Sir Basil Scott, C.J.
1. The contest in this case resolves itself into this, whether the ceremonials observed by Lingayets in marriages are to be regarded as a whole in deciding whether or not the village Gramopadhya is entitled to perform the ceremony, or whether the ceremony can be split up into parts, and if it is found that some part of the ceremonial is similar to that according to the Brahmin ritual the Gramopadhya can insist upon payment of fees in respect of such part of the ceremonial as may have been performed by another. The point is stated exceedingly well by the learned Subordinate Judge, Mr. Wagh. He says:
It is urged that some of the ceremonials such as the fastening of the Mangalsutra and the Kankandhara are common to the Hindu form and the Pancha-Kalas form, and that therefore the fastening of the Mangalsutra and the Kankandhara in the Pancha-Kalas form of marriage, entitles the plaintiffs to the fee appropriate to the Hindu form. If the ceremonials of the Brahmins, the Jains and the Lingayats are compared it would be found that they agree in some points and are divergent in others. Yet they have their characteristic basic differences arising out of the faith on which they are founded. It would not be right, therefore, from the common circumstance of the fastening of the Mangalsutra or of the wrist thread or the throwing of rice on the bridal pair, to say that the ceremony is Hindu in form and that the Watandar Joshi is entitled to his fee. We have to take the marriage ceremony as a whole and determine whether it is in the Hindu form or in the Pancha Kalas Lingayat form. If it is the former the Joshi is entitled to his fee, and if it is the latter, he is not.
2. The contrary view is stated by the District Judge who after consideration of the cases cited to him, namely, Raja valad Shivapa v. Krishnabhat I.L.R. (1879) Bom. 232, Waman Jagannath Joshi v. Balaji Kusaji Patil I.L.R. (1889) 14 Bom. 167, and Krishnumbhut v. Anunt Gungadhurbhut (1857) 4 Morris 111, says:-
I am therefore of opinion that the Court must consider the particular ceremonies performed rather than the marriage as a whole, and that even if some ceremonies, whether optional or obligatory, were performed which plaintiff himself could not perform, and for which he can therefore claim no fees the fact does not debar him from claiming fees on account of other ceremonies which were actually performed and which plaintiff could perform, and is entitled to perform, in the ordinary course in the case of marriages in the caste of defendant 1. The addition of some ceremonies which plaintiff could not perform and the omission of others, which would necessarily have been performed had plaintiff officiated, does not affect his right to recover his proper fees, if any, on account of such ceremonies as were performed.
3. We are of opinion that the view taken by the District Judge is based upon a misapprehension of what was decided by this Court in Waman Jagannath Joshi v. Balaji Kusaji Patil I.L.R. (1889) 14 Bom. 167. The judgment of the Subordinate Judge, with appellate powers, reversing that of the Subordinate Judge, was there under appeal to the High Court. The appellate Court's opinion was that 'the plaintiffs were only entitled to recover in case a marriage was performed in any of the modes known to the Hindu law or in the mode described by Mr. Mandlik with respect to castes other than the Brahmin caste, and that the marriages in dispute being not performed in any such way, they were not such marriages as they were entitled to recover fees for in virtue of any right acquired by grant or prescription.' The High Court said: 'We agree with the lower appellate Court that, under such circumstances as he thinks existed here, there would have been no intrusion on the plaintiffs' privileges which would give them a right to recover their fees from the Yajman as laid down in the decisions of this Presidency.... But no issue was expressly raised as to the manner in which the marriages in question were performed; and although in the course of the hearing some evidence was given on the subject, neither party, we think, clearly understood what was the real issue between them on that part of the case.' Therefore the issue was sent down to the District Court: 'What ceremonies were performed on the occasions of the marriages, or either of them, and by whom?' We have referred to the record in that case, and we find that the learned District Judge after stating what ceremonies were, on the evidence taken on remand, performed, stated his opinion that 'the ceremonial enumerated by the late V.N. Mandlik in his Hindu law, as observed by lower castes, was not followed on these occasions.' That was a confirmation of the inference drawn by the lower appellate Court whose judgment was under appeal to the High Court, and upon that finding the Court confirmed the decree of the First Class Subordinate Judge, with appellate powers, with costs. We take that as an authority for the opinion of the Subordinate Judge that if the ceremony performed is not a Hindu marriage ceremony as a whole the Joshi or Gramopadhya has no right to demand the fees.
4. We reverse the decision of the lower appellate Court and restore that of the Subordinate Judge with costs throughout upon the plaintiffs, The cross-objections are dismissed with costs.