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Anandrav Bhikaji Phadke and Three ors. Vs. Shankar Daji Charya and Twelve ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom323
AppellantAnandrav Bhikaji Phadke and Three ors.
RespondentShankar Daji Charya and Twelve ors.
Excerpt:
caste - suit for right to exclusive worships--non-joinder of parties--chitpavans--palshes--limitation--section 21 of regulation ii of 1827--civil procedure codes act viii of 1869, and act x of 1877, section 30. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in..........the plaintiffs say they were personally injured by a pollution of their shrine in a way which the civil courts can readily prevent. they could properly claim protection on making out their case. if there is anything in the proceedings which has prevented the plaintiffs and defendants from toeing really representatives of the chitpavans and palshes, that can be shown in another case.3. then it is said this is a caste question excluded from the cognizance of the civil courts. the meaning of section 21 of regulation ii of 1827 is that the internal economy of a caste is not to be interfered with by the courts, not that no possible matter of litigation in which a question of caste usage, or right, or privilege may arise can be taken cognizance of. the proper and indispensable limits of the.....
Judgment:

West, J.

1. The first point taken for the respondents in this case is that the suit was barred by limitation. The acts complained of are intrusions into a sanctuary, and what the plaintiffs seek is a declaration of their right, and an injunction against further intrusions on the part of the defendants. Such a suit is not barred by limitation merely because the first act specified may fall beyond the term of limitation. Intrusions and acts of worship, whether rightful or wrongful, are not continuous like possession, and there is not any provision of the law of limitation which prevents the establishment of a right connected with worship, or a religious institution, merely because the first interference with it may hare occurred more than three, or more than six, or twelve, years before the institution of the suit. If the acts of worship, or other proceedings of the defendants, in such a case have been so often repeated, and so consistent, during a long period that a presumption of a legal foundation for them fairly arises, they may properly be defended on such a presumption. A long continued and undisputed practice is to be referred, if it can be referred, to a lawful origin. In such a case as the present, proof in this way of a right exercised by the defendants would, so far as it went, disprove the exclusive right set up by the plaintiffs; but this would be a conclusion standing quite apart from limitation.

2. Next, it was urged that the suit could not be maintained by the plaintiffs as representing the Chitpavan Brahman community. At present, when persons sue in a representative character, Section 30 of the Code of Civil Procedure provides for intimation of the suit being given to all concerned. The former Code, under which this suit was instituted, had not such a provision; but that did not deprive those whose legal interests were affected as members of a class of the right to sue. Section 30 is regulative, not constitutive. There must be a right to sue before it can be applied, and this right equally subsisted under the former Code, whatever the consequences of a suit as to finality with regard to the class or classes at large might be. The case of Jenkins v. Robertson L.R. 1 Ca. (Se) 117 is instructive in this respect, and indicates that it may be consistent with general principles that certain judicial proceedings taken by, or against, a select number as representing a large class may, if fairly and honestly conducted, bind or benefit the whole class. Here the plaintiffs say they were personally injured by a pollution of their shrine in a way which the Civil Courts can readily prevent. They could properly claim protection on making out their case. If there is anything in the proceedings which has prevented the plaintiffs and defendants from toeing really representatives of the Chitpavans and Palshes, that can be shown in another case.

3. Then it is said this is a caste question excluded from the cognizance of the Civil Courts. The meaning of Section 21 of Regulation II of 1827 is that the internal economy of a caste is not to be interfered with by the Courts, not that no possible matter of litigation in which a question of caste usage, or right, or privilege may arise can be taken cognizance of. The proper and indispensable limits of the cognizance of religious and caste questions by a secular Court are indicated by Sir T. Strange:

4. 'A British Court exercising ever the most delicate caution not to meddle with matters of religion, but and in so far as it happens to be inseparable from the question of right; upon which alone, as it concerns property, or the civil duties of life, it is its proper function to adjudicate' Strange's Hindu Law, Vol I, p. 93 (3rd ed.). See also the opinion at page 263, Volume II. And this corresponds pretty nearly in principle to what in England has been laid down, and acted on, with regard to dissenting religious bodies not disapproved, but also not sustained, or regulated, by the State--Cooper v. Gordon L.R. 8 . 249. The English Courts have to adjudicate amongst sections of dissenters as to civil rights, though they have no authority in what may, by analogy, be called their caste questions. The principles set forth in the case of Brown v. Cure of Montreal L.R. 6 P.C. 157 are of general application, and, should the necessity arise, would warrant the Civil Courts in going much further than they are called on to go in the present case. Now the rights connected with the religious foundation, in the absence of any code of rules laid down by the founder or the sovereign power, have to be sought in the practice of the institution. What has long been done is presumed to have been rightly done. The evidence on that subject has led the Assistant Judge to the conclusion that the right of exclusive worship set up, as against the defendants, by the plaintiffs has been proved, and that the contradictory right set up by the defendants has not. This right is one which the Courts must guard, as otherwise all high-caste Hindus would hold their sanctuaries, and perform their worship, only so far as those of the lower castes chose to allow them. We, therefore, reverse the decrees of the Courts below, and award the relief sought, with all costs, to the plaintiffs.


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