judgement:
Appeal No. 136 of 1953.
Appeal by Special Leave from the Judgment and Order dated the 4th day of May 1949 of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 1918 of 1947 against the Decree dated the 23rd day of July 1947 of the Subordinate Judge, Arrah in Appeal No. 137 of 1946 arising from the Decree dated the 29th March 1946 of the Court of the 2nd Munsif at Arrah in Suit No. T. section 120 of 1943.
R. C. Prasad, for the appellant.
section P. Varma, for the respondent.
187 1955.
April 7.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by leave granted under article 136(1) of the Constitution against the second appellate judgment of the High Court of Patna.
It relates to the office of Pujari and Panda of a famous temple in the town of Arrah in the State of Bihar, known as the temple of Aranya Devi and Killa Ki Devi.
The appellant before us a woman brought this suit claiming joint title to the office along with the defendant and as such entitled to perform the Puja either by herself or through her Karinda and to get a half share in the income of offerings of the said Asthan.
It is the admitted case that this office belongs to the family of both the parties and that the duties of the office were being jointly performed by the defendant and his deceased brother, Rambeyas Pande, and that they were enjoy ing the emoluments jointly.
The plaintiff the widow of Rambeyas Pande claims to have succeeded to her husband 's share in this property and bases her suit on the said claim.
In the written statement the defendant raised three main defences, two out of which are (1) the plaintiff was not the legally wedded wife of his brother, Rambeyas Pande, and (2) during the life time of Rambeyas Pande, there was a division between them with reference to the office of Pujari and Panda belonging to this family in respect of two temples (a) at Arrah and (b) at Gangipul, that the office of pujari at Gangipul was given to the plaintiff 's husband and that the temple of Aran Devi at Arrah was given to the defendant and that since then, i.e., for about 11 years prior to the date of the suit, the plaintiff 's husband had no connection with the office of Pujari in this temple nor with the receipt of any offerings therein.
Both these contentions were found against the defendant by the trial court as well as by the first appellate court and they have become conclusive.
The further and third defence raised by the defendant was that the property in suit, viz., the office of Pujari and Panda of the templet cannot be inherited by a female, The contention 188 is set out in the following terms in the written statement: "The plaintiff is not at all entitled to the office and the post of Pujari and Panda of Arun Devi and she is not entitled to get 1/2 share or any share in the income and offering of the said Asthan, nor has she got any right to perform Puja as a Panda personally, or through her karinda and to get the income, etc.
This is against the custom and usage and practice and also against the Sastras.
The property in suit is such as cannot be inherited by a female".
It is the question thus raised which has got to be con sidered in this appeal.
The trial Court held against this contention in the following terms: "No authority has been cited nor any custom proved to show that, female cannot inherit a property of this nature".
The first appellate Court also affirmed this view as follows: "The defendant 's objection that the plaintiff being a female is not authorised to hold the office of a priest of the Aranya Debi temple is not borne out by any evidence or material on the record.
There is nothing to show that by reason of her sex she is debarred from holding this office either by religion, custom or usage.
Moreover admittedly she holds the office at the Gangi temple".
On the findings arrived at by the trial court and the first appellate court, the plaintiff got a decree as prayed, for declaring her right to half share in the office and for recovery of mesne profits on that footing.
On second appeal to the High Court, the learned Judges went into the question at some length and were of the opinion that "the plaintiff being a female is not entitled to inherit the priestly office in question and her claim to officiate as a priest in the temple by rotation cannot be sustained.
The declaration sought for by her that she is entitled to the office of Pujari cannot, therefore, be granted".
They held, however, "that she is not debar red from being entitled to be maintained out of the estate of her, husband which, in 189 the particular case, happens to be no other than the emoluments attached to the priestly office in the shape of offerings made to the deity which office was undoubtedly hereditary".
They further held that "she will be entitled to receive from the defendant half the amount of the offerings in lieu of her maintenance" and they varied the decree of the trial court accordingly.
The short question that arises, therefore, for consideration in this appeal is whether a Hindu female is entitled to succeed to the hereditary priestly office of a Pujari and Panda held by her husband in a temple and to receive the emoluments thereof.
This is a question about which there has been some diff erence of opinion in the decided cases.
It requires close examination.
That religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law is now well established.
A Full Bench of the Calcutta High Court in Manohar vs Bhupendra(1) has laid this down in respect of Shebaitship of a temple and this view has been accepted by the Privy Council in two subsequent cases in Ganesh vs Lal Behary(2) and Bhabatarini vs Ashalata (3).
In a recent judgment of this Court reported as The Com missioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar(4) this view has been reiterated and extended to the office of a Mahant.
On the view that Shebaiti is property, this Court has also recognised the right of a female to succeed to the religious office of Shebaitship in the case reported as Angurbala vs Debabrata(5), where the question as to the applicability of Hindu Women 's Right to Property Act to the office of Shebaitship came up for consideration.
On the same analogy as that of a Shebaiti right, the right of a hereditary priest or Pujari in a temple must also amount to property where emoluments are attached to such an office.
Indeed, some of the decisions which have recognised the Shebaiti right as property appear to be cases where the Shebaiti (1) A.I.R. 1932 Calcutta 791.
(2) (1936] L.R. 68 I.A. 448.
(3) [1943] L.R. 70 I.A. 57.
(4) ; (5) 190 right combines the priestly office of a Pujari of the idol with the office of the manager of the temple, who in South India, is known by the name of Dharmakarta.
As early as in Mitta Kunth Audhicarry vs Neerunjun Audhicarry(1), it was recognised that hereditary priestly office in a family is property liable to partition.
A number of other decisions to be noticed in the later part of this judgment recognise this position.
The learned Judges of the High Court in their judgment in the case under appeal, have attempted to distinguish the present case from that of the case of the Shebaitship and have come to the conclusion that while in respect of Shebaiti right a woman may succeed by heirship, she is not entitled to such succession in respect of the right of a Panda and Pujari.
But in making this distinction they do not negative the idea that the right to the office of the Pujari itself is property to which a female could succeed, but for her supposed disqualification.
The disqualification is said to arise with reference to the duties attached to this office, and it is said that in this respect it differs from the office of a Shebait.
Now there can be no doubt that while in one sense the right to such a religious office is property it involves also substantial elements of duty.
As has been stated by this Court in Angurbala vs Debabrata(2) and in The Commissioner, H. R. E., Madras vs Sri Lakshmindra Thirtha Swamiar(3) "both the elements of office and property, of duties and personal interest are blended together (in such offices) and neither can be detached from the other".
It must also be recognised that in respect of such offices especially where they are attached to public institutions, the duties are to be regarded as primary and that the rights and emoluments are only appurtenant to the duties.
See the observations of Justice Page in Nagendra vs Rabindra(4) at pages 495 and 496 and that of Justice Sadasiva Aiyar in Sundarambal vs Yogavanagurukkal(5) at page 564, as also of Mukherjea on 'Endowments (1) [1875] XIV B.L.R. 166.
(2) (1951] S.C.R. 1125.
(3) ; (4) A.I.R. 1926 Calcutta.490.
(5) A.I.R. 1915 Madras 561.
191 (1952 Edn.) page 201.
If, therefore, it is found that the recognition of a female 's right to succeed to the hereditary office of Pujari in a temple held by her husband is incompatible with due discharge of the duties of the office, her right to succeed must be negatived.
The correct approach to a question of this kind has been laid down by the Privy Council in a case which relates to a Mohammadan religious office but would equally be applicable to a Hindu religious office.
In Shahar Bano vs Aga Mahomed Jaffer Bindaneem(1) their Lordships, after noticing the View taken by the learned Judges of the Calcutta High Court, that "there is no legal prohibition against a woman holding a mutwalliship when the trust, by its nature involves no spiritual duties such as a woman could not properly discharge in person or by deputy" approved this view of the High Court and said "it appears to their Lordships that there is ample authority for that proposition".
The question, therefore, that requires consideration in the present case is whether the office of the Pujari and Panda in a temple involves such duties as could not be discharged by a female in person and if so, whether she is also incompetent to get the same discharged by a deputy.
Now for this purpose it is desirable to have a clear idea of the duties of a Pujari in an ordinary Hindu temple.
A Pujari has to perform the prescribed daily worship of the image as well as the special worship of a periodical nature on particular occasions and for prescribed festivals during the year.
In Ramabrahma Chatterjee V. Kedar Nath Banerjee Justice Sir Asutosh Mookerjee indicated the daily routine of worship in the following passage: "The normal type of continued worship of a consecrated image consists of the sweeping of a temple, the process of smearing, the removal of the previous day 's offerings of flowers, the presentation of fresh flowers and water, and other like practices.
It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the (1) [1906] L.R. 84 I.A. 46, 53.
(2) A.I.R. 1923 Calcutta 60, 62.
192 master of the house would be treated by his humble servant.
The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest".
In Saraswati 's Hindu Law of Endowments(1) the nature of the daily worship of a consecrated idol in a temple is set out at pages 134 and 135 in detail.
It must be recognised that the daily worship differs according to the tenets and usages of the religious sect for which the temple is intended and the idol is consecrated.
But whatever may be the details of the worship and the variations therein, there can be no doubt that the ministration of various services involving personal touch of the idol, and, often enough, the recitation of religious hymns inclusive of Vedic hymns are amongst the normal and essential features of a Pujari 's duties, at any rate in temples where the worship is conducted according to the Shastras.
It is also undisputed that according to Hindu Shastras the functions of a Pujari can be performed only by certain limited classes and involves special qualifications and that these classes may vary with the nature of the institution.
Now, whatever may have been the position in early times, of which there is no clear historical evidence, it appears to have been well established in later times that a female, even of the recognised limited classes, cannot by herself perform the duties of a Pujari.
Even at a time when the institution of temple worship had probably not come into general vogue, the incapacity of a woman to recite Vedic texts, to offer sacrificial fire, or to perform sacramental rites, is indicated in certain texts of Manu.
(See Sacred Books of the East, Manu, Vol. 25, pages 330 and 437, Chapter 9, section 18 and Chapter 11, section 36).
Whether it is on the basis of these texts or for some other reason, her incapacity to discharge, in person, the duties of the Pujari appears to have been well (1) The Hindu Law of Endowments by Pandit Prannath Saraswati, T.L.L., 1892.
(1897 Edn.).
193 settled in later times as appears from the following text from Brihan Naradiya Purana quoted in Saraswati 's Hindu Law of Endowments at page 136.
"Women, those uninvested with the sacred thread, (i.e. the members of the Dvija class before the initiation ceremony has been performed for them), and Sudras are not competent to touch images of Vishnu or Siva.
A Sudra, one uninvested with the sacred thread, a woman or an outcaste, having touched Vishnu or Siva, goes to hell".
This passage, in terms, refers to the images of Vishnu and Siva but it may reasonably be assumed, in the absence of any evidence to the contrary, that in practice the incapacity of a female to discharge the duties of a Pujari by herself extended, at any rate, to all public temples where an image of whatever form had been consecrated and installed according to the Shastras.
Indeed, all the cases on the subject have assumed this incapacity of the female.
The point of controversy has been whether she is also incompetent to get the duties discharged by employing a qualified substitute.
If her competence in this behalf is recognised and can be accepted there is no reason why she should not be held entitled to succeed to the office.
Thus the really important question for consideration in this case is whether the duties of the Pujari '8 office can be got done by a substitute and if so is there any particular reason or clearly established usage, against a female employing such a substitute and thus becoming entitled to the office.
In early Hindu society a priestly office could have relation only to the performance of various kinds of Vedic rituals and sacrifices either of a daily and routine nature or of a periodical and special nature.
In theory a Brahmin is to perform such functions for himself by himself, while persons of other classes ,should get them done through qualified Brahmin,s.
On principle a, priest in the Hindu concept is chosen as such with reference to his personal qualities and competence.
The system of hereditary priesthood however, with the possibility of persons not fully 25 194 competent, succeeding to or occupying such an office, appears to have come into vogue from fairly early times.
It appears, however, that from the very nature of the situation, the temporary discharge of the priestly function by a substitute in the place of the hereditary priest was a matter of inevitable necessity since the Hindu Shastras recognised temporary and casual disqualifications like that of butt and death pollution.
But there does not appear to be any indication in the early books of any general practice about the functions of priestly office being discharged by proxies.
In comparatively later days, however, there is clear indication of such a practice.
In Saraswati 's Hindu Law of Endowments at page 56, it is stated that in the Padma Purana and other treatises incapacitated persons are directed to have the worship performed through Brahmins.
This statement is with reference to the performance of service of an idol and has presumably reference to the incapacity of persons occupying a priestly office.
In Colebrooke 's translation of the Digest of Hindu Law on Contracts and Successions with a commentary by Jagannatha Tercapanchanana (4th Edition, published by Higginbotham & Co., Madras, 1874), Vol.
I, Book II, Chapter III, Section 11, pages 360 to 381 deal with the topic of partnership among priests jointly officiating at holy rites.
A perusal thereof and particularly of placita 28 to 44 containing citations from various Smrutis with Jagannatha 's commentary thereon, clearly indicate that the institution of hereditary priestship, became established by that date and that the performance of such priestly functions by substitutes had definitely come into vogue.
Various rules are propounded as to the sharing of remuneration between the substitute priest and the hereditary priest when the former happens to perform the functions in the place of the latter.
It is to be noticed that these passages from Jagannatha 's Digest refer in terms only to priestly office by way of officiating at holy rites, i.e., sacrifices and other Vedic or Shastric functions but do not in terms refer to the discharge of a priest 's duties in relation to the worship of an idol in a temple.
195 This is all the more remarkable because by the date of Jagannatha 's Digest the institution of worship of consecrated idols in temples had become long since fairly established.
The probable explanation is that Jagannatha 's Digest is a commentary on selected texts mostly of the various Smrutis from which he quotes and that in the days of the Smrutis the temple worship does not appear to have come sufficiently into vogue.
The historical origin and growth of temple worship has been fully dealt with in Saraswati 's Hindu Law of Endowments and has been also noticed in the referring judgment in Annaya Tantri vs Ammaka Hengsu(1).
It is pointed out therein that according to Hindu sentiment the performance of the duties of an Archaka or Pujari for an idol has been considered sinful and it required inducements by way of liberal grants of land and promise of substantial perquisites to attract competent persons for the office of Pujari or Archaka.
This, in course of time and with the change in social conditions and economic values, rendered the offices of Panda and Pujari in almost all the famous shrines in India, a lucrative affair, and has enabled the hereditary priests to get the functions discharged by paid substitutes and themselves enjoy a substantial margin of income.
Here just in the same way as the patronage of the kings or the society may have been a great incentive to the development of the system of discharge of hereditary priestly functions by substitutes in relation to sacrificial and Vedic religious rites, the phenomenal development and worship of idols in temples and the substantial emoluments which in course of time rendered the discharge of priestly office lucrative must have brought into vogue the employment of substitutes for performance of the duties of the priests not only for sacrificial or other religious rites but also for temple worship.
Whether and how far this practice is permitted by the Shastras is not the question before us.
But it cannot be denied and is indeed a matter of common knowledge, that at the present day, hereditary priestly offices are, as often as not, performed by proxies, (1) A.l.
P, 1919 'Madras 598 (F,B.).
196 the choice of proxy being, of course, limited to a small circle permitted by usage.
The question for consideration of the courts is, whether, in this state of things, a female is to be excluded from succession to the hereditary office of Pujari on account of her well recognised personal disqualification to officiate as such Pujari for the Shastrically installed and consecrated idols in the temples and whether she is to be denied the capacity to retain the property by getting the priestly duties efficiently discharged through a competent substitute.
The only basis for the alleged denial is a passage from Jagannatha 's Digest which is as follows: (Vide Vol. 1, page 379, commentary under placitum 43).
"Wives and others, disqualified by sex for the performance of holy rites, cannot appoint a substitute; as defiled person cannot perform a solemn act ordained by the Vedas, therefore wives have no property in the office of priest".
Now apart from the question whether this passage can be taken to be sufficiently authoritative, there has been some difference of opinion as to the correct import thereof.
In Sundarambal Ammal vs Yogavanagurukkal(1) this passage has been relied upon by Justice Sadasiva Aiyar as showing that women are incompetent to discharge the functions of a priest even through a substitute and that, therefore, they have no right of succession to the office.
The learned Judges of the High Court in the present case have also relied on it.
In Annaya Tantri vs Ammaka Hengsu(2), Justice Seshagiri Aiyar in his referring judgment has referred to this passage and was of the opinion that it does not express a specific view.
In Ganapathi Iyer on Hindu and Mahomedan Endowments (2nd Edn.) the learned author while commenting on this very passage says as follows at page 453 of his book: "Jagannatha there considers the question whether wives and others have a title to the succession to this priestly office.
As usual with the discussions of (1) A.I.R. 1915 Mad.
(2) A.I.R. 1919 Mad.
598 (F.B.).
197 Jagannatha it is difficult to say what his final opinion is.
But we should certainly think that Jagannatha 's opinion is that women can inherit doing the duties through a substitute, but enjoying the emoluments attached to that office".
It appears on a careful consideration of the disputed passage with reference to its context, that this view ' of the learned author is correct.
In any case the passage cannot be definitely relied upon as an authority for the contrary view.
The discussion in connection with which this passage occurs in the commentary is under placitum No. 43 in Section II of Chapter III, Book II, which is a text from Narada relating to hereditary priests.
The statement relied on occurs at a place where there is an attempt to reconcile the disqualification of the female to discharge the functions of a hereditary priest, and the recognition of her right to succeed to all property including a hereditary office.
The relevant portions of the discussion are herein below set out: "It is doubted whether wives and others have a title to this succession, although the partition founded on the admission of a right vesting in Agraharicas and other officiating priests, ought to be similar to the partition of inheritance in general.
As the wife 's title to succession, on failure of heirs in the male line as far as the great grandson, will be declared under the head of Inheritance, what should reverse her title in this instance? It should not be argued, that the wife can have no right to the village, because as a woman, she is disqualified for the performance of holy rites, and because the wives of agraharicas and others are totally incapable of receiving tila delivered as a gift to priests.
The tila may be received, and the rites be performed, through the intervention of a substitute.
Let it not be argued, that, were it so, a property in the sacrificial fee and regular dues would vest in the substitute.
The wife may have the benefit of property acquired by the substitute, as a sacrificer has the benefit of rites per formed by an officiating priest.
However, there is this difference: the sacrificer acquires merit from rites 198 performed by an officiating priest, and none is ever acquired by the intermediate performer of the rites; but if the duty of the officiating priest.
be performed by a substitute, property in the sacrificial fee is at first vested in the substitute, and through him, in the widow entitled thereto.
It is alleged, that there is no authority for this construction.
* * * * The text which ordains that "a person unable to act shall appoint another to act for him", is the foundation of this construction: but the property of an outcaste, or other person disqualified for solemn rites, is absolutely lost, in the same manner with his right to the paternal gold, silver, and the like.
This will be explained in the fifth book on Inheritance.
Wives and others, disqualified by sex for the performance of holy rites, cannot appoint a substitute: as a defiled person cannot perform a solemn act ordained by the Vedas: therefore wives have no property in the office of priest".
At the end of the discussion there is the following significant passage: "Therefore the difficulty is thus reconciled; women are entitled to that only for which they are qualified.
In regard to the assertion, that women, being disqualified, cannot appoint a substitute, this must be understood: being disqualified for solemn acts ordained by the Vedas, they cannot appoint a substitute for such acts; but, qualified for worldly acts, nothing prevents their appointment of a substitute for temporal affairs: and the right should devolve on the next in succession, under the text quoted in another place (Book 5, vs 477) and because women are dependent on men.
Grain and similar property may be consumed by a woman entitled to the succession; but gold, silver, and the like, should be preserved: if she cannot guard it, let it be entrusted to her husband 's heir, as will be mentioned under the title of inheritance.
Here, since a woman cannot preserve the office, it should be executed by her husband 's daughter 's son, or other heir: but the produce 199 should be enjoyed by the woman.
However, should the daughter 's son be at variance with his maternal grandmother, it may be executed by another person: he is not entitled to his maternal grandfather 's property, if that grandfather leave a wife: and should the maternal grandmother litigate, it must be amicably adjusted".
The concluding portion seems rather to indicate that the more categorical passage underlined above and relied upon is in the nature of an objection which is being answered and that the final conclusion is the recognition of a right to succeed by getting the duties of the office performed by the next male in succession.
The learned Judges of the High Court have in fact noticed this concluding passage but have missed its correct import.
It is desirable now to consider how this question stands with reference to the decided cases in the various High Courts.
A fairly substantial number of cases appear in the reports of the Madras High Court.
One of the earliest decisions is that of the Madras Sadar Diwani Adalat in Seshu Ammal vs Soundaraja Aiyar(1) wherein it was held, following the opinion of the Sadar Court Pandits, that a woman was disqualified by reason of her sex from inheriting the office of Acharya purusha but the same Pandits ' opinion distinctly recognises that religious offices like those of an Archaka or Pujari can be held by a female, by her getting the duties thereof performed through a competent male substitute.
In Tangirala Chiranjivi vs Rama Manikya Rao Rajaya Lakshmamma(2) it was stated that there was no basis for the assumption that a minor, a female, or a person unlearned in the Vedas, will lose the right to service in the temple and that the onus will be on the person who alleges the dis qualification to prove it.
The learned Judges categorically asserted (apparently as being a matter within general knowledge and experience) that "service in temples is being performed by proxies".
In Ramasundaram Pillai vs Savundaratha Ammal(3) the learned Judges say as follows: (1) [1863] M.S.D.A. 261.
(2) A.I.R. 1915 Madras 505(1).
(3) A.I.R. 1915 Madras 725.
200 "It is undeniable that this and other High Courts have in numerous cases acted on the assumption (which was not questioned) that women could hold religious offices and get the duties performed by proxy".
They further say "It may be that the parties concerned are so accustomed to the idea of female office holders with proxies that it has usually not occurred to them to question the legality of such a state of affairs and that in the absence of contest, the Courts have somewhat too readily assumed it to be legal without requiring proof of a valid custom in support of it".
In Rajeswari Ammal vs Subramania Archaka(1) the learned Judges state as follows: "We are of the opinion that a female is not, under Hindu law or custom, disqualified from succeeding to a hereditary religious office and getting such duties as she may be disqualified by reason of her sex from performing, performed by proxy".
The only dissentient view against this current of authority in the Madras High Court was that of Justice Sadasiva Aiyar in Sundarambal Ammal vs Yogavanagurukkal (2) .
He expressed a strong opinion that the practice of allowing the priestly office to be performed by a substitute excepting for merely temporary occasions or casual purposes, is wholly opposed to public policy and that it should not be recognised.
In a later judgment in Annaya Tantri vs Ammaka Hengsu(3) relating to the same topic be (Justice Sadasiva Aiyar) stated as follows: "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 retain the largest portion of the emoluments of the office and to receive the least as his own remuneration is given the place of the deputy".
The learned Judge pointed out that "such a practice was mischievous and that even (1) A.I.R. 1917 Madras 963(2).
(2) A.I.R. 1915 Madras 561.
(3) A.I.R.1919 Madras 598 (F.B.). 201 if it was sanctioned by usage it ought not to be recognised by courts".
There is certainly force in this comment.
But in a matter of this kind where there is no express prohibition in the texts for the performance of the duties of the Pujari 's office by the appointment of substitutes and where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted to the extent of negativing the right itself.
In such a situation what has to be equally emphasised is the duty aspect of the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest taking appropriate steps through court), when it is found that the services are not being properly or efficiently performed.
In view of the peculiar nature of such offices as combining in them both the element of property and the element of duty, it cannot be doubted that superior authorities in charge of the institutions or other persons interested have this right which may be enforced by appropriate legal means.
In Raja Peary Mohan Mukherji vs Manohar Mukherji(1) the Privy Council has recognised that notwithstanding the personal interest of a Shebait in respect of his office, the performance of the duties thereof has got to be safeguarded and that he can be removed where he has put himself in a position in which the obligation of his office can no longer be faithfully discharged.
So far as the Madras High Court area is concerned, the controversy has been settled by the Full Bench case in Annaya Tantri vs Ammaka Hengsu(2) where the view taken by Justice Sadasiva Aiyar was specifically overruled on the ground that "there were numerous decisions of the Madras High Court in conformity with the decisions of the other High Courts by which the widow and the daughter and the daughter (1) [1921] L.R. 48 I.A. 258.
(2) A.I.R. 1919 Madras 598 (F.B.).
26 202 of the last male Archaka are held entitled in accordance with the established user to succeed to the office of Archaka discharging his duties by deputy and to transmit it to their heirs, who as male heirs are preferred to female, and will generally be competent to perform the duties in person".
These decisions of the Madras High Court seem to recognise both the factum and validity of the usage as one that has been accepted by the courts not only within its own jurisdiction but also within the jurisdiction of the other High Courts.
It is urged, however, that there is no such usage that can be definitely said to be established with reference to the decisions of the other High Courts.
As regards the other High Courts doubtless the actual cases appearing in the reports about this point are not many.
In the Bombay High Court one of the earliest decisions is the case in 1866 of Keshavbhat bin Ganeshbhat vs Bhagirhibai kom Narayanbhat(1) where the learned Judges say as follows: "With respect to the objection, that a Hindu female cannot perform the duties which attach to the office for the maintenance of which the allowance was granted, it may be observed that the defendant had not proved the existence of any usage in conformity with his allegations.
The claim in question in that case was to an annual allowance paid from the Government Treasury to the members of a family for the maintenance of certain religious services at the temple of Mahadev at Baneshvar near Poona.
In Sitarambhat et al vs Sitaram Ganesh(2) the head note shows as follows: "Semble, that an hereditary priestly office descends in default of males through females".
This is apparently the assumption on which that judgment appears to have proceeded though the matter does not appear to have been specifically so decided.
In Calcutta one of the early cases is Poorun Narain Dutt vs Kasheessuree Dosee(3).
There it was recognised that a woman can succeed to a priestly (1) 3 B.H.C.R., A.C.J. 75.
(2) 6 B.H.C.R.
A.C.J. 250.
(3) 203 office and the contention to the contrary was over.
ruled on the ground that the lower appellate court found the same as a fact on the evidence and that no one but the defendant had raised the contention.
In Joy Deb Surma vs Huroputty Surma(1) the same question was raised, viz., whether according to Hindu law a woman can succeed to the priestly office and reliance appears to have been placed for that contention on the passage from Colebrooke 's Digest already above referred to.
In view of this contention the learned Judges remitted the case to the lower court for deter mination of the question whether with reference to any particular custom or rule of Hindu law a woman is entitled to succeed to the priestly office.
In that case it was the office of the Dolloi of the temple.
It does not appear what the finding received was and how this matter was finally decided.
In Radha Mohun Mundul vs Jadoomonee Dossee(2) their Lordships of the Judicial Committee quoted with apparent approval the following passage from the judgment of the trial Court: "They (the members of the family) merely say that as the said properties are of a debuttur character, they are not susceptible of division among the shareholders; and that since the plaintiff is a childless widow, she is not competent to carry on the service of the gods.
That the properties in question do not admit of any partition among the co sharers is a fact which must be admitted by me; but I do not see any reason why a widow of the family should be incapacitated from superintending the service of the gods.
It is not urged by the defendants that any such rule has been laid down in the family, and that under it the widows have been excluded from the above superintendence.
On the other hand, among the Hindoos, persons belonging to no other caste except that of Brahmins can perform the service of a god with his own hands, that is, worship the idol by touching its person.
Men of other castes simply superintend the service of the gods and goddesses established by them selves, while they cause their actual worship to be (1) (2) 204 performed by Brahmins.
Thus, when persons of the above description can conduct the service of idols in the above mentioned manner, why should not the widows of their family be able to carry on worship in a similar way?. . . . . .
Consequently, there is nothing to prevent the Court from finding that the plaintiff has a right to hold possession of the debutter properties enumerated by the defendants in the 12th paragraph of their written statement, and to superintend the service of the gods conjointly with the other co sharers".
In Mahamaya Debi vs Haridas Haldar(1) it has been recognised that according to custom the palas of Kalighat shrine in Calcutta are heritable and that it was immaterial whether the heir is a male or a female.
This must necessarily have involved the recognition of the capacity of the female to get the worship performed by a male substitute who is to be taken from a limited class.
As has been already noticed, the reported cases dealing with this matter outside the Madras High Court do not appear to be many.
At any rate, no others have been brought to our notice dealing with this question directly, though there are many cases relating to the question of succession to the office of Shebait and the performance of duties thereof by proxy, which is a matter distinguishable from a case relating to the office of Pujari or Archaka simpliciter.
The paucity of decided cases in the reports of the other High Courts may very well be due to what has been pointed out in one of the Madras cases, viz., that the practice of females succeeding to this office and getting the duties thereof performed by a substitute was so common and well recognised that it has not been seriously contested and brought up to the Courts.
Further the institution of private family temples and the endowments of large and substantial properties for the Deb seva in such temples though somewhat uncommon in South India is fairly common in Bengal and some other States.
In view of the Dayabhaga system of law of succession prevalent in Bengal and the very much larger number (1) A.I.R. 1915 Calcutta 161(2).
205 of occasions for wives and daughters succeeding to a sonless coparcener in Dayabhaga joint families, the practice of females succeeding to the priestly office and of getting the duties performed by other members of the family as proxies in their places must, by the very situation, have been common in these areas.
The case reported in Jalandhar Thakur vs Jharula Das(1) is a case relating to Shebait 's (priest 's) office in the Singheswar temple of Bhagalpur and the facts therein show that there was unquestioned female succession to the office.
It is a clear indication of the prevalence of the usage of female succession to priestly office in the State of Bihar from which the present case arises.
A careful review, therefore, of the reported cases on this matter shows that the usage of a female succeeding to a priestly office and getting the same performed through a competent deputy is one that has been fairly well recognised.
There is nothing in the textual Hindu law to the contrary.
Nor can it be said that the recognition of such a usage is opposed to public policy, in the Hindu law sense.
As already pointed out the consideration of public policy can only be given effect in the present state of the law, to the extent required for enforcing adequate discharge of the duties appurtenant to the office.
Subject to the proper and efficient discharge of the duties of the office, there can be no reason either on principle or on authority to refuse to accord to a female the right to succeed to the hereditary office held by her husband and to get the duties of the office performed by a substitute excepting in cases where usage to the contrary is pleaded and established.
In the present case such a usage was pleaded by the defendant in his written statement but no evidence of it was given.
Indeed as pointed out by the first appellate Court, the plea that there has been a partition of the offices of the two temples and the implied recognition of the plaintiff 's right to the office of the other temple at Gangupal appears to indicate the contrary usage.
We are accordingly of the opinion (1) A.I.R. 1914 P.C. 72. 206 that the claim of the plaintiff appellant is made out and that she is entitled to succeed.
The discussion above is more germane to the case of a public temple wherein the idol has been Shastrically installed and consecrated and the worship is in accordance with the Shastras.
There is nothing on the record to show whether the temple in this case falls within this category.
If, however, the temple is a private one or the idol therein is not one Shastrically consecrated, the case in favour of the plaintiff is much stronger and her right cannot be seriously challenged.
At this stage, it is desirable to mention one other matter.
In the present case the emoluments attached to the office are stated to be the daily and other offerings made to the deity at the worship by the visiting devotees.
Both the parties to this case have come up to Court on the common footing that it is this which constitutes the emoluments.
Whether and how far such votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private family temple) and whether any usage in this behalf is valid is a matter which does not arise before us in this case.
In the result, the appeal must be allowed with costs throughout and the decree of the trial court must be restored.

summary:
Though a female is personally disqualified from officiating as a Pujari for the Shastrically installed and consecrated idols in the temples, the usage of a Hindu female succeeding to a priestly office and getting the same erformed through a competent deputy has been well recognised and it is not contrary to textual Hindu Law nor opposed to public policy.
Subject to the proper and efficient discharge of the duties of the office being safeguarded by appropriate action when necessary, a Hindu female has a right to succeed to the hereditary priestly office of a Pujari and Panda held by her husband and to get the duties of the office performed by a substitute except in cases where usage to the contrary is pleaded and established.
Quaere: Whether and how far votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private family temple) and whether any usage in this behalf is valid.
Case law and the relevant texts reviewed.
Judgment of the High Court of Patna reversed.


judgement:
Appeal No. 1360 of 1975.
(From the Judgment and Order dated 12 3 1975 of the Punjab & Haryana High Court in Regular First Appeal No. 315/64).
V.M. Tarkunde, E.C. Agrawala and Miss N. Tarkunde for the, appellant.
Bishan Narain, and Mrs. Urmila Sirur for respondent No. 1.
Hardev Singh and R.S. Sodhi, for Respondent No. 2.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Sardar Gobinder Singh Sibia who was possessed of a large estate died on December 15, 1954 at the age of about 70. 927 He had taken two wives, Gulab Kaur and Dalip Kaur.
The story of his life follows the familiar pattern the pretext of a disagreement with the unwanted wife, special favours for the favourite and jealous rivalries between the children born of the two.
The following pedigree will facilitate a better under standing of the issues involved in me case : Tara Singh Sibia : Ratan Singh : : Gulab Kaur Gobinder Singh Dalip Kaur (Plaintiff) (Died 15 12 1954) pre deceased her husband) (Died 1959) : : : : : Jaswant Kaur . . . . (Appellant) Guraprakash Kaur Gurbachan Sin gh pre deceased his fat her) Joginder Kaur (Died 1971 ) : : Arrit Kaur = Surjit Inder Singh Palvinder Kaur (Respondent1) (Defendant) (Respondent 5) (Died 1968) : : : Gobinder Singh Surinder Singh Gopal Inder Singh (Respondent 2) (Respondent 3) (Respondent 4) After the birth of the appellant Jaswant Kaur, Gulab Kaur started living or as the story goes, was compelled to live with her parents.
Dalip Kaur had given birth to a daughter Guraprakash Kaur and a son Gurbachana Singh.
Gurbachan died during the life time of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971.
Gurbachan Singh and Joginder Kaur gave birth to two children, a son Surjit Inder Singh and a daughter Palvinder Kaur.
Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons.
On May 22, 1956 which was about a year and a half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance @ Rs. 1000/ per month or in the alternative a one half share in the properties left by her husband.
Her co wife 's grandson Surjit Inder Singh was the defendant to the suit.
He filed his written statement on January 5, 1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate.
On these pleadings the trial court struck issues in the suit on February 1, 1957.
At the end of her evidence on August 17, 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one half share in her husband 's estate.
The hearing of the suit was adjourned by the learned trial Judge to August 24, for recording defendant 's evi dence.
928 In the meanwhile, on.
August 20, the defendant filed an application asking for permission to produce a will stated to have been made by Sardar Gobinder Singh, on November 26, 1945.
The learned District Judge, Sangrur, who was then seized of the suit rejected that application and refused to allow the defendant to amend his written statement.
That order was, however, set aside in revision by the Punjab.
High Court which directed the trial court to allow the defendant to amend Iris written statement and to produce his father 's alleged will.
On March 8, 1958 the defendant amended his written statement contending that by the will, his father had left almost the entire property to him and that the plaintiff Gulab Kaur was not entitled to any share in the property under the will.
In June, 1958 the plaintiff filed a formal application seeking leave to amend her plaint giving up her claim for maintenance and asking for a one half share in the properties of her deceased husband.
Fresh issues were thereafter framed on the basis of the amended pleadings.
On March 10, 1959 the plaintiff died and her daughter, Jaswant Kaur, who is the appellant before us, was brought on the record as her legal representative.
The suit was tried eventually by the learned Senior Sub Judge, Sangrur, who by his judgment dated June 29, 1964 decreed it.
The learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand father Gobinder Singh and alternatively, that even on the assumption that the will was proved, it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will.
This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge that consideration before us.
The revocation of an unpriviledged will is an act only a little less solemn than the making of the will itself and has to comply with statutory require ments contained in section 70 of the Succession Act.
Holding that the defendant had failed to discharge his onus of proving the will, the trial court granted to the plaintiff a decree for a one half share in the properties of her husband.
In doing this, the Court relied on "overwhelm ing documentary evidence" showing that according to the custom by .which the parties were governed, a sonless widow was entitled to a one half share in the estate of her hus band, as an equal sharer with the male progeny born of a co wife.
That the parties were governed in this matter by customary law was "openly conceded" in the trial court, the point of dispute being restricted on this point to 'the question as to what in fact was the custom.
It was common ground before us that if the will goes, the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh.
Aggrieved by the judgment of the trial court, the de fendant Surjit Inder Singh filed First Appeal No. 315 of 1964 in the High Court of Punjab and Haryana.
During the pendency of the appeal, the defendant died on October 22, 1968 and his widow Amrit Kaur, her three sons, and his sister Palvinder Kaur were brought on the record as his legal representatives.
They are respondents 1 to 5 to this appeal.
By its judgment dated March 12, 1975 the High Court set aside the judgment 929 the trial court, allowed the appeal and dismissed the plaintiff 's suit.
The High Court has held, or appears to have held, that the will was duly established.
Since the will excludes the plaintiff as a sharer in the testator 's estate, the suit had to fail, custom or no custom.
This appeal by special leave is directed against the judgment of the High Court.
The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will.
It is he who set up the will in answer to the plaintiff 's claim in the suit for a one half share in her husband 's estate.
Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it.
In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him.
Accordingly, the defendant ought to have led satis factory evidence to prove the due execution of the will by his grand father Sardar Gobinder Singh.
In cases where the execution of a will is shouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant.
What, generally, is an adver sary proceeding becomes in such cases a matter of the court 's conscience and then the true question which arises for consideration is whether the evidence led by the pro pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator.
It is impossible to reach such satisfication unless the party which sets up the will .offers a 'cogent and convinc ing explanation of the suspicious circumstances surrounding the making of the will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a will.
Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar vs
B.N. Thirnmajamma & Others.
(1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions : 1.
Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.
As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
(1) [1959] Supp.
I S.C.R. 426.
930 This aspect introduces an element of solemnity in the deci sion of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
Cases in which the execution of the will is surround ed by suspicious circumstances stand on a different footing.
A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he re ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disin herited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
If a caveator alleges fraud, undue influence, coer cion etc.
in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu tion ' of the will may raise a doubt as to whether the testa tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to remove all reasona ble doubts in the matter.
We will now set out briefly the provisions of the will which is dated November 26,1945.
The will consists of 9 paragraphs, by the first of which the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala, and Sardar Bahadur Ranjit Singh a contractor of Delhi, as execu tors.
By paragraph 2 the testator bequeathed the whole of his property, movable and immovable, to his grandson Surjit Inder Singh who is the defendant in the present suit.
By paragraph 3 the testator gave to his wife Dalip Kaur a life interest in a house at Simla, called Kenilworth.
The testator provided by paragraph 4 that if the house was later acquired by the Government or was sold by himself Dalip Kaur would be entitled to receive from his estate a sum equal to the compensation fixed in the acquisition proceedings or equal 931 to the sale price.
The amount was to be deposited in ap proved securities, Dalip Kaur being entitled only to the interest thereon.
On her demise, the house or the amount in deposit was to vest absolutely in the defendant.
Para graph 5gave to Dalip Kaur the right of residence in a part of the house.
at Sangrur, paragraph 6 gave to her the right to use during her life time the jewellery and orna ments and paragraph 7 states expressly that she will have no right to alienate any of the properties in which she was given a life interest.
Paragraph 8 provides that Dalip Kaur had the right to live jointly with the defendant but in case there were differences between them, she would be entitled to receive from him an annual sum.
of Rs. 5,000 for her maintenance.
This amount was to constitute a charge on a land at Karmsar, District Lyallpur.
Paragraph 9 of the will recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant Kaur in 1898, that Jaswant Kaur was married happily in 1913 to Sardar Gurbax Singh Mansahia, that after Jaswant Kaur 's marriage Gulab Kaur started misbehaving and left for her parents ' house, taking jewellery worth about Rs. 50,000 with her.
It is further stated .in paragraph 9 that Gulab Kaur was "leading her life in a way which would not bear mention here" and that therefore she did not de serve to get any allowance at all from the testator 's property.
The defendant was however directed to pay to her a monthly sum of Rs. 50 for her maintenance provided that she lived in a part of the house at Sangrur and her conduct remained worthy of the Sibia family.
Paragraph 9 expressly mentions that Gulab Kaur would have no right to any share in the testator 's property.
The testator, Sardar Gobinder Singh, was a man of property and occupied a high position in society.
By a modest estimate, the property which he disposed of by his will was of the value of rupees ten to fifteen lakhs.
A registered power of attorney (EX. D/2) which he had executed seven months before the will on April 6.
1945 shows that he owned extensive movable and immovable properties, had a bank account in several banks and that various legal pro ceedings to which he was a party were pending in "all the States of British India".
Gobinder Singh describes himself in the power of attorney as a "big biswedar" and says that he had "a large business to attend to".
The evi dence of Kartar Singh, Gurcharan Singh and Teja Singh (P.Ws. 4, 5 and 6) shows that Sardar Gobinder Singh owned over 15000 bighas of land, several houses and several cars in cluding a Rolls Royce.
sardar Ratan Singh, the father of Gobinder Singh, was the President of the Council of Regency .in the erstwhile State of Jind, while Gobinder Singh himself held "distinguished and responsible posts" in Jind such as the Nazim, the Private Secretary to the Mahara ja and a Minister in his government.
It is the will of a man of such affluence and social status which has to be judged in this case.
It is not as if the burden of proof varies with the riches and social pres tige of the testator but habits of life arc prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy have easy access to competent legal advice.
Normally therefore, a genuine will of a propertied man.
well positioned in society too.
does not suffer from 932 the loopholes and infirmities which may understandably beset an humbler testamentary instrument.
Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the will by Gobinder Singh.
The will is alleged to have been made on November 26, 1945 but it did not see the light of day till August 20, 1957.
Being an ambulatory document, it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15, 1954.
But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 21/2 years after the testator 's death.
The testa tor had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one both ered to go through his papers which would reflect the state and extent of his property.
The explanation of the defend ant that he hit upon the will by chance while going through some papers of his grand father is therefore patently lame and unacceptable.
There is an ominous significance in the date on which the defendant applied for production of the will in the present suit.
By her suit which was filed on May 22, 1956 the plaintiff Gulab Kaur had originally asked for mainte nance ' and in the alternative for a one half share in the estate of her husband.
Under the Punjab customary law by which the parties were governed, the plaintiff, being a sonless widow.
was entitled to an equal share in the proper ty of her husband.
along with the male progeny born from a co wife.
But the customary .law gave to the sonless widow only a limited and not an absolute interest in the estate of her husband.
The , 30 of 1956.came into force on June 17, 1956 which explains why the plaintiff at the end of her evidence on August 17, 1957 expressly gave up her claim for maintenance and restricted her demand in the suit to a one half share in her husband 's estate.
So long as the plaintiff was entitled only to maintenance or to a limited interest in her husband 's property, the defend ant was content to meet that claim by raising pleas like desertion and misconduct The passing of the Hindu Succes sion Act changed the entire complexion of the suit, raising at least a reasonable apprehension ' that on account of the provisions of that Act the plaintiff would become an abso lute owner of a part of her husband 's estate.
By section 8 of the Act, the widow becomes an heir to the husband 's estate on intestate succession, along with other heirs mentioned in Class I of the Schedule.
And by section 14(1), any property possessed by a female Hindu whether acquired before or after the Act becomes her absolute property subject to the provisions of sub section (2) which would have no application in the instant case.
By reason of section 14, the provisions of the Act have generally an overriding effect on custom and usage.
On August 17, 1957 the plaintiff 's evidence was over and the suit was ad journed to August 24 for defendant 's evidence.
In the meanwhile, on August 20, the defendant filed an application stating 933 that he had accidentally discovered a will made by the plaintiffs husband Gobinder Singh and asking for permission to produce that will.
The defendant has not stated why he suddenly thought of examining his grand father 's papers in between the conclusion of the plaintiff 's evidence on the 17th and the 20th of August.
His case is one of a purely providential discovery and neither in the application for production of the will nor in his evidence did he give the haziest details of the discovery.
We are surprised that the High Court should have so readily accepted the story that the defendant stumbled across the will.
The will has been typed out on both sides of a single foolscap paper and is obviously drafted by a lawyer.
No evidence at all has been led as to who drafted the will and who typed it out.
The will uses some trite legal jargon but it does not show where it was executed and contains no description whatsoever of any of the extensive properties bequeathed to the defendant.
The will has been attested by two persons called Dinshaw H.M. Framjee and Pali Ram.
It is intriguing that a person in the position of Sardar Gobinder Singh should choose these two strangers as attesting witnesses to a very solemn and important document.
Dinshaw Framjee was a trader in Simla and Pali Ram was his servant.
Framjee has stated in his evidence that he did not remember where Gobinder Singh used to stay in Simla, that he did not know for how long he was staying in Simla before the attestation of the will, that he was unable to state whether he had met Gobinder Singh after the attestation of the will and that he was unable to give the approximate time of the day when the will was attested forenoon, afternoon or evening.
Framjee was sure about one thing only, that he had not attested the will at night.
He attempted to say that he was on friendly terms with the testator 's family but he was unable to give even the approximate ages of the testator 's son and daughter.
Under the stress of cross examination, he had to admit eventually that he knew nothing about the testator,s family or family affairs.
Pali Ram, the other attesting witness, did ' not remember the date or the year of the execution of the will but said that it was probably executed in 1945.
He did not know the testator and was a total stranger to him.
Whereas Framjee stated that the will was attested in 'his business premises which were on the ground floor, Pali Ram says that Framjee sent for him from the business premises to his residence, which was on the upper floor.
The utter improbability of the testator accosting these two strangers for getting his will attested and the funda mental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged.
A man of importance that the testator was, he could not ever have left the validity of his will to depend on the unpredictable attitude of unknown elements like Framjee and Pali Ram.
Pali Ram claims to have read the will before attesting it.
It iS not known why.
if he knew that the property 934 was bequeathed to the defendent, he did not, at least after the testator 's death, inform the defendant of the existence of the will.
By the will the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala and one Sardar Bahadur Ranjit Singh as executors.
Both of these persons were fortunately available for giving evidence but neither of them was examined in the case.
Normally, executors are not appointed without their consent or at least without a prior consultation with them.
Respondent 1, the defendant 's widow, is the daughter of the executor Ranjit Singh.
The marriage was performed during the testator 's life time and we find it hard to believe that he would not disclose even to Ranjit Singh that he had made a will appointing him as one of the executors and that Ranjit Singh 's son in law, that is to say the testator 's grandson, was the sole legatee under that will.
The will is unnatural and unfair in more than one re spect.
At the time that the will is alleged to have been made, the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter in law Joginder Kaur, being the widow of the testator 's predeceased son Gurbachan Singh who was also born of Dalip Kaur.
Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur.
The will contains not even a fleeting reference either to the testator 's daughter or the widowed daughter in law or to the grand daughter Palvinder Kaur.
It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them.
If that be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who also, it is common ground, has been married happily.
The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason; that She had brought disgrace to the Sibia family and that her behaviour was such as would not even 'bear mention in the will.
Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur (P.W.2) shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her eyesight.
One of the issues in the suit namely, issue No. 2, arising from the original pleadings was whether the plaintiff was disentitled to maintenance for the reason that she had deserted her husband.
The judgment of the trial court shows that the defendant led no evidence in support of that issue and that during the course of arguments, the defendant 's counsel did not press the partic ular issue.
The plaintiff on the other hand led evidence in rebuttal and accepting that evidence the trial court rejected the contention that she had deserted her husband.
it seems to us difficult to believe that a person in the position of section Gobinder Singh who was possessed of a large estate, would disinherit so many of his near rela tives including his wife Gulab Kaur and shower his bounty on the grandson, to the exclusion of everyone else.
935 Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are, tin our opinion, sufficient to discard the will.
The defendant in his evidence has offered no explanation of any of these.
cir cumstances.
He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circum stance surrounding the execution of the will and of estab lishing that the document which he propounded was the last will and testament of his grand father Gobiner Singh.
Learned counsel for ' the respondents contends that the defendant did not offer any explanation of these suspi cious circumstances because the will was not challenged in the trial court on the ground that its execution was shroud ed in suspicion.
It is impossible to accept this conten tion because even the learned District Judge who had reject ed the defendant 's application for production of the will and the consequent amendment of the written statement had observed in his order dated September 13, 1957 that it was inconceivable that the defendant did not know about the will and that the possibility of :its being forged cannot be excluded.
This itself was sufficient notice to the defendant as to the nature of the burden which he had to discharge.
Counsel for the defendant also contended that the testator must have kept the will a closely guarded secret because if the will was published, Gulab Kaur and her daughter would have created some trouble.
This argument, in the context of the various facts adverted to above, has to be rejected.
The testator might have wished to keep the will a secret from Gulab Kaur and her daughter but it is impossible to appreciate that he would frustrate the very object of making the will by suppressing it from the defend ant and from the executors, one of whom was highly placed and the other of whom is the defendant 's father in law.
Frankly, though with respect, it surprises us that the High Court should have accepted the will as genuine.
It observes: "It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will.
" We could have understood if the High Court were to say that the defendant had given a valid explanation of the suspicious circumstances surrounding the execution of the will.
But to say that there is nothing in the case to excite the court 's suspicion and to accept the will as genuine on that premise is wholly ununderstandable.
The High Court does not refer to a single circumstance out of the many that we have discussed and the operative part of the judgment just recites a few facts mechanically as if there could possibly be no answer to the validity of the will.
The High Court has not referred in its judgment even in passing to the rule as to the burden of proof which applies to testamentary proceedings.
If only it had taken the trouble of looking at the decision of this Court in Iyengar 's case, which is copiously extracted in the judg ment of the Trial Court, it would have realized what its true duty was in the case.
936 For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the trial court.
The appellant will be entitled to recover from the respondents the costs of this Court and of the High Court.
P.H.P. Appeal allowed.

dataset_name: IN-Abs

summary:
section Gobinder Singh Sibia was possessed of a large estate valued at about Rs.15 lacs at the time of his death in the year 1954.
He had two wives Gulab Kaur and Dalip Kaur.
Dalip Kaur predeceased him leaving a son and a grandson named Surjit.
After the death of section Gobinder Singh, Gulab Kaur filed a suit for maintenance, claiming alternatively a one half share in the estate left by her husband.
Surjit contested the said suit.
After the institu tion of the suit, the , came into force on June 17, 1956 upon the plaintiff giving up her claim for maintenance and restricting her suit to a half share in her husband 's estate, the defendant made an appli cation for amending his written statement and pleaded that section Gobinder Singh had executed a will in the year 1945 bequeathing practically the entire estate in his favour and leaving a small life interest in favour of the plaintiff.
The amendment application was flied in March, 1958, after the plaintiff 's evidence was over.
The Trial Court decreed the plaintiffs suit and .held that the plaintiff was enti tled to a half share in the estate left by Gobinder Singh and that the defendant had failed to prove the will.
In an appeal flied by the defendant the High Court set aside the Judgment of the Trial Court and dismissed the plaintiff 's suit.
The High Court held that will was duly established.
Allowing the appeal, Held: (a) In cases where the execution.of a will is shrouded i.n.
suspicion its proof ceases to be a simple lis between the plain tiff and the defendant.
What generally is an adversary proceeding becomes in such cases a matter of the court 's conscience.
The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court the propounder must remove all legitimate suspicions before the document can he accepted as the last will of the testator.
[929 C F, 930 C D] (b) A will has to be proved like any other document by applying the usual test of the satisfaction of the prudent mind.
[929 F] (c) Since section 63 of the Succession Act requires a will to be attested it cannot be used as an evidence until at least one of the attesting witnesses is examined, if available.
[929 G] (d) Unlike other documents the will speaks from the death of the testator and, therefore, the maker of the will is never available for deposing as to the circumstances in which the will was executed.
That circumstance intro duces a certain amount of solemnity in proof of testamentany instruments.
[929 H, 930 A] R. Venkatachala lyengar vs
B.N. Thimrnajamma & Others [1959] Supp. 1 S.C.R. 426, followed.
The testator was a man of property and occupied a high position in society.
A genuine will of such a person is not likely to suffer from the loop holes and infirmities which may beset an humbler testamentany instrument.
[931 D, H,932 A] 3.
The following circumstances throw a cloud of suspi cion on the making of the will by Gobinder Singh: 926 (i) The will is alleged to have been made in 1945 but it did not see the light of the day till 1957.
It is unacceptable that a document by which property worth lacs of rupees was disposed of could have remained a closely guarded secret from intimate friends and relatives and from the sole legatee him self for over 21/2 years after the testator 's death.
[932 A B] (ii) The testator had left behind him a large property and along with it large amount of litigation which makes it impossible to believe that upon his death no one bothered to go through his papers.
The explanation of the defendant that he stumbled upon the will by chance while going through some papers of his grandfather is patently lame and unacceptable.
[932 B D] (iii) The defendant came out with the theory of will after the of 1956 came into force as a result of which the plaintiff would become an absolute owner of the property that would fall to her share as the heir of her husband.[932 G H, 933 A B] (iv) The will was typed Out on both sides of a single foolscap.paper and was obviously drafted by a lawyer.
No evidence was led as to who drafted the will and who typed it out.
[933 B C] (v) The will was attested by two persons, both of whom were strangers to the testator 's family and neither of whom could give a proper account of the execution of the will.
In fact they contradicted each other.
[933 C H] (vi) The two persons who are alleged to have been appointed executors were not exam ined, though available.
Normally, the execu tors are not appointed without their consent or consultation.
[934 A C] (vii) The will is unnatural and unfair.
[934 C] (viii) The will does not make mention of many of the near relations and descendants of the testator.
[934 D F] (ix) The plaintiff was excluded as an heir of the testator for the supposed reasons that she had brought disgrace to the Sibia family and that her behaviour was such as would not even bear a mention in the will.
No evidence was led on the misconduct of the plaintiff.
[934 F G] (x) The defendant in his evidence did not offer any explanation any of the suspicious circumstances.
[934 G] 4.
The High Court merely recited a few facts mechanical ly and without going into the suspicious circumstance accepted the will as genuine.
The High Court did not apply the rule as to the burden of proof which governs the testa mentary proceedings, as set out in the decision of this Court in lyengar 's case to which reference was made in the Trial Court 's Judgment.
[838 F H]


judgement:
Appeal No. 343 of 1974.
(Appeal by special leave from the Judgment and Order dated 11 9 1973 of the Allahabad High Court (Lucknow Bench) in Spl.
Appeal No. 118/71).
D. Mukherjee and C.P. Lal for the appellant.
Akhtar Hussain, S.N. Prasad and D.N. Misra, for the respondent The Judgment of the Court was delivered by GUPTA, J.
Colvin Taluqdars ' College in Lucknow, run by a society registered under the Societies Registration Act, imparts education at the following different stages: (i) Pre basic i.e., nursery classes.
(ii) Junior basic, called primary stage, from class I to V. (iii) Senior basic i.e., Junior high school stage from class VI to VIII, and 958 (iv) Higher secondary stage, called high school stage classes IX and X. (b) Intermediate stage Classes XI and XII In the beginning the college had no pre basic or junior basic classes and started with class VI; classes I to V and nursery classes were opened later.
The respondent was appointed an assistant teacher in the basic section of the college in 1961.
Following certain incidents involving her, she was suspended on or about August 20, 1970.
and ultimately her services were terminated by the managing committee of the college some time in October 1970.
She flied a writ petition in the High Court at Allahabad (Luc know Bench) alleging inter alia that the order terminating her services was mala fide and made in violation of the regulations framed under the (U.P.) Intermediate Education Act, 1921.
She asked for a writ of certiorari quashing the order of suspension and the order terminating her services, and a writ of mandamus directing the opposite parties to pay the full salary and emoluments due to her.
The president of the managing committee of the college, the principal, the head mistress of the basic section and the committee of management were impleaded as opposite parties 1, 2, 3, and 4 respectively.
The writ petition was dismissed by a single Judge of the High Court on a preliminary ground that none of the opposite parties was a public authority and the impugned orders suspending her and terminating her services were not made in the exercise of any statutory function.
On appeal a Division Bench of the High Court took the view that the basic section of the college was an integral part of the college and held that the managing committee of the college was a statutory body constituted under the Interme diate Education Act and governed by the regulations framed thereunder.
The Division Bench therefore found the writ petition maintainable and remanded the case to the single Judge to be decided on merits.
The Intermediate Education Act, 1921, as its long title shows, is an Act for the establishment of a Board of High School and Intermediate Education.
The preamble says that it was enacted because it was expedient to establish a Board to take the place of the Allahabad University in regulating and supervising the system of High school and Intermediate education in the United Provinces, and to prescribe courses therefore.
Section 2 of the Act defines, among other terms, Board.
Institution, and Recognition.
Board means the Board of High School and Intermediate Education.
Institution means the whole of an institution or a part thereof, as the case may be.
Recognition means recognition for the purpose of preparing candidates for admission to the Board 's examination.
Admittedly, Colvin Taluqdars ' College is a recognised institution.
Section 7 which defines the powers of the Board, after enumerating certain specific powers, states that the Board will have the power "to do all such other acts and things as may be requi site in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate Education".
The powers mentioned in section 7 all relate to High school and Intermediate classes.
Sec tion 16 A lays down that for every recognised institution there shall be a scheme of administration which must provide, among other matters, for the constitution of a committee of management.
Section 16 B and section 16 C deal with the preparation of the scheme of administration.
Section 16 D authorises the Director of Uttar Pradesh to cause inspection of a recog nized institution from time to time and order the removal of any defect found on inspection.
Sections 16E, 16F and 16G provide for the qualifications and the conditions of service of the teachers Of a recognized institution.
Thus all these sections are confined in their application to recog nized institutions only.
Regulations have been framed under the Act in respect of matters covered by section 16 A to section 16 G. Regulations 31 to 45 in Chapter III of the Regulations deal with the subject of punishment, enquiry and suspension of the employees of a recognized institution.
It is said that the suspension and dismissal of the respond ent was not in accordance with these regulations.
It seems clear from the provisions set out above that they all relate to recognized institutions; recognition is by the Board for the purpose of preparing candidates for admission to the Board 's examination, and Board means the Board of High School and Intermediate Education.
The basic section of a school cannot therefore be part of a recognized institution.
We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and there fore must be governed by the provisions of the Intermediate Education Act, 1921.
A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope.
The case of the appellants on this point appears from the counter affidavit filed by them in answer to the writ petition.
It is said that "the college is running the Basic Section independently and is neither registered by the Government nor affiliated by any local body and neither any grant in aid is being taken by the department to run this section accordingly.
The college has its own rules and regulations to conduct the Basic Section.
" It is not correct to think that since the college has to have a committee of management as required by section 16 A, a managing committee that looks after the affairs of the Basic Section of the college must also be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder.
The Division Bench sought support for the view it had taken from some provisions in the Education al Code of Uttar Pradesh but, as pointed by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force.
For the reasons stated above, it must be held that the appel lants were not discharging any statutory function in making the impugned orders affecting the respondent.
The appeal is accordingly allowed, the Judgment of the Division Bench is set aside and that of the Single Judge restored.
There will be no order as to costs.
M.R. Appeal al lowed.

summary:
The respondent, an assistant teacher in the basic sec tion of the Colvin Taluqdar 's college, Lucknow, was suspend ed and then removed from service, by the managing committee of the college.
She flied a writ petition in the High Court challenging her dismissal order, contending that it violated the regulations framed under the (U.P.) Intermediate Educa tion Act, 1921.
The appellants contended that the col lege was running the basic Section independently and without any affiliation or grants from the Government or any local body, and that the said Act did not apply.
The Single Judge of the High Court dismissed the Writ petition as none of the opposite parties was a public au thority.
An appeal was allowed by a Division Bench of the High Court on the ground that the basic Section was an integral part of the college and was run by a Managing Committee constituted under the Intermediate Education Act.
Allowing the appeal the Court, HELD: The provisions of the Act relate to recognized institutions; recognition is by the Board for the purpose of preparing candidates for admission to the Board 's examina tion; Board means the Board of High School and lntermedi ate Education.
The basic section of a college cannot there fore be part of a recognised institution.
It is not correct to think that since Section 16A of the Act requires a college to have a committee of management, a managing committee that looks after the affairs of the basic section of the college must also be functioning as a statutory body discharging duties under the Act and governed by the regula tions framed thereunder.
An institution by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep, these new fields of education which are.
outside its scope.
[959 C G]