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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • T.L. Wilson and Co.
  • Nevill
  • Rogers
  • Barrow
  • G.R. Lowndes
  • B. Dube
  • A.M. Dunne
Judges
  • Ameer Ali
  • Sir John Edge
  • Parker
  • Justice Lords Moulton
Acts
  • Article 124 of the First Schedule of the Indian Limitation Act, 1908,
  • Article 124 of First Schedule of the Indian Limitation Act, 1908,
  • Section 244 of the Code of Civil Procedure, 1882,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • T.L. Wilson and Co.
  • Nevill
  • Rogers
  • Barrow
  • G.R. Lowndes
  • B. Dube
  • A.M. Dunne
Judges
  • Ameer Ali
  • Sir John Edge
  • Parker
  • Justice Lords Moulton
Acts
  • Article 124 of the First Schedule of the Indian Limitation Act, 1908,
  • Article 124 of First Schedule of the Indian Limitation Act, 1908,
  • Section 244 of the Code of Civil Procedure, 1882,
See more information ...
Smart Summary

Structured Summary of the Opinion (Singheswar Temple: Bhaiaji Thakur's heirs v. Jharula Das)

Factual and Procedural Background

The appellants are the heirs and legal representatives of Bhaiaji Thakur (the original plaintiff), who was shebait of the Singheswar Temple in Mouza Gouripur (Singheswarpur), District Bhagalpur. The shebaitship carried an entitlement to a 3 annas share of the daily surplus income from temple offerings after defraying expenses. This entitlement came to Bhaiaji Thakur on the death (in 1900) of Musammat Grihimoni, who had earlier succeeded her husband Pratipal Thakur as shebait.

Jharula Das (defendant/respondent) was of the Beldar caste and, as such, was not competent to perform shebait duties or hold the office of shebait. In 1880 Jharula obtained a decree on a mortgage granted by Musammat Grihimoni; in execution of that decree he caused the 3 annas share to be sold and purchased it on 20 November 1891 (certificate of sale dated 8 February 1892 described the income share purchased).

In November 1892 Musammat Grihimoni and Bhaiaji Thakur sued to set aside that sale; that suit was withdrawn with leave to re-file. In 1895 Musammat Grihimoni filed a fresh suit alleging fraudulent procurement of the decree and order for sale; that 1895 suit was dismissed on appeal on the ground that the correct remedy was an application under Section 244 of the Code of Civil Procedure, 1882.

Musammat Grihimoni died in 1900. On 25 January 1910 Bhaiaji Thakur sued in the Subordinate Judge's Court at Bhagalpur claiming possession of certain lands, a declaration of entitlement to the 3 annas share of the temple income, and mesne profits, among other reliefs. In his written statement the defendant alleged that the earlier dismissal of the 1895 suit operated as res judicata against the claim to the 3 annas share. At trial limitation was also pleaded.

The Subordinate Judge held that res judicata did not bar the claim, treated Jharula's appropriation of income as a dispossession for limitation purposes, applied Article 124 of the First Schedule of the Indian Limitation Act, 1908, and found the suit (insofar as it related to the 3 annas share) within time. On 3 April 1911 the Subordinate Judge decreed possession of the lands, possession of the 3 annas share, and mesne profits subsequent to institution.

Jharula Das appealed to the High Court. The High Court affirmed the Subordinate Judge on the land and related mesne profits, but held the claim to the 3 annas share barred by limitation under Article 124 (treating the 12-year period as beginning in 1892 when appropriation first began) and also held the claim barred by res judicata. Accordingly, by decree dated 12 March 1912 the High Court set aside the Subordinate Judge's decree insofar as it related to the 3 annas share and the profits of that share. The present appeal to His Majesty in Council followed; the defendant did not appeal.

Legal Issues Presented

  1. Whether the dismissal of Musammat Grihimoni's 1895 suit operated as res judicata to extinguish the shebait's claim to the 3 annas share of the temple income.
  2. Whether the claim to the 3 annas share was barred by limitation under Article 124 of the First Schedule of the Indian Limitation Act, 1908 (and, if so, when the 12-year period began to run).
  3. Whether the appropriation by Jharula Das of the income share constituted possession of the hereditary office of shebait (and therefore converted the claim into a suit for possession of an hereditary office within Article 124).

Arguments of the Parties

Appellants' (representatives of Bhaiaji Thakur) position

  • The appellants claimed entitlement to possession of certain lands and to the 3 annas share of the net daily income from the temple offerings.
  • The appellants maintained (and the Subordinate Judge found) that the dismissal of Musammat Grihimoni's 1895 suit did not operate as a bar by res judicata to the present claim.
  • The appellants' case, as presented and sustained at trial, treated the wrongful appropriation of income by Jharula as actionable wrongs each time and did not concede that such appropriation constituted possession of the shebait office.

Respondent's (Jharula Das) position

  • In his written statement the defendant alleged that the decree dismissing Musammat Grihimoni's 1895 suit operated as res judicata and therefore barred the claim to the 3 annas share.
  • At the hearing the respondent strongly contended that the claim to the 3 annas share came within Article 124 of the First Schedule of the Indian Limitation Act, 1908, and was therefore barred by the 12-year period of limitation (the High Court treated the period as beginning in 1892 when appropriation commenced).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Judicial Committee (their Lordships) proceeded analytically through the contentions raised and the factual matrix disclosed by the record:

  1. Res judicata: The Court noted that the contention that the dismissal of the 1895 suit extinguished the shebait's right and barred the later claim by operation of res judicata was, on the hearing, abandoned and in any event was "untenable." The Court did not accept that the dismissal of the 1895 suit operated to extinguish the shebait's right to the 3 annas share.
  2. Application of Article 124 (limitation): The respondent argued the claim fell within Article 124 (which prescribes limitation for suits for possession of an hereditary office) and was therefore barred. The Court held it unnecessary to decide, even if Article 124 were applicable, whether the 12-year limitation began in 1892 or 1900, because they were of the clear opinion that Article 124 did not apply in this case.
  3. Qualification of the office and nature of appropriation: The Court examined the nature of the shebait office and the relation between the office and the 3 annas income share. The office of shebait was hereditary and could only be held by Brahmin Pandas who could perform (or provide for) the sacred puja. Jharula Das, a Beldar, was not a Brahmin panda and was therefore not competent to hold the office. Crucially, the Court found that the appropriation of the income share by Jharula did not amount to his taking possession of the hereditary office of shebait. The possession of the office did not depend upon the mere receipt of the income share, although the income share was dependent upon the possession of the office.
  4. Consequence of wrongful appropriation: The Court reasoned that each occasion on which Jharula received and wrongfully appropriated the income to which the shebait was entitled constituted a fresh actionable wrong. Such appropriation gave rise to a cause of action each time, but did not confer upon Jharula any title to the office nor make him the shebait for any period. In short, appropriation of income = wrongful receipt giving separate actionable causes of action; but not possession of the hereditary office.
  5. Outcome as to limitation: Because the appropriation did not constitute possession of an hereditary office, Article 124 (which applies to suits for possession of an hereditary office) was held not to apply. Therefore the High Court's conclusion that the 3 annas share claim was barred by limitation under Article 124 was incorrect.

Holding and Implications

Holding: The Judicial Committee allowed the appeal. Their Lordships advised that the decree of the High Court should be varied so as to set aside that part of the High Court's decree which related to the 3 annas share and the costs attributable thereto, to give the appellants a decree declaring that Bhaiaji Thakur was at the date of the suit entitled to the 3 annas share of the net daily income from the temple offerings, and to award to the appellants all costs in the High Court and in the Court of the Subordinate Judge. The respondent was ordered to pay the costs of the appeal.

Implications: The direct consequences are that the appellants obtain a declaratory decree of entitlement to the 3 annas share as at the date of suit, reversal of that part of the High Court's order which had barred the claim by limitation under Article 124, and an award of costs to the appellants (including the costs of this appeal). The opinion confines itself to the facts and remedies between the parties; it does not articulate the setting of any broader legal precedent beyond the immediate legal determinations made in the case (in particular, that wrongful appropriation of income by a person incompetent to hold an hereditary office does not convert that person into the holder of the office for limitation purposes, and that each wrongful appropriation gives rise to a fresh actionable wrong).

Source: Opinion of Sir John Edge as reproduced in the provided text. No additional facts, precedents, or inferences beyond the opinion have been added.

Show full summary ...

    Jalandhar Thakur v. Jharula Das

    Sir John Edge :

    The appellants here are the heirs and legal representatives of one Bhaiaji Thakur, now dead, who was the plaintiff in the suit in which this appeal has arisen. Bhaiaji Thakur was a shebait of an ancient temple of Mahadeoji, called the Singheswar Temple, which is situate in Mouza Gouripur, otherwise Singheswarpur, in the District of Bhagalpur. Bhaiaji Thakur became a shebait of the temple, on the death in 1900 of one Musammat Grihimoni who was the widow of one Pratipal Thakur, Pratipal Thakur had been a shebait of the temple, and until his death had been, as such shebait, entitled to receive a 3 annas share of the daily surplus income from the offerings to, after defraying the expenses of, the temple ; on his death his widow Musammat Grihimoni, succeeded to his shebaitship and accordingly became entitled to receive the same share of the daily surplus income from the offerings. The right to such 3 annas share came to Bhaiaji Thakur on the death of Musammat Grihimoni as the next reversionary heir under the Hindu Law to the shebaitship. The shebaits of the Temple are Brahmin Pandas who, as shebaits have to perform, or to provide for the performance of, the sacred worship or puja of the Deity at the Temple. Jharula Das, who is the defendant to the suit and the respondent to this appeal, is by caste a Beldar, and, as a Beldar, is not competent to perform, or to provide for the performance of, the sacred puja to the Deity at the Temple, and consequently was incapable of acquiring or holding the office of a shebait.

    In 1880, Jharula Das obtained a decree for money on a mortgage which had been granted by Musammat Grihimoni. In execution of that decree Jharula Das in 1891 caused the 3 annas share of Musammat Grihimoni to be put up for sale, and at the sale on the 20th November, 1891 purchased the share. Jharula Das on the 8th February, 1892, obtained a certificate of sale in which the property which he had purchased was described as the

    "Income of the Muth of Sri Singheswarthanji Mahadeo, which Muth is situated in Mauzah Singheswarthan, pergunnah, Nisankhipur Khurha, to the extent of 3 annas 6 pies, which belongs to the judgment-debtor, within the jurisdiction of the Madhepura Sub-Registry Office, Bhagalpur Collectorate."

    In November 1892, Musammat Grihimoni and Bhaiaji Thakur brought a suit against Jharula Das to have the sale to him of the 20th November, 1891 set aside. That suit was by the permission of the Court withdrawn by Musammat Grihimoni and Bhaijaji Thakur with liberty to bring a fresh suit on the same cause of action. In 1895, Musammat Grihimoni brought a fresh suit against Jharula Das to have the sale set aside on the ground that the decree and the order for sale had been fraudulently obtained by Jharula Das. The suit of 1895 was dismissed on appeal on the ground that her proper remedy was by an application under Section 244 of the Code of Civil Procedure, 1882, to dispute the validity of the sale, and consequently that the suit did not lie. Their Lordships fail to understand how Section 244 of the Code of Civil Procedure, 1882, could have applied to a suit which in effect was brought to set aside the decree of 1880, and the order for sale, on the ground that Jharula Das had obtained them by fraud.

    Musammat Grihimoni died in 1900. On the 25th January, 1910, Bhaiaji Thakur brought the present suit in the Court of the Subordinate Judge of Bhagalpur and claimed possession of certain lands and mesne profits and a declaration that he was entitled to receive the 3 annas share of the net income from the offerings to the Temple with other reliefs. In his written statement the defendant Jharula Das alleged, so far as is now material, that Bhaiaji Thakur was bound by the decree which dismissed Musammat Grihimoni's suit of 1895, and that the decision in that suit operated on the principle af res judicata, to defeat the claim in respect of the 3 annas share. At the trial, a defence that the suit was barred by limitation was raised. As to the defence of res judicata the Subordinate Judge rightly held that the decision in Musammat Grihimoni's suit of 1895 did not operate as a bar to this suit. On the question of limitation, the Subordinate Judge found that Jharula Das had not purchased the right of shebaitship, but the Subordinate Judge held that the appropriation by Jharula Das of the 3 annas share of the surplus income from the offerings to the Temple practically amounted to a dispossession, and treating Bhaiaji Thakur's suit, so far as it related to the 3 annas share, as a suit for the establishment of his right to shebaitship and for recovery of the profits of that office, and having found that Musammat Grihimoni had died in 1900, he applied Article 124 of the First Schedule of the Indian Limitation Act, 1908, and decided that the suit had been brought within time. On the 3rd April, 1911, the Subordinate Judge gave to the appellants here, who had been brought on the record as the representatives of Bhaiaji Thakur, who had died, a decree for possession of the land claimed, for possession of the 3 annas share of the net income from the offerings to the Temple, and for mesne profits subsequent to the institution of the suit. From that decree of the Subordinate Judge, Jharula Das appealed to the High Court of Judicature at Fort William in Bengal. The High Court in the appeal upheld the decision of the Subordinate Judge so far as it related to the land claimed and to mesne profits in respect of the wrongful possession by Jharula Das of that land, and to that extent by their decree affirmed the decree of the Subordinate Judge. With that part of the decree of the High Court this appeal is not concerned. Those learned Judges of the High Court considering that Article 124 of First Schedule of the Indian Limitation Act, 1908, applied to the claim in respect of the 3 annas share of the surplus daily income from the offerings to the Temple, and being of opinion that the 12 years' period of limitation provided by that Article began to run in 1892, when Jharula Das first began to appropriate to his own use the income of the 3 annas share, decided that the claim in respect of the 3 annas share was barred by limitation. They also held that the claim to the share was barred by the principle of res judicata, arriving at that decision apparently on the view that the dismissal of Musammat Grihimoni's suit of 1895 extinguished the claim of the shebait to the 3 annas share. Accordingly, the High Court by its decree of the 12th March, 1912, set aside the decree of the Subordinate Judge so far as it related to the claim to the 3 annas share and the profits of that share. From that decree of the High Court the present appellants have appealed to His Majesty in Council.

    The defendant Jharula Das has not appealed.

    On the hearing of this appeal, the contention that the dismissal of Musammat Grihimoni's suit of 1895 extinguished the right of the shebaits to the 3 annas share, and that the claim in respect of that share was res judicata was very properly abandoned; it was untenable. But it was strongly contended on behalf of the respondent that the claim in respect of that share came within Article 124 of the First Schedule of the Indian Limitation Act, 1908, and was barred by limitation. It is not necessary for their Lordships to consider whether, if that Article applied, the 12 years' period of limitation began to run in 1892 or on the death of Mussammat Grihimoni in 1900, as they are of opinion that Article 124 of the First Schedule of the Indian Limitation Act, 1908, does not apply in this case. Bhaiaja Thakur's suit was not a suit for possession of an hereditary office. Jharula Das had not taken possession of an hereditary office. The office of shebait of the temple was an hereditary office which could not be held by any one who was not a Brahmin panda, Jharula Das not a Brahmin panda, he was of an inferior caste, and was not competent to hold the office of shebait of the temple or to provide for the performance of the duties of that office. The appropriation from time to time by Jharula Das of the income derivable from the 3 annas share did not deprive Mussammat Grihimoni or, after her death, Bhaiaji Thakur, of the possession of the office of shebait, although that income was receivable by them in right of the shebaitship. The right to the office of shebait did not arise from, or depend upon the receipt of a share of the surplus daily income from the offerings to the temple, although the right to receive daily a share of the net income from the offerings to the temple was attached to and dependent on the possession of the right to the shebaitship. Unless the shebaits received their share of the daily net income from the offerings, it does not appear how the ministrations of the temple could be provided for. By adversely taking and appropriating to his own use a share of the surplus daily income from the offerings Jharula Das acquired no title and no right to a share of that income. On each occasion upon which Jharula Das received and wrongfully appropriated to his own use a share of the income to which the shebait was entitled, Jharula Das committed a fresh actionable wrong in respect of which a suit could be brought against him by the shebait. But it did not constitute him the shebait for the time being or affect in any way the title to the office.

    The appellants here are entitled to have the decree of the High Court so far as it relates to the 3 annas share, and to the costs in the High Court and in the Court of the Subordinate Judge varied by setting aside that part of the decree of the High Court which relates to the 3 -annas share and those costs, and by giving them a decree for all the costs in the High Court and in the Court of the Subordinate Judge, and a declaration that Bhaiaji Thakur was at the date of the suit entitled to the 3 annas share of the net daily income of the offerings to the temple. Their Lordships will advise His Majesty accordingly.

    The respondent must pay the costs of the appeal.

    Appeal allowed.

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    Comments

    Jalandhar Thakur v. Jharula Das
    (May 26, 1914)