S.S. Rangnekar, Acting C.J.
1. These are two appeals in a suit for partition brought by two members of a joint and undivided Hindu family against the other members of the family, some of whom supported the plaintiffs, the principal contesting parties being the two plaintiffs and defendants Nos. 1 and 2.
2. The relationship between the parties appears from a pedigree of the family, which is printed at page 1 of the print. It appears from it that the common ancestor was one Raghunathboa. He had three sons,-Balkrishnaboa, Gopalboa and Govindboa-, and it is common ground that they died somewhere in 1903. The eldest brother Balkrishnaboa had two sons,-(1) Digambar, who was defendant No. 1, who is now dead, and his son Dattatraya, being defendant No. 2, and (2) Narayan, whose heirs are defendants Nos. 3 to 7. Gopalboa died without any issue. Govindboa left him surviving three sons,-Ramkrishna, Hari and Wasudev. Ramkrishna died in 1924, and the two plaintiffs are his sons. Hari is defendant No. 8, and his son defendant No. 9. Wasudev died in 1923 leaving a widow who is not a party to this suit. Originally the family was joint and possessed of joint family property.
3. The plaintiffs claimed one-fourth share in the properties mentioned in the suit. Among those properties, there is one which in the record is described as the Harimandjr. As regards this particular property, the plaintiffs claimed a partition of a part of the property, the other part being excluded from their claim to partition consisting of eighteen compartments which were utilized for housing the family idol. Then they claimed that they had a one-fourth share in the daily and occasional observances and services pertaining to the temple, such as bhajan, puja, kirtan, etc., and that they were entitled to receive the income according to their share. Then the plaintiffs claimed their share in the income of a jahagir granted to their family by H.E.H. the Nizam known as the Aliabad jahagir, and asked for an account of the income which, they alleged, had been received by defendants Nos. 1 and 2, and in regard to which their own share had not been handed over to them. There was a prayer for an injunction restraining defendants Nos. V and 2 from obstructing the plaintiffs in the joint vahivat of the temple.
4. The main defence to the suit was, that owing to disputes in the family
5. On these pleadings the learned First Class Subordinate Judge of Sholapur raised various issues. He held that the defendants had failed to prove the alleged partition in 1904, and he awarded the plaintiffs' claim as regards the partition of all the properties excepting the portion used for the worship of the family deity, as to which the plaintiffs themselves had not claimed any partition. Then the learned Judge further held that that portion comprising -eighteen compartments was impartible. On the question of jurisdiction, his finding was against the plaintiffs and in favour of the contesting defendants. He also held that defendants Nos. 1 and 2 had succeeded in proving that one-third of the income of the jahagir was to be reserved for the temple, one-third went to the senior branch and only one-third was liable to division among the rest of the family. This, on the face of it, seems to be somewhat unintelligible, having regard to his finding on the question of jurisdiction. On that issue the learned Judge's finding was that the Court had no jurisdiction to try questions relating to the Aliabad jahagir.
6. [After stating the facts his Lordship continued :-]
7. Both parties have preferred appeals from this decision. In the defendants' appeal the issues argued are issue No. 3 as to the alleged partition in 1904, and the issue as to limitation both as regards the right of the plaintiffs to bring a suit for partition as also their claim to share in the service relating to the temple. The plaintiffs' appeal is only directed to that part of the decree by which the learned Judge held that the plaintiffs were not entitled to share in the service relating to the temple.
8. It appears from the facts proved in the trial Court that until 1904 the family was joint. In November of 1917 Ramkrishna, the father of the plaintiffs, and Hari and Wasudev, their uncles, brought a suit for partition in the Second Class Subordinate Judge's Court at Pandharpur against defendants Nos. 1 and 2. In their plaint they alleged that in November, 1915, they had demanded their sjlares from the defendants, but the latter refused to agree to partition the property and to give them their shares. This is suit No. 56 of 1917. The Court held that it had no jurisdiction to try the suit and returned the plaint for presentation to the proper Court. The plaintiffs in that case, however, did not present the plaint to the Sholapur Court until July, 1927. The plaint was then presented by Hari, Ramkrishna and Wasudev apparently having died in the meanwhile. This suit, however, was not proceeded with and was ultimately dismissed as having abated. The present suit was filed in 1929, and it was alleged in the plaint that the cause of action accrued in April, 1921, when a share was demanded and refused.
9. The family being joint and possessed of ancestral property, ordinarily the burden would lie upon defendants Nos. 1 and 2 to prove that there was a partition in the family in the year 1904. For this purpose the defendants led both oral and documentary evidence. The learned Judge rejected their contentions and held that the parties were joint and had continued joint. The learned Counsel on behalf of the appellants has drawn our attention to some of the important facts on which his clients rely, and the only question before us on this part of the case is whether upon the facts the inference drawn by the learned Judge was a just inference or not.
10. Before dealing with these facts, it is necessary to consider the legal position which arose on the pleadings. It is well established now that to effect a partition all that is necessary is a clear and unequivocal intention on the part of the coparceners to sever their joint status and to hold their shares in severalty. No writing is necessary, and the intention may be proved by evidence of surrounding circumstances, and particularly conduct of the parties and their dealings inter as after the alleged partition. It is equally well established that a suit instituted by one coparcener for partition against his other coparceners effects severance among them, and would be strong evidence of the intention of the parties to sever, unless the suit is withdrawn before the trial and not proceeded with, and the parties agree to continue to be joint as before.
11. In suit No. 56 of 1917 the plaintiffs alleged that they had demanded a share in November, 1915, and it was refused. Clearly Article 127 of the Indian Limitation Act would apply to the case, and the separate possession of the other coparceners who had refused to give a share to the plaintiffs would amount to an ouster to the knowledge of the plaintiffs from that date. But it is also clear that even after a suit for partition it is open to the coparceners to drop the proceedings and to agree to continue joint as between themselves as before. That is the case made out on behalf of the plaintiffs. That being so, the burden, I think, would clearly rest upon the plaintiffs to prove that after the institution of the suit there was no change in the status of the family, that the family continued to be joint as before, and that there was no separate interest in it. For this purpose the plaintiffs rely on some circumstances, to= which I shall first turn.
12. [After discussing the evidence at length the judgment proceeded :-)
13. I have referred in some detail to some of the most important facts on which both sides have relied; and we are satisfied that there was no partition in nor in 1906, and that even after the suit of 1917 the parties continued to live in the same way as before and were undivided, and that the claim of the plaintiffs as regards partition must be accepted. That is the view which the learned Judge has taken, who had the witnesses before him, and we see no reason to differ from him on this point.
14. There is one more point in the defendants' appeal with regard to a building known as Harimandir. The plaintiffs in their plaint did not claim partition RABHAKAR of a part of the Harimandir, and, according to them, the portion which they did not want to be divided consisted of eighteen compartments. As regards the rest of the building, which consisted of one or two store's, they claimed that they were entitled to equal partition. The learned Judge accepted that claim. The appellants say that that decision is wrong. It is argued that the house is one and there is no warrant for the description of the house given by the plaintiffs in their plaint, as consisting of part No. 1 and part No. 2, and that the house is registered in the Municipal records and in Government records as one building, and that it is the house in which the temple is situate and, therefore, the learned Judge was wrong in allowing partition with regard to the whole of the building with the exception of eighteen compartments. It is also said that in the earlier suit no such distinction was made by the plaintiffs and that the distinction now made is imaginary. In the old suit, however, the plaintiffs claimed partition of the whole of the Harimandir, including the eighteen compartments, as to which they now did not seek any partition. The probabilities seem to us to be that the plaintiffs in this suit thought that they should allow these eighteen compartments, which were actually used for the idol and its worship, to remain joint out of religious or sentimental considerations. In any case no point about this was specifically made m the plaintiff's cross-examination. Their object seems to be that this portion which consists of the gabhara and the space in front of it, or adjoining thereto, should be kept as a place of worship for the joint enjoyment of not only the coparceners but also the public who frequented it.
15. The question now is, whether the Judge was right in allowing partition of the Harimandir, It appears from the evidence that the grandfather of defendant No. 1 established the idol in this place; and, according to the admission of defendant No. 1 himself, some samad his are also situate there. Ordinarily, according to the old Hindu law (Manu, Ch. 9, Verse 19) a place of worship is indivisible. Modern custom, however, as established by decisions of the Court to which it is unnecessary to refer, has sanctioned such partition as can be had of such property, generally by means of a performance of the duties of the office and the enjoyment of the emoluments by the coparceners in rotation. This, of course, would apply to such portion of the building as is exclusively set apart for the idol and its worship. But where the rest of the building is treated like any other joint property, rented or let out to others or used by members for their residence as in this case, there can be no objection to partition it among the coparceners, if it can be done without destroying the intrinsic value of it. In this case there was no suggestion,-and this is conceded by Mr. Coyajee-, that the building as a whole was dedicated to the idol. That being so, it must follow that if the building is an ancestral building. it is clearly particle. In the absence of dedication of the building for the worship of the family idol, the building cannot be excluded from partition merely because it is used for the idol. The Court may, however, give an option to a coparcener, willing to maintain the building as a place of worship, to buy it at a valuation. But that is not the case here, and I think the learned Judge was right in holding that the building was partible. As to the order he made that it should be partitioned by metes and bounds, I shall have to say something when I come to the decree to be made in this case.
16. This leaves in the defendants' appeal the question of limitation as regards the claim for partition of joint family properties. It is difficult, in my opinion, to see where the bar of limitation arises in this case. It is true that it was alleged in the earlier suit that a demand for partition was made in 1915 and was met with a refusal. But if the conclusion to which we have come on the evidence is correct, then it must follow that for long afterwards the status of the family was joint and the property continued to be a joint family property, and there is no evidence of any exclusion or ouster to the knowledge of the plaintiffs as regards their share in the family properties. The learned Counsel, however, did not seriously press this question.
17. Upon the whole, therefore, I think the view taken by the learned Judge on the main question is correct, and to that extent his decision must be confirmed; but I think in the circumstances of the case the decree; will have to be varied in one or two particulars.
18. Before doing so, it would be convenient to deal with the plaintiffs' appeal which is confined to the rejection of their claim as to right of service. As already stated, defendants Nos. 1 and 2 pleaded that the plaintiffs had no right to share in the worship and service of the idol or to share in any of the other observances, such as puja, kirtan and so on, and that defendant No. 1 as the son of the eldest son of the founder had alone that right by primogeniture. The learned Judge has dealt with this question in a manner which, with all respect to him, is not very happy or not easy to follow. Thus he speaks of 'primogeniture of Harimandir'. It is difficult to understand what is meant by primogeniture of a building or a temple. Primogeniture is the prerogative enjoyed by the eldest son, through law or custom, to succeed to his ancestor's inheritance in preference to his younger children. The normal state of a Hindu family is joint, and primogeniture depends upon usage or in some cases on the nature of the estate. In cases of big zemindaries and what are known as Raj, the burden of proving that they passed by primogeniture is comparatively easy to discharge, but in other cases the burden is on the party who sets up the case of primogeniture, to prove that there is a family custom by which the eldest son succeeds to the exclusion of the younger. The whole evidence in the case is that an idol was installed by the grandfather of defendant No. 1, and that is all. No custom is pleaded; no grant is alleged; and it is difficult to see where the right to take by primogeniture arises in this case.. I have already pointed out that, having regard to the circumstances which brought into existence this particular deity, the right to worship the deity would be a right common to the heirs of the first founder. That being so, the view taken by the learned Judge that 'primogeniture of Harimandir'-whatever that may mean-is established by adverse possession is clearly untenable.
19. The learned Counsel for the appellant, however, argued that whatever the origin of the deity may be, the right to worship and take part in the service of the deity being of the nature of nibandha, that is immovable property, is barred either under Article 127 or under Article 144 of the Indian Limitation Act, as, to the knowledge of the plaintiffs and their ancestors time and again the right was denied, and, on the other hand, the exclusive right of the eldest member to do the service and to do all other acts pertaining to the deity was asserted.
20. There is no clear authority that the right to perform the service and worship of an idol is nibandha. Vijnaneshwara does not define nibandha, but describes it as 'So many leaves receivable from a plantation of betel, pepper or so many nuts from an orchard of areca.' But whatever its nature, the Hindu lawgivers certainly class it! as coparcenary property. According to Yajnavalkya, it can only be created by a King, According to Viramitrodaya, it is a kind of vritti. Accordingly, it was held in Sakharam Han v. Laxmipriya Tirtha Suiami I.L.R. (1910) 34 Bom. 349 : 12 Bom. L.R. 157 that a cash allowance payable annually from the revenues of a temple was a nibandha and of the nature of immoveable property. There is authority in our Court to show that a vritti or the right to perform religious ceremonies and to receive the perquisites of that office; is a nibandha (Woman Jagannath Joshi v. Balaji Kusaji Patil I.L.R. (1889) 14 Bom. 167 The right claimed in this case seems to me to approximate to a vritti. But taking the right to be a nibandha, there does not seem to be any distinction between it and any other ordinary joint family immoveable property, except perhaps as to the capability of being partitioned by metes and bounds. Obviously such a right is incapable of being partitioned by metes and bounds. I am, however, clear that when the claim as to either joint possession or enjoyment by turns or rotation is made, the case must stand in the same way as a claim to immoveable property, and the article applicable in my opinion would be Article 127 of the Indian Limitation Act rather than Article 144.
21. The defendant must, therefore, prove either ouster to the knowledge of the plaintiffs or their ancestors for the statutory period, or adverse possession. If I am right in holding that the idol was installed by the grandfather, then, I think, the defendants will have to prove that the case comes under Article 127 of the Indian Limitation Act rather than under Article 144. There is no evidence, in my opinion, of any such exclusion or ouster. Therefore, assuming that it was the defendants alone who carried on the worship or took part in the service of the deity, that in my opinion would not be sufficient to amount to an ouster, once it is realized that in this respect this particular species of property stands on the same footing as any other joint family property. I may refer here to what Mayne on Hindu Law says (p. 674) :
Where part of the property consists of idols and places of worship, which are valuable from their endowments, or from the respect attaching to their possessor, the members; will be decreed to hold them by turns, the period of tenure being in proportion to their shares in the corpus of the property.
22. [The judgment here went into questions of fact and concluded]. In my opinion, the learned Judge was clearly in error in holding that the claim of the plaintiffs was barred by limitation or, what he calls, by adverse possession.
23. I think I have dealt with the principal points which were addressed to us by counsel. It only remains now to consider the decree which we should make.
24. In the first place, the decree actually made is in these terms :~-
Plaintiffs are entitled to one-fourth share in the properties in the plaint except Prabhakar Harimandir (No. 2). A Commissioner will be appointed to make the division. Plaintiffs' suit for service, management and jahagir is dismissed.
That is the material part of the decree. It is well established that in effecting partition between coparceners, all equities arising between them by reason of their separate holding or alienations and other circumstances have to be enforced, and partition should be made subject to such equities. I need not refer to the cases on the point, as the point seems to me to be obvious and not open to dispute. That being the position, here we have these branches in separate possession of particular properties for years together, and we think, therefore, that as far as possible in making partition, that position should be maintained and not disturbed, except in so far as it may be necessary in order to equalize the values of the shares of the various coparceners. We, therefore, direct that the Commissioner, in making the division, will, as far as possible and subject to equities, allot to the plaintiffs and defendants, other than defendants Nos. 1 and 2, the properties which are in their possession, and to defendants Nos. 1 and 2 properties which are in their possession except the Harimandir. If it is found impracticable to effect partition in that way, the Commissioner will have the power to make the division in the best manner possible for the purpose of equalizing the shares of the various parties.
25. As to the Harimandir, I have explained the position. The learned Judge's view is that Harimandir No. 1, or what is called No. 1, is clearly partible. But, in our opinion, to divide this building by metes and bounds will certainly create difficulties in the future. For instance, it would be easy for any of these contending parties,-and, as far as my experience goes, the parties after a protracted trial of this nature are not likely to follow the Biblical injunction and love their cousins-, to get an undesirable tenant, and thus affect the sacredness and reputation of the building in which an idol, which apparently seems to have been an object of respect and veneration to the population of Sholapur, is installed. In this respect I think we should follow the rule laid clown in Sachindra Kumar Goswami v. Hemchandra Goswami (1930) 35 C.W.N. 151 following the earlier decision in Rajcoomare& Dasee v. Gopal Chunder Bose I.L.R. (1878) Cal. 514. It was held there that in the absence of any dedication of a building for the worship of the family idol, the building should not be excluded from partition merely because it is used for the worship of the idol. The Court may in such a case give an option to a coparcener or coparceners willing to maintain the building as a place of worship to buy it at a valuation. I think, therefore, this is pre-eminently a case in which we should direct that this part, which is held to be partible, should be put up to sale among the coparceners and allotted to the highest bidder, with liberty to the coparceners to bid at the auction and to set off the purchase price against their share in the family properties. The ultimate purchaser will have to bind himself and his heirs to maintain the building as a place of worship and not to let it out for hire or profit but to use it only for residential purposes of his family.
26. As regards the right of worship, we set aside the order of the learned Judge by which he refused the plaintiffs' claim. The ordinary principle, which is recognized by our Court and by other Courts too in a case like this, is, that the place where an idol is situate should be kept joint, with the right of access Prabhakar to all the coparceners, and that the right of service should go to them by turns in proportion to their shares in the corpus of the property. That is Peabhakar the view taken by this Court in Mancliaram v. Pranshankm. 1 Accordingly, we direct that the parties should have the right of performing the service and all other rites and rituals by turns, in proportion to their shares, that is to say, defendant No. 2 (defendant No. 1 being dead) and Narayan between Rongmkar themselves will have six months, three months for each-, three months for Digambar's branch and three months for Narayan's branch; for Ramkrishna's branch, that is for the plaintiffs, three months; and for Hari's branch, three months, the period to commence one month from the receipt of the papers by the lower Court.
27. We express no opinion as to the rights of the parties in the jahagir or the income thereof, as it was held by the lower Court that the Court had no jurisdiction, and we accept that decision.
28. The defendants' appeal fails, and, therefore, the defendants will pay the costs of that appeal, only one set being allowed.
29. As the plaintiffs' appeal is confined to right of service, the respondents will pay half the costs of the appeal.
30. Cross-objections will be allowed. Respondents Nos. 1 and 2 must pay the -costs of the other respondents of the cross-objections.
31. I agree.