Srimati Mallika Dasi vs Ratanmani Chakervarti

Maclean, C.J.—I think both Judges in the Courts below were right in the conclusion at which they arrived. It seems to me that the case is really concluded by the authorities which have been cited. No authority in support of the proposition, for which the Appellant contends, has been produced. It seems to me that there is a great deal of good sense in the reasons which are given in the case of Mancharam v. Pransankar ILR 6 Bom. 298. It is pointed out there in these words which I adopt. It refers to certain cases, and then it is said " if such property were subject to attachment and sale, the purchaser might be a Mahomedan or a Christian, who would be both unwilling and incompetent to perform the service of the idol; and in the case of Drobo Misser v. Srineebash Misser 14 W.R. 409: 5 B.L.R. 617, Mr. Justice Mitter further observed that he might be unfit to prepare food for the idol. The same reasons would militate against an unrestricted right of alienation by private sale or gift. Such an alienation to an improper person would defeat the object of the endowment, and in some cases, as in the Privy Council case Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty I.L.R., 1 Mad. 235, it might be inconsistent with the presumed intention of the endowment. It may be admitted, also, that it would not be desirable to lay down any such rule regarding such alienations as would involve the Courts in nice questions of caste distinctions, bearing upon the capacity of a particular individual to perform the worship of and prepare food for a Hindu idol." It is suggested that the cases cited only refer to the office and not to the emoluments of the office, but I scarcely think there would be much contention for the office, qua office, unless the question of emoluments were also involved. On these short grounds, I think that the judgment of the Court below was right, and this, appeal must be dismissed with costs.

Banerjee, J.

I am of the same opinion. The appeal arises out of a suit brought by the Plaintiff-appellant to enforce a mortgage bond, the property mortgaged being the Defendant''s pala, or turn of worship, of a certain idol named Olai Chandi Dabi. The Courts below have given the Plaintiff a personal decree against the Defendant; but they have concurrently held that the turn of worship, such as the Defendant has in this case, is inalienable, and that the mortgage of such a turn of worship cannot be enforced.

In second appeal, it is contended for the Plaintiff, in the first place, that it was not competent to the Defendant, after he had mortgaged his turn of worship, to raise the question whether it was alienable or not; and in the second place, that even if it were competent to the Defendant to raise that question, the Courts below are wrong in answering it in favour of the Defendant.

As to the first contention, there is no dispute about the facts. The facts are all recited in the mortgage deed, and none of these facts is called in question in the defence, or, at any rate, called in question before us on behalf of the Defendant. That being so, if the property in question is by law inalienable, I do not think that the Defendant is precluded from raising the question of law that is now raised. In the case of Jaggat Mohini Dassee v. Sookhimoni Dassi and others 17 W.R. (P.C.) 41, their Lordships of the Judicial Committee observed : " How the real facts may be, it is not possible for their Lordships, on the evidence, to decide, but this is to be observed that a former abuse of trust, in another instance, cannot be pleaded against a trustee who seeks to prevent a repetition of abuse, even if he were formerly implicated in the same indefensible courses against which he is seeking to protect the property, though it would be a reason for excluding him from the administration of the property as shebait. The Court could not, with any propriety, say, we will decline to protect the property, and leave it further exposed to loss, and decline to make a declaration, that it is trust property, merely because they would not trust, the Plaintiff with its administration." I think the same principle applies to a case like this, and we cannot decline to adjudicate upon the question raised as to the inalienability of the property in dispute, merely because the Defendant mortgaged it to the Plaintiff.

Then as to the second contention, I think that the matter is concluded by authority. It has been held in a uniform current of decisions, both in this Court and in the High Courts of Bombay and Madras, that a priestly office with emoluments attached to it is inalienable; see the cases of Jaggernauth Roy Chowdhury v. Kishen Prosad Surma alias Raja Babu 7 W.R. 266, Drobo Misser v. Srineebash Misser and others14 W.R. 409, Kalee Charan Gir(sic)ssain v. Bungshee Mohan Das and another 15 W.R. 339, Moncharam v. Pransankar ILR 6 Bom. 298 Gurukal v. Dorosami Gurukal ILR 6 Mad. 76. Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty ILR 1 Mad. 235. And the same principle'' is, I think, embodied in clause (d) of section 6 of the Transfer of Property Act. If it were necessary to give reasons for a proposition so amply supported by authority, as the proposition contended for on behalf of the Respondent is, I may say that it would be contrary to public policy to allow offices like this to be transferred either by private sale or by sale in execution of a decree. The Defendant in this case is one of several shebaits to the idol, his turn of office extending over eleven days in a month. The emoluments of the office consist of votive offerings. And if a person professing a religion differing from Hinduism were to become the execution purchaser, it would lead to no end of complications and disturbances, which would be detrimental in the highest decree to the interests of other shebaits and of votaries generally. I therefore think that the Courts below were right in holding that a property of this description is not alienable. The decree appealed against must, therefore, be affirmed with costs.