N.G. Chandavarkar, Kt., J.
1. The suit, out of which this second appeal arises, was brought by the appellant to establish his right 'as hereditary priest of the Kachhia Kunbis of the Kasba section of Surat to officiate as family priest in the family of defendant No.1'. He alleged in his plaint that, from the time of the ancestors of defendant No.1, his ancestors had continued to be their family priests and that the defendant and his ancestors had continued to recognize his own ancestors as their hereditary priests. The claim was thus one known to Hindu law as that of yajman vritti of which the learned Editors of West and Buhler's Digest on Hindu Law say (page 411, 3rd Edition): 'The right to the fees and offerings thus becoming due from particular families or classes is regarded as a family estate...a subject for inheritance and partition like other sources of income.'
2. The lower Courts, however, have negatived the appellant's claim on the ground that it involves a caste question. Their reason for so holding is shortly this. They find that the caste, to which the parties belong, had originally appointed one of the appellant's ancestors as 'the hereditary priest' of the caste, and that on that account 'the hereditary priest is removable from his office' by the caste. The learned District Judge thinks that, where a caste has conferred a hereditary office of this character, it has the right to take it away, and that the contrary proposition is 'no less repugnant to Hindu notions of the priest or any other caste officer being a servant and not a master of the caste than to English notions of liberty and of liberty of contract.' This view of the law ignores the nature of the right which is in dispute in the present case.
3. 'English notions of liberty and of liberty of contract' are out of place in a case arising under the Hindu law and custom, which from of old has recognized a kind of estate termed yajman vritti and ranked it among hereditary rights of immoveable property. Where a caste has appointed a man to a mere priestly office, there is doubtless no right of property conferred. His continuance or removal is exclusively within the competence of the caste and it is a caste question. But it is different where the office of hereditary priest is created for the performance of religious ceremonies in certain families, provided, according to Hindu law, either the caste or the families, have power to create such an office and give it the character of immoveable property.
4. In Krishnabhat Hiragange v. Kapabhat Mahalbhat (1869) 6 B.H.C.E. 137, it was said by Couch C. J.: 'In Elbe ling on Inheritance, Section 206, it is said that the right of performing the religious ceremonies of certain classes of people as Purohit, is by custom considered analogous to real property ; and in 2 Strange H. L. 363, Mr. Colebrooke says, that if an office in a family be hereditary, the dues or profits appertaining to it must be subject to be shared; but in such case it classes with immoveable. And it would seem that the classing hereditary offices with immoveable property in Section 1 of Reg. 5 of 1827 was in consequence of the custom amongst Hindus to consider them as such.' Gibbs J. in the same case pointed out, on the authority of Mr. Justice Strange, of Colebrooke, and of Elbe ling, that the office of hereditary priest is 'vritti, the same as nibandha, hereditary, and, therefore, treated as immoveable' in Hindu law; and that 'by custom these offices are considered analogous to real property.'
5. That decision of a Division Bench of this Court was considered and upheld by a Full Bench in Balvantrav T. Bapaji v. Purshotam Sidheshvar (1872) 9 B.H.C.R. 99.
6. The question, however, remains whether such an office, being in the nature of that class of immoveable property which is regarded as nibandha by Hindu lawyers, can be created except by a grant from the King. That question would appear to have been raised before, but was not decided by, a Full Bench of this Court, in The Collector of Thana v. Hari Sitaram ILR (1882) 6 Bom. 546. The Full Bench said (page 559 of the report): 'The Hindu authorities, which we have quoted, seem to show that a pension or other periodical payment or allowance granted in permanence is nibandha, whether secured on land or not. Some of them favour the supposition that a private individual as well as a royal personage may create a nibandha. Whether that view is sustainable is a question on which we do not intend to give any opinion, such being unnecessary.'
7. The question arises because of a certain gloss of Vijnaneshwara in the Mitakshara on a smriti of Yajnayavalkya, which is translated into English at page 555 of the report of the said Full Bench case. The smriti prescribes the mode in which the King must make grants of land or corrody (nibandha), if they are to be legal. Vijnaneshwara's gloss explains the meaning of nibandha and he then adds :--'This,' i. e., the smriti in question, 'indicates that a King alone can grant land or nibandha, not the governor of a town or province:' (the Mitakshara, Moghe's 3rd Edition, page 94).
8. Vijnaneshwara in this gloss was merely contrasting the power of the King with that of his deputy, not with the power of any subject of the King to carve out of his private estate any immovable property in the nature of nibandha by agreement or custom. Nilakantha in his Vyavahara Mayukha defines nibandha '(corrody) as what is given by the King & c. out of the produce of a mine and the like' : (Mandlik's Hindu Law, page 19). This would show that, in Nilakantha's opinion, it is not the King only who can make a grant of nibandha. That seems to be also the view of the Smriti Chandrika (T. Krishnaswamy Iyer's Edition, No. 2, page 98, para 18).
9. However that be, the office of hereditary priest with reference to a locality, community, caste, or family, is a creature of custom, according to Hindu law, not the result of a grant. There is no authority, so far as we are aware, for the proposition that to be valid and legal it must have had its origin in a grant from the King. In his Digest, Vol. I, page 377, Colebrooke cites certain texts and the glosses of commentators which bear on this subject. The texts divide 'officiating priest' into three classes, of which the first is 'an hereditary priest.' This class, it is further pointed out there, arises not in virtue of agreement, but from custom. 'It is the custom that he, whom the father called to all solemn rites, should officiate also for the son'; and 'here proof must be brought from practice.' At p. 377 we read:--'On this subject it is said the usage is ascertained, as implied by this text: thus by saying: ' Be my priest' (or purohita), he is fully appointed to be priest of the family for a long space of time; and, whatever be implied, the priest so appointed by the father shall not be forsaken by the son, unless he be guilty of some offence. This, virtually, is the sense of the text.' Further on it is said:--'If the sacrifice have been uninterruptedly performed by father and son, as family priest, without an express appointment in this form: 'Be my family priest,' what is the consequence Even in this case, the law concerning hereditary priests is apposite, since such an appointment of father and son is admitted by implication.'
10. It follows from these texts and commentaries cited by Colebrooke that the office of hereditary priest, where it is held in relation to a family, owes its origin, continuance, and binding character, to custom, not to a grant or agreement. And that conclusion was adopted by this Court in Krishnabhat Hiragange v. Kapabhat Mahalbhat (1869) 6 B.H.C.R. 137.
11. In the present case it is found by the Courts below that the hereditary office of family priest was vested in the plaintiff's family by the caste to which the parties belong about 150 years ago and that the plaintiff's family has held the office with reference to the defendant's family during that period. The lower appellate Court has, however, held that the plaintiff's claim raises a caste question which is outside the jurisdiction of a Civil Court. That view of the claim gives the go-by to the essential nature of the office and the right attached to it by custom. If the office is one of hereditary family priest, the mere fact that in any individual case it had been created originally by the caste for the purposes of families belonging to it cannot affect it, because the office carried with it a hereditary right in the nature of property, and the incumbent could not be deprived of it by any one, unless he had become a patita (outcaste) or had declined to officiate. The caste in such a case made the selection for the families of its members; and when any family accepted the officiator as its hereditary family priest, custom annexed to the office certain incidents in the nature of civil rights as against the family, which neither the family nor the caste has power to annul except on the ground of some offence under the Hindu law committed by the officiator, or of refusal by the officiator to discharge his duty as family priest.
12. This conclusion is supported by the result of the litigation between the ancestors of the parties to the present suit, once in 1818 and the second time in 1834. In the litigation of 1818 the Court consulted a Shastri and his opinion was as. follows (see Exhibit 93)--'If there be 13 Tads in a caste, and if each Tad has its separate hereditary priest, the men of the Tad, even if they wish, have no right to remove that priest, so long as he has not become Patita (fallen from virtue, an out-caste), neither can he be removed by the men of the 13 Tads. 'The Court, acting on that reply, decided in favour of the present plaintiff's ancestor's right as hereditary priest. To the same effect was the decision in 1834. That was by the Sudder Divani Adalut in Special Appeal No. 608 of 1834 (see Exhibit 49). That decision also was arrived at after consulting a Shastri. Reference can also be made to the case of Ramasawmi Aiyan v. Venkata Achari (1863) 9 M.I.A. 348 and to the practice on this side of India indicated in the case of Dinanath Abaji v. Sadashiv ILR (1878) 3 Bom. 9.
13. We may point out that any other view would be disastrous to Hindu society as it is constituted. Hereditary priesthood vested in particular families is regarded as vritti or immoveable property which is the source of their maintenance. Such families have for generations lived on these vrittis; and to turn them adrift now on the ground that their castes can take away their hereditary rights would be not only contrary to the nature of the right, created by custom, but it would amount to spoliation. It is virtually telling these hereditary priests that they must hereafter live on some other property than that on which they have lived as their Vatan, so to say, for generations, and that their ancestors were badly advised in turning their families into an hereditary priesthood for their maintenance in reliance on their castes. To the enlightened sentiment of the present day it does indeed seem unfair and oppressive that a man should be compelled by law to receive religious ministrations from another person who is not of his choice, and that simply because that has been the course of the relations of the families of both for generations on the ground of hereditary rights. But if a Hindu wishes to remain a Hindu and have the benefit of his religion, he must take its burden also, when that burden is annexed to the benefit by Hindu law on the ground of custom.
14. The plaintiff's families have been found in this case to have officiated as hereditary priests of defendant's family for at least one hundred and fifty years. According to Hindu law, long enjoyment of property--either for one hundred years or from grand-father to grandson--is conclusive evidence of a legal right when its origin cannot be ascertained (see Mitakshara, Moghe's Edition, 3rd, pages 128 and 129). Here the hereditary office concerned is immoveable property, according to Hindu law. The plaintiff is, therefore, entitled to succeed.
15. The decree is reversed and the claim awarded with costs throughout on the respondents.