The judgment established the legal principles governing the appointment and succession of shebaits, the entitlement to offerings, and the disfavour of hereditary rights to management positions in religious institutions.

Ramaswami, J.

1. This appeal concerns two temples known as "Jora Mandir" founded and endowed by Bakshi Bhagwat Lal in the town of Arrah, The plaintiff brought the suit alleging that Bakshi Bhagwat Lal had endowed the properties mentioned in Schedule A of the plaint and had appointed Pandit Aditnath Misser as hereditary mutwalli and Pujari. After the death of Aditnath his son Loknath filled the office. Thereafter Loknaths sons Mahadev and Mahanand agreed that they would remain Mulwalli and Pujari in rotation for one year each. The plaintiff is the grand-son of Mahadev but the defendants had refused to permit the plaintiff to work as Mutwalli and Pujari in his turn. Plaintiff hence asked for partition of "his right of worship in the temple and offerings".

Defendant 1 resisted the plaintiffs claim. He denied that Bakshi Bhagwat Prasad appointed Adinath Misser as Pujari. Bakshi Bhagwat Prasad himself acted as mutwalli in his lifetime. He appointed one Reoti Raman Misser as Pujari on whose death Loknath, Mahadev and Gouri-shankar became successive pujaris. The defendant denied that there was any arrangement between Mahanand and Mahadeo for rotation of office of pujari. The defendant affirmed that the surplus offerings were not utilised for the personal use of the Pujari. But the entire income was exclusively utilised for the rajbhog and other purposes of the temple. The defendant declared that the plaintiff was incapable of performing the work of a pujari. Defendant stated that there had been two previous partition suits in which the plaintiff did not claim partition of the office of pujari or offerings. The defendant hence claimed that the plaintiffs suit was barred by constructive res judicata.

2. The Subordinate Judge held that the plaintiff failed to prove that Aditnath Misser was ever appointed Pujari and mutwalli; and that there had been any arrangement between Mahadeo and Mahanand to work as mutwalli or Pujari by rotation. The Subordinate Judge accordingly dismissed the plaintiffs suit.

3. In appeal the District Judge reversed these findings. He held that "the first or second mutwalli and pujari of the temple was Pandit Aditnath Missir; that the members of the family of Aditnath used to work as mutwalli, and pujari of the dedicated properties and as such the right to work as mutwalli and pujari was heritable among the family members of Aditnath." The District Judge found that the suit was not barred by constructive res judicata. Accordingly he granted the plaintiff a decree for partition, in other words, that plaintiff and defendant 1 will work as "mutwalli, manager or pujari" by rotation for one year each.

4. Against this decree defendant 1 has preferred this appeal.

5. Learned Counsel on his behalf submitted that the lower Courts have failed to appreciate the real questions at issue between the parties. It was urged that the case should be remanded for a new trial after issues have been framed.

6. In our opinion, this argument is well-founded. Both the Courts have failed to distinguish the legal distinction between a "pujari" and a "shebait". Neither the founder Bakshi Bhagwat Lal nor his successors-in-interest were impleaded in the suit. The Courts made no attempt to investigate whether there was any written grant, whether in the absence of such a document, there was direct evidence to prove that founder had nominated a shebait or directed the mode of succession to that office. The appellate Court ought also to have addressed itself to the question whether plaintiff had proved that the devolution was in the ordinary line of descent. The appellate Court failed to consider whether the plaintiff was fit to perform the worship in the temple. In view of the failure of the Courts to appreciate the real questions an issue we propose to set aside the appellate decree and remand the case for a fresh trial.

7. Before doing so it is necessary to indicate the legal principles which provide the setting for the issues to be inv