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Shankara BIn Marabasapa Vs. Hanma BIn Bhima and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom470
AppellantShankara BIn Marabasapa
RespondentHanma BIn Bhima and ors.
Excerpt:
chalvadi, office of - disturbance of office--gratuities received by intruder, action to recover--caste question--regulation ii of 1827, section 21. - - 6. so far, therefore, as the plaintiff seeks to recover moneys paid to the defendant in his usurped character of chalvadi by members of the caste, this action will fail. campbell there said that 'in england, although an action may be maintained for the disturbance of an office or franchise, an action could not be maintained by the grantee of a dignity from the crown against a person who without a grant should assume the like dignity; the sadr adalat, having taken the case into their consideration, and, in the first instance, assumed the case as stated on behalf of the swami to be true in fact, held, nevertheless, on the 6th february..........for we think that the claim of the plaintiff to be chalvadi of the lingayet caste at bagalkot is a caste question within the meaning of so much of the first clause of the twenty-first section of regulation ii of 1827 as remains unrepealed by act x of 1861, and prohibits interference on the part of civil courts in caste questions. the alleged duty of the chalvadi being to carry the insignia of the caste at public ceremonials, without any right to levy fees or receive salary for the performance of that duty, is essentially a matter which concerns the caste exclusively, and, therefore, one which we think the bombay legislature intended to leave to the caste.2. for these reasons we affirm the decrees of the courts below, except so far as they relate to costs, and we direct that the parties,.....
Judgment:

Michael Westropp, C.J.

1. The Assistant Judge has found in substance that the plaintiff is the hereditary holder of the office of Chalvadi, or bearer, on public occasions, of the insignia or symbols of the Lingayet caste at Bagalkot;. but that, though members of the caste may bestow voluntary gratuities on the Chalvadi, there are not any fees, as of right, appurtenant to that office. It is, therefore, clear that an action by the plaintiff against an intruder upon his office, who has been paid such gratuities, if the action be brought merely for moneys received by the defendant to the use of the plaintiff, will not lie--Boyter v. Dodsworth 6 Term. Rep. 681, Muhammad Yussub v. Sayad Ahmed (1 Bom. H.C. Rep., Appx. xviii), Sitarambhat v. Sitaram Ganesh, per Couch, C.J. 6 Bom. H.C. Rep. A.C.J. 250, Vithal Krishna Joshi v. Anant Ramchandra 11 Bom. H.C. Rep. 6. So far, therefore, as the plaintiff seeks to recover moneys paid to the defendant in his usurped character of Chalvadi by members of the caste, this action will fail. Whether, under such circumstances, a plaintiff might recover nominal damages from a defendant in a suit in the nature of an action on the case, and also (except in the case of a mere caste dispute) obtain, under the equitable jurisdiction of our civil Courts, substantial relief by getting an injunction restraining the defendant from further intrusion, is a question of some nicety. It might, perhaps, be contended that an office, unaccompanied by emoluments, fees, or salary payable as of right, is a mere dignity, and, therefore, falls within the scope of the case of Sri Shunker Bharti Swami v. Sidha Lingaya Charanti 3 Moor Ind. App. 198, which was a claim by the Swami, or chief priest, of the Smartava caste of Brahmans, to the exclusive right of being carried crosswise on the high road in a palanquin on ceremonial occasions, in virtue of a grant from the ruling power to a predecessor in office. Lord. CAMPBELL there said that 'in England, although an action may be maintained for the disturbance of an office or franchise, an action could not be maintained by the grantee of a dignity from the Crown against a person who without a grant should assume the like dignity; but it does not necessarily follow that such is the law in Bombay'. Their Lordships of the Privy Council then remanded that suit to the Sadr Adalat of Bombay, and directed that Court, in the first instance, to consider whether, assuming the case of the plaintiff there, the Swami, to be true, his action would, by the law of this Presidency, be maintainable. The Sadr Adalat, having taken the case into their consideration, and, in the first instance, assumed the case as stated on behalf of the Swami to be true in fact, held, nevertheless, on the 6th February 1845, that he could not maintain his action--and their decision would appear to have been acquiesced in, and the case was carried no further (see note on next page for minutes of the Judges on this case). Whether the office of Chalvadi at Bagalkot--dissociated as it has been found to be from any emoluments receivable as of right--is a mere dignity like the honour claimed by the Swami, and, therefore, not a fit subject for an action against an intruder for his disturbance of the party entitled, is a question on which we do not purpose to give an opinion, for we think that the claim of the plaintiff to be Chalvadi of the Lingayet caste at Bagalkot is a caste question within the meaning of so much of the first clause of the twenty-first section of Regulation II of 1827 as remains unrepealed by Act X of 1861, and prohibits interference on the part of civil Courts in caste questions. The alleged duty of the Chalvadi being to carry the insignia of the caste at public ceremonials, without any right to levy fees or receive salary for the performance of that duty, is essentially a matter which concerns the caste exclusively, and, therefore, one which we think the Bombay Legislature intended to leave to the caste.

2. For these reasons we affirm the decrees of the Courts below, except so far as they relate to costs, and we direct that the parties, respectively, do bear their own costs of the suit and of all of the appeals.

3. It was not the intention of this Court, when remanding, this case in August 1874, to decide whether or not the question involved in it was a caste question. The remand was made simply in order that the facts should be more fully investigated.


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