1. This appeal is on behalf of defendant 1 and it arises out of a suit commenced by the plaintiff as a shebait of idol Sri Sri Dhakeswari Mata, an ancient deity in the town of Dacca, for a declaration that the palas or turns of worship held by the shebaits of the idol are not alienable in law, and that the transfer of such palas by defendants 2 to 7, who were some of the shebaits, in favour of defendant 1 was void and inoperative and did not create any rights in the purchaser. There were prayers also for a permanent injunction restraining defendants 1 to 7 from entering into the temple premises, and for removal of defendants 2 to 7 as shebaits of the deity.

2. The temple of Dhakeswari Mata is one of the oldest temples in the town of Dacca, the origin of which is lost in obscurity. There is no deed of dedication in respect of the endowment, and there is no evidence as to who founded it or who the original shebaits of the institution were. The shebaitship, according to the plaintiff, is vested, at present, in 16 persons, namely, the plaintiff himself and defendants 2 to 16, who constitute a heterogenous group and include persons who belong to the three higher castes among the Hindus or are Sanyasins. The endowment is said to be a private one, and it is managed by the shebaits with the help of pujaks or priests. For 9 days in the year, the worship is carried on by all the shebaits jointly, and for the rest of the year, there are palas or turns of worship allotted to shebaits or group of shebaits, and they alone are entitled to the offerings that are presented to the deity by the worshippers on those days. The shebaits are bound to defray the expenses of worshipping the deity on the days of their palas, and they are under an obligation to keep the temple and the other structures in proper repair. Defendants 2 to 7 who are members of a joint Mitakshara family had palas or turns of worship in the temple extending over 14 days every month. Defendant 2 as karta of the family had borrowed money from defendant 1 to meet his own family necessities in which the deity was not in the least interested, and the creditor got a money decree against these defendants in the Court of the First Subordinate Judge at Dacca. In execution of this decree, the palas held by defendants 2 to 7 in the Dhakeswari temple were attached, and eventually on 8th Pous 1343 B.S., a kobala was executed by these defendants in favour of defendant 1 by which all the palas held by them together with proportionate shares of the properties of the deity were sold to the latter in full satisfaction of the decretal debt. The plaintiff's case is that the kobala is void and inoperative as being repugnant to Hindu law, and that defendant 1 did not acquire the rights of a shebait on the strength of the same. Defendants 2 to 7 were further alleged to have forfeited their rights as shebaits of the deity by reason of this and other acts committed by them which were prejudicial to the interest of. the idol. It is on these allegations that the present suit was instituted.

3. The defence of the appellant as well as of the other contesting defendants, in substance, was that there was an immemorial custom obtaining in this particular institution, according to which palas or turns of worship held by a shebait could be privately transferred to any persons who professed the Hindu faith and were either sanyasins or belonged to the three higher castes among the Hindus. Most of the existing shebaits, it was said, had acquired their shebaiti rights by such transfers. It was further alleged on behalf of defendants 2 to 7 that they had not done anything which would justify their removal from office. The Subordinate Judge who heard the suit came to the conclusion that the defendants succeeded in proving the custom alleged by them, and the kobala in dispute was a valid and operative document which gave defendant 1 the rights of a she-bait. In this view of the case, no question of removal of defendants 2 to 7 from their office as shebaits did at all arise. The result was that the plaintiff's suit was dismissed. On appeal, the judgment was reversed by the lower appellate Court. The Additional District Judge who heard the appeal was of opinion that no custom in the legal sense of the term was proved in this case, and, even if such a custom was established, it was unreasonable and opposed to public policy. Defendant 1 was held therefore not to have acquired any rights on the basis of the conveyance executed in his favour. The Additional District Judge further found that defendants 2 and 3 were liable to be removed from their office as shebaits on account of certain acts committed by them which went against the interest of the deity. As against the other defendants however no case for removal was made out, and the lower appellate Court directed that a receiver should be appointed to take charge of the palas of defendants 2 and 3 for a period of two years only during which the other she-baits were to make suitable arrangements for the distribution of these palas. It is against this part of the decision which negatives defendant 1's right by purchase that the present second appeal has been preferred by him.

4. There are two points which require consideration in this appeal: (1) whether on the facts admitted and found, a custom has been established which would make the palas or turns of worship in the Dhakeswari temple alienable to any person professing the Hindu faith, provided that the alienee belonged to any of the three higher castes or was a sanyasi and (2) even if such a custom is established, whether it is unreasonable or opposed to public policy. It is not disputed that as a general rule of Hindu law, a trust attached to a temple or endowment cannot be alienated by the holder, and whoever sets up a custom which is at variance with the general law must prove it with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. In the present case, the trial Judge was of opinion that a transfer of the palas of the Dhakeswari temple, provided that the transferee was a caste Hindu or a Hindu sanyasi was established by custom. The lower appellate Court held, on the other hand, that although there were various instances of such transfers, yet the practice did not amount to a legal custom. Dr. Sen Gupta who appears for the respondents has invited us to hold that this finding of the Additional District Judge is a finding of fact which is conclusive in second appeal, and that the appellant is not entitled to assail it. Whether a particular custom is proved to exist or not, is undoubtedly a question of fact, and a mere question of sufficiency of the evidence adduced to establish a custom is not a ground of second appeal : vide Ananta Sing v. Thakur Durga Singh ('08) 32 All 363; but as was observed in Palaniappa Chetty v. Devasikamony Pandara Sannadhi ('17) 4 AIR 1917 PC 33:

Questions of the existence of an ancient custom are generally mixed questions of law and fact ; the Judge first finding what were the things done in alleged pursuance of the custom and then determining whether these facts so found satisfied the requirements of the law. The latter is a question of law -- not fact.

5. In the present case, the facts found by the trial Court were accepted in their entirety by the Additional District Judge. The latter however differed from the former in holding that on the facts found, the essential attributes of a legal custom were not established. This is certainly a question of law which can be discussed in second appeal. Now, it has been found as a fact by both the Courts below that for a period extending over a century, there have been various instances when the palas or turns of worship held by the shebaits in the Dhakeswari temple have been sold to strangers, the alienees being caste Hindus or Hindu Sanyasis. Exhibit C is the earliest deed of transfer that has been made an exhibit in this case, and it is a document in Persian executed in the year 1822. By this document, Neemchand, a Kayestha by caste, transferred his rights as shebait in favour of Gopi Nath Dobey, a Brahmin, and it is through Gopi Nath that defendants 2 to 7 purport to derive their title. The transfer was for a consideration of Rs. 475 and there was a recital in the document that it was made with the consent of all the co-shebaits. In 1850, Ganga Debya, a daughter-in-law of Gopee Nath, executed a deed of gift in respect of two days' pala or turn of worship, which she had inherited from her husband, in favour of Jalim Tewary, her relation, and Jalim Tewary, was grandfather of defendant 2. Jalim Tewary was a stranger to the endowment and was not previously connected with it in any way.

6. There were three deeds of transfer executed in the year 1865. In the first of these documents (Ex. C1), Madan Kishore Lala was the vendor and the vendees were Jalim Tewari and one Madan Mohan Sarma Talukdar. In the other two documents, (Exs. C-2 and C-3), the transferee was the same Madan Mohan Sarma Talukdar, and the transferors were Makha'n Bibi and Lala Durga Prasad respectively. In 1866, we have a sale deed by a Lachman Bibi in favour of one Sumeru Ban Goswami, and the latter who was a perfect stranger at that date was the predecessor of pro forma defendants 11 and 12. In 1875, one Basantamoni, whose husband had purchased certain palas, transferred the same by a sale deed to one Banga Chandra Chakrabarty, pro forma defendant 8. There were also several other instances of sale which are fully set out in the judgment of both the Courts below. In all these cases, it seems that there was no opposition to the transfer by any of the existing shebaits, and although there is no evidence that the actual consent of the co-shebaits was taken when a shebait transferred his palas to a stranger, yet in fact there was a recital to that effect in the first of the documents mentioned above.

7. It appears that in 1883, Surja Sarma Talukdar, the son and heir of Madan Mohan Sarma Talukdar, transferred certain shares to one Lala Kanai Lal. There is some evidence on the record to show that the purchase by Kanai Lal was objected to by Brojo Lal Tewary who was the most influential shebait at that time. This opposition, however, was not very strong, for, it appears that Kanai Lal transferred portion of his palas to Shiba Sundari by a document (Ex. C-7) and Shiba Sundari's grand-son, who is pro forma defendant 15, is admittedly in possession of these palas at the present time and has been recognized as a shebait by the plaintiff himself. Kanai Lal left a will behind him, by which the remaining palas were bequeathed to one Ratinath Misra. This Ratinath could not get possession of the palas devised to him on account of the opposition of some of the other shebaits, and he had to file a suit against all the shebaits including the present plaintiff. Eventually the matter was settled and Ratinath did not proceed further with the suit, and to purchase peace he sold his palas to Brojolal Tewari himself by sale deed, Ex. C-9. This transaction by itself does not throw much light on the matter in controversy between the parties, but it certainly shows that there was some opposition to these transfers from time to time. As Ratinath did not proceed with the suit, the matter did not come up before the Court for adjudication. There were two occasions, however, when the matter was actually brought before and decided by a Court of law.

8. The first was in 1872 when the shebaiti share of Kali Charan Giri, a predecessor-in-interest of the plaintiff, was auction purchased by one Baroda Kanta Roy, a pleader of Dacca Court. There was a dispute as to the propriety of the sale order, and the matter ultimately came up before this Court in appeal. It was held by this Court and the decision is reported in Kali Charan Giri v. Bangshi Mohan Das ('71) 15 WB 339, that the right of worship of a Hindu idol cannot be sold in execution of a decree for the personal debt of a shebait. It is somewhat curious to find that in spite of this decision no attempt was made to oust Baroda, and his grandson who is a pro forma defendant in this suit is still in possession of the pala purchased by his predecessor. The second occasion arose in 1905, in connexion with a mortgage suit, instituted by a mortgagee in respect of some of these turns of worship. It was held by the Courts below, and this decision was affirmed by this Court on appeal, that the rights of the shebaits in the properties of the deity were inalienable, and if there was any custom which sanctioned such a transfer, it was bad in law and should not be enforced. The Additional District Judge has laid great stress on this judgment which was marked Ex. 10A. The decision may not be res judicata as it was not between the same persons who are parties to the present suit, but it is a very good piece of evidence and shows clearly that this identical customary right which was set up and asserted by one party in that suit was definitely negatived by the Court.

9. The legal title to recognition of a special custom depends upon its antiquity, certainty and uniformity, and the Court must be assured of these conditions by means of clear and unambiguous evidence: vide Rama Lakshmi Ammal v. Sivanatha Perumal Sethurayar ('70-72) 14 MIA 570 and Hurpurshad v. Sheo Dyal ('76) 3 IA 259 at p. 285. The practice of transfer of palas by the shebaits of Dhakeswari temple must, on the evidence of this ease, be held to be an ancient practice. There is no doubt that it was in vogue from very early times but it cannot be said that it was either uniform or constant. It is clear from the evidence in this case that far from receiving any judicial recognition, the validity of the custom has been negatived by a competent tribunal whenever the matter has come up before any Court of law for adjudication. In my opinion, even one or two instances where the right claimed under custom is contested and that successfully would far exceed in value the weight that is to be attached to a plurality of instances when there was no contest and the matter practically rested on indulgence or mutual consent.

10. In Palaniappa Chetty v. Devasi-kamony Pandara Sannadhi ('17) 4 AIR 1917 PC 33, where the question related to the legality of the transfer of endowed lands by a shebait, it was found as a fact by the first two Courts that there was a legal custom existing from a long time past according to which leases of temple lands were habitually granted and the alienees were never disturbed in their possession. It was held by their Lordships that this was mis-appreciation of the word "custom," and the Courts below were quite forgetful of the essentials of a valid custom which modified the ordinary law. A custom to be valid must be consciously accepted as having the force of law : vide Mira Bivi v. Vellayanna ('85) 8 Mad 464. It must be submitted to as legally binding, and in my opinion, this element is totally lacking in the present case. It seems to me that this practice of transferring palas to strangers must have resulted from some exception or indulgence at the beginning, and as some of the shebaits became shebaits by purchase, they possibly did not deem it prudent to question the rights of others who came exactly in the same way. In this way, the practice may have grown up, but it does not furnish any indication of any legal right in the beginning: vide Salisbury v. Gladstone (1861) 9 H L C 692. I agree, therefore, with the Additional District Judge that a legal custom has not been established in the present case.

11. I am also of opinion that even if a custom is held to have been established by evidence in the present case, such custom is unreasonable and should not be enforced. As was pointed out by Sir Ashutosh Mookerji in Mabamaya Debi v. Haridas Haldar ('15) 2 AIR 1915 Cal 161, for the purpose of determining whether a custom is against reason or not, we are to judge not by the reason of an unlearned man but by artificial and legal reason warranted by authority of law. All customs involve some inconsistency with the general law, and the mere fact that a custom is at variance with ordinary law is no ground for condemning it as unreasonable. In cases like this we are to see whether the custom that is set up is prejudicial to the interests of the endowment and goes contrary to- the presumed intentions of the founder. In a private endowment, unless the founder has directed otherwise, the shebait-ship passes to his heirs or disciples; and where the shebaits are descendants or nominees of the founder, it can be presumed that their cult of worship is the same as that of. the founder, and they can naturally be expected to revere their ancestral deity and continue to worship in the same way as was done by the founder. The rights of a she-bait are heritable, and they can be partitioned also for purposes of convenience. If a transfer is made by a shebait of his turn of worship in favour of one of his co-shebaits, or to some other person belonging to the same family or group who might in his own right have been a shebait or might have held a pala, no conceivable injury is done to the deity or the endowment. But it is difficult to say that the interests of the endowment or of the deity do not suffer, if a shebait is allowed to transfer for his own pecuniary advantage his rights of worship and management to a perfect stranger who is not in any way, connected with the institution. It was held by their Lordships of the Judicial Committee that a custom which sanctions the sale of a trusteeship for the pecuniary advantages of the trustee is bad in law : vide Raja Vurmah Valia v. Ravi Vurmah Mutha ('76-78) 1 Mad 235. An exception has been made when the transferee is in the line of shebaits already and is an actual or potential shebait himself. But, in my opinion, it would lead to disastrous results if the trusteeship of a temple be regarded as a marketable commodity which can be sold for the personal benefit of the holder, provided only that the transferee professes to be a follower of the Hindu religion. There are innumerable religious sects among the Hindus, and there are various cults of worship among them which differ from each other on material particulars and the mere fact that the transferee is a Hindu is not a guarantee that he is the follower of the particular cult which is maintained in a particular institution, nor can he be expected to be as much mindful of the interests of the deity as the heirs or the descendants of the original founder.

12. I cannot agree with Dr. Basak, though his argument finds support from some of the observations made by the Additional District Judge that the only duty which the shebait in the present case has got to discharge is to pay to the officiating priest the minimum costs of worshipping the deity which are estimated at Re. 1-3-0, a day, and that if the purchaser undertakes to do the same thing, the deity does not stand to lose anything by the transfer of the shebaiti right. It is a bad custom, if I may say so, if it allows the shebait to appropriate all the offerings which are made to the deity, and cannot compel him to render any other service to the deity except paying Re. 1-3-0 a day to the priest who actually performs the ceremony. It is not necessary, however, to dilate on this point any further. In my opinion, the custom that is set up here is not only prejudicial to the interests of the deity, but is also against the presumed intentions of the founder. In the case of a private de-butter, the intention of the founder undoubtedly is that the shebaitship should ever remain in his family, or it would pass to such person or persons as he himself had indicated. It cannot be his intention that it should pass to a total stranger. The shebaits cannot possibly work together as one group, if strangers are permitted to come in from outside, and I agree with the Additional District Judge that such practice tends to multiply the chances of mismanagement and deterioration of the temple. It is true that this practice of transferring palas having been started from very early times, most of the existing shebaits of the temple are she-baits by purchase. But if a custom is unreasonable at its inception no usage or continuance can make it good, and as I have pointed out already, it was pronounced to be unreasonable by this Court as early as in the year 1905.

13. On both the points, therefore, I hold that the decision of the Court of appeal below is right, and this appeal must fail. Dr. Basak has argued, in the last place, that in any event, defendants 2 to 7 should be directed to pay to the appellant the sum of money which was the consideration for the transfer. This question does not arise in the present case, and it would be open to defendant 1 to take such steps as he may be advised to take for the recovery of the money due to him by defendants 2 to 7. The result is that this appeal is dismissed, but in the circumstances of the case, I direct that each party shall bear its own costs in all the Courts.

S.A. No. 1270 of 1939

14. I now come to S.A. No. 1270 of 1939 which is preferred by defendants 2 and 3 against the same judgment, and the only point for consideration in this appeal is as to whether the District Judge was justified in directing their removal as shebaits of the deity. There are two grounds on which the order for removal was passed : (1) that these defendants had mortgaged to one Gokul Chand certain properties which included C.S. Plot No. 32 belonging to the deity ; and (2) that defendant 3 had erected a stable within the temple compound at a distance of only 12 or 13 cubits from the temple itself. In my opinion, there is not much substance in either of these two grounds. Regarding C.S. plot 32, there is a dispute as to whether this plot belongs to the deity, or is the private property of these defendants. The C. S. records are undoubtedly against these defendants, but as the point was not raised in the plaint as one of the grounds for removing defendants 2 to 7 from office, I think that the latter can reasonably complain that they had no opportunity of adducing evidence on this point. It appears, however, that in this as well as other matters, defendant 2 was acting as the karta of the family. This defendant 2 is now dead, and I do not think that there is any justification for removing the heirs of defendant 2 from the office of shebaits for any misconduct on his part.

15. As regards the erection of the stable, it seems to be a temporary one established for the convenience of the pilgrims, and we are told that it is no longer in existence. If it still exists, defendant 3 can certainly be directed to remove it, but that is no ground, in our opinion, for removing him from his office. Dr. Sen Gupta who appears for the respondents has also not pressed this point. The direction of the Additional District Judge for the appointment of receiver in place of defendants 2 and 3 is, in our opinion, entirely misconceived and cannot be supported on any ground. The result, therefore, is that this appeal is allowed and the decree of the lower appellate Court is varied to this extent : that the order of removal of defendant 3 as shebait of the deity will be set aside. As defendant 2 is reported to be dead, no order in his favour is necessary. Subject to this modification the judgment of the lower appellate Court will stand. Each party will bear their own costs in all the Courts. No order is necessary on the cross-objection.

Biswas, J.

16. I agree.