# RAJ KALI KlJER v. RAM RATTAN PANDEY

- **Citation:** [1955] 2 S.C.R. 186
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** CIVIL APPELLATE 'JURISDICTION: Civil Appeal No. 136 of 1953
- **Bench:** VIVIAN BosE, Jagannadhadas, Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-kali-kljer-v-ram-rattan-pandey-1486
- **Pages:** 21

## Headnote

[ 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
cxt·cpt in ca:ses wh\.'ft: u~age 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.
2 S.C.R.
SUPREME COURT REPORTS
187
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
1955
Raj Kali Kuer
v.
Ram Ratran
Pandey
J955
Raj Kali Kuer
'/ ..
Rain Rattan
Pandey
Jaganuadhadn.~ J.
188
SUPREME COURT REPORTS
[1955]
is set out

## Text

_Characters 0–39,963 of 43,299. This is a partial read: ask again with offset=39963 for what follows._

1955
April 7
186
SUPREME COURT REPORTS
RAJ KALI KlJER
v.
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
cxt·cpt in ca:ses wh\.'ft: u~age 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.
2 S.C.R.
SUPREME COURT REPORTS
187
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
1955
Raj Kali Kuer
v.
Ram Ratran
Pandey
J955
Raj Kali Kuer
'/ ..
Rain Rattan
Pandey
Jaganuadhadn.~ J.
188
SUPREME COURT REPORTS
[1955]
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
2 S.C.R.
SUPREME COURT REPORTS
189
1955
Ru} Kali J(μ8r
"'
Ram JlatlW!
P,,,..y
J~l.
190
SUPREME COURT REPORTS
[1955]
!do~ with the.office of the manager of the·temple, 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.
R.
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.
2 S.C.R.
SUPREME COURT REPORTS
191
(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
Rp~n':;,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 spi·ritual 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.
1955
llifi Kall &!kt
"
Ram.Rat1an
Pandey
!iiatd•.adhatfas·J.
192
SUPREME COURT REPORTS
(1955]
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 Shasti·as. 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.).
2S.C.R.
SUPREME COURT REPORTS
193
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.
1955
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
194
SUPREME COURT REPORTS
[I 955]
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., Ma~ras, 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.
2 S.C.R.
SUPREME COURT REPORTS
195
This is all the more remarkable because by the date
1955
of Jagannatha 's
Digest
the
institution of worRaf 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
Sarasw~ti'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.).
1955
Raj Ka/; Kuer
v.
-Ram Rattan
Pandey
J"'q~nadl1ad,,. 1.
196
SUPREME COURT REPORTS
[1955]
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.
'
2 S.C.R.
SUPREME COURT REPORTS
197
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
reco~nition 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,
althou~h 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 great~grandson, 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,
hecause- as 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
1955
RafKa/i Kwr
v.
Ram Rattan
Pandey
/Qlfannadhadas . ./.
1955
Raj Kan Klirtr
v.
Ram 'Jf.attdtl
l'e11dry
198
SUPREME COURT REPORTS
[1955]
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 maternal- grandmother 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
1955
Raj 'KaU Ku~r
'·
Rmii Jldttan
Pandey
200
SUPREME COURT REPORTS
[1955]
"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).
2 s.c.R:
SUPREME COURT REPORTS
201
if it was sanctioned by usage it ought not to bl;! re1955
cognised by courts".
Raj Kali Kuer
v.
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.).
1955
Raj Kali Ku.er
v.
Ra11z Ruttflit
Pandey
Jaga1uiadhudus J..
202
SUPREME COURT REPORTS
[1955]
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.
2 S.C.R.
SUPREME COURT REPORTS
203
office and the contention .to the contrary was over1955
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 un~ed 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. wor~hip 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 cause- their actual worship- to he
(I) [1871] 16 W.R. 282.
(2) 23 W.R. 369.
1955
Raj Kall Ktitt
v.
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
K~tlighat 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).
2S.C.R.
SUPREME COURT REPORTS
205
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 memPande; "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 .
.