Roe, J.:— The property in dispute in this case is a three-annas share in the offarings made to the temple of Sri Bhairo-nathji in the District of Mozaffarpore. This three annas belonged to the plaintiffs' family and was mortgaged by the plaintiff's father, who is still alive, to the defendants second party, A suit was instituted upon the basis of this mortgage and the three annas share was put up for sale and purchased by the defendants second party, who took out delivery of possession on 18th January, 1901 and a few days after transferred the property purchased to the defendant 1st party. On 11th April, 1911, the plaintiff instituted the present suit for a declaration that the sale (transfer?) made by the father was void as against him and that, therefore, the whole share transferred from his father's hands into the hands of the first defendant through the second defendant should be restored to the plaintiff. The ground taken for this suit was that the plaintiff's father had no right to mortgage the plaintiff's interest in this share of the offerings and that the mortgage itself and the mortgage decree were illegal and void, for the reason that the offerings were not transferable and the second party who was not either a panda or pujari could not acquire any right in it. The lower Courts concurred in holding that the property transferred by the plaintiffs' father was inalienable and that, therefore, the transfer was void. A plea of estoppel had been set up by the defendants, on the ground that the plaintiff's father having led the mortgagee to believe that the property was alienable his son cannot be heard to say that it was inalienable. On appeal to the High Court at Calcutta it was held by my learned brother sitting with Cox, J., that the property transferred was without doubt inalienable and that statutory provisions being against the transfer, no question of estoppel would arise. An application for review was made against this judgment and admitted to hearing, on the ground that there was no statutory bar to the transfer of such a right as was transferred in this case and that there had not been by the lower Courts a sufficiently full injury into the origin of rights transferred by the plaintiff's father.
2. The case again comes before this Court, the whole question having been laid open by the order admitting the petition for review. I have no hesitation in concurring in the conclusions arrived at in the previous judgment. I venture only with respect to suggest that in the last lines of that judgment for the words “statutory provisions” the words “public policy” should be read. My reasons for this opinion are based largely upon the decision in the Privy Council case of Rajah Vurmah Valia v. Ravi Vurma Kunhi Kutty(1). The actual facts surrounding the present endowment are lost in antiquity. No man can say who built the temple in which these offerings are made and no man can say who were the original priests to whom the right to conduct worship and receive offerings was delegated. All that we do know is that in the memory of man there have been six operative transfers of shares in the right to receive offerings and this is the seventh and is the first in which the right of the pujaris to transfer their interest in future offerings has been contested. We are asked to remand the case that all these points might be gone into. But a remand for taking of fresh evidence should only be made in very special circumstances, and it is clear that no further light can be thrown upon the origin of the temple and appointment of pujaris and it must be presumed that out of the seven instances of transfer only one, the one before us has been disputed before the Court. The case is in many respects similar to the Madras case upon which my opinion is based. There the original endowment had been lost in antiquity the original founder was unknown, his original intentions in appointing a person to hold the office of the priest could not be ascertained. Their Lordships of the Judicial Committee made the following observations upon a position of this mature:
“The unknown founder may be supposed to have established this species of corporation with the distinct object of securing the due performance of the worship and the due administration of the property by the instrumentality and at the discretion of four persons capable of deliberating and bound to deliberate together he may also have considered it essential that those four persons should be the heads of particular families resident in a particular district open to the public opinion of that district, and having that sort of family interest in the maintenance of this religious worship which would ensure its due performance. It seems very unreasonable to suppose that the founder of such a corporation ever intended to empower the four trustees of his creation at their mere will to transfer their office and its duties with all the property of the trust to a single individual who might act according to his sole discretion and might have no connexion with the families from which the trustees were to be taken.”
3. Further they went on to say at p. 250:
“Custom must prevail against the general Saw. That such would be the consequence of a well proved and established custom their Lordships do not deny. In the present case, however, the civil Judge has distinctly found against the existence of the custom”.
4. That case and the case of Ramasawmy Aiyan v. Venkata Achari(2) are good authority for the proposition that where it is shown that a particular office has been by custom alienable it is not against public policy that such transfers should take place and as I read the decision in the latter case the alienation of the right of the pujari in that particular, case was confined to persons of the same class as the transferor and equally capable with them of performing a due turn of worship. In the case of Srimati Mallika Dasi v. Ratnamani Chakervarti(3) it was distinctly laid down that the right to perform a turn of worship and receive offerings during that turn was alienable and in Mahamaya Debi v. Haridas Haldar(4) that proposition was not denied. What was asserted in that case was that prima facie the transfer of such an office was opposed to public policy but yet upon proof of a custom extending beyond the memory of man and not in itself unreasonable it might be said that considerations of public policy no longer oppose the transfer. In the particular case then considered that custom was proved to be immemorial reasonable, certain and continued without interruption since its immemorial origin. The principle therefore, upon which the present case should be decided is this that the origin of the foundation being lost in antiquity it must be presumed that the original founder intended, in making his delegation of the powers of worship to the ancestors of the plaintiffs, that those powers of worship should remain in their hands for the good of the temple and for the convenience of the public, and that it is against public policy that persons to whom these powers of worship have been delegated should of their own free will make a delegation of those powers to a third party.
5. Before that principle can be overridden it must be shown that there is a custom immemorial, unbroken, reasonable, and certain. It is impossible for us to hold that by six undisputed transfers a custom immemorial, unbroken reasonable, and certain has been proved. I would therefore, hold that the mortgage made by the father of the present plaintiff in favour of defendant 2 was void as against public policy and that the sale in execution of that mortgage was equally void. Where a transfer is contrary to public policy neither party can make it legal by creating estoppel. In my view the appeal should be again dismissed with costs throughout.
6. Sharfuddin, J.:— I agree.
V.S/R.K
7. Appeal dismissed.