E. Venkatesa Archagar and Another vs E. Ekambara Archagar and Others

P. Chandra Reddy, C.J.—These three appeals under Clause 15 of the Letters Patent are against the judgment and decree of our learned

brother, Kunhamed Kutti J., allowing three second appeals, Second Appeal Nos. 452, 435 and 451 of 1960. They raise the question as to

whether the transfer of the combined office of trustee and archagar for value is prohibited by law. The facts that culminated in this litigation may

briefly be related.

There are three temples situated by the side of the Egmore High Road and Me. Nichol''s Road, dedicated to the village Goddesses,

Ponniamman, Sadayamman and Karikathamman. It is not clear as to when and by whom they were founded. But, as the records go, it appears

that one Arumugha Archagar was the manager and archaka of this temple some time in the beginning of the last century. After him, his

descendants, some of whom are parties to the present litigation, continued to be in management and enjoyment of these properties, performing

worship in these temples. Some time in the seventies of the last century, a dispute arose between members of this family as to the right of some of

them to be maintained out of the income of the properties of these temples, and it was ruled by one of the Judges of this Court that, although the

properties standing in the name of the temples constituted the endowments therefore, the members of the family of Arumugha Archagar were

entitled to the surplus of the income after defraying the expenses of worship, etc., therein. Long thereafter, another dispute arose with regard to

these temples, viz. as to the character of these institutions,--whether they were public or private temples. In adjudicating upon this controversy,

Panchapakesa Ayyar, J. ruled that they were public temples and that the properties in question pertained to these institutions.

In 1949, one Arunagiri Archagar alienated his l/9th share or his 1/9th right in the office of archaka and trustee in favour of the present Appellant

for a consideration of Rs. 300. On his death, his daughter, Andalammal, refused to give effect to this transaction, with the result that the alienee

brought Original Suit No. 1468 of 1954 in the City Civil Court for a declaration of his rights based upon the sale and for an injunction restraining

the said Andalammal from interfering with his possession. For a similar relief, Andalammal, the alienor''s daughter, laid an action in the same

Court,--Original Suit No. 1537 of 1954, pleading invalidity of the sale entered into between her father and the present Appellant. Not satisfied

with the purchase of the 1/9th share of Arunagiri, the Appellant entered into an agreement for the acquisition of a similar 1/9th share of Damodara

Archakar for Rs. 400 on 25th October 1949. Since Damodara Archakar did not execute the sale-deed pursuant to this agreement, he brought

Original Suit No. 1820 of 1951, for the specific performance of this agreement. The first two suits were tried together and the trial Court came to

the conclusion that the transfer in question was not objectionable, as it was not in any way detrimental to the interest of the institution. Original Suit

No. 1820 of 1951, was tried by another learned Judge who reached practically the same conclusion. In his opinion, the agreement was not invalid

and could be specifically enforced. The appeals carried by the vendors or their heirs were unsuccessful, the appellate Judge concurring in the

opinion of the trial Court that there was nothing illegal in these transfers.

Aggrieved by these decisions, the alienor in one case and the alienor''s heir in another case instituted second appeals in this Court, and they were

accepted by Kunhambd Kutti J. The learned Judge sustained his conclusion on an unreported judgment of this Court in Appeal Suit No. 88 of

1958 Bava G. Gopalasami Mudaliar and Ors. v. V.S. Thyagaraja Mudaliar and Ors. It is this decision of the learned Judge that is impeached

before us.

The contentions urged by Sri R. Gopalaswami Ayyangar in support of these appeals are twofold. The first was that what was alienated was a

share of the Respondents in the property which was partially dedicated to the temples. This implies that the payment of such sums as might be

necessary to meet the expenses of the worship in the temple was charged upon this property. Subject to this liability, the members of the family of

Arunagiri Archakar were entitled to the income therefrom. In other words, after defraying the expenses connected with the worship and the

maintenance of these institutions the members of the Appellant''s family could appropriate the surplus to themselves and, consequently, there was

nothing illegal in the sale of properties. The second was that, assuming that what was sold was the right of the alienors in the archakatwam service

and dharmakarthaship, this was not opposed to public policy for the reason that the alienee happened to be a member of the same family as

alienors.

We shall now deal with these two contentions. We feel that the first argument is not founded on any material. On the other hand, there is

overwhelming evidence adduced by the Appellant himself which militates very much against this case. The origin of these temples is shrouded in

obscurity, and, as already observed it is not known as to who the founder of these temples was or who endowed the temple with properties. The

very documents called in aid by learned Counsel for the Appellants, viz., a decree of 1877 and a judgment of Panchapakesa Ayyar J., in Original

Petition No. 160 of 1950 clearly establish that the properties constituted endowments of the institutions and that the members of Arunagiri

Archakar''s family were only managing the institutions and their properties performing worship therein and enjoying the surplus of the income. In

fact, it is their case that nothing remained after meeting the expenses of the temple, and, as such, they could not make use of any part of the income

for themselves.

That apart the very documents which form the basis of the suits belie the case now put forward by the Appellants. It was there asserted that

what was being sold was the right of the alienors in the offices of trustee and archaka. Nowhere do we find any reference in these documents to

the right of the alienors to these properties. In exhibit A-1, it is categorically stated that what was sold was the right of the alienor in the trusteeship

and archakatwam service for a sum of Rs. 400. In the light of the recitals in these documents it is futile to contend that the properties remained

those of the family of Arumuga Archakar to be enjoyed by the members thereof, subject to the performance of the worship and defraying all the

expenses connected with this institution. It is also pertinent to note here that Panchapaknsa Ayyar J., in Original Petition Nos. 160 of 1950 and 99

of 1951, stated inter alia, in order to put this matter beyond controversy, that the properties also belonged to the temples, registered in the names

of the temples or the trustees, and not private properties of the archakas, the latter were only enjoying and managing the entire properties as

trustees throughout the known period and meeting the expenses of daily pooja etc. Having regard to this overwhelming evidence, there is no scope

for the contention that the members of archaka family retained the rights of ownership in these properties while charging the expenses pertaining to

the services in the temple on these properties. Moreover, we fail to appreciate this argument when it is not established that the founder of these

institutions was an ancestor of these archakas. It is interesting to note that one of the witnesses examined by the members of this family in Original

Petition Nos. 160 of 1950 and 99 of 1951, referred to earlier, had deposed that it was not known who founded the temples and who made the

endowments. In this situation, the argument that what was sold was a share in the properties which were charged with a duty to perform worship in

the temple cannot be accepted. On this discussion it follows that the first limb of the argument is unsubstantial and cannot be given effect to.

We will now proceed to consider the second branch of the argument viz., that the right of office in the temple could be alienated for a pecuniary

advantage. Right from the beginning, this Court has been taking consistently the view that a religious office like that of archaka or dharmakartha

could not be alienated for value. This principle was based upon the public policy, viz., the prevention of trafficking in these offices and to disable

the holders of the office to let in undesirable and disqualified persons into the office.

The origin of this rule is traceable to the pronouncement of their Lordships of the Judicial Committee in Rajah Vurmah Valia v. Ravi Vurmah

Kunhi Kutty ILR (1876) Mad. 235, 251 (P.C.). Their Lordships stated the rule bearing on this problem in these words:

...no custom which can qualify the general principle of law has been established in this case and they desire to add that, if the custom set up was

one to sanction not merely the transfer of a trusteeship, but as in this case the sale of a trusteeship for the pecuniary advantage of the trustee, they

would be disposed to hold that that circumstance alone would justify a decision that the custom was bad in law.

Thus, their Lordships enunciated the doctrine that assignment of a religious office for a pecuniary advantage of the office-holder could not be

validated by any proof of custom. Basing themselves upon this principle, the learned Judges of this Court have been uniformly and consistently

adumbrating the rule that the alienation of the office of dharmakartha or archaka was invalid and ineffective, as it was contrary to public policy. A

catena of decisions of this Court contain this view, the latest being the unreported decision of a division Bench of this Court in Appeal Suit No. 88

of 1958 Bava C. Gopalaswami Mudaliar and Ors. v. V.S. Thyagaraja Mudaliar and Ors. The learned Judges summed up the legal position on a

review of the entire case-law thus:

A hereditary right of office, be it secular like trusteeship or dharmakarthaship or manager of a public shrine or be it religious like that of an archaka

or a pujari or shebait, is in the nature of immovable property attributed with most of its legal characteristics and incidents. Under the Hindu Law, its

course of devolution and descent is governed by the law of inheritance. It cannot, however, be alienated for value to anybody, a stranger or a

person who is a next heir an individual in the line of heirs, as such a transaction would be repugnant to public policy and would offend the doctrine

of delegatus non potest delegate (a delegate cannot delegate) and would be opposed to the presumed intention of the founder of the trust or

endowment.

It is manifest that an alienation of the office of archaka or trustee for value to a person who does not stand in the line of succession, is invalid,

being opposed to public policy. If the alienor receives any pecuniary advantage from the alienee, even if the latter happens to be either a member

of the family to which the alienor himself belongs, the transaction would be repugnant to public policy, and, as such, inoperative and ineffectual. Of

course if it is surrendered in favour of a person in the line of succession, that is, without any pecuniary benefit, it is valid and unobjectionable. This is

obviously for the reason that it does not amount to trafficking in office. The transaction would be invalid, notwithstanding that no pecuniary

advantage is derived by the alienor, if the alienee happens to be one unconnected with the family.

This view has received the support from authoritative text-books like Mayne''s Hindu Law. The learned author has summarised the law in

these words (eleventh edition, page 944):

A trustee cannot sell, lease or otherwise alienate the right of management, nor is the right sale-ablein execution under a decree. In Rajah Vurma

Valia v. Ravi Vurma Kunhi Kutty ILR (1876) Mad. 235 (P.C.), the Privy Council observed that, even if a custom sanctioning not merely the

transfer of a trusteeship, but the sale of a trusteeship for the pecuniary advantage of the trustee was set up, they would be disposed to hold that that

circumstance alone would justify a decision that the custom was bad in law. Neither a hereditary dharmakartha nor a shebait nor the head of a

math has a right to alienate his office by sale, gift or will; nor can he appoint his successor, unless authorised to do so, by the deed of endowment

or by the usage of the institution.

But some exceptions have been recognised to this rule of non-alienability which are set out in the next page in these terms:

...an alienation by gift or will of a religious or secular office, without receiving any consideration to a person standing in the line of succession and

free from objections relating to the capacity of a particular individual to perform the worship of an idol or do any other necessary functions

connected with it, may be valid. In the case of Archakas, such an alienation, when made in favour of one in the line of heirs of the alienor and when

it is neither for consideration, nor in any way opposed to or inconsistent with the interests of the institution, is valid. In such cases, the alienation of a

religious office is in fact little more than a renunciation of the right to hold the office and it is always open to an office-holder to resign his office, or

to relinquish his rights under a compromise.

To a like effect is the rule stated by Dr. Bijan Kumar Mukherjea in his Tagore''s Law Lectures on the Hindu Law of Religious and Charitable

Trust, and it runs as follows:

Though the general proposition laid down in the cases referred to above has never been disputed, yet, there are decisions of different High Courts

in India in which the rule against alienation of the shebait right has been relaxed to some extent by reason of certain special circumstances. These

circumstances may be conveniently grouped under three heads : (1) where the transfer is not for any pecuniary benefit and the transferee is the next

heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties ; (2)

when the transfer is made in the interests of the deity itself and to meet some pressing necessity ; and (3) when a valid custom is proved,

sanctioning alienation of shebait right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected

with the family.

Mullah, in his Hindu Law states the principles in similar terms and it is not necessary to set them out here. Suffice it to say that, the consensus of

opinion of this Court is the one stated above, supported as it is by most of the authoritative text-books.

It is true that this restriction on alienation was not so strictly enforced by the High Court of Bombay as in Madras if the alienee happens to be a

member of the family to which the alienor belonged, despite the receipt of pecuniary benefit. It is to this category of cases that Hanmappa

Udandappa v. Hanmantgauda Ramangauda ILR (1947) Bom. 789 belongs. This judgment recognised that the other High Courts have struck a

different note on this question and that the statement in Mullah''s Hindu Law in paragraph 420, distinguishing alienation for money and alienations

by way of gift, was too broadly stated so far as Bombay was concerned whatever its effect may be with regard to parts of India outside Bombay.

In this behalf, it is interesting to see what Macleod C.J., had to say in Raghunath Vithal v. Purnanand Saraswati Swami ILR (1922) 47 Bom. 529,

533.

...If one of the members of the family wishes to get rid of his duties as well as his rights, he could only do so in favour of the remaining members of

the family, and he cannot evade the ordinary rule as to alienations by purporting to surrender his share to the original grantor, or, put in other

words, the alienation of a share by one member of the family is invalid whether it is made in favour of an outsider altogether or whether it is made in

favour of the original grantor of the office.

Macklin J. who spoke for the Court in Hanmappa Udandappa v. Hanmantgauda Ramangauda ILR (1947) Bom. 789, was inclined to explain

away these explanations with the remark that the transfer in that case was not to a member of the family entitled to hold office, but to an outsider.

But it cannot be overlooked that the concept enshrined in this passage is in accord with the one indicated by us above. But it cannot be ignored

that Macleod C.J., stated that alienation even in favour of the original grantor of the office could not be valid. Be that as it may, so far as Bombay

was concerned, they relaxed the rules, prohibiting the alienations of these offices for value.

It may be mentioned here that the view taken by the Andhra High Court in Seshacharyulu v. Venkatacharyulu AIR 1957 A.P. 876 is the same

as that of our Court. Viswanatha Sastri J., who delivered the opinion of the Bench, held that when the transfer of an archaka office was made for

valuable consideration and in favour of one who was not in the line of succession or a member of that family, it was violative of public policy. If, on

the other hand, it was to remaining archakas or the sole and immediate heir of the transferor without receiving any valuable consideration, no policy

of the Hindu Law or any other Law was contravened, and the transaction itself could not be regarded as being against the presumed intentions of

the grantor or founder of the endowment. In that case, the transfer was by way of sale to a divided agnatic relation of the transferor, and the

learned Judges decided that the transfer was invalid. In the opinion of the learned Judges, the vice of the transaction is in its being a sale for

consideration, that is to say, for the pecuniary benefit of the transferors.

In this situation, we are unable to accede to the request of Sri R. Gopalaswami Ayyangar to place this matter before a Full Bench for a

reconsideration of a long line of authorities which adumbrated the proposition enunciated above. Apart from every other consideration, we are

firmly of opinion that this is in consonance with morality, public policy and convenience. For these reasons, we are in entire agreement with the

conclusions reached by the learned Judge in the second appeals.

In the result, the appeals are dismissed with costs.