1. It is well settled that the succession to temple offices is governed by user which is taken to represent the intentions of the founder, and it is not disputed that in this part of India the user in the case of temple archakas is that the office is hereditary and descends in the ordinary course of succession to women who are not themselves competent to perform the duties of the office by ministering in the temple and perfom them by deputy. The opinion of the pandits in 1853 in M.S.D.A. 261 shows that this was then the recognised usage. The question appears to have first come before the Court in 1910, but since that time there have been numerous decisions where the user has been recognised and enforced, and all the Hindu members of the Court with one exception have been parties to these decisions which also are conformable with the decisions of other High Courts. The only authority the other way is the judgment of Sadasiva Aiyar, J., in Sundarambal Animal v. Yogavana Gurukkal (1914) I.L.R. 38 Mad. 850 who considered that on principle a personally disqualified heir could not inherit the office and delegate the duties to others. In the argument before us it was again contended that the decision of the Privy Council in Mohan Lalji v. Gordhan Lalji Maharaj (1912) I.L.R. 35 All. 283 was in accordance with this view and must be taken to have overruled the other cases. In that case the office of archaka had descended to the widow and daughter of the last male archaka, and the question was whether the daughter was to be succeeded by her son or by the reversioner of the last male holder. The Archakas were gossains and there was a usage among them that females continued to belong to their farther's kul or family after marriage. On this ground apparently the daughter had been allowed to fill the office even though married to a member of the Bhat community who was incapable of filling it. No question arose in that case as to the right of the widow and her daughter after her to fill the office; and it does not appear whether while they held it they performed the duties in person or by deputy. What their Lordships had to consider was, whether on the daughter's death the office should go to her son and her descendants a line of heirs who as Bhats would be incapable of performing its duties, or should revert to the male heirs of the last male holder. Their Lordships at p. 288 observe that the rule as to the shebaitship being vested in the heirs of the founder "must from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship'' and they say later on, that "to allow the plaintiff's claim to an admittedly Ballav temple when the rights are performed according to Ballav ritual, which it is clearly established they cannot perform, would in their Lordships' judgment, defeat the purpose for which the worship was established." A contrary decision would have involved the devolution of the office to a line of heirs incompetent to perform its duties. Moreover, the plaintiff's claim in that case was not shown to be in accordance with any well recognised user which is the best evidence of the founder's intentions. I do not consider that this decision of their Lordships warrants us in overruling the numerous decisions of this Court in conformity with the decisions of other Courts by which' the widow and daughter of the last male archaka are held entitled in accordance with the established user to succeed to the office of archaka discharging its duties by deputy and to transmit it to their heirs, who as male heirs are preferred to female, will generally be competent to perform the duties in person. Sadasiva Aiyar, J., for whose opinion I have a great respect, considers, if I rightly understand him, that the established custom of female succession to this office is of so mischievous and objectionable a character that it cannot have been intended by the founder. That view is not shared by Seahagiri Aiyar, J., who has considered this aspect of the case in the order of reference, or by the other Hindu members of the Court who have considered the question. We should not in my opinion be justified in overruling on this ground the numerous decisions of this Court in which the usage has been recognised and enforced, unless its mischievous character had been established beyond all doubt or controversy. This has not been done and I feel bound to answer the question in the negative.
Sadasiva Aiyar, J.
2. I have carefully reconsidered my decision in Sundarambal Animal v. Yogavana Gurukkal (1914) I.L.R. 38 M. 850 in the light of the later decisions of this Court quoted by my learned brother. Mr. Justice Seshagiri Aiyar in his order of reference, also of his own keen and yet considerate criticisms (if I may be permitted to say so) of my said decision and also of the opinions of my Lord and of Mr. Justice Spencer on this reference. I am, notwithstanding, unable to convince myself that my opinion was erroneous. On the other hand, the decision of their Lordships of the Privy Council in Mohan Lalji v. Gordhan Lalji Maharaj (1912) I.L.R. 35 All. 288 lends, in my opinion strong support to my conclusion. With respect, I am unable to agree with Mr. Justice Seshagiri Aiyar that the widow and daughter of the last male Shebait of the Ballavacharya Gcssain sect in the Privy Council case must have been not competent to perform the duties of the office and must have " employed deputies to perform the duty" and that their enjoyment of the emoluments of the office during their lifetime must be due to their having performed the duties through such deputies and not directly. On the contrary, it seems to me clear from the report that the out-of-date unshastraic custom obtaining in the south by which Dharmapathnies (who are Sahadharmacharinees of their husbands) are considered incompetent to pronounce mantrams and do religious duties along with (and even solely in the absence of) their husbands does not obtain among the Ballavacharya Gossains, one of the Vaishnavite sects which are in several respects much more liberal in the treatment of women and birth-sudras than other sects though many Vaishnavite sects might have become very degenerate in other respects.
3. I am further unable to see that my conclusion as to Jagannatha's opinion and the weight of the authority of the texts quoted by him being in my favour is wrong.
4. A. general rule has been laid down by their Lordships of the Privy Council that where a person is incompetent to perform the rites of a religious office, it would defeat, the very purpose for which the worship was established if he (including of course "she)" is allowed to inherit the office. Any usage inconsistent with such purpose is clearly invalid in law. See K.P.L.S. Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi (1917) I.L.R. 40 M. 709=33 M.L.J. 1, (P.C.).
5. I am unable to appreciate any distinction in principle between the incompetency of the claimant to the office by reason of sex and the incompetency due to any other cause. I do not think that the pronouncement of their Lordships of the Privy Council can be got round through any such distinction.
6. Though "law" is not always logical and though the narrow point referred to us relates to inheritance by a person incompetent by reason of sex alone for performing the duties of a religious office, I do not think that the considerations of the difficulties which are aggressively prominent when we take the four analogous cases (1) of a male heir being incompetent by reason of conversion to another faith when the inheritance opens, (2) of his becoming incompetent after the inheritance opens, (8) of a female heir being incompetent by reason of conversion before the inheritance opens and (4) becoming incompetent after the inheritance opens can be kept out of mind in deciding the present relerence, especially having regard to the provisions of Act 2i of 1850.
7. Coming to the weight to be given to practice and usage, many pernicious and unshastraic usages have crept into the Hindu religious and social systems during dark medieval days and through efflux of time. Most of them entered gradually and insidiously through the tendency of that subtle materialism which sometimes parades as strict orthodox spirituality. The latter is exalted over the spirit, the so-called hereditary rights are given more importance than the performance of the religious duties, instead of the rights being kept as a very subordinate adjunct and appurtenance of the duties and religious offices and caste status are looked upon more as intended for the means of livelihood and for the enjoyment of worldly power and material possessions than as things bestowed upon one for helping all humanity in its evolutionary progress towards the common goal.
8. I respectfully agree with my Lord that the law as at present settled by the decision of the Privy Council is that unless the usages in connection with religious institutions and offices are manifestly immoral or opposed to public policy or opposed to the intentions of the founders of a religious trust or manifestly injurious to the trust, the Courts are not entitled to go back for the law to the purer, more liberal and more ancient shastraic fountain heads. The question therefore narrows itself to this : Whether the usage relied on by the respondents is manifestly injurious (both in its material and moral aspects) to the religious institution, and whether it could have been in conformity with the intention of the founder of the trust. It is on this question that I feel that there is real and substantial difference of opinion between myself and the learned judges who have considered this question in this Court since 1910. My angle of vision in respect of these questions might have been affected by "my longstanding interest and sensitiveness in the cause of Hindu religious and social reform on shastraic lines. I find, however, that after making sincere attempts to allow as much discount as possible to the above factor, my view of the seriousness of the evils of the usage in question his not been materially affected. While the incumbent of a religious office must be allowed to employ a temporary deputy when a temporary disqualification or inability occurs, such as birth and death pollutions, absence from home owing to urgent private affairs, etc., I am clew in my mind that a usage permitting a permanently disqualified claimant to receive the emoluments of a religious office and to appoint his or her own deputy to do the duties is of such a seriously mischievous character that it ought not to be recognised. I regret I am unable to agree with Mr. Justice Seshagiri Aiyar that the performance of the duties through the deputy of a female disqualified heir is not less beneficial to the religious institution than the performance of the next qualified male heir. It is notorious that the deputy is usually chosen on the principle of a Dutch auction. The man who agrees to allow the widow to retail the largest portion of the emoluments of the office and to receive the least as his own remuneration is given the place of deputy. Thus when the usually small remuneration in rice and cash attached to the Arehaka office does not go to the deputy who does the duties, the deputy cannot be expected to perform the duties at all satisfactorily. I do not see why a religious office should be considered less important than any other kind of office. To allow even the office of a peon to be held by a permanently disqualified man because he undertakes to appoint a deputy, out of the remuneration of the office is, in my opinion, entirely mischievous and it ought not to be allowed even if it is sanctioned by usage.
9. In the result, my answer to the question referred is that so long as a Hindu widow is held incompetent by reason of her sex from doing the duty of a priestly office, she is also incompetent to inherit the service and emoluments of the office.
10. Without laying down any rule as to particular institutions, in which there may be a special custom that females cannot succeed to the office and emoluments, the trend of decisions in this Court has certainly been to treat females as competent to succeed to the archakaship of Hindu temples in this Presidency. See Subraya Kakrannaya v. Subraya Padyaya (1910) 8 M.L.T. 325 : (1910) M.W.N. 445 Tangirala Chiranjivi v. Rajamanikya Rao (1913) 27 M.L.J page 179 Ramasundaram Pillai v. Soundarathammall alias Sankara Vadivu Ammal (1914) 16 M.L.T. 428 Baja Rajesvari Animal v. Subramania Archakar (1915) I.L.R. 40 Mad. 105 and Second Appeal No. 2078 of 1915.
11. The judgment of Sadasiva Aiyar, J. in Sundarambal v. Yogavana Gvrukkal (1914) I.L.E. 38 Mad. 850 was an exception to the course of decided cases and was not adopted by Tyabji, J., who sat with him. I do not think it contains reasons of such weight to justify a departure from the principle of stare decisis. I would answer the question referred to us in the negative.