Jagdeo Singh v. Ram Saran Pande

Adami, J.:— (after stating the facts set out above, proceeded as follows): The first question which arises is whether the right to do the pujapath and receive the offerings is partible or not. Though in the case of Srimati Mallika Dasi v. Ratanmani Chakervarty it was held that a pala or turn of worship of an idol was inalienable and that it would be contrary to public policy to allow offices like this to be transferred either by private sale or sale in execution of a decree, in the case of Mahamaya Debi v. Haridas Haldar Mookerjee, J., considered the whole question and, after the examination of a great many previous decisions, held that there was no question that, though probably religious offices were originally indivisible they are now deemed partible and in fact the very existence of palas or turns of worship shows that the right is partible. In that case there was evidence to show that a pala had not only been deemed heritable and partible, but it had also been treated as being divisible. He pointed out that a custom of this description could not be characterised on any rational ground as unreasonable or opposed to public policy.

In the present case both parties have shown by the evidence they produced that there have been numerous instances in which the right has been transferred and the defendant no. 1 himself can hardly urge that the right is inalienable, since it is his own case that Shiv Charan transferred the 9 kauris share to him. Mookefjee, J., in his judgment showed that the custom of transferability and partibility can be shown and acted on where the transfers relied on are transfers to persons who are eligible to perform the religious offices required.

From the judgments of the lower Courts it is clear that there have been many cases of transferability but there is no distinct finding that all the elements necessary for the proof of custom existed in the present case. But considering that defendant no. 1 himself claims under a transfer, I do not think that the Courts were wrong in coming to a finding that oil the instances given by the parties there was sufficient basis for a finding that the rights of pala in the case of the Sital Asthan could be transferred and could be partitioned.

Defendant no. 1, as I have stated, claimed that he had purchased the rights which the plaintiff seeks to partition from Shiv Charan and both the Courts have found that, as there is no registered deed, they could not take notice of any allegation of a verbal sale such as defendant no. 1 asserted had taken place between himself and Shiv Charan. The Courts below, however, are mistaken in thinking that a registered document was necessary. In the case of Jati Kar v. Mukunda Deb it was held that a turn of worship is not an interest in immoveable property and, therefore, attestation by witnesses to a mortgage bond would not be necessary under section 59 of the Transfer of Property Act. The decision in Eshan Chunder Roy v. Mon Mohini Dassi is to the same effect: so that it was open to defendant no. 1 to produce oral evidence of the sale alleged by him. As the lower Appellate Court has not considered such evidence as defendant no. 1 may have adduced it is clear that the case will have to go back to the lower Court for examination of the evidence and a decision whether defendant no. 1 did in fact purchase the 9 kauris share from Shiv Charan.

The second appeal by defendant no. 3 is directed against the finding of the learned District Judge that, being a non-Brahman, he had not acquired any interest under his kabala. Defendant no. 3 is a Bhumihar Brahmin and as such it is contended by defendant no. 1 that he has no right to perform the worship in the Sital Asthan. There is nothing on the record to show us whether a Bhumihar Brahman is a Brahman for the purposes of performing the worship of the idol. If he is not a Brahman and cannot perform the worship in the temple, it is clear to my mind that he is not competent to share in the palas. The case of the plaintiff and of defendant no. 3 is that though defendant no. 3 does not himself perform the pujapath he employs the plaintiff who is competent, being a Brahman, to do worship for him and himself takes the offerings, giving the plaintiff a small remuneration. It is quite true that the offerings could be shared between the parties, but it certainly is equally true that defendant no. 3 if he is not a Brahman could not share in the performance of the pujapath and this being so, as the right to perform the religious duty is bound up with the right to receive the offerings, defendant no. 3 could not claim to share in the right. The plaintiff has been performing the worship himself and after he had received the offerings it was open to him to arrange with defendant no. 3 that defendant no. 3 should get those offerings, but defendant no. 3 cannot claim a share in the right to worship and therefore cannot claim any share in the partition of that right Mookerjee, J. in Mahamaya Debi v. Haridas Haldar has shown that where there is a custom of transferability or partibility, a transfer or partition can be made among a limited class who are covered by the custom and it is clear that in the present case the custom, if any, is confined to the Brahmans and a custom of extending it to non-Brahmans is not established by the few instances given in evidence and it would not cover defendant no. 3 if he is a non-Brahman. Therefore I am of opinion that second appeal no. 754 of 1924 of Jagdeo Singh cannot succeed and should be dismissed with costs, but the defendant no. 3 is entitled to receive from the plaintiff his purchase money with interest from the date of delivery of possession after partition if the appeal of defendant no. 1 is eventually dismissed.

With regard to the second appeal of defendant no. 1 as I have shown above the matter must go back to the lower Appellate Court for a consideration of the evidence produced by defendant no. 3 to prove an oral sale by Shiv Charan to him of the 9 kauris pala. After considering that evidence the learned District Judge will decide the case. If it is shown that there was a sale as alleged, the plaintiff's suit must be dismissed in toto, for he would then have no share with regard to which he could claim partition. If on the other hand the evidence does not prove such a sale, the decrees of the lower Courts so far as they affect the plaintiff and defendant no. 1 will be upheld. The costs of this second appeal will abide the result.

Macpherson, J.:— I agree.

Appeal no. 754 of 1924 dismissed.

Appeal no. 758 of 1924 remanded.