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Shankar Sadashiv Kulkarni Vs. Malhar Shankar Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1006 of 1927
Judge
Reported in(1931)33BOMLR479
AppellantShankar Sadashiv Kulkarni
RespondentMalhar Shankar Kulkarni
DispositionAppeal dismissed
Excerpt:
.....or gratuities.;at a certain village fairs were irregularly held, and to meet the expenses of the fair voluntary subscriptions were raised. out of the moneys so raised certain payments used to be made to watandars of the village. the officiating watandar having sued to recover his share of payment:--;the suit not having been of a civil nature could not be entertained by the civil court under section 9 of the civil procedure code, inasmuch as the plaintiff did not hold any recognized office to which remuneration was attached, by custom for performance of services. - - 1. this was a suit brought by the plaintiff for a declaration that he was entitled to receive and enjoy certain haks and babs described in the plaint on the last lakshmi fair and for rs. 7. the plaintiff brought the suit..........he was entitled to receive and enjoy the haks and babs described in the plaint at the last lakshmi fair held at sankeshwar in july 1921. he also prayed for rs. 200 by way of damages from defendant no. 1, who had received and enjoyed the haks and babs in question, and for an injunction against the defendant restraining him from enjoying one of these particular rights.8. the lakshmi fair, it appears, is held at irregular intervals in sankeshwar, the expenses are met by voluntary subscriptions collected from the villagers and on the occasion of the fair certain payments in cash and kind are made to all watandars in the village, the patil, kulkarni, sutar, mugdum, chaulgya, talwar, tashildar, mahar, etc. the plaintiff has an eight annas share in the kulkarni watan. he was officiating as.....
Judgment:

Patkar, J.

1. This was a suit brought by the plaintiff for a declaration that he was entitled to receive and enjoy certain haks and babs described in the plaint on the last Lakshmi fair and for Rs. 200 as damages from defendant No, 1 and for an injunction against defendant No. 1 restraining him from receiving the bab mentioned in para, (g) of the plaint.

2. The learned Subordinate Judge held that at the last seven fairs it was the varshildar Kulkarni who all along received the plaint haks and babs and that the vahiwat or custom set up by the plaintiff was established. He, therefore, awarded the plaintiff's claim to the extent of Rs. 22 on account of the perquisites unauthorizedly received by defendant No. 1 at the last fair.

3. On appeal, the learned Assistant Judge raised an issue which was not raised before the Subordinate Judge as to whether the civil Court had jurisdiction to entertain the suit. The learned Assistant Judge hold that certain payments were to be made to the watandars of the village such as the Patil, Kulkarni, Sutar, Mugdum, Chaulgya, Talwar, Tashildar and Mahar and also the Inamdar as they were dignitories in the village, and that as the payments in kind and cash were not fees attached to the plaintiff's office as Kulkarni and were merely gratuities, he came to the conclusion that the civil Court had no jurisdiction to entertain the suit. It was not contended before the lower Court that the issue ought not to have been raised in appeal, nor was any application made to the District Court that the plaintiff was taken by surprise and that he ought to have been allowed an opportunity to lead any evidence on the new point raised in appeal.

4. The only question, therefore, arising in the second appeal is whether the civil Court has jurisdiction to entertain the present suit. As regards relief's (c), (d) and (f) the plaintiff has admitted that he has claimed compensation for loss of honour. The suit would not be maintainable to vindicate the plaintiff's right not to an office but to a mere dignity unconnected with any fees, profits or emoluments. See Sangapa bin Badingapa v. Gangapa bin Niranjapa ILR (1878) 2 Bom. 476, Rama v. Shivram ILR (1882) 6 Bom. 116, and Karuppa v. Kolanihayan ILR (1883) Mad. 91. As regards the relief's (a), (b) and (g) the learned Assistant Judge has made a distinction between fees attached to the office and voluntary payments. In Shankara bin Marabasapa v. Hanma bin Bhima ILR (1877) 2 Bom. 470, where the plaintiff was the hereditary holder of the office of chalvadi, or bearer, on public occasions, of the insignia or symbols of the Lingayat caste, an office to which no fees as of right were appurtenant, but he received voluntary gratuities, it was held in a suit brought by him against an intruder that the action would not lie as it was for gratuities and not for fees attached to an office. A similar view was taken in Narayan Vithe Parab v. Krishnaji Sadashiv ILR (1885) 10 Bom. 233, where it was held that trifling gifts could not be regarded as emoluments being merely symbols of recognition and marks of respect of and to the holders of the mans. In Kasamkhan v. Kaji Isub (1925) 28 Bom. L.R. 60 it was held that a suit to establish a claim to perform the Urus ceremonies and manage the offerings thereat before a darga is a suit of a civil nature and can be entertained by a civil Court. Fawcett J. in the course of the judgment observed that there is no sufficient ground for a distinction between fees and voluntary offerings apart from the case where the rightful owner of an office is suing the usurper to recover fees for ceremonies performed by the latter. The case, however, related to the voluntary offerings received by the plaintiff who as a Mujawar of the shrine held an office connected with the religious endowment. In Sakharam v. Ganu (1920) 23 Bom. L.R. 125 it was held that though the offerings may be uncertain and voluntary, yet when made to a particular deity, they are the property of a temple and can be subject-matter of a civil suit. In Madhusudan Parvat v. Shri Shankaracharya ILR (1908) 33 Bom. 278, 11 Bom. L.R. 68 a distinction is made between fixed and certain emoluments to an office and voluntary offerings in the nature of fluctuating attached gratuities. In Bashiakar v. Thatha Chariar (1910) 20 M.L.J. 530 it was held that a suit for a declaration that the plaintiffs are entitled to recite stotrams in the Conjeevaram temple and for an injunction restraining the Tengalias from interfering with their stotrapatham is cognizable by the civil Court. The case related to an office connected with a temple. Some of the observations in the judgment support the plaintiff's claim. It was held in that case that when voluntary offerings have been actually contributed, the refusal of a person's right to participate in the funds causes damage which is a natural consequence of the refusal and the Courts are entitled to award damages in such cases.

5. We think, therefore, that the distinction drawn by the lower appellate Court between fees and voluntary offerings does not really subsist in connection with a recognized office to which remuneration is attached for performance of services. In the case of a religious office in a temple the remuneration rarely consists of fixed and certain fees and is generally in the shape of voluntary offerings or gratuities. The principal question arising in the case is whether the plaintiff in the present case held any recognized office to which remuneration is attached by custom for performance of services in connection with the fair or with the temple. The fairs are held irregularly at no fixed periods and voluntary subscriptions are raised in order to meet the expenses of the fair, and certain payments according to the finding of the lower appellate Court are made to the watandars of the village and the Inamdars of the village. It appears, therefore, that these payments are haks or babs paid to the dignitories of the village apart from their performing any function at the fair or at the temple. There does not seem to be any office in connection with which these babs or haks are paid to the watandars or the other important persons in the village. We think, therefore, that the lower appellate Court was right in holding that the civil Court had no jurisdiction to decide the case.

6. We would, therefore, dismiss the appeal with costs.

Broomfield, J.

7. The plaintiff brought the suit which has given rise to this appeal for a declaration that he was entitled to receive and enjoy the haks and babs described in the plaint at the last Lakshmi fair held at Sankeshwar in July 1921. He also prayed for Rs. 200 by way of damages from defendant No. 1, who had received and enjoyed the haks and babs in question, and for an injunction against the defendant restraining him from enjoying one of these particular rights.

8. The Lakshmi fair, it appears, is held at irregular intervals in Sankeshwar, The expenses are met by voluntary subscriptions collected from the villagers and on the occasion of the fair certain payments in cash and kind are made to all watandars in the village, the Patil, Kulkarni, Sutar, Mugdum, Chaulgya, Talwar, Tashildar, Mahar, etc. The plaintiff has an eight annas share in the Kulkarni watan. He was officiating as Kulkarni at the time of the fair, and he, therefore, claimed the haks and babs belonging to the Kulkarni. What these haks and babs are or are alleged to be is set out in the plaint. They consist of the following items:--

(a) Shidha consisting of rice, wheat, gram, pulse, jaggery and other minor food stuffs,

(b) Rs. 1-8-0 on account of costs of oil baths by suvasinis.

(c) Right to offer clothes to the god Ingloba.

(d) Right to offer naivedya to Lakshmi in Bushal temple.

(e) Right to offer sacred rice to Lakshmi.

(f) Right to sacrifice a sheep.

(g) Right to accept the clothes of Ingloba after the image of Lakshmi is carried to Kolalguth.

9. The claim to the right specified in Clause (e) was subsequently given up.

10. Defendant No. 1 in the case has a four annas share in the Kulkarni watan and he claimed these rights for himself on the ground that he was the varshildar Kulkarni, that is to say, the Kulkarni who, according to custom, was to be regarded as the officiating Kulkarni for the purposes of the fair.

11. The trial Court decreed the suit so far as the declaration and injunction are concerned and awarded the plaintiff Rs. 22 as damages, that being the estimated value of the haks (a) and (b) in the plaint. The plaintiff had admitted in his deposition that he had not suffered material damage by reason of his non-enjoyment of the other haks. Only one point was raised in the appeal before the Assistant Judge. He upheld the contention raised on the defendant's behalf that the suit was not of a civil nature and accordingly dismissed the plaintiff's suit.

12. Whether the suit is one of a civil nature or not is the only point before us in this second appeal. The ground for the Assistant Judge's decision was that the payments made to the Kulkarni on the occasion of this fair are not fees attached to the office of Kulkarni but are of the nature of gratuities. The learned Judge relied on a decision in Muddun Mohun Ghossal v. Nuboram Chuckerbutty (1865) 2 W.R. 69, where it was held that no suit will lie for recovery of voluntary offerings if that suit is based on custom and not contract. In Kasamkhan v. Kaji Isub (1925) 28 Bom. L.R. 60, Fawcett J. doubted whether the distinction between voluntary payments and regular fees can be drawn in the case of fees and offerings which are attached to an office. But in the present case it can hardly be said that the Kulkarni of the village, any more than the Sutar or the Mahar, has anything to do with this religious fair by virtue of his holding the office of Kulkarni, and the proposition that this suit cannot lie, if it be held that the payments are voluntary payments, was not, at first at any rate, disputed by Mr. Bakhale for the appellant. The question whether the payments made to the watandars are voluntary or not seems prima facie to be a question of fact. Mr. Bakhale has argued that the Assistant Judge has drawn wrong inferences from the proved facts, the facts relied on by the learned Judge being that the fair is not held at fixed intervals or on a particular holiday, that it rests entirely on the sweet will of the villagers to settle the date of holding it, and that the expenses are defrayed not from a fund set apart for the purpose but from the amount raised by voluntary contributions. It has been urged that a right to the haks and babs in question ought to be presumed from the ancient custom dating from the year 1754 A.D. It is true that the ordinary test, namely, whether the Hakdar could recover these payments if they were withheld, is impossible of application, because so far as we know the payments never have been withheld. But as it is admitted that the villagers are not bound to subscribe, it would perhaps be rather far-fetched to hold that once they have subscribed, the fees must as of right be distributed in a particular manner, It seems to be rather doubtful, therefore, whether there is any sufficient reason for us to interfere in second appeal with the Assistant Judge's finding that the payments are voluntary payments. On the other hand, the defendant himself did not allege at the hearing of the suit that the payments were voluntary, and defendants Nos. 2 to 7 in the case, who are managers of the fair, admitted the plaintiff's claim.

13. The question whether a suit lies in a case of this kind is one of some difficulty, as is pointed out in Mulla's Commentary on Section 9 of the Civil Procedure Code. There is a mass of decisions on the subject which are by no means easy to reconcile. But, on the whole, I agree with my learned brother that the proper way of dealing with this rather peculiar case is to apply the principle of such cases as Shankara bin Marabasapa v. Hanma bin Bhima ILR (1877) 2 Bom. 470 and Narayan Vithe Parab v. Krishnaji Sadashiv ILR (1885) 10 Bom. 233, that is to say, that a suit does not lie for the vindication of a mere dignity as distinguished from rights or honours or emoluments attached to an office by way of remuneration for services performed. It is true that in Narayan v. Krishnaji, at any rate, the hake and babs in question were less valuable than those with which we are concerned in the present case. It is not easy to draw a line between perquisites which are substantial enough to be called emoluments and those which are not. In Kali Kanta Surma v. Gouri Prosad Surma Bardeuri ILR (1890) Cal. 908 it was held that a suit claiming a right to regular offerings made out of the funds of a temple which are of a substantial value as emoluments is a suit of a civil nature. But in that case the offerings consisted of certain goats which were sacrificed regularly on the fourth day of every month. That being so, the Court held that they were of substantial value as emoluments and not merely tokens of dignity and on that ground the decision in Narayan v. Krishnaji was distinguished.

14. In the present case, the plaintiff has stated in the course of his deposition, Exhibit 68, as follows:-- 'The articles mentioned in paras, (a) and (b) of the plaint are worth in all Rs. 22. I did not suffer any material damage with respect to what has been mentioned in the other paras of the plaint. I have claimed Rs. 178 more by way of compensation for the loss of honour. 'So far as the haks here claimed, therefore, are concerned, with the exception of those mentioned in paras, (a) and (b) of the plaint, it is clear from the plaintiff's own admission that the case is precisely similar to the one dealt with in Narayan v. Krishnaji, and as regards those particular haks, as they are worth no more than Rs. 22 and are to be enjoyed at a fair which is held at intervals of not less than six and sometimes as long as thirty-two years, they may reasonably be described as trifling and as no more than 'dignities' or 'symbols of recognition', to quote the words used in Narayan v. Krishnaji, that is merely marks of respect to the persons holding hereditary offices in the village.

15. At the close of his argument the learned advocate for the appellant referred to the case of Bashiakar v. Thatha Chariar (1910) 20 M.L.J. 530, where it was held that, though damages cannot be awarded when the offerings are voluntary, when once the voluntary offerings are contributed and the refusal of a person's right to participate in the fund causes damage, the Court will be entitled to award damages. Although this case may be said to lend a certain amount of support to the appellant's contention, I do not consider that it is necessarily inconsistent with the Bombay decisions to which I have referred, and in any ease it was a suit for a declaration that the plaintiffs there were entitled to a certain office in connection with the temple. The question of the right to the voluntary offerings arose incidentally, There is no dispute that the claim to an office is cognizable by the civil Courts, and the case cited can be distinguished on that ground.

16. I agree that the appeal should be dismissed with costs.


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