

THE STATE OF VINDHYA PRADESH AND

ANOTHER

fMUKHERJEA C.J., S. R. DAS, VIVIAN BOSE, STNHA

and IMAM J.T.] .

Constitution of India-Art. 145(3)-Cottstruction of-Supreme Court-Whether competent to split Up the case for he purpose of hearing and decision.

Held (Per MUKHERJEA C:T, DAS, VIVIAN HOSE. and IMAM .TJ SINHA J. dissentini:) that a Constitution Bench of five or more Judges before which a cace happrns to be posted in the first. instance

RAM RATTAN PANDEY

VIVIAN BosE

JAGANNADHADAS

SINHA JJ.

S. 120

R. C. Prasad

S. P. Varma

article 136(1)

High Court of Patna

Arrah

Bihar

Aranya Devi

Killa Ki Devi

Rambeyas Pande

_ Rambeyas Pande

Gangipul

Aran Devi

Raj Kali Kuer

Rain Rattan Pandey

Ram JlatlW

Dharmakarta

Pujari

Page

Sadasiva Aiyar

Calcutta High Court

Asutosh Mookerjce

llifi Kall

Pandey

Saraswati

Manu

section 18

section 36

Pandi! Pranna1h Sa.rnswali

Vishnu

Siva

Colebrooke

Jagannatha Tercapanchanana

Saraswti

Panda

India

Scshagiri Aiyar

Ganapathi Iver

Jagannatha

Narada

Agraharicas

Raj Kan Klirtr

Madras High Court

Madras Sadar

Diwani Ada

Sadar Court

Raj Kali Kucr

Raj Kali Kuer

Jaramwd!zadus

Raj Kali Ku.er

Bombay High Court

Poona

Calcutta

Raj Kali K11er

Radha Mohun

Raj Kall Ktitt

Ram Rattan

Madras

South India

Bengal

Shebait

Bhagalpur

Gangupal

Raf .Kali

Ram Ratu1n

Jagannadhadas

fMUKHERJEA

S. R. DAS

VIVIAN BOSE

IMAM

Constitution of India

Art. 145(3)

MUKHERJEA C:T, DAS,

VIVIAN HOSE

IMAM .TJ SINHA

Constitution Bench