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Gadigeya Adiveya Hiremath Vs. Basaya Mallaya Rapati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 133 of 1909
Judge
Reported in(1910)12BOMLR358
AppellantGadigeya Adiveya Hiremath
RespondentBasaya Mallaya Rapati
Excerpt:
regulation 11 of 1827, section 11-caste question-suit for declaration to be called the ayya of hiremath use of name-allegation of damages.;the plaintiff sued to obtain a declaration that be was entitled to the fees and privileges appertaining to the hiremathe at kamalapur by reason of business title to be called the ayya of that hiremath, and he asked for a perpetual injunction to restrain the defendants from using the name ' ayya of hirematb.' the first court held that the suit was barred by section 11 of regulation ii of 1827. on appeal, the lower appellate court held that the plaintiff was not entitled to the office claimed by him, on second appeal, the plaintiff contended that his case fell within the principle that the unauthorised use of the name of one person by another gave a..........using the name ' ayya of hiremath'. the subordinate judge, first class, at dharwar, who tried the suit, raised several issues, the first of which was:' whether the matter in dispute in this suit cannot be adjudicated upon by a civil court', his finding upon that point was that the subject matter could ' be adjudicated upon excepting as regards the declaration about the privileges and dignities attached to the hiremath'. he held that, so far as those privileges and dignities were concerned, the question raised was one relating to ' caste' within the meaning of the bombay regulation ii of 1827, section 11.2. in the appeal court the learned assistant judge disposed of the case on the following issue: whether the plaintiff was entitled to the office of ayya of hiremath at kamalapur. his.....
Judgment:

N.G. Chandavarkar, J.

1. This was a suit brought by the appellant to obtain a declaration that he was entitled to the fees and privileges appertaining to the Hiremath at Kamalapur by reason of his title to be called the Ayya of that Hiremath, and he asked for a perpetual injunction to restrain the defendants from using the name ' Ayya of Hiremath'. The Subordinate Judge, First Class, at Dharwar, who tried the suit, raised several issues, the first of which was:' Whether the matter in dispute in this suit cannot be adjudicated upon by a Civil Court', His finding upon that point was that the subject matter could ' be adjudicated upon excepting as regards the declaration about the privileges and dignities attached to the Hiremath'. He held that, so far as those privileges and dignities were concerned, the question raised was one relating to ' caste' within the meaning of the Bombay Regulation II of 1827, section 11.

2. In the appeal Court the learned Assistant Judge disposed of the case on the following issue: Whether the plaintiff was entitled to the office of Ayya of Hiremath at Kamalapur. His finding on the evidence, on that issue, was in the negative. He held upon the evidence that the plaintiff had not proved an exclusive right to the name claimed by him.

3. Before us Mr. Jayakar in support of the second appeal contends that the ,issue raised and decided by the Assistant Judge had not been raised in the Court of first instance; and that the suit, having been brought by the plaintiff owing to the usurpation by the defendant of a name to which the plaintiff alleged he had an exclusive right, fell within the jurisdiction of the Court under the well known principle of law that an unauthorized. ed use of the name of one person by another gives a cause of action, to the former, where the use is calculated to deceive and inflict pecuniary loss.

4. Now, the law on the point so raised is clear. It has been laid down by the House of Lords in Earl Cowley v. Countess Cowley (1900) A.C. 450 where Lord Lindley at p. 460 says: 'The law on this subject has been examined in a very instructive note from the pen of the late Mr. Waley in 3 Davidson's Conveyancing, pt. I, p. 283, 2nd Ed. The judgment of Tindal C. J. in Davies v. Lowndes (1835) 1 B N.C. 597. and of the Privy Council delivered by Lord Chelmsford in Du Boiday v. Du Boulay (1869) 2 P.C. 430. leave no doubt about it. Lord Chelmsford in Die Boulay v. Du Boulay state that 'in this country we do not recognize the absolute right of a person to a particular name to the extent of entitling him to prevent the assumption of that name by a stranger. The mere assumption of a name which is the patronymic of a family by a stranger who has never before been called by that name, whatever cause of annoyance it may be to a family, is a grievance for which our law affords no redress.' '

5. The question, therefore, is whether any damages have been incurred or not. In examining the case from that point of view it must be remembered that, closely scrutinized, the plaint in the present case does not afford any clear indication that what was complained of was the user of a name by the defendant in a manner calculated to deceive any one. When we read the summary of the plaint as given by the Subordinate Judge, who tried the case in the first instance, it appeared to us that what the plaintiff complained of was trespass on plaintiff's property by the defendant. It appears that it was under that impression that the Subordinate Judge decided the first issue raised by him partly in favour of the plaintiff. But Mr. Jayakar has candidly admitted before us that, so far as any property is concerned, there has been no trespass by the defendant upon the plaintiff's right; that all that the plaintiff complains of is that the defendant has assumed a name to which the plaintiff has alone the exclusive right; and that that assumption will enable, and has enabled, the defendant to attract to himself a large number of - the plaintiff's followers and thereby appropriate to himself fees, which would have gone into his (plaintiff's) pockets. When the case is thus put, it resembles Murari v. Suba ILR(1882) 6 Bom. 725. It is a claim to a caste office and to be entitled to perform the honorary duties of that office or to enjoy certain privileges and honours at the hands of the members of the caste in virtue of that office. That is a caste question, not cognizable by a Civil Court. The fact that there has been no allegation of any specific damage by reason of the assumption by the defendant of the name of Ayya of Hiremath, and also the admission that after all the result of the assumption of that name would be merely to enable some of the followers of the plaintiff to go over to the defendant, show that what the parties have been fighting for is merely a question of dignity under the cover of a religious office. If we were to interfere in such cases, we would be merely assisting one party at the expense of the other and compelling the caste or the sect to follow one spiritual leader in preference to another. We think, therefore, that the point raised by Mr. Jayakar, namely, that the suit is for damage incurred by his client by reason of the unauthorized use by the defendant of the name, to which the plaintiff alone is entitled, does not arise upon the pleadings. On these grounds we confirm the decree with costs.


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